Huntsman, Caroline --- "Binge and Ors v Bennet and Anor" [1989] AboriginalLawB 42; (1989) 1(39) Aboriginal Law Bulletin 17

• Binge And Ors V Bennet And Anor
• Racial Tension In Goondiwindi
• Conditions In Queensland Watchhouses And Gaols
• Adverse Publicity

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Binge and Ors v Bennet and Anor

Binge and Ors v Bennet and Anor

New South Wales Supreme Court, Samrt J

2 August 1989

Casenote by Caroline Huntsman

The plaintiffs, 16 Aborigines, appealed against a Moree Magistrate's order that they should be extradited from NSW to Goondiwindi in Queensland to face a committal hearing in relation to riot charges under Queensland's Criminal Code. The plaintiffs based their appeal primarily on s18(6)(c) of the Service and Execution of Process Act (Cth) which enables a magistrate to refuse to return a person interstate if it would be "unjust or oppressive" to do so. The plaintiffs appealed to the Supreme Court which confirmed the Magistrate's order, refusing to admit most of the evidence which they sought to lead in support of their case. They then appealed to the NSW Court of Appeal which ordered that there should be a retrial before a judge of the Supreme Court who should deal with the evidence to be presented by the plaintiffs.

Smart J found that it would be unjust or oppressive to return the plaintiffs to Queensland and accordingly quashed the Magistrate's order. He adopted Mahoney J's definition of "unjust or oppressive" which does not exclude matters "going to the nature and incidents of the justice system to which the person in question is to be returned or to the circumstances or mode of his treatment pending trial in that system" (Binge v Bennet (1988) 13 NSWLR at 596). In accordance with Olssen J in Perry v Lean & Anor 63 ACR 407 at 427-428, Smart J also found that "unjust" and "oppressive" between them covered all cases where to return the accused would, in the whole of the circumstances, simply not be fair.

Racial Tension in Goondiwindi

The plaintiffs presented evidence to show the history of racial tension in Goondiwindi. Former pupils and teachers at Goondiwindi High School supported the view that Aboriginal pupils were "subjected to offensive and racist remarks and attitudes from some white pupils and teachers." Smart J found that "such attitudes were, regrettably, widespread." Evidence from persons such as a former parish priest from the area and a Uniting Church minister in Goondiwindi, that widespread racist attitudes pervaded many aspects of the town's life, was not challenged.

Conditions in Queensland Watchhouses and Gaols

The plaintiffs submitted that the conditions in Queensland watchhouses and gaols are inhumane; that Aborigines are often treated less favourably than non-Aborigines; and that discretionary powers were used to delay provision of necessities such as clothes and medication to Aboriginal prisoners. Smart J held that

the discretionary nature of both medical supervision and general supervision of watchhouses places Aboriginal prisoners there at special risk ... The treatment of Aboriginal prisoners in watchhouses leaves much to be desired. I hesitate to countenance any Aboriginal prisoner being confined in a watchhouse in Brisbane and the surrounding districts (pp 33, 34).

Evidence was led as to conditions pertaining in the area of Brisbane Gaol, known as "the cages" which .,are reminiscent of a dog pound" (p 36) and are used for public solitary confinement. A large number of Aboriginal prisoners are confined in these cages.

Smart J found that there was evidence that Aborigines are treated differently in prisons. "They are subject to racial slurs from the warders who are supposed to guard them and possibly assist in their rehabilitation." (p38). Smart J adopted the view of McHugh J that "the Queensland court system can do little to protect the appellants against the alleged abuse in the Queensland prison system." (Binge v Bennet at 599).

Smart J held that

The conditions under which the plaintiffs are likely to be imprisoned, if convicted, are so intolerable as to be oppressive and the Queensland prison system as administered would also be oppressive to the plaintiffs (p 39).

Adverse Publicity

Smart J heard evidence pertaining to the extensive negative press coverage of the events, including the Queensland Premier's and Minister McKechnie's public statements that the "offenders" should be made an example of and gaoled, Police Minister Gunn's statement that the "attacks" were premeditated, and Minister Katter's adverse public comments. Smart J found that

The Goondiwindi publicity was so extensive and virulent as to make a fair trial in Goondiwindi virtually impossible (p12).

Smart considered the alternative of a change of venue; but considered that because of the publicity at ministerial level a fair trial could not be had in Queensland.

Smart J concluded that

No directions, however elaborate, from a trial judge to a jury to decide the case solely on the evidence given in the Court and to disregard all that they had read or heard outside the Court would be an effective counter to the prejudice which has been created and which has been pervasive.

He found that in the whole of the circumstances it would be unjust and oppressive to return the plaintiffs to Queensland.

The Queensland Government has applied to the High Court for special leave to appeal in respect of the whole judgement, or in lieu application to the Supreme Court also with respect to the whole judgement.