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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Moore, Len --- "The Queen v Carlton James Winmar (Repelling the Pulyarts - cultural clash and criminal responsibility)" [1990] AboriginalLawB 44; (1990) 1(46) Aboriginal Law Bulletin 17


The Queen v Carlton James Winmar

Repelling the Pulyarts - cultural clash and criminal responsibility

District Court of Western Australia: Keall J

17th August 1990

Casenote by Len Moore

In February 1989, at the height of summer, a West Australian Aboriginal, Carlton James Winmar was travelling late at night along country roads in the South West with his partner and their child. Their car bogged and they headed for Porongorup on foot.

Winmar said that as they walked he heard noises in the bushes like twigs snapping. He believed they were made by Pulyarts, evil spirits with supernatural powers and which sometimes take a child but arc afraid of light and fire. To ward off the Pulyarts, Winmar set fire to a kilometre of scrub at the roadside thinking it would burn out. The fire got away, burned some hectares of farm land and it took sixteen hours for fire fighters to put it out.

Under the Bushfires Act WA 1954 -

81 a total ban applies to lighting running fires between 15 December and 31 March. No burning is permitted when there is a very high or extreme fire danger. Between November and April only small heaps of refuse may be burned, after 6pm and with a permit issued from the local Shire Office.

Winmar was charged in the District Court with unlawfully setting fire to land for which the maximum penalty is 14 years gaol.

Judge Keall accepted that Winmar's fears were genuine and based on Aboriginal belief that the Pulyarts had come to steal the child. Winmar's actions had arisen from the urge to protect it and he had not intended to cause serious damage. His awareness of the danger of bushfire had been over-ridden by his fear of the Pulyarts and the consequent risk to his child.

Judge Keall said that firelighting was a serious offence when fire fighters' lives were put at risk and landowners' property was damaged. The judge said he respected Aboriginal law and culture but had to deal with Winmar according to established principles. He imposed 200 hours community service and a two year probation order.

The case highlights a clash between traditional beliefs and the non-Aboriginal legal system as it applies in Western Australia. In its cultural context, fear of Pulyarts and belief in their power, Winmar's action was not only a rational response but a permissible defence. He was using reasonable force to defend his child and protect it against possible harm the more so while they were alone on a country road and far from help.

Of course, the person in hazard and seeking a means of self defence has neither the time nor the inclination to go seeking a permit. Winmar was looking for a practical method of defending the child and, given the propensities of Pulyarts, starting a fire was probably the most efficacious. In so doing he committed a statutory offence to which absence of mens rea is not a defence. Once he admitted lighting the fire conviction was certain.

In passing sentence his Honour conceded the validity of the beliefs that prompted Winmar's action. Then he applied the principles of sentencing that would have applied to a non-Aboriginal who had done the same. There remains unresolved the issue whether the West Australian criminal law might come to accommodate the cultural beliefs of those whose acts arc impelled by deeply-felt belief in supernatural forces not yet recognised by the majority.


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