Keall, R.D. --- "Letter to the Editors -- by W.A District Court Justice Keall about the Case of Winmar" [1991] AboriginalLawB 15; (1991) 1(49) Aboriginal Law Bulletin 23

• Letter To The Editors – By W.a District Court Justice Keall About The Case Of Winmar

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Letter to the Editors – by W.A District Court Justice Keall about the Case of Winmar

Dear Sir/Madam

Your report of the case of Carlton James Winmar ([1990] AboriginalLB 44; 2(46)pg14) contains several inaccuracies which your readers may be interested in having corrected.

The report implies the Winmar was charged with an offence against the Bushfires Act 1954 (WA). That is not so. The offence with which he was charged and of which he was convicted was that of wilfully and unlawfully setting fire to vegetation contrary to s.447(c) of the Criminal Code 1913 (WA), carrying as your report correctly stated, a maximum penalty of 14 years’ imprisonment. (The provision referred to has since been repealed and re-enacted.)

It was stated in the report: “Once he admitted lighting the fire conviction was certain.” This implies there was a trial, whereas Winmar was convicted on his own plea of guilty.

While it is true that I did say that Winmar had to be dealt with according to the same sentencing principles as applied to all members of the community, applying authorities such as Neal [1982] HCA 55; (1982) 149 C.L.R. 305 at 326 and Rogers & Murray (1989) 44 A Crim R at 307, I went on to say, in accordance with those authorities-

But it is legitimate for your traditional beliefs and special circumstances arising from your membership of the Aboriginal race to be taken into account in the sentencing process.

I agree that the issue of whether the criminal law can accommodate cultural beliefs which may impel a person to act in a particular way was not resolved. It is an interesting question whether in such circumstances a person could be absolved from criminal responsibility because of having acted independently of the exercise of his will within s.23 of the Criminal Code (or, at common law, involuntarily). That is an issue which simply did not arise in the instant case because, by his plea of guilty, Winmar must be taken to have admitted that his setting fire to the bush was a willed (or voluntary) act.

R.D. Keall

Justice Keall of the District Court of Western Australia decided this case.