Flood, Sean --- "Regina v Leeton James Jacky" [1993] AboriginalLawB 37; (1993) 3(63) Aboriginal Law Bulletin 19

• Regina V Leeton James Jacky

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Regina v Leeton James Jacky

Supreme Court of New South Wales - Criminal Division

Campbell J

10th June, 1993, Unreported.

by Sean Flood

On 5th May, 1993, at Newcastle, Leeton Jacky was indicted for murder. Upon his arraignment, he pleaded that the Court had no jurisdiction to try him. It was argued by Counsel that it was not inappropriate in the light of Mabo and in the International Year of the World's Indigenous Peoples for a challenge to be made to the Court's jurisdiction to try an Aborigine.

It was accepted in argument that, prior to the decision in Mabo v The State of Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1, the decision of the Full Court of the New South Wales Supreme Court in R v Murrell (1836) 1 Legge 72 was authority binding upon the judge for the proposition that the Court had jurisdiction to try Aborigines. In his judgment, Campbell J stated:

"For the reasons stated by Rath J in R v Wedge (1976) 1 NSWLR 581 at 586, I am bound by the decision in Murrell unless Mabo has expressly overruled that decision or, perhaps, the reasoning of the High Court clearly overrules the earlier decision.

It is convenient to say, before turning to that question, that Wedge is directly in point on the matter of jurisdiction, involving, as it did, a charge of murder against an Aborigine, and I consider that I should follow Rath J’s decision unless it is clearly inconsistent with Mabo. It is common ground that Mabo does not expressly overrule Murrell, and I am of the view that the reasoning in the judgments does not impliedly do so. For example, in the judgment of Deane and Gaudron JJ it is said at 80:

"It follows that, once the establishment of the Colony was completed on 7 February 1788, the English common law, adapted to meet the circumstances of the new Colony, automatically applied throughout the whole of the Colony as the domestic law except to the extent (if at all) that the act of State establishing the Colony overrode it. Thereafter, within the Colony, both the Crown and its subjects, old and new, were bound by that common law."

(The emphasis is mine.)

It is my opinion that I remain bound by Murrell to hold this Court had jurisdiction to deal with the charge against the accused. Further, I would, on authority and principle, take the same view were I not so bound."

After the judge delivered his ruling, Mr. Jacky submitted to the Court and pleaded guilty to manslaughter.

The only support for the argument that the Court did not have jurisdiction to try Aborigines for crimes was a decision of Justice Willis in 1841. A Mr. Bonjon who had been accused of the murder of another Aborigine was arraigned before Willis J. In a judgment which was reported in the local press by a harassed newspaper reporter who claimed that the judgment "occupied nearly three hours in reading", Willis J concluded that Aborigines were not amenable to the jurisdiction of the Supreme Court for crimes of violence committed on each other. (See Aborigines and the Law, Essays in Memory of Elizabeth Eggleston, edited by Peter Hanks and Brian Keon-Cohen; George Allen and Unwin; Chapter 1: "Settlement and Sovereignty".)

The unfortunate justice Willis, a man ahead of his time, was removed from office because he had upset Chief Justice Dowling by the expression of his view in Bonjon.

There can be little doubt that the Mabo decisions have not changed the rule for any inhabitants of Australia; unless nation states evolve in the future, all inhabitants are justicable by the civil and criminal courts. (A more detailed analysis of Mabo and the criminal law is contained in Flood, S., Mabo: a Symbol of Sharing: see Update on p.3 of this issue.) On sentence, justice Campbell acknowledged those matters which related to the fact that Mr. Jacky is an Aborigine:

"Here we have a situation in which the deceased was killed following an extremely provocative act towards the prisoner whilst he was intoxicated but not engaging in any aggressive or irresponsible behaviour merely sleeping off his intoxication.

In a detailed judgment, Wood J in the matter of R v Stanley Edward Fernando, [Unreported 13 March 1992: see AboriginalLB 55/19] set out certain principles concerning the sentencing of Aborigines. Counsel before me agreed that they are relevant principles, having application to at least some aspects of this matter, although some of them relate more directly to offences within the Aboriginal community itself.

In my view two of those principles are of particular relevance to the present case. First, the same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or his membership of an ethnic or other group, but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender's membership of such a group. Second, the relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the the offender.

Bearing these principles in mind, it seems to me that I should take care to ensure that the fact that the prisoner was where he was and in the condition of intoxication that he was, should not have an effect adverse to him. Second, I should have regard to the circumstance that on the evidence before me, being subjected to a sexual assault of this type is particularly shaming and demeaning to a man such as the prisoner. And third, I should, in considering the prisoner's criminal history, bear in mind that some of the significant matters involve an interaction between the abuse of alcohol and violence which, as Wood J points out, to a significant degree go hand in hand in Aboriginal communities."

Mr Jacky was sentenced to a minimum term of 2 years 6 months and an additional terms of 2 years 6 months.