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Supreme Court of the Northern Territory, Martin CJ
SCC No. 46 of 1993
by George Zdenkowski
The recognition of Aboriginal customary punishment by the general legal system is well established.[1] However, the legal and policy implications of such recognition raise a nwnber of unresolved issues, highlighted in a recent decision.
In The Queen v Wilson Jagamara Walker,[2] the Northern Territory Supreme Court reduced the penalty it would have imposed on a person convicted of manslaughter because of the expectation that he would receive customary punishment (traditional 'payback' by spearing in the thigh) for his crime.
Facts: The defendant was a 23 year old Aboriginal man who had lived in the Yuendumu area all his life. He was unemployed and had little formal education. He was separated from his wife and had one child. He had one prior conviction for assault. There was violent friction between two Aboriginal groups - The Frys and the Walkers. The defendant was a member of the latter group. The victim was a member of the Fry group.
There had been a series of fight between the groups. On the date the death occurred - 25 January 1993 - both groups had consumed considerable quantities of alcohol near the Todd River in Alice Springs.
The defendant was on his way home when he heard a call for help from one of the Walkers who was being attacked by some of the Frys. The defendant went to his aid and killed the deceased (one of the assailants) when he stabbed him near the neck.
The defendant was charged with murder and pleaded not guilty. After 4 days of evidence at the trial he pleaded guilty to manslaughter.
The ruling: Martin CJ imposed a sentence of 3 years imprisonment backdated to 27 May 1993 for the purposes of taking into account the 9 months which the defendant had already served in custody. He suspended the sentence forthwith upon the entry by the defendant into a 2 year good behaviour bond on his own recognisance in the sum of $1000. It was a condition of the bond that the defendant return to Yunendumu forthwith and that he be subject to the supervision of the Director of Correctional Services and opey all reasonable directions.
In his remarks on sentence Martin CJ stressed that the use of weapons was to be deplored and that the courts would continue to regard this as an aggravating factor in sentencing offenders. However the Chief Justice recognised and took into account the powerful mitigating factors operating in the defendant's favour. These included:
Payback: Martin -CJ emphasised that when the issue of pay-back is raised, the court will require evidence about it.
Grant Jababunga Granites gave evidence that the defendant would be likely to suffer a form of pay-back when he was available to the relevant community. Mr Granites advised that two other people involved in the fight (but not the subject of any charge) had already suffered payback at Yuendumu.
Chief Justice Martin described the likely tribal punishment as follows:
when you return to Yuendumu, you will be called upon to face tribal punishment ... by getting speared in each of your legs a couple of times in such a way that you will be pained for at least a couple of weeks ... A hunting spear would be used. The punishment would be administered by the brother of the dead man, that is by Kevin Fry. It would be done publicly; people will know that it has been done. Medical attention will be available if required.[3]
Chief Justice Martin drew attention to the assurance by Mr Granites that such payback would heal the rift between the communities.
His Honour was also at pains to point out that the court's well-established practice of taking potential customary punishment into account does not, in any sense amount to a condonation of such punishment:
I make it clear, as has been made abundantly clear in the past, that although the court must take into account the fact that a person is to be punished in whatever manner it hears about, it does not condone it. It must be understood that just because a court is told and takes into account the fact that a person is to suffer punishment in another way, is not to indicate that it in any way condones the use of violence upon people at all; and, in particular, in the quite deliberate way in which pay-back is apparently administered.[4]
Chief Justice Martin also requested the Director of Correctional Services to report back as to whether the customary punishment had been administered and noted that the Director could approach the court to seek a variation of the conditions of the bond if the circumstances warranted it.
Media comment: Walker's sentencing attracted considerable media attention.[5] Some of the interest was probably attributable to a penchant for the apparently exotic nature of the incident. Such journalists betrayed an ignorance of the fact that the court's recognition of customary punishment was based on long-standing practice. Some media comment reflected an awareness of customary punishment but claimed that in the Walker case such customary punishment would, for the first time, be officially supervised by state authorities. This resulted from a misunderstanding of Chief Justice Martin's request for a report as to whether the punishment had occurred - a subtle but important difference. The confusion may have been caused by a reading of this request together with remarks by his Honour about supervision of Walker by the Director of Correctional Services in relation to the bond imposed. Finally, other commentators focused on the important legal and policy implications raised by this case and cases like it.
To date the courts have been content to take a rather pragmatic approach to customary punishment. The courts will take account of the practice from time to time without condoning it or indeed considering many of the other ramifications of the approach they have adopted. Yet such issues warrant further attention. Space constraints preclude a detailed review of these matters. What follows is an attempt briefly to raise some relevant legal and policy implications of customary punishment.
Universalism vs Cultural Relativism: One important issue is whether a universal legal system should apply throughout Australia or whether the general law should be modified by reference to special rules which recognise specific cultural attributes. In favour of the former view is the notion that a uniform law should apply equally to all people irrespective of their background. Cultural relativism questions the validity of claims to establish general rules for evaluating the behaviour of all cultures. Its genesis lay in attempts to combat Eurocentric and racist ideas in anthropological studies.[6]
In accepting that Aboriginal customary punishment can be recognised in some circumstances Australian courts have opted for a rather weak version of cultural relativism which accepts that the general legal system is presumptively applicable but will make concessions to specific cultural arguments.
This leaves unresolved a significant set of questions.[7] Should such legal concessions be made on the basis of race? Or should ethnicity, religion or cultural affiliation be considered? If a concession can only be made on the basis of race, should concessions be restricted to Australian Aborigines and Torres Strait Islanders? If so, should the concessions be universally applicable to these groups or only to those who can establish a relevant link with the customary law in question? How should that link be established? By whom? Should all validly established customary laws be duly recognised or only some? If not all, what are the criteria for affording recognition to some but not to others?[8] Should international human rights norms be relevant for this purpose?
If the net is cast more widely and legal concessions are made to other groups on the basis of racial, cultural and other characteristics, further issues arise. Which groups should be the beneficiaries of the special concessions? What are the yardsticks to make these determinations? Who should decide? Should all practices of such identified groups be recognised as lawful or should only some practices be given this status?[9] Again, what are the relevant criteria? And so on.
Legal Issues Arising from Customary Aboriginal Punishment: A number of unresolved legal issues flow specifically from the practice of customary Aboriginal punishment.
Chief Justice Martin observed in Walker[10] that as far as he was aware nobody had ever been charged with an offence for administering 'pay-back'. Accepting that this is the case, it does not provide a satisfactory answer to the question: What is the legal status of 'pay-back'?
To date, perhaps through the exercise of police/prosecutorial discretion to take no action in relation to such pay-back the matter has not arisen. However, if such a pay-back went tragically wrong[11] and, for example, resulted in the death of the offender, there would be considerable pressure for official action.
The courts have been studiously vague about whether, for example, spearing in the thigh amountss to an unlawful act. Under the general law, if such act is not consented to by the person speared it is clearly a common assault if not an aggravated assault[12] in the case of a nominal or symbolic spearing.
In the case of a spearing resulting in a wound (which appears to be the usual case), there is, under the general law, an aggravated form of assault whether the person speared consents or not.[13]
The courts have been much more precise in asserting that judicial recognition of potential customary punishment by granting the defendant a sentencing discount does not amount to condonation of such punishment (see above).
There are also several problems in relation to the identification of, and administration of, the customary punishment. Lawyers tend to be rather sloppy in discussing 'customary law' as if it were monolithic. There is a considerable diversity in such laws and the social groups or the sub-groups to which they might apply.
Although Chief Justice Martin refers to the necessity for evidence in relation to ‘pay-back’[14] no detailed requirements are indicated. How is the customary law identified? What is the mode of proof - by anthropologists? If Aboriginal elders give such evidence, can they be cross-examined as experts? Can a trial judge competently rule on the issue?
Further issues relate to the administration of punishment. Can it be guaranteed that it will take place and, if so, precisely in accordance with custom? Who supervises the process? Should there be a report back to the court? What if punishment is administered but not in accordance with custom? Who intervenes? What if the person bound to administer the pay-back refuses? A theme running through all these questions is the tension between autonomous customary punishment and indirect court surveillance of delegated' punishment.
Currently the court appears to pay lipservice to 'autonomy', yet is very interested in the outcome. Chief Justice Martin wanted a report of the customary punishment in the Walker case. It was suggested in his sentencing remarks[15] that a negative report may result in a variation in the conditions of the bond. Although it has not been directly raised it is not difficult to imagine an argument that the crown should have a right to appeal if the customary punishment is not carried out.[16]
Some tentative suggestions: Leaving aside many of the difficult issues raised which clearly require careful and sustained consideration, it is possible to make some tentative suggestions specifically in relation to the recognition of Aboriginal customary punishment. Legislation should provide that a person duly authorised by custom to administer customary punishment, who administers such punishment strictly in accordance with customary practice, shall have a complete defence to any charge brought in respect of such customary punishment. Provision would need to be made for the mode of proof of the relevant customary practices. It may be necessary to limit the customary punishment to which such a complete defence applies. I do not claim adequate knowledge of such practices. On the other hand such limits immediately raise issues of paternalism.
It will be apparent that these tentative suggestions assume the desirability of continuing to recognise Aboriginal customary punishment (in the spirit of the ALRC Report Recognition of Aboriginal Customary Laws (1986) and current judicial practices), but seek to avoid the current consequences of such recognition, which are the lack of immunity from prosecution of the person administering the customary punishment, and the invidious position of the courts which, in effect, currently turn a blind eye to prospective violence, which is almost certainly unlawful.
The larger and more intractable issues briefly identified in the earlier discussion must await resolution elsewhere.
[1] ALRC, The Recognition of Aboriginal Customary Laws, ALRC 31, AGPS, Canberra, 1986 Vol.l para505-515; R u Anderson [1954] NTJud 5; (1954) NTJ 240; Namatjiru v Raabe [1958] NTJud 19; (1958) NTJ 608; R v Aboriginal Ray Pannaka (1959) NTJ 453; R v Sydney Williams (unreported, Supreme Court of SA, 14/5/76), R v Jungara; (1981) 9 NTR 30; Mamarika v R [1982] FCA 94; (1982) 42 ALR 94; Neal v R (1982-3) 44 ALR 609; Jandurin v R [1938] ArgusLawRp 53; (1982-3) 44 ALR 424; Atkinson v Walkley (1981) 27 NTR 34; Friday (1984)14 A Crim R 471; Rogers v Murray (1989) 44 301; Juli (1990) 50 A Crim R 31; Minor [1992] NTCCA 1; (1992) 59 A Crim R 227. See also: Ligertwood, A., "The Trial of Sydney Williams-, (1976) 4:2 Legal Service Bulletin 136; Ward, A., :'The Wholesome Precedent of Sydney Williams", (1976), 4:2 Legal Service Bulletin 141; and Flynn, M., "Case Note: The Queen v Neil Inkamala Minor", (1992) AboriginalLB 55/18.
[2] Supreme Court of the Northern Territory, Martin CJ, Unreported 10 February 1994, SCC No.46 of 1993.
[3] Walker (see note 2) p.6 of transcript.
[4] Walker (see note2) p.6 of transcript.
[5]"Spearing penalty causes concern"', Sydney Morning Hand 25 February 1994; Peter Hennessy, "When justice is Served by a Spear in the Leg", Sydney Morning Herald 31 March 1994, p.13; George Zdenkowski "Violent Justice", The Bulletin, March 29 1994; David Foster "Bloody Justice", The Independent Monthly, May 1994; Wanda Jamrozik, "White Law, Black Lore',Thelndpendea Monthly, May 1994.
[6]Brennan K, "The Influence of Cultural Relativism on International Human Rights Law: Clitoridectomy as a Case Study", (1989).
[7] Law and Inequality, pp.367-398. 7. Some of these issues are considered in: ALRC, Multiculturalism and the Law, ALRC 57, ALPS, Canberra, 1992.
[8] Note the recent controversial suggestion at a conference on Aboriginal Criminal justice that public flogging of young Aboriginal offenders by their elders may be desirable: 'Public Flogging by elders cuts youth crime, Aboriginal Conference told', Sydney Morning Herald, 17 June 1994, p.4.
[9] To take a topical example, should the practice of clitoridectomy be authorised on this basis? See note 6 and also Family Law Council, Female Genital Mutilation, Discussion Paper, Family Law Council, Barton, 1994.
[10] Note 2 Transcript p.6.
[11] One medical practitioner with experience in the medical treatment of people ritually punished suggests the extent of the wounding is difficult to control: Dr P.T. Burke, Letter to the Editor, The Bullelin, April26,1994.
[12] R v Donovan (1934) 2 KB 498; R v Brown [1992] UKHL 7; (1993) 2 All ER 75.
[13] R v Brown [1992] UKHL 7; (1993) 2 All ER 75.
[14] Note 2, Transcript p.6.
[15] Note 2, Transcript p.10.
[16] Analogies which might be considered include the right of the Crown to appeal when a sentencing discount has been granted on the basis that the defendant would provide information to the authorities and he or she has failed to do so. See, for example, sSDA Criminal Appeal Act 1912 (NSW); S 21E Crimes Act 1914 (Cth).
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