Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Di Bennett and Karen L Pringle
In the August 1994 edition of the Aboriginal Law Bulletin (see 3(69) AboriginalLB 4) readers were informed of the Aboriginal Justice Advisory Committee's (AJAC) Justices of the Peace training program for Aboriginal and Torres Strait Islander peoples and of developments in introducing cross-cultural training for the judiciary in Queensland. This article updates these initiatives and discusses the AJAC's involvement in many other initiatives. These include Aboriginal and Torres Strait Islander women's interaction with the criminal justice system, the Criminal Code Bill 1994 (Qld) and Customary Law, the Kelvin Condren matter (see 3(66) AboriginalLB 10), the recent Pinkenba incident and juvenile justice.
The Justices of the Peace training program for Aboriginal and Torres Strait Islander peoples has proved to be an outstanding success in empowering many Aboriginal and Torres Strait Islander peoples in their communities by allowing them to play a positive role in the legal justice process. Since the successful Brisbane pilot program, the training program has been adapted to meet the needs of various communities throughout Queensland. Many Aboriginal and Tones Strait Islander peoples have taken the opportunity to undertake training as Commissioners for Declarations, Justices of the Peace (Qualified) and Justices of the Peace (Magistrates Court). Communities which have been involved in the program have included Kowanyama, Palm Island, Cherbourg, Woorabinda, and the Torres Strait Islands of Thursday Island, Darnley Island, Warraber Island, Boigu Island, Murray Island, St. Pauls Island, Coconut Island, Yam Island, Yorke Island, Saibai Island and Horn Island. In fact, every DOGIT community south of Townsville has had the benefit of this training program. Plans are currently underway for training to commence at the Yarrabah and Lockhart River communities.
The level of acceptance of the justices of the Peace training program in the Aboriginal and Torres Strait Islander communities is high as evidenced by the strong support of the Aboriginal Coordinating Council, the Island Co-ordinating Council, the AJAC, the Justice of the Peace Council, individual community councils and members of those communities. The acceptance is also measured by the high level of demand to undertake further training.
A sub-committee has recently been formed in Queensland for the purpose of developing a cross-cultural training program for members of the judiciary. This is in accordance with Royal Comm ision recommendations 96 and 97 and an acknowledged need to enhance the cross-cultural awareness of indigenous needs by judicial officers. The judiciary in Queensland has nominated representatives of the Supreme Court, the District Court and the Magistrates' Court to form part of this cultural awareness sub-committee. Members of the sub-conunittee also include representatives from various Aboriginal organisations and a representative from AJAC.
The first sub-committee meeting was held on 6 March in Brisbane. While the contents of these meetings are confidential, Ms Cheryl Buchanan reported that the meeting went a long way towards beginning to develop an appropriate cross-cultural training program. Currently, the Aboriginal and Terms Strait Islander Unit of the University of Queensland has prepared an outline submission to the subcommittee for the delivery of a program to Supreme Court judges.
It is anticipated that a number of workshops will follow.
As a result of initial consultations the AJAC is very interested in developing education programs to provide Aboriginal and Torres Strait Islander women throughout Queensland with information on how they can more effectively access and participate in the criminal justice system.
In order to develop its proposed initiatives in this area the AJAC has established a joint Working Party with the Violence Against Women Unit(VAWU) which forms part of the Office of the Director of Public Prosecutions in the Department of Justice and Attorney-General.
Apart from these representatives there are many representatives on the Working Party from key Aboriginal and Torres Strait Islander community organisations. The first meeting of the joint Working Party was held on 14 February. Many issues were canvassed including the need to review various provisions of the Evidence Act 1977 (Qld), especially the Special Witness provisions (see section 21A); the need to increase the number of women - particularly Aboriginal women - prosecutors and, in this respect, the need for a special scholarship scheme to be offered; the need for interim measures to be taken such as employing Aboriginal and Torres Strait Islander women in the Office of the Director of Public Prosecutions to assist in cases involving Aboriginal and Torres Strait Islander women; the need for cross-cultural training for prosecutors, legal practitioners and judicial officers; the need to develop education programs for Aboriginal and Torres Strait Islander men and women on communities covering issues including legal rights and obligations, the steps involved in making a complaint and prosecuting an offence, and violence in Aboriginal and Torres Strait Islander communities; and the need to link into other initiatives such as those of the Queensland Police Service and the Justices of the Peace training program. Particular importance was placed on reducing the stress and inconvenience to Aboriginal and Torres Strait Islander women complainants caused by, for example, having to leave their communities to appear in court at the very time when family and friends are needed for support. Preliminary suggestions to overcome this have included making the court system more mobile and utilising video conferencing. The need to ensure appropriate and adequate funding for programs and that funding goes to community based organisations was also highlighted. A temporary project officer funded by the DPP has been employed to carry out an assessment of the needs of Aboriginal and Torres Strait Islander women in the context of the relationship between the Office of the Director of Public Prosecutions and the Aboriginal and Tones Strait Islander communities. The terms of reference for the assessment can be obtained from AJAC.
The AJAC has recently prepared a submission on the Criminal Code Bill 1994 (Qld). This Bill forms the basis of a new Queensland Criminal Code. The AJAC has attempted to ensure as much as possible that the new Criminal Code is reflective of Aboriginal and Torres Strait Islander peoples cultural perspectives and has considered how this Bill can be amended to incorporate principles of Aboriginal customary law into the Queensland criminal justice system. Some recommendations which have been made for the purpose of recognising Aboriginal customary law include the following:
A general provision should be inserted in the Bill dealing with criminal responsibility which specifies that Aboriginal and Torres Strait Islander Customary Laws, traditions and practices should be able to be taken into account by a court to determine whether an accused person has a particular intent or state of mind and to determine the reasonableness of any act, omission or belief of an accused person. A consequential amendment to the Evidence Act 1977(Qld) may be necessary to ensure that evidence required to prove these matters is admissible.
A provision should be inserted into the Bill in the area dealing with homicide and related matters providing for a new partial defence for the purpose of reducing murder to manslaughter and based on Aboriginal and Torres Strait Islander Customary Laws. This is particularly relevant to a situation where an Aboriginal person or Torres Strait Islander is being tried for murder and is able to establish that he or she was acting in accordance with, or under an obligation imposed by Customary Laws.
The definition of provocation in the Bill should be amended so that there is a positive statement that Aboriginal and Torres Strait Islander Customary Laws are relevant in determining provocation.
A provision should be inserted into the Bill to safeguard the rights of an Aboriginal person or a Torres Strait Islander who is not fluent in the English language. This provision should specifically provide that a court shall not accept or admit a plea of guilty by an accused person who is an Aboriginal or Torres Strait Islander and appears to the court not to be fluent in the English language unless the court is satisfied that the accused person sufficiently understands the nature of the proceeding and the effect of a plea of guilty.
The AJAC is of the view that the current development of a new Criminal Code for Queensland is an ideal opportunity to make a start in recognising Aboriginal traditions and Tones Strait Islander customs in the area of the criminal law. The AJAC will shortly be finalising proposed recommendations for the recognition of Customary Law in areas including sentencing, evidence and procedure, bail, secrecy and confidentiality. Once formulated, the AJAC will further consult with the Aboriginal and Torres Strait Islander communities on its proposals.
The AJAC has recently been involved in the Kelvin Condren claim for compensation for miscarriage of justice and what is referred to as the Pinkenba incident.
As readers would be aware, Kelvin Condren was wrongfully imprisoned for seven years after having been convicted of the murder of an Aboriginal woman. After subsequent appeals against his conviction, on 26 June 1990, the Queensland Court of Criminal Appeal unanimously set aside the murder conviction and a new trial was ordered. On 29 July 1990, on the recommendation of the Director of Prosecutions, the charge of murder against Condren was withdrawn in the Queensland Supreme Court and Condren was released.
State Cabinet decided in February this year to make an ex gratia payment of $400,000.00 to Condren, which was described as 'being made in the interests of justice'. This decision caused much outrage amongst members of the Aboriginal and Torres Strait Islander communities who were very disappointed in the decision and felt that it smacked of tokenism. The AJAC has advised the Minister for Justice and Attorney-General and Minister for the Arts on these views in the hope that some progress will be made towards achieving equality of treatment for Aboriginal people in our legal justice system.
The recent Pinkenba incident further eroded many Aboriginal people's confidence in our criminal justice system. Allegations were made that on 10 May 1994, three Aboriginal youths aged 12, 13 and 14 were picked up by six police officers in Fortitude Valley, Brisbane and in the early hours of the morning were driven to Pinkenba (an industrial area just outside of Brisbane) by these officers and left there. Investigations led to the police officers involved being charged with deprivation of liberty. On 24 February this year the Magistrate hearing the case decided that there was insufficient evidence to commit these police officers for trial.
Aboriginal people were very disappointed in this decision and a common complaint was how the committal proceeding was conducted. It was felt by some that it was unfair towards the Aboriginal youths and smacked of the judicial racism and bias identified by the Royal Commission into Aboriginal Deaths in Custody. (See, for example, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry into Underlying Issues in Western Australia, Vol. 1, Canberra: AGPS, 1991, pp116 and 136, and Royal Commission into Aboriginal Deaths in Custody, National Reports, Canberra: AGPS, 1991, Vol. 2, pp160-162, Vol. 3, pp71-80 and Vol. 5, p217.)
The AJAC felt that the most salient issue in this matter was the attitude conveyed by the court which appeared to treat the complainants as though they were on trial and typified a common mind set amongst some judicial officers that the Aboriginal person, despite being in the position of complainant was in fact viewed as the defendant. The AJAC was informed that the conduct of this hearing demonstrated a deplorable lack of knowledge of Aboriginal communication and related cultural differences. This was said to be demonstrated throughout this hearing as counsel used culturally inappropriate questioning techniques and paid little regard to the complainants' Aboriginality. There was a complete failure on the part of the prosecution to adduce evidence from recognised experts such as Dr Diana Eades on culturally appropriate evidence gathering techniques.
The AJAC believes that culturally appropriate communication and evidence gathering techniques must be developed if Aboriginal people are to receive fair treatment in the criminal justice system. (See generally Diana Eades, Aboriginal English and the Law, Brisbane: Continuing Legal Education Department of the Queensland Law Society Inc., 1992.)
The AJAC is currently considering ways of improving the cultural sensitivity of our courts to Aboriginal people and is closely studying the procedures which may be adopted including those identified in the Yock Inquiry as follows:
1. Allowing the admission of statements taken from witnesses in the presence of a person of their choosing (and in whom they havee confidence and trust) as evidence-in-chief in lieu of their being required to give oral evidence;
2. Inviting witnesses to have someone of their choice sit near them whilst they are in the witness box;
3. Not allowing uniformed police officers to be present in the hearing room whilst an Aboriginal witness is giving evidence;
4. Directing counsel to pay due respect to all communication and related cultural differences and to be conscious of the need to adopt a style of questioning which would achieve effective communication with Aboriginal witnesses;
5. In evaluating the testimony of each witness the court should bear in mind the manner of questioning and the cultural condition or background of the witness and evaluate his/her responses accordingly;
6., Prior to an Aboriginal witness giving evidence inviting their counsel or solicitor to indicate to them the main role of each person involved in the hearing; and
7. Prior to an Aboriginal witness giving evidence, inviting them to attend the hearing room with their legal advisers to familiarise themselves with its layout and the hearing process. (See Criminal Justice Commission, A Report of an Investigation into the Arrest and Death of Daniel Alfred Yock, Brisbane, 1994, ppl0-11.)
As at June 1994, 62.5% of juveniles under sentence in this State's detention centres were Aboriginal and Torres Strait Islander. (Department of Family Services and Aboriginal and Islander Affairs, Qld, 1994.) As at June 1994, 45% of juveniles remanded in custody were Aboriginal and Torres Strait Islander. (Department of Family Services and Aboriginal and Islander Affairs, QId, 1994.) The story which these statistics reveal is realised when it is recognised that Aboriginal and Torres Strait Islander children make up only 3.6% of the 10 - 17 year old population of Queensland. (1991 Census, ABS.)
In light of this unacceptable situation, the AJAC intends providing the Minister for Justice and Attorney-General and Minister for the Arts with a report, with a view to its distribution across all relevant government agencies, containing both short term and long term recommendations aimed at preventing and reducing young indigenous peoples' contact with the State's juvenile justice system. The AJAC is currently finalising an Aboriginal and Torres Strait Islander Juvenile Justice Report which contains many recommendations aimed at overcoming the underlying causes or socioeconomic factors leading to young Aboriginal people's high rate of contact with the juvenile justice system including land issues, racism, poverty, health, education and employment issues and speific recommendations in relation to the administration of juvenile justice in Queensland including legislation, the role of courts, police and Government Departments and agencies administering juvenile justice.
The initiatives discussed above are only a small number of those which the AJAC and Secretariat are involved in and the AJAC would like to hear from any persons who have suggestions for the further improvement of the criminal justice system in Queensland as it affects Aboriginal people. Submissions should be forwarded to:
The Chairpefson, Aboriginal Justice Advisory Committee
Department of Justice & Attorney-General
GPO Box 149, Brisbane Qld 4001.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1995/29.html