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Pether Penelope --- "We Say the Law is too Important Just to Get One Kid' - Refusing the Challenge of Ebatarinja v Deland and Ors" [1999] SydLawRw 4; (1999) 21(1) Sydney Law Review 114

“We Say the Law is too Important Just to Get One Kid”:[1] — Refusing the Challenge of Ebatarinja v Deland and Ors


The appointment of counsel for a deaf mute would not constitute due process unless an interpreter also was available.[3] The right to an interpreter rests most fundamentally... on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.[4]

1. Introduction

This article considers a recent High Court decision on the question whether a deaf, mute and illiterate defendant can be the subject of committal proceedings which s/he cannot understand or follow. It is critical of the High Court’s grounds for decision. In determining that the defendant could not be subject to committal hearings, the court confined its holding to a matter of statutory construction of the Northern Territory Justices Act 1928 (NT). That Act, as interpreted by the High Court, requires that evidence at committal must be taken in the presence and hearing of the defendant. It also gives defendants a right to be heard after the hearing of prosecution evidence. Finally, it entitles accused persons to be legally represented and to cross-examine prosecution witnesses.

By contrast, the accused’s challenge to jurisdiction had principally been based on natural justice and procedural fairness grounds, traversing the common law on the nature and function of committal proceedings in Australia. The High Court’s decision thus leaves open the question of whether a deaf, mute and illiterate defendant can be subjected to committal proceedings in those Australian jurisdictions which allow committals to be conducted in the absence of the defendant, and otherwise circumscribe the rights of defendants at committals.

The High Court’s decision that the case was confined to the statutory construction of the Northern Territory Justices Act appeared likely during the special leave application and the hearing of the matter. That it would leave aside the nature of procedural fairness in the context of committal proceedings was also predictable at this point. In the event, apart from a brief consideration of the nature of modern committal proceedings the High Court refused the explicit challenge by Roland Ebaterinja’s counsel to make Australian common law on the rights of defendants or the duties of magistrates during committal proceedings.

I have indicated that this article is critical of the narrow grounds of the High Court’s decision and the resulting lacunae in the law of several Australian jurisdictions. However, I want also to suggest that the issue with which the case of Roland Ebatarinja vainly confronted the High Court is fundamental to the Court’s conception of Chapter III judicial power.

The silence of this deaf-mute young Aborigine provokes hard questions. These include questions about the persisting conflicts between Aborigines and an Australian legal system before which they are at least de facto not equal to other Australians; and about the content of the Australian conception of ‘due process’, cast in these proceedings in the guise of ‘procedural fairness’ and ‘natural justice’. They also suggest, less directly, the ethical problems which inevitably arise casting the protections offered by Chapter III within the domain of judicial conduct rather than that of individual rights. These matters go to the heart of the law’s legitimacy, and they confronted the Gleeson High Court with a profound challenge. This was a challenge the Court refused in the brief judgement issued on 30 September 1998. Indeed, the closing paragraphs of that judgment indicate that Justices Gaudron, McHugh, Gummow, Hayne and Callinan were consciously deflecting this challenge while at the same time not registering its significance.

The case as it was framed before the court on Roland Ebatarinja’s appeal was relatively narrow. Mildren J, the Northern Territory Supreme Court judge who had heard the application to have Roland Ebatarinja scheduled committal for trial and ex officio indictment stayed,[5] had erred. The pleaded errors included the refusal to grant the stays of the committal proceedings. They also included Mildren J’s conclusions that committals under the Northern Territory Justices Act required merely the opportunity to be heard; and that it was not the Magistrate’s function at committal to inquire whether, or to decide that Roland Ebatarinja knew the case against him, was able to instruct counsel, or was able to give evidence.

As I have indicated, the real basis of the claim was denial of procedural fairness and natural justice. It was articulated with clarity by McHugh J during the special leave application:

It comes to this, does it not; that he has been charged with murder, he cannot hear the evidence, or understand what evidence is given against him, and he cannot instruct anybody to defend him? So, the real question is, in those circumstances, would it be a denial of natural justice for him to be committed for trial, or even be asked to present a case, or answer a charge of murder?[6]

This remark seems ironic in the light of the High Court’s eventual narrow holding.

2. Factual History

Roland Ebatarinja is an Aboriginal man from an Arrernte-speaking family who lives at Santa Teresa in the Northern Territory. He was born in Alice Springs on 2 March 1978. When he was three, he contracted meningitis. He was taken to South Australia for treatment. When he returned to his family he was deaf. An affidavit made by Roland Ebatarinja’s father, Conley Ebatarinja, said that nobody had been able to communicate with Roland Ebatarinja since that time. His counsel said, in his submissions before the High Court on the special leave application, that he had ‘sought to communicate with [his client] without any success at all.’ Mildren J accepted that Roland Ebatarinja ‘does not know of what he is charged [and] is unable to communicate with his lawyers.’[7] As I will note later, there is no practical prospect of Roland Ebatarinja’s communicative isolation being ended. Roland Ebatarinja attended school in Alice Springs until the age of 13, and then returned to live with his family. He cannot be communicated with. His own communicative skills are rudimentary: he can gesture with his hands, for example to ask for food or money. It is not claimed that he has any intellectual disability, but he can neither hear nor talk. He is illiterate. It was common ground between prosecution and defence that there were no means available that would enable Roland Ebatarinja to understand what was happening in any legal proceedings brought as a result of the fatal assault which I will go on to describe.

On the evening of 16 February 1995, when Roland Ebatarinja was 17, he went with two other people to House 14 in the Larapinta Valley Camp in Central Australia. The police account of what happened there is as follows:

Whilst at this Camp, the defendant grabbed hold of a female resident in an affectionate manner which upset her husband and the victim in this matter. The victim walked up to the defendant and punched him twice in the head.

The defendant ran from the area and returned shortly after with a brown handled pocket knife. He then attacked the victim stabbing him once in the back, once in the right upper thigh, and once in the right ankle. The stab wound to the thigh severed the femoral artery with the victim suffering massive blood loss.

The defendant ran from the area ....

There were apparently eyewitnesses to the eventually fatal assault, but no court has yet had before it evidence of what in fact they saw. Similarly, while there is the suggestion that an alibi may exist, it cannot be articulated while Roland Ebatarinja cannot be communicated with.

Roland Ebatarinja was arrested on 21 February. He was charged with unlawfully causing grievous bodily harm and attempted murder and taken before the Alice Springs Court of Summary Jurisdiction. On that day, Gregory Jabaltjari Long, the man allegedly stabbed by Roland Ebatarinja, died. On 22 February Roland Ebatarinja was charged with murder.

3. Procedural History

The committal proceedings against Roland Ebatarinja were listed for mention before a magistrate in May 1996 after the breakdown of an earlier agreement between the prosecution and defence that the prosecution would initiate proceedings for judicial review. The questions at issue in the matter having been raised, the magistrate decided to state a case on the question of her jurisdiction to conduct a committal in the circumstances. A single judge of the Northern Territory Supreme Court held her Worship had no jurisdiction to make this decision, and the committal was listed for further hearing by the magistrate. In the interim, the DPP presented an ex officio indictment for murder against Roland Ebatarinja.

That ex officio indictment becomes very important in the light of a passage at the end of the High Court’s judgment. In that passage the court invites the Crown to apply for the lifting of the stay on the ex-officio indictment granted by Mildren J.[8] Roland Ebatarinja’s success in the High Court seems a Pyrrhic victory, as his passage through the courts seems likely to move on to its next phase. This is the formal consideration by the Northern Territory Supreme Court of his fitness to plead, to be determined under the provisions of s357 of the Northern Territory Criminal Code Act 1997 (NT). The problems attendant on this procedure are canvassed later in this article. It is enough to say at this juncture that even in the context of statutory provisions providing some “due process” protections to defendants at the committal stage, this decision renders them of negligible effect.

4. The Issue

The High Court’s conception of the issue was as follows. Given the provisions of the Northern Territory Justices Act 1996 (NT), especially sections 106 and 110, does a magistrate have jurisdiction to proceed with committal proceedings where a defendant cannot understand them? Section 106 provides for evidence in committal proceedings to be given ‘in the presence or hearing of the defendant’; section 110 requires defendants to be given the opportunity to answer the charge against them.

Further, what is the nature of modern committal proceedings? Or perhaps only of, some modern committal proceedings, in jurisdictions where legislatures have expanded rather than contracted the due process protections they deem proper to offer accused persons during committals. On this issue the High Court concluded that the history of statutory reform in the UK and Australia this century, a history reflected in the statute subject to scrutiny here, had resulted in a change in the ‘nature, function and purpose of those proceedings’.[9] Thus, at least in the Northern Territory, accused persons must be able to comprehend the case against them at committal. For all the opening rhetoric about dramatic changes in the nature of committal proceedings, and a later remark that the ‘text of sections 106 and 110 and the nature of the proceedings indicate that it is insufficient that the evidence is given in the physical presence or hearing of the defendant[10] [emphasis added], the High Court in fact framed its conclusion on this point remarkably cautiously. The judgment reveals a reluctance to expressly articulate the conclusion that one of the functions of modern committal proceedings is to enable accused persons to know the case against them. Curiously, while gesturing towards the pronouncements of an earlier incarnation of the court in Grassby v the Queen[11] and Barton v the Queen,[12] the members of the present Court confined their own conclusion to the construction of a particular statute.

It seems open that the court might, at some future time, reach a different conclusion about the modern law of committals, at least in those Australian jurisdictions which provide for committals to be conducted in the absence of the defendant. This is a possibility which might gladden the cynical, aficionados of Lewis Carroll, or those with a taste for the Kafkaesque, though not perhaps those with any ear for the promptings of the rule of law. The High Court’s persisting taste in this judgment for caution and circumscription suggests a profound ambivalence about their conception of their own role in making common law and about the relationship of the judicial and legislative branches of government.

There was, however, as I have already indicated, another way to frame this case, albeit a way only partly adopted by the parties to the dispute and explicitly discarded by the High Court: could Roland Ebatarinja have a fair committal, one which accords with the standards of due process under development in the Australian courts? And what was to happen if he could not? The High Court’s response to that basic procedural fairness/natural justice argument made by Roland Ebatarinja’s counsel was this: ‘the real question in this case is not whether it is unfair or unjust or a denial of natural justice to the appellant to proceed with the committal, important though those questions may be.’[13] Reflection on the issues of judicial ethics raised in a case such as this by the High Court’s own recent Chapter III judicial power jurisprudence were absent from the judgment.

Let us consider the procedural fairness and natural justice issues that the court pushed aside in this case. Counsel for the respondents contended that committal proceedings are administrative rather than judicial in nature, a proposition which accords with much Australian authority, although perhaps the High Court’s characterisation of them in R v Murphy as ‘sui generis’ is most precise.[14] Counsel for the appellant argued, following R v Murphy, that they have a ‘distinctly judicial character’ and that the magistrate conducting such a court is ‘bound to act judicially’. The appellant also argued that magistrates in committal proceedings must act justly and fairly,[15] and must accord natural justice to a defendant.

McHugh J’s remarks during the special leave application draw indirect attention to the fact that these two apparently competing perspectives are in fact reconcilable. While describing committal proceedings as ‘not ... judicial’,[16] he noted that there is ‘authority for the proposition that a breach of the rules of natural justice is a matter which goes to jurisdiction and in which prohibition would’ lie.[17] Indeed before the Northern Territory Court of Appeal the respondents’ counsel conceded that Roland Ebatarinja has ‘a right to be dealt with fairly’ and to have evidence led fairly at committal. It is on the question of what fairness would require that the real fissure between appellant and respondent appeared.

While a committing magistrate does not make a binding determination of rights, the proceedings affect the interests of the person the subject of the proceedings – thus the requirement to act judicially, and thus also the High Court’s specification that committal hearing procedure is ‘similar to that on the hearing of judicial proceedings’.[18]

Let us leave aside for a moment the fact that the Northern Territory legislature accords a range of protections to defendants during the committal process. And let us register that such legislative provisions are evidently subject to change. If at any committal proceedings Roland Ebatarinja did not know the charge that faced him, could not hear or have translated to him the evidence presented against him, and could not instruct counsel so as to enable counsel to cross-examine witnesses on his behalf, would these sui generis administrative procedures have proceeded according to the requirements of natural justice? In the Northern Territory Court of Appeal the respondents’ counsel argued that ‘a committal can be conducted notwithstanding he doesn’t precisely understand, so it is said, everything that happens’.[19] They claimed that there was ‘no ultimate jeopardy involved for the defendant at the committal’. Useful analogies might also be drawn with the procedure adopted by Royal Commissioners or Commissioners of Inquiry where serious criminal conduct is alleged of witnesses. Would an Australian court rule that such a person was not entitled to be represented by counsel or to know allegations about him or her that had the capacity to affect his or her interests?

And that is the heart of the matter. While much attention was given during the history of the case to the entitlement of Roland Ebatarinja to an interpreter at committal, more fundamental issues are at stake. Roland Ebatarinja cannot be meaningfully present at his committal, nor can he be represented by counsel in any rational sense of that term. That would be the case had he been charged in a jurisdiction other than the Northern Territory, where there is provision for the hearing to be conducted in the defendant’s absence, or in one which only permits cross-examination of prosecution witnesses by leave of the Court and in limited circumstances.

As to whether natural justice would be afforded Roland Ebatarinja if he was neither meaningfully present at his committal proceedings nor represented by counsel, it seems that the element of that doctrine which goes to requiring that all parties to a controversy be heard would be infringed.

The judgment speaks of the ‘importance of committal proceedings in protecting the rights of accused persons’[20] having been recognised by the High Court in Barton and Grassby (emphasis added). Likewise, the court notes with apparent approval remarks of Dawson J in Grassby to the effect that committals enable the accused to hear the evidence against him, cross-examine witnesses, and advance a defence. I have noted above the court’s evident reluctance to describe any content of the ‘rights’ of accused persons at committal, and its falling back from broad statements about the nature of modern committal proceedings to the determinedly narrow jurisprudential practice of confining its decision to interpretation of statutory provisions. This ambivalence about the rights or protections that accused persons might be entitled to, where statutory provisions of the kind contained in the Northern Territory Justices Act are absent, is reflected in the transcript of the appeal. There Gaudron J asserts that the central function of committals ‘is to enable it to be determined whether or not there is evidence on which a jury could convict and thus for a decision to be made as to whether or not an indictment should be presented’.[21] This may be the case. It does not, however, abrogate the common law requirement that a person conducting committals must act judicially.

The uncertainty about the rights of or protections offered accused persons at committals as a result of the High Court’s decision extends to the question of representation. The Court’s remarks about entitlement to representation are also confined to the provisions of the Northern Territory Act. There is South Australian and Tasmanian authority to the effect that lack of representation at committal does not necessarily result in unfairness. Those cases are apparently readily distinguishable from this one. Neither involved a defendant who was incapable of understanding the charges brought against him or the proceedings themselves, who literally would not be there in any meaningful sense. They throw into sharp relief the High Court’s evident reluctance to either articulate common law rights beyond the reach of abrogating statutes or to gesture towards what an obligation to act judicially might require a magistrate in these states to do in a case analogous to that of Roland Ebatarinja.

Some views of recent history might suggest that this reluctance was prudent. Others might make a case for the proposition that Australia’s Chapter III judicial power jurisprudence does not, at least at this stage in its development, extend to the conduct of magistrates in committal proceedings. Still others might characterise it as a signal failure, both intellectual and ethical, to grapple with the function of the High Court in Australia’s peculiar hybrid constitutional arrangements.

The Tasmanian authority, R v Matterson; Ex parte Helfenbaum,[22] involved an indigent accused who was without legal aid because the terms on which it was offered were unacceptable to him. The South Australian Full Court in Fuller v Field[23] was also concerned with the absence of a right of an indigent accused to a stay of committal proceedings on the basis of lack of representation. That decision relied significantly on South Australian legislation which severely curtailed the right to cross-examine prosecution witnesses at committal. The court in this case was also manifestly reluctant to extend the scope of Dietrich v R[24] to committal proceedings.

The preference of at least some members of the High Court during the hearing that the case be treated as one confined to an exercise in statutory construction was clear. This is largely borne out in the reasons for judgment, although the ambivalent excursion into the nature of modern committal proceedings, as well as the remarks of McHugh J during the special leave application, quoted above suggests some unease within the court at this object lesson in judicial conservatism. The court’s finding on the statutory interpretation points is uncontroversial: that the legislation under consideration in the case requires that a defendant be present is the view of the editors of Halsbury’s Laws of Australia.[25] As my earlier remarks reflected, the Northern Territory Justices Act can be contrasted with the relevant statutes in the ACT, NSW, Queensland, South Australia, Tasmania and Victoria which, as Halsbury’s Laws of Australia[26] notes, provide for committals in the absence of the defendant. Similarly, in R v Mungaribi[27] it was held that the requirements of sections 110 and 111 of the Northern Territory Justices Act, allowing the defendant in committal proceedings to be given an opportunity to give evidence or call witnesses, were mandatory. In their judgment, the High Court expressed the view that the decision in Mungaribi was correct.[28]

What does it mean for Roland Ebatarinja or someone in his position to be present at his committal? To be given the opportunity to give or call evidence? These are live questions because of the markedly different legislative regimes for committals in Australian jurisdictions other than the Northern Territory, and because of the evident taste of many of the judges involved in the matter thus far, for the proposition that form rather than substance, is what matters.

Justice Gaudron in particular seemed during the High Court’s hearing of the matter to favour the view that mere corporeal presence would be enough to satisfy the requirement as to the defendant’s presence. Likewise, at first instance, Mildren J said that the ‘fact that compliance with the provisions will prove “ritualistic” does not prevent completion of committal proceedings.’[29] This evidence of the failure to register the significance of the matter before the courts in this case is echoed at almost every stage in the proceedings. It reaches its apotheosis in the High Court hearings. There judges engage in an apparent imitation of Socratic dialogue on such recherché questions as the position of hypothetical comatose accused persons brought to court on litters, and about committal proceedings involving corporations. In a similarly legalistic vein, but demonstrating a marked lack of interest in the metaphysical, Justice Gaudron remarks dismissively, ‘I mean, there may be an argument that there is jurisdictional error but it depends on a construction of the Act and not upon notions of what constitutes a fair trial or what is required by the Canadian Charter of Rights.’[30]

It is instructive at this point to consider the position in the nations from which Australia derived its hybrid constitution. In a case mentioned with evident approval in the reasons for judgment, The Privy Council had held in the context of trials that presence requires ‘not only... [the defendant’s] corporeal presence but that by reason of his presence he should be able to understand the proceedings and decide what witnesses to call and whether to give evidence.’[31] The American position is as follows. The due process clause prohibits trying a criminal defendant, who lacks the capacity to understand proceedings, to consult with counsel or to assist in the preparation of his defence; and the Sixth Amendment right to be present at one’s own trial implies more than mere physical presence.[32] Similarly, this US case is authority for the proposition that the Fifth and Fourteenth amendments to the US Constitution make it fundamental that criminal defendants be given means to understand charges lodged against them. This is because it is fundamental to the US conception of due process that a defendant must be told what s/he has been accused of in language s/he can understand. For all the High Court’s reluctance to ‘demonstrate apprehension on the part of judges of the risks inherent in the existence of absolute and unlimited power in the legislature,’[33] and for all the comparative lack of explicit guarantees of rights in the Australian Constitution, this is a proposition which is difficult to fault.

While trials are not committals, and Australian defendants are at present neither guaranteed equality nor accorded rights to due process or to be present at one’s trial, the position adopted by both Gaudron and Mildren JJ seems Kafkaesque. To say that it would be productive of unfairness or contrary to the principles of natural justice, or would involve a magistrate acting in a way that was not judicial, is a matter for the court in some future case. However, a decision of this nature would arguably imperil the legitimacy of the law, and the narrowness of the current decision invites similar criticism. A portion of the judgment of Wickham J in R v Grant,[34] a case discussed in detail below, seems apposite:

The whole question of the apprehension, interrogation, arrest, committal, arraignment and trial of [aborigines living ‘traditional’ existences] reflects a growing and serious social problem ....[35]

In some future case the court may be compelled by different statutory provisions to regard the matter brought before it in this case as broader than an issue of statutory construction. If so, there is little legal authority to assist the Court in deciding what would be required for some other accused in the position of Roland Ebaterinja to have a fair committal in accordance with the principles of natural justice, or for a magistrate to act judicially, according him or her procedural fairness.

In R v Willie,[36] an 1885 Queensland case mentioned in passing in the High Court’s judgment, aborigines charged with murder were discharged because no interpreter could be found to communicate the charges to them. However, in an obiter dictum in Pioch v Lauder,[37] a single judge of the Northern Territory Supreme Court expressed the view that if the deaf mute aborigine in that case had been charged with an indictable rather than a summary offence:

the appropriate procedure was the administrative hearing of the evidence and determination whether or not a prima-facie case was made out by the prosecution and, after such determination to try the charge himself or commit it for trial in a higher court.[38]

At that point the question of his fitness to plead would be adjudicated. It is worth noting that the issues raised on behalf of Roland Ebaterinja were not under consideration in that case, and Forster J adduced no legal authority for his conclusion. The High Court disposed of this proposition on the basis that Forster J had failed to consider the (now) mandatory nature of the provisions of the Justices Act.

There is another point worth making about this decision, particularly in the light of the High Court’s invitation to the Crown to move for the lifting of a stay imposed on the ex officio indictment filed against Roland Ebaterinja. This is a case dating from a time when, as Forster J noted, the result of an almost inevitable finding of Pioch’s unfitness to plead would be his detention ‘at the Governor’s pleasure.’

Even at that time, however, there were other views about such matters. In R v Grant Wickham J held that no plea should be entered by an aborigine who, although hearing, was unable to have the nature of the legal proceedings satisfactorily interpreted. In that case Wickham J said, in relation to a fitness to plead hearing:

I would think that the reference to keeping the accused in custody until he can be dealt with according to law would apply to the type of case where an accused person is found to be unfit to plead and unable to understand the proceedings through some defect of mind rather than through some lack of comprehension.[39]

More recently, in R v Jabanardi,[40] the full Federal Court held, in the case of an aborigine found unfit to plead because of brain damage, that the time of detention should be fixed and the place of detention needed to be specified. The obiter dictum of Forster J in Pioch v Lauder, then, assuming the jurisdiction to conduct a committal in a case such as the present, needs fresh consideration in the light of contemporary judicial opinion on related issues, and in the light of the jurisdictionally narrow holding in this case.

In the case of Ngatayi v The Queen[41] the High Court was considering what level of comprehension of proceedings was required for an aborigine to have a fair trial. For this reason, and also because there was a significant difference between the communication difficulties experienced by the defendant in that case and in the present one, the decision is not of direct relevance. However, the remarks of the majority at page 9 of the report (about the necessity for interpretation and counsel if an accused is to be able to understand criminal proceedings so as to make a proper defence) go some way to suggesting what fairness or judicial conduct in such cases might require.

Perhaps registering the difficulty of their position, counsel for the respondents raised fundamental questions during the special leave application, asking ‘whether this man could ever face a court for the rest of his life, regardless of his behaviour. Does it mean, if he cannot now be committed for trial or face a committal, that if his behaviour continues to be of a criminal kind, he can never be brought to face the court at any stage.’[42] They relied, as did the Court of Appeal of the Northern Territory, on the ‘safeguards’ to due process offered by s357 of the Northern Territory Criminal Code.[43] Indeed they went so far as to contend that an insane person can be committed for trial, a position with which the Justices of the Court of Appeal of the Northern Territory apparently agreed.

There were other fundamental questions not raised by the respondents. Roland Ebaterinja’s position may seem an unusual one, in that he is an aborigine living in a Central Australian indigenous community in a non-English speaking family, is deaf-mute, and he cannot be communicated with or translated for. However, now that the Court has held in his favour in this case, there may be no reasonable prospect of his ever being tried for the offence with which he stands accused, and a further round of litigation regarding his lack of capacity to stand trial will seemingly be initiated. Such litigation seems likely to involve questions of the abuse of process,[44] an issue paradoxically raised by McHugh J at the hearing, and of what order should properly follow a finding of unfitness to plead in such a case. The court’s invitation to the Crown to apply for the lifting of the stay on the ex officio indictment and to generate the inevitable inquiry into Roland Ebaterinja’s fitness to plead avoids consideration of other issues of fairness or due process. At the same time it invited another stage in a process that raises invidious comparison with an elaborately formal dance.

It may be hazarded by pragmatists that the threshold for courts finding that an accused person cannot be meaningfully present at his or her committal or trial if this element of a due process ‘right’ or fairness requirement/guarantee is established in future, will in practice be set high. However, as Mildren J has himself noted, ‘[I]t has been estimated that hearing loss is as high as 40 per cent in some Aboriginal communities.’[45] Thus the case begs fundamental philosophical questions about cross-cultural legal issues. As a US commentator has written:

In a country which was settled by alien immigrants and which continues to receive hundreds of thousands of immigrants and foreign travellers annually, the problem of protecting the rights of the non-English speaking accused cannot continue to be ignored by our judicial system.... [O]ur legal system must be flexible and must be able to adapt itself to fit the situation by giving importance to the protection of the substantive rights of the individual and must not be bound by technical or artificial procedural devices.

Each English-speaking “citizen” of the United States is outraged and belligerent when he reads of the problems encountered by a fellow citizen involved... in a crime in a foreign country in which that same person is tried and sentenced in the “foreign” country according to the “foreign” legal system. Each person can empathize and imagine himself in an alien society confronted by a strange legal system, with his future hanging in the balance of justice, and not able to understand any of the testimony being offered against him ....[46]

5. Kafka and Catch–22

During the proceedings before the Northern Territory Court of Appeal, counsel for the respondents sought to rely on the fact that Roland Ebaterinja was represented for the following contention: he could have procedurally fair committal proceedings despite the respondents’ earlier concession that he was incapable of understanding the proceedings or of having a translator provided for him. Counsel argued:

If he doesn’t quite understand what’s going on or doesn’t understand at all what’s going on, while he’s represented then the element of fairness, in the context of a committal, we would argue, can be met.

Counsel characterised the position as Roland Ebaterinja not being able to ‘give instructions of what my learned friend would regard as sensible’.[47]

Ebaterinja’s counsel was at pains to contest the implications made by the respondents as to matters of fact regarding his client and instructions. He noted that he was briefed by the Central Australian Aboriginal Legal Aid Service to argue the matters of law arising in the case, noting ‘that it’s not a matter of taking instructions from Mr Ebatarinja about it, as might be the case in a committal.’[48] In the appeal hearing before the High Court and at the prompting of the Court, Roland Ebaterinja’s father, Conley Ebaterinja was joined as an appellant. Likewise demonstrating anxiety about procedural forms, the High Court’s judgment drew attention to the absence in these proceedings of a litigation guardian for Roland Ebaterinja, something apparently mandated by the relevant Supreme Court rules.

There is a troublesome element of intellectual dishonesty in the conflict between the fact that it is common ground that there are no means available to enable Roland Ebaterinja to understand what was happening during any committal proceedings, and the respondents’ colouring of the situation during the appeals. During the Northern Territory Court of Appeal proceedings, the respondents represented it as one where there was an imperfection of comprehension on the part of an accused person represented by counsel. Before the High Court on the special leave application they expressed a hope – which might be characterised as pious despite its echoing by Ebaterinja’s counsel in the appeal hearing and in due course by the High Court – that at some time in the future an interpreter for or a means of communication with Roland Ebaterinja might be found.[49] Their reluctance to face squarely the profound questions raised by this case finds its echo in judicial responses to the challenge posed to the justice system by Roland Ebatarinja. In the final section of this article I will draw attention to some of those profound questions.

6. Fundamentals

During the appeal to the Northern Territory Court of Appeal, Angel J described his understanding of the law on what a criminal accused at committal and trial needs to understand in order for those proceedings to be conducted fairly according to law:

... the committal may proceed ... even though they are insane and unable to understand the proceedings.... It is not necessary for an adult person to fully understand everything in a committal when they are legally represented.[50]

He later expressed the view that a committal can proceed without an interpreter, at least where the appellant is legally represented. The High Court’s decision does not deal explicitly with these situations. Angel J failed to register the question of whether a person who cannot instruct or meaningfully communicate with counsel can be said to be legally represented.

Angel J likewise did not seem to canvass the possibility that the existence of section 357 of the Northern Territory Criminal Code might not be the final word on procedural fairness in this case. He remarked to Ebaterinja’s counsel that ‘if your argument is correct, driven to the last, cases [of insane persons subject to committals] would never get to the Supreme Court and section 357 of the Code would have no part to play’.[51]

The High Court’s gesturing towards an apparently inevitable s357 hearing expresses no concern about such proceedings. This is a lacuna in the ‘legal imagination’ which seems, post-Kable,[52] both curious and particularly regrettable. Section 357 provides for the possibility of keeping defendants found unfit to plead in custody pursuant to the contemporary version of Her Majesty’s pleasure. By contrast, American notions of due process require proceedings in the nature of civil commitment proceedings before such a confinement can occur, and there is, as discussed above, Australian authority suggesting concern about the fairness of such confinement.[53]

The High Court’s choice in Dietrich[54] was to conceive of due process as guaranteed by standards of judicial conduct rather than as a matter of rights of accused persons, at least so far as any entitlement to legal representation by indigent persons charged with serious criminal offences was concerned. Kable explicitly expressed this particular metaphysical preference in Constitutional terms. The NSW legislature’s lawmaking power was limited not by a separation of powers, but because in the instant case it required Supreme Court judges to act in a way incompatible with their exercise of Chapter III judicial power. While Kable was a case where federal judicial power was at least technically in issue, it suggested that all that would have been required to meet this standard was that ‘federal constitutional points’ be raised by a party. Thus the ‘metaphysical choice’ of the characteristics of federal judicial power over citizens’ rights is capable of extending into the recesses of State court systems, perhaps even as far as committing magistrates.

The alternative approach to due process is evident in the USA, where the express constitutional guarantee of due process contained in the Fifth Amendment conceives of it as an individual right. Roland Ebaterinja’s case of course deals specifically with committal proceedings, which are not judicial proceedings, but nonetheless a magistrate at committal must act judicially. The larger significance of the comparison for present purposes lies in the lack of seriousness with which courts prior to the High Court– with the exception of the magistrate’s court itself - treated Roland Ebaterinja’s position. This lack of seriousness is also reflected in the narrowness of the High Court’s decision; given its abortive excursion into consideration of the law of modern committals this narrowness seems troublingly blinkered.

The metaphysical preference of which I have written casts a heavy burden on judicial officers to safeguard citizens’ ‘rights’ in cases where legislature or executive infringes those ‘rights’. My use of quotation marks here signals the logical and indeed constitutional difficulties with the still nascent Australian due process jurisprudence, matters which are beyond the scope of the present discussion. But there is a more fundamental point, and one critical to the legitimacy of the judiciary. If judges are to say, in effect, that the protection of citizens against the excesses of the other arms of government is best left in their hands, it demands rather than earns litigants’ confidence in the judiciary to say, as Morling J did in Roland Ebaterinja’s case, that:

All the indications are that if your client is committed – and he may not be – he is likely to get a favourable finding under section 357.... So your client has two advantages by gaining a committal. He may not be committed at all, but, if he is, he is highly likely to get a favourable finding under 357.[55]

In this passage we see the preference for legal form over substance which dogs the pronouncements of judges at every stage of the story of Roland Ebaterinja thus far. We also see a dogged refusal to consider the fundamental role of the Australian judiciary in relation to citizens, legislatures, and power, this latter a most troubling failure on the part of a constitutional court.

[1] Ross, QC, counsel for Roland Ebatarinja, before the High Court, 12 August, 1998. See Ebatarinja v Deland (1998) 157 385.
[2] Penelope Pether, BA LLB, MLitt, PhD, Senior Lecturer, Faculty of Law, University of Sydney; Assistant Professor of Law and Director of Lawyering Skills, School of Law, Southern Illinois University. I wish to thank Professor Scott Sundby, Director, Frances Lewis Law Center, Washington and Lee University, for directing me to relevant US materials and for his thoughtful discussions about this case; David Ross, QC, for making the Appellant’s submissions available to me; Tim Stephens (Faculty of Law, University of Sydney) and Kristi Lewis (Southern Illinois University School of Law) for their prompt and effective research assistance; and the Frances Lewis Law Center for providing me with research facilities during early work on this article.
[3] United States v Baldi [1951] USCA3 114; 192 F 2d 540 (1951).
[4] United States v Carrion 488 F 2d (1973), 14 (Coffin CJ, Aldrich & McEntee JJ).
[5] Ebatarinja v Deland [1997] NTSC 32; (1997) 6 NTLR 107; The application also sought declaratory relief and a procedural order as to the abridgment of certain Supreme Court Rules. The declarations sought would if granted have prevented criminal proceedings relating to this matter being taken against Roland Ebatarinja until he could be communicated with and interpreted for.
[7] Above n5 at 109.
[8] Above n1 at 392.
[9] Id at 390.
[10] Id at 391.
[11] Grassby v R [1989] HCA 45; (1989) 168 CLR 1
[12] Barton v R [1980] HCA 48; (1980) 147 CLR 75.
[13] Above n1 at 388.
[14] [1985] HCA 50; (1985) 158 CLR 596 at 616.
[15] In Grassby v R [1989] HCA 45; (1989) 168 CLR 1 at 15 Dawson J glossed a magistrate’s duty to act judicially in committal proceedings as a duty to act ‘justly and fairly’. 16
[17] Ibid.
[18] Above n14 at 616.
[19] A contention that seems especially problematic when contrasted with their concession that there are no means available for Roland Ebatarinja to be brought to understand the proceedings.
[20] Above n1 at 390.
[21] Above n6.
[22] (1993) 2 Tas R 115.
[23] [1994] SASC 4586; (1994) 62 SASR 112.
[24] [1992] HCA 57; (1992) 177 CLR 292.
[25] 250 at 985–6.
[26] Ibid.
[27] [1988] NTSC 49; (1988) 92 FLR 264.
[28] Above n1 at 391.
[29] Above n5 at 115.
[30] Above n6 (Austlii).
[31] Kunnath v The State (1993) 1 WLR 1315.
[32] United States of America v Mosquera (1993) 816 F Supp 168.
[33] Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 (Street CJ) at 386.
[34] (1975) WAR 163 at 165.
[35] Id.
[36] 7 QLJ NC 103.
[37] (1976) 27 FLR 79.
[38] Id at 81–82 (Forster J).
[39] Above n34 at 165–166.
[40] [1943] ArgusLawRp 78; (1983) 50 ALR 147.
[41] [1980] HCA 18; (1980) 147 CLR 1.
[42] Above n16 (Austlii).
[43] Which provides for the fitness of an accused person to plead or stand trial to be tested. The section defines lack of fitness to plead or stand trial as being due to ‘a state of abnormality of mind or for some other reason.’ In such circumstances it provides for ‘the accused person to be discharged or... kept in custody in such place and in such manner as the court thinks fit, or admit[ted]... to bail, until he can be dealt with according to law.’
[44] A matter foreshadowed by McHugh J during the appeal.
[45] The Hon Justice Dean Mildren, ‘Redressing the Imbalance against Aboriginals in the Criminal Justice System’ (1997) 21 Crim LJ 7 at 22.
[46] Benjamin G Morris, ‘The Sixth Amendment’s Right of Confrontation and the Non-English Speaking Accused’, (1967) 41 Fla BJ 475, 481-2.
[47] Above n6 (Austlii).
[48] Ibid.
[49] As Mildren J put it in the second hearing in the Northern Territory Supreme Court, ‘It may be that through an intensive course of rehabilitation he may learn to communicate through sign language. Because of cultural and environmental factors it is unlikely that this will be successfully attempted in the near future.’
[50] Appeal to the NT Court of Appeal (Angel J).
[51] In the appeal before the High Court, it seemed to be contemplated that the stalled ex officio indictment could proceed, at least for the purposes of conducting a s 357 hearing into Roland Ebaterinja’s fitness to plead.
[52] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 138 ALR 577.
[53] R v Jabanardi [1943] ArgusLawRp 78; (1983) 50 ALR 147; R. v Grant [1975] WAR 168; Ngatayi v R. [1980] HCA 18; (1980) 147 CLR 1.
[54] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[55] Above n50.

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