The Current Legal Position with Respect to Payback Punishment When Sentencing Aboriginal Offenders - Research Paper Example

The recognition of Aboriginal customs which permit "payback" spearings as a form criminal punishment in indigenous communities has been a controversial issue. Explain the current legal position with respect to payback punishment when sentencing Aboriginal offenders. Dose this approach give sufficient recognition to Aboriginal criminal law within the Australian legal system? Discuss. Modern Australian law has its origin in English common law having evolved over the last two hundred years to its present status. The presence of Aboriginal people was deliberately ignored and it was conveniently assumed that Australia was an uninhabited land in 1788 for adoption English legal system by the colonial settlers. Aboriginals inhabiting Australia for more than 40,000 years (some texts say, 50,000 years) have been asserting themselves for recognition of their tribal law in the formal legal system of Australia. Difficulty arises because of dichotomy between English and Aboriginal law in the matter of criminal law and traditional tribal law. Aboriginal law requires punishment for certain acts which are not punishable offences under the Australian law evolved from English common law. Certain physical punishments compulsory under Aboriginal law are unlawful within the perspective of Human Rights declarations to which Australia is a party and also under the common law. And certain offences punishable under English law have no equivalents in Aboriginal culture. Further, there is vast difference between the Australian and Aboriginal concepts of land. According to Aboriginal belief, people are custodians and not the possessors of land and its usufruct.1 Regarding the vexed problem of criminal law, Justice Gibbs, Mason and Wilson observed in Ngatayi (1980)’s appeal 2 as it is no doubt, a question of high legislative policy whether tribal aboriginals, who are unable to understand the concepts of ordinary law, ought to be tried under that law.3. Murphy J felt that the said laws being not compatible with each other, difficulty arises in their application within the same jurisdictions 4 Important characteristics of aboriginals is their kinship which is not necessarily related to blood relations. Besides their society is not organised with chieftains or any ruling class though there are tribal elders. Though there is no hierarchical system of government within a tribe or amongst tribal groups, there exist mechanisms of order and dispute resolution. They do not distinguish between mandatory rules and social behaviour and all are treated as law by them.5 As their society is characterised by kin relationships which extend beyond the familial or blood relationship and it is no exaggeration to say that it is the anatomy and physiology of Aboriginal society. A person entering a strange group for trade or ceremony is accorded a kinship position if he does not have one. The kin relationship creates obligations in matters such as marriage, private arrangements, food gathering, distribution and sharing, sharing of other goods, trading relationships and educational roles. The kin relationship obligations bar certain types of physical relationship breach of which entail punishment though minor obligations would be left with mere disapproval. If women, children and uninitiated persons happen to see things forbidden for them such as sacred objects like Tjuringa, a sacred place or sacred ceremony are deemed to have committed offences against sacred laws. A person having confidential knowledge of sacred matters is not supposed to disclose that knowledge to those who are not entitled to it. If he violates, he is guilty of breach of law for which penalty is often death and in lesser offences, the punishment is spearing. Marriages are mostly arranged and rules permitting marriage with certain relatives and prohibiting certain relatives must be observed. Girls usually marry men many years older to them. They are even promised even before their birth. A man must not co-habit with his sister, mother and wife’s mother. Incest is punished with death except when the degree of relationship is no so close. In such cases banishment from the tribe or some other punishment would be given. Adultery and elopement entail spearing as a penalty. Inflicting serious physical injury also would attract spearing. Murder is retaliated in a number of ways. A family member of the deceased is allowed to make physical retaliation against the offender who committed the murder. This is known as “payback “as part of kinship obligation which is kind of avenge against the death despite his own personal views. This, however, is not a guarantee to end the dispute as there have been blood feuds extending over many years. Monetary compensation for death may be offered or demanded but acceptance of which is not a guarantee for exemption from revenge. If physical avenge is not possible, the murderer would be identified to the victim’s relative one of whom would perform sorcery for making him die. Yet another method in one area, northern Arnhem Land, used to be “magarada” which was a form of settlement by combat with blunted spears.6 Thus, the offences can be categorised as acts of commissions and omissions listed below. 1) Unauthorised homicide, 2) Sacrilege, 3) Unauthorised sorcery, 4)Incest, 5) Cohabitation, 6)Abduction or enticement of women, 7) adultery with certain kin, 8) Adultery with potential spouses, 9) Unauthorised physical assault, not intended to be fatal, 10) Usurpation of ritual privilege or duties, 11) Theft and intentional destruction of another person’s property and 12) Insult such as swearing and exposure of genitals which are acts of commission.7 And the acts of omission are 13) Physical neglect of certain relatives. 14) Unwillingness to issue gifts. And 15) Refusal to educate certain relatives.8 Punishments for these are death, insanity and illness. Death is caused by non-human agency for commission 2 above, by human agency for commission 1 and 3, physical attack for commission 1 and 3. Insanity for commission 2 and illness by human sorcery for commission 1,2,3,5,6,7,8 and omission 1 and 2 above.9 The above account would suffice for the background information to consider the dilemma of the Australian legal system to deal with aboriginal offences within their community. The question is whether punishment can be different for the same offences depending upon the racial background. Strictly speaking, Aborigines and non-aborigines are subject to the same law but Australian courts do recognise the Aboriginal customary law especially in criminal jurisdiction. Some aspects aboriginal customary law have received legislative sanction. Australian Law Reform Commission has also made recommendations for recognising Aboriginal customary law.10 As the aboriginals have to obey their customary laws, they will not be able to fully answer the interrogation the way it is expected of in a criminal justice system and procedures and rules of evidence have been modified having regard to the customary law and special problems of aborigines. As they have respect for authority, their answers in the interrogation may reflect the truth though they would not tell what actually occurred due to restrictions placed on them by the customary law. For example, the suspect may not be ready to disclose name of the dead person, or to disclose secret matters or matters which are somebody’s business or he may alack authority to speak on an issue.11 Therefore, there are special interrogation rules for the aboriginals which police should strictly follow.12 Thus, police can exercise certain discretions like non-prosecution for certain offences if they are strictly tribal or traditional, prosecution for lesser offence such as reducing a murder to manslaughter and entering a nolle prosequi by the Crown. Where an aboriginal offence has been already dealt with by tribal society by its own process and resolved the issue, the police may exercise its prosecutorial discretion. While exercising the discretion, following factors will come into play. a) that an offence under general law is also an offence under customary law, b) question whether the offender was aware that he was violating the general law, c) the issue has been already resolved through a customary law process satisfactorily and d) that the victim does not wish to proceed against the offender.13Under the customary law, it is a serious offence to mention name of dead aborigine or speak of the dead person by name which many Australian courts especially Northern territorial ones have recognised. In R v Bara Bara14 , the Supreme Court of Northern Territory gave recognition to it and suppressed the name of the deceased aborigine in its order where an aborigine pleaded guilty of manslaughter of another aborigine. The judge followed this with the hope that it would reduce “Payback killing”15 In R v Sydney Williams16, Williams killed a woman provocated by her conduct in telling out religious secrets which she was not supposed to know and at least not to speak even if she knew. In spite of Williams’s repeated advice to her not to repeat, she continued speaking though both were under the influence of drinks. As he confessed to the killing, the Judge Wells took the Queen’s consent and reduced murder to manslaughter resulted due to extreme provocation by the violation of the rule strictly prohibited under the customary law. Williams expected that he would be punished by the tribal law though the mode of punishment was not known. The Adelaide court where he was tried passed the sentence of imprisonment for two years with hard labour. The judge pronounced You were a bit drunk and [the victim] was full drunk, but when you hit her you hit her very hard and killed her. That was wrong and forbidden by law. I must now deal with you……......You must behave yourself for two years and not get into any trouble. You must do what the Old Men tell you to do for one year. You must not drink wine or beer unless the Old Men allow you to. If you do any bad or wrong things or if you do not do what the Old Men tell you to do, you will go to gaol here in Adelaide for two years.17 The order of the judge did not give sanction for punishment under Aboriginal customary law as it would amount to double jeopardy. The judge was careful enough to state that the offender should obey lawful orders and directions of the elders which meant lawfulness in general law. The judge said that he would not send the offender to custodial sentence in order to prevent his living death in custody under a solitary confinement without being able to speak in English, communicate with fellow prisoners and prison staff. But on return to his camp, Williams was speared three times in thigh without deep penetration that only a minor medical treatment was necessary. The judge comments that spearing of Williams was not a form of punishment for the death of the woman but as a signal for normalisation of relationship with the tribal society as per demands of the traditions. The Australia Law Reforms Commission (ALRC) says that what the judge did for Williams was ineffective as he later committed offences against Aboriginal women and had to be imprisoned in 1978 and again 1980.18 In R v Larry Colley19, the judge was reluctant to send the offender on probation and sentenced him to three years of imprisonment for killing his wife as dictated by his traditional customs for her alleged infidelity. The prosecution opposed his release on probation, as what the offender did was unlawful and punishable under general law and whether it was also punishable in customary law was of no concern, as such a punishment was unlawful again. The judge agreed and passed the sentence but for a minimum period as the offender was most likely to be under double jeopardy of spearings once he returned to his camp after serving the sentence. In R v William Davey, the offender was convicted and released on probation for murdering the victim who interfered in the quarrel between the offender and his wife. And all the three had been under the heavy influence of alcohol. It was given in evidence that offender’s wife had been promised for the victim earlier and it was promised that no spearing punishment would be given and he was welcome back to the community. The Crown appealed on the grounds of inadequacy of the sentence as what the offender did was unlawful under general law and merited a higher punishment. The appeal court rejected the argument on the grounds of wide discretionary powers of the lower court’s judge. In R v Joseph Murphy Jungarai20, the offender was sentenced to six years and six months for manslaughter for killing another aboriginal man under the influence of alcohol provocated at the belief that the victim had paid to one of his wives. The sentence was meted out despite the fact that the offender received his pay back at the community through beatings with nulla-nullas and boomerangs until becoming unconscious. He had been released on bail to receive his pay back in order to reduce unrest among the community especially between the families of the victim and the offender. His appeal to suspend the sentence was rejected. In R v Moses Mamarika21 too, even though the offender was given the payback immediately after the killing of his own brother who was unmarried, he was sentenced to seven years and six month hard labour with 2 years non-parole period. In fact the community and the offender’s family requested the court not release him for at least three years. The payback to cause death resulted in injury of his abdomen and he survived only after surgery. Yet, the anger at the community level did not subside. On appeal however, the Federal Court suspended the sentence on furnishing of security for good behaviour for four years but ordered that he should be away for three years from his home community. This reduction of sentence was not on the basis of his possibility of receiving further punishment from the community but because of the provocation to kill was under the influence of alcohol. Discussion and conclusion. The sentences under general law have not been to serve as form of protection from the community’s punishment. The sentence under the general law are given as a form of punishment for the offence and not necessarily to prevent a double jeopardy. The offender has the risk of receiving payback if released earlier and may be protected from payback if released later. But lesser sentencing or higher sentencing is not motivated by the externality of tribal resentment but on the basis of independent causative factors of the offence. In Jackie Jamieson v R (1965), the offender had been sentenced to imprisonment for 12 years with six year non-parole period. On appeal, it was reduced to five years with a non-parole period of years. The reason adduced by Justice Wolff of Chief Western Australian Supreme Court observed that although the trial judge had considered the possibility of the victim’s relatives exacting a sentence on the offender as per their traditions and that the offender’s need for a protection, the ultimate sentencing did not have these kindly motives into consideration. In Harry Gilmiri’s case, Justice Murihead observed It is, upon [the] evidence, too early for you to return to Daly River and [counsel] has not had the opportunity of obtaining the views of [the victim’s] relatives in the Port Keats area. When you are released, the feelings of your people will have to be considered before you return home. You are not of course being imprisoned merely to shield you from payback.22 The ALRC 31 states A defendant should not be sentenced to a longer term of imprisonment than would otherwise apply, merely to ‘protect’ the defendant from the application of customary laws including ‘traditional punishment’ (even if that punishment would or may be unlawful under the general law)23 The main issue is the possibility of double jeopardy which should be properly addressed. This arises when the offence is both under the general law and the customary law. The ALRC report considers that the allowing the offender to receive payback is a form of dispute resolution or to enable peace to return to the community and not in any way a substitute for punishment under general law. Thus court action under general law and community action under aboriginal law are both inevitable. Whatever action that court takes is only to mitigate the unrest in the tribal community and nothing more. Neither can the court outlaw the tribal law as inhuman or in a bid to prevent a double jeopardy. The element of aboriginal law also should not be an aggravating factor for increased penalty under the general law. Justice Gallop had observed in R v Burt Lane (1980)24 as It makes a huge impact if a person receives a substantial gaol sentence. That satisfies most of the traditional people and at the end of this period, when they are calm and rational, the second part of the system can come into effect where a person like that is expected, or required by tradition to present himself for punishment to certain people of that relationship and when he does that he is wounded in various ways. He might be speared, but never seriously and once that has been accomplished, then nobody can bring the matter up again. The whole case is settled ... [I]f there isn’t a gaol sentence, for argument’s sake, then [there is a risk] ... of some of the rougher element within the wider relationship taking some drastic measures immediately.25 Barnes Stevens (Bailey J)26 in his decision concerning a bail application by the aboriginal offender to facilitate his receiving the payback at the earliest opportunity though it may result in death considering the severity of repeat spearings and hitting by boomerangs and punches which the offender was ready to receive for the sake of well being of his community, he refused bail application in order to protect him from possible death which any court would do regardless of the tribal or non-tribal background of the offender. The courts take care not to make it appear as if the aboriginal laws have their approval and the sentencing of the offender paves way for the aboriginal also to take its own course. As already said earlier, the courts and legislation have struck a right balance between the general law and the customary law by means of prosecutorial discretions, lesser sentencing etc.27 Further indigenous participation through establishment of Indigenous courts and other justice practices have been put in place since 1990 which have been well received by the Aboriginal society thus giving them a feeling of having a say in court decisions. In R v Walker (1994)28, the Judge gave recognition to the “Pay back” system by encouraging spearing of the offender without attracting the double jeopardy principle by incorporating the condition that in case he is not subjected to spearing, he should return to the prison.29 In R v Morgan30 recently decided in January 2010, the offender was booked for domestic violence against the girl with whom he had been living. His trial was conducted at Koori Court meant for the aboriginals. Not only the offender confessed to his wrong doings but also the elders of the community took part in the consultation process. In the appeal, participation in Koori Court was considered a mitigating factor. Morgan apologised to the elders of the Gunai/Kunai community for his wrong doings. As the objective of the Koori court is to enable greater participation of the aboriginal community, Walker’s original sentence was reduced to 2 years. From the above, it would emerge that there has been no explicit recognition of payback system of aboriginals in the Australian general laws. Though the concessions given to the aboriginal practices in the form of prosecutorial discretions, they are not themselves a substitute for Australian mainstream law. The setting up and functioning of aboriginal courts with elders’ participation seated right next to the judge for consultation would go a long way in the aboriginals aborting their tribal laws in due course as they are inconsistent with human rights and as the aboriginals are treated equally in the Australian society affording them opportunities in education, shelter, healthcare and jobs in the mainstream society. Bibliography Books Johnston Elliott, Rigney Daryle and Hinton G Martin. Indigenous Australians and the law, Ed 2 Routledge. 2008. Print Edwards Charles, English Law and Aboriginal Law: Australian Perspectives in Karlson M Mikael and Soeteman Arend. Law, Justice and the State: Proceedings of the 16th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Reykjavík, 26 May-2 June, 1993. Problems in law, Franz Steiner Verlag, 1995.Print Cases Ngatayi v The Queen (1980) 54 ALJR 401.Web 31 March 2010 R v Bara Bara (1992) 87 NTR 1 Web 31 March 2010 R v Burt Lane, Ronald Hunt and Reggie Smith, unreported, Northern Territory Supreme Court (Gallop J), 29 May 1980 (SCC Nos 16-17, 18-19, 20-21 of 1980) 99-100. Web 31 March 2010 R v Morgan (Unreported, County Court of Victoria, Judge Lawson Web 31 March 2010 Sydney Williams Case (1976) 50 ALJ 386. Web 31 March 2010 The Queen v Wilson Jagamara Walker Supreme Court of the Northern Territory, Martin CJ, Unreported, 10 February 1994, SCC no 46, 1993. Web 31 March 2010 Others ALRC Report 31 . Australia Law Reforms Commission. Web. 31 March 2010 Bail application reported (1981) 9 NTR 30 (NT Supreme Court, Forster CJ); reasons for sentence, unreported, 2 November 1981 (NT Supreme Court, Muirhead J); appeal from sentence, unreported, 4 June 1982 (Federal Court of Australia, Toohey, McGregor, Sheppard JJ). in ALRC Report 31 Web 31 March 2010 Marchetti Elena and Daly Kathleen, Indigenous Courts and Justice Practices in Australia. Trends and Issues in crime nd criminal justice., Australian Institute of Criminology.May 2004. Web 31 March 2010 Reasons for Sentence, unreported, 22 December 1981, Northern Territory Supreme Court, Muirhead J); appeal from sentence, (1982) 42 ALR 94, Federal Court of Australia (Northrop, Toohey, Sheppard JJ). in ALRC Report 31 Web 31 March 2010 Schreiner Agnes T.M., Observing the differences in Arend Soeteman (ed.) Pluralism and Law. Proceedings of the 20th IVR World Congress. Volume 3: Global Problems (ARSP-Beiheft 90). Stuttgart: Franz Steiner Verlag, Web 31 March 2010 The Advertiser, 10 August 1978, 9. And cf M Brady & K Palmer, Alcohol in the Outback. North Australia Research Unit, Darwin, 1984, 36. in ALRC Report 31, Web 31 March 2010 Unreported, WA Supreme Court (Brinsden J), 14 April 1978). . in ALRC Report 31,Web 31 March 2010 Unreported, NT Supreme Court, 21 March 1979, transcript of proceedings, 116; ACL RP6A, 16-17. in ALRC Report 31,Web 31 March 2010 Unreported, NT Supreme Court (Gallop J) 20 June 1978, transcript of proceedings, 36; ACL RP 6A, 14. in ALRC Report 31,Web 31 March 2010 Read More