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Judicial Use of Customary Law in the Criminal Justice Process in the Northern Territory of Australia

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Judicial Use of Customary Law in the Criminal Justice Process in the Northern Territory of Australia JUDICIAL USE OF CUSTOMARY LAW IN THE CRIMINAL JUSTICE PROCESS IN THE NORTHERN TERRITORY OF AUSTRALIA Anne Joyce Griffiths School of Oriental and African Studies PhD i ProQuest Number: 11010510 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010510 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 Abstract The Thesis sets out to examine judicial use of customary law in the criminal justice process in the Northern Territory of Australia. The broad context of the Thesis is the relationship between state law and customary law and the role of the judiciary in interpreting and developing that relationship. The Thesis concentrates on criminal law as it is the subject area where the conflicts are most acute and on the Northern Territory as it is the jurisdiction with the largest proportion of Aborigines living traditional lifestyles. The categorisation of the acquisition of Australia as by settlement has meant that customary law had been largely excluded from the state legal process. However, changes in the political climate have led to increasing demands for some recognition. The Thesis examines the legal difficulties inherent in such demands, considers the options and concludes that, on balance, the judiciary are the body best placed to resolve such difficulties. The Thesis begins with an overview of the nature of customary law and of the theoretical arguments for and against the recognition of such law. This is followed by a consideration of the various methods by which such recognition might be achieved. It is argued that the role of the judiciary in the evolution and regulation of the use of customary law in this context is crucial and that it is often the most appropriate body to decide such issues. This argument is elaborated in the following three Chapters which consider those areas of the criminal justice process where the judiciary have most frequently engaged with this dilemma. The Chapters consider procedural issues, substantive law and sentencing. The final Chapter summarises and evaluates the arguments presented and sets out the conclusion. 2 Table of Contents: Dedication 7 Acknowledgements 8 Table of Cases 9-14 Table of Authorities 15-16 Intentionally blank pages 17-18 Introduction 19-63 0.1 Outline of Thesis 19 i. Central proposition 19 ii. Scope 19-22 iii. Methodology 22-23 iv. Outline of structure 24-29 v. Literature survey 29-37 0.2 Customary Law and the State 37-38 i. The nature of customary law 39-43 ii. The content of customary law 43-46 iii. The relationship of customary law to the state system 46-50 iv. Proposals to date for the recognition of customary law 50-58 0.3. Conclusion 58-63 Chapter 1: The status and effect of the acquisition of Australia in 1770-1788: settlement and terra nullius 64-118 1.1 Introduction 64-66 1.2 History of occupation of Australia 66 i. International law relating to the acquisition of territory and ensuing jurisdiction current in 1770-1788 66-73 ii. Application of international law to 1770-1788 73-82 iii. Conclusion 82 1.3. Judicial consideration of the classification of 1770-1788 as settlement and of the consequent amenability of Aborigines to British jurisdiction prior to 1992 83-99 1.4 Judicial consideration of the classification of 1770-1788 as settlement and of the consequent amenability of Aborigines to Australian jurisdiction post 1992 99-113 1.5 Subsistence of customary ‘criminal’ law post-Mabo 113-117 1.6 Conclusion 117-118 Chapter 2: Analysis of possible arguments for the recognition of customary law 119-174 2.1 Introduction 119 2.2 Obligation to recognise customary law 119-121 i. International human rights law 121 -124 ii. Minority and group rights 124-126 iii. Rights of indigenous peoples 126-130 iv. Conclusion 130-132 2.3 Voluntary recognition of customary law 132 i. Instrumentalist arguments 133 a. Past injustice 133-137 b. Present day disadvantage and inequality 137-145 ii. Multiculturalism and legal pluralism 145-146 a. Multiculturalism 146-157 b. Legal pluralism 157-162 2.4 Conclusion 162-174 Chapter 3: Judicial use of customary law in the rules on evidence and procedure 175-205 3.1 Introduction 175-176 3.2 Jury trial 176-178 3.3 The provision of interpreters 178-179 3.4 The right to silence and the taking of confessions or statements 179-188 3.5 Comprehension of proceedings and fitness to plead 188-189 4 3.6 Identification evidence 189 3.7 The taking of Aboriginal evidence 189 i. Unsworn statements 189-192 ii. Dying declarations 192-193 iii. The compellability of Aboriginal spouses 193-195 3.8 Proof of Aboriginal customary laws 195-204 3.9 Conclusion 204-205 Chapter 4: Judicial use of customary law in the establishment of the elements for an offence or a defence 206-253 4.1 Introduction 206-207 4.2 Offences 207-210 4.3 Defences 210-211 i. Provocation 211 a. General development of the law 212-222 b. Northern Territory 222-238 ii. Duress 238-245 iii. Intoxication 245-248 iv. Diminished responsibility 248-252 4.4 Conclusion 252-253 Chapter 5: Judicial use of customary law in sentencing 254-319 5.1 Introduction 254-257 5.2 Aboriginalityper se in sentencing 257-263 5.3 Factors associated with Aboriginality 264-270 5.4 Customary law per se as a factor in sentencing 271-272 i. Payback administered by the defendant 272-274 ii. Payback suffered by the defendant 274-276 iii. Recent developments in the practice of the Courts in assessing the relevance of payback 276-315 5.5 Conclusion 315-319 Conclusion: 320-334 6.1 Overview of judicial reasoning and discretion in the use of customary law to date 320-324 6.2 The extent and desirability of judicial discretion 324-329 5 6.3. Alternative or pre-Court criminal justice mechanisms 329-330 6.4 Possible future developments 330-333 6.5 Conclusion 334 Intentionally blank pages 335-339 Bibliography 340-379 6 Dedication This work is dedicated to indigenous peoples throughout the world in sorrow for past and present injustice and in hope for a better future. And to my parents with love and thanks. 7 Acknowledgements The writer is pleased to acknowledge the following debts of gratitude. University of London Central Research Fund: For financial assistance. The University of East London: I am particularly grateful to my colleagues for bearing more than their share of our duties and to the Head of School, Fiona Fairweather, for accommodating this work; and to them all for their support. Academic Advisers: Jane Connors, Michael Anderson and Beverley Brown, all of whom have read various drafts and offered helpful comments. My greatest debt in this respect is, of course, to my Supervisor, Matthew Craven. The Thesis is much the better for his guidance and any errors which remain are my sole responsibility. Interviews: I am grateful to the following, all of whom agreed to talk to me and provided me with insights from their personal experience: Austin Asche, Ian Barker, Peter Bayne, Tim Carberry, Anna Cody, John Coldrey, James Crawford, Pam Ditton, Phillip Eatwell, Mary Fisher, Sean Flood, Jack Goldring, Ken Grime, Peter Hennessy, Dyson Hore-Lacey, Wesley Lanhupuy, John Lawrence, Daryl Manzie, Bruce McCormack, Colin McDonald, Luke McNamara, Will Stubbs, Donna Sullivan, Merle Thomas, Jon Tippett, Sue Tongue, Frank Vincent The following Religious Communities have provided me with hospitality and space: Ursulines of the Roman Union - Provinces of Australia and USA East Our Lady of the Sacred Heart - Australia All Saints Sisters of the Poor - Oxford To my family, friends and Community. This work aims to represent the law as at 1 December 2004. 8 Table of cases discussed or cited: Australian cases: Atkinson v. Walkely (1984) 27 NTR 34 Attorney General v. Brown (1847) 1 Legge 312 Attorney-General for the Northern Territory v. Maurice in the Matter of the Warumungu Land Claim (1986) 65 ALR 247 Binge and Others v. Bennett and Others (1989) 42 A Crim R 93 Bob Barrett Sydney Gazette, 4th April and 16th June, 1829 Bon Jon Unreported, see (1998) 3 Australian Indigenous Law Reporter 410 Chapman v. Tickner (1995) 55 FCR 318 Coe v. Commonwealth and Another (1979) 24 ALR 118 Coe v. Commonwealth (1993) 118 ALR 193 Colin Goodsell v. Galarrwuy Yunupingu (1999) 4 AILR 29 Collins v. R. (1980) 31 ALR 257 Commonwealth of Australia v. Tasmania (1983) 158 CLR 1 Commonwealth v. Yarmirr (2001) 208 CLR 1 Cooper v. Stuart (1889) 14 App Cas. 286 Coulthard v. Steer (1981) 12 NTR 13 Cubillo v. Commonwealth of Australia; Gunner v. Commonwealth of Australia (2000) FCA 97 Daly River (Malak Malak) Land Claim, see Australian Law Reform Commission The Recognition of Aboriginal Customary Laws Final Report No. 31 1986 at 488 n 56 Dietrich v. R. (1992) 109 ALR 385 Director of Public Prosecutions Reference No. 1 of 1999 (1999) 128 NTR 1; (2000) 134 NTR 1 Dumoo v. Gamer (1998) 7 NTLR 129 Foster and Others v. Mountford and Rigby Limited (1976) 14 ALR 71 Fry v.
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