14, Questions of Evidence and Procedure 109. Introduction, The general conclusion reached in Chapters 10-13 is that, while Ab- original customary laws should be taken into account in the substantive criminal law, in various aspects of criminal procedure and in sentencing, this should occur within the confines of, and not to the exclusion of, the general criminal law. Assuming that this is 50, it may nonetheless be necessary for procedural and evidentiary rules to be modified or reinforced to ensure that justice is done. Indeed, procedural safeguards of various kinds may themselves be a way of recognising Aboriginal customary laws. Many of the difficulties ‘experienced by Aborigines, and especially traditionally oriented Aborigines, arise from problems of language, of comprehension of the criminal justice system and of conflicting cultural and legal assumptions and values. For example, the criminal justi system assumes that a defendant has a right to remain silent, that is, a right not to i criininate oneself. But in the case of traditionally oriented Aborigines under police inter- rogation, this right may, because of the difficulties referred to in para 111, be quite illu sory. Special protection may be required to avoid the special difficulties experienced by such Aborigines charged with offences against the criminal law. problems have occurred in other areas of evidence and procedure, and these are surveyed in this Chap- ter. [para 543] Criminal Investigation and Police Interrogation of Aboriginal Suspects % 10. The General Law of Admissions and Confessions. Under the general law an ad- mission or confession made by a suspect is admissible in evidence if it was made ‘volun- tarily, that is, in the exercise of a free choice to speak or be silent’, although the judge re- tains the discretion to exclude it on the ground that the circumstances in which it was ob- tained make it unfair to use it against the accused. In addition there are certain general rements laid down in police standing orders or by the courts (the ‘judges’ rules’) re- quiring that a suspect be cautioned (ie advised of the right not to answer questions). 111. Special Problems for Aborigines. Despite these safeguards, some Aborigines experi ence particular difficulties in understanding their legal rights, in particular the right to re- main silent and not to incriminate oneself, These problems can include: © language; © deference to authority; © different concepts of time and distance; health problems (especially hearing problems and health problems arising from al- cohol abuse); customary law inhibitions; and misunderstandings between Aborigines and police.Questions of Evidence and Procedure / 55 Many recommendations to safeguard the rights of Aborigines in. police interrogation have been made by State and Commonwealth government inquiries and by judges in cases involving Aborigines. These recommendations (involving a more explicit caution, the presence of a ‘prisoner's friend’ during questioning, notification of the local Aborigi- nal Jegal service or a lawyer) were made, for example, by this Commission in its Report ALRC2, Criminal Investigation (1975), by the Lucas Committee of Inquiry into the En- forcement of the Criminal Law in Queensland (1977), and by other bodies. Such safe- guards were incorporated in the Criminal Investigation Bill 1981 (Cth), which would have applied to all federal offences. (para 546-8] 112.- Special Safeguards Laid Down by Courts or Police Standing Orders. Judges in fetent States and the Northern Tetritory have also drawn attention to these special diffi- ulties. In several casts these comments were the catalyst for amendments to police in- structions. In particular Justice Forster (as he then was) in the Northern Territory Su- preme Court in Rv Anunga (1976) 11 ALR 412 laid down guidelines to be observed by the police when interrogating Aborigines (the so-called Anunga Rules). In Queensland, Northern Territory and the Australian Capital Territory there are guide- lities for the police when questioning Aboriginal suspects. A departure from the guide- lines without sufficient reasons may result in any statement obtained being ruled inadmis- sible in evidence, through the exercise of a discretion to exclude such evidence. Despite certain practical problems for the police, the guidelines have become an accepted part of police operations and the courts have, with some exceptions, supported and applied them. On the other hand in Tasmania and New South Wales where there are no guide- lines, there is resistance to their introduction on the part of the police, and requests for their introduction by Aboriginal Legal Services have produced no result. In addition to interrogation guidelines, police departments in Victoria, the Northern Territory, South Australia and the Australian Capital Territory have some system for notifying the local ‘Aboriginal Legal Service after an Aborigine is arrested, [para 549-61] 113. The Need for Special Protection. Of all Aborigines in Australia, those who are tradi- tionally oriented appear to be the most vulnerable when involved in police interrogation. Apart from linguistic and educational disadvantages,, traditionally oriented Abori may aiso feel under significant pressure to make a statement to the police, not necessarily as the result of police interrogation techniques, but rather for strong cultural reasons. There is.a strong case for the police to be required to. comply with guidelines or rules such as the Anunga rules when dealing with traditionally oriented Aborigines, wherever they may live. But there may also be cases where fringe-dwelling or urban Aborigines ‘need similar protection. It is undesirable at a preliminary or definitional stage to require the police to draw difficult and often. arbitrary distinctions between tribal, semi-tribal and ‘other Aborigines, The Criminal. Investigation Bill 1981 (Cth) cl 26(4), adopting the ap- proach proposed in the Lucas Report, would have allowed a police officer to dispense with the special safeguards if: the Police Officer has reasonable grounds for believing that, having regard to the person's level of education and understanding, he is not at a disadvantage ... in comparison with members of the Australiany community generally. Bur it has been argued that very few Aborigines are not ‘at a disadvantage’ and that such a provision gives the police too much discretion. The House of Representatives Standing Committee on Aboriginal Affairs was concernéd that distinguishing between tribal, semi- tribal and other Aborigines could see the “police administering a subjective “sophistica- tion” test based on theit notion of tribalism and their judgment of an Aboriginal's com- prehension of English.’ (Aboriginal Legal Aid (1980) 81). Another problem is that cl 26(4) was directed not at the question of the suspect's actual level of education and under-56 / Aboriginal Customary Law standing but at the police officer’s reasonable belief as to that level of education and understanding. [para 562—4] 114. The Commission’s Conclusion. In the Commission's view, interrogation rules or guidelines should apply to all Aborigines whose difficulties of comprehension of their rights under interrogation, and of the meaning of what is said, warrant such protection, whether these difficulties arise from lack of education, or lack of understanding based on different conceptions of law, or undue deference to authority. The test for the admissibil- of a confession made by an Aboriginal suspect without compliance with the interroga- tion rules should focus on whether the suspect understood that he or she need not answer any questions, understood the nature of any questions put or statements made in the course of the interrogation, and did not make the admissions merely through a desire to comply with the perceived wishes of a person in authority. Where these conditions are not met, special protections are necessary. A majority of the Commission believes that there should be no further restrictions on the application of the interrogation rules. The test for admissibility itself incorporates the various elements (comprehension, capacity to choose whether to speak or be silent) relevant to limiting the class of persons who need legal protection. On the other hand two members of the Commission (Professor JR Craw- ford & Professor MR Chesterman) would spell out the category of persons to, whom the interrogation rules should apply, in broadly the same way as the Criminal Investigation Bill 1981 (Cth) did, but through the use of more precise language, and with a test phrased in terms of the court's, rather. than the investigating police officer's, judgment of disad- vantage. In their view, the rules should be expressed to apply only to those suspects who are specially disadvantaged in relation to police interrogation, having regard to their lev- el of education, fluency in the English language, or other relevant characteristics. [para 565] : 115. The Staties'and Content of the Interrogation Rules. A number of questions arise as to the content and status of the rules. These may be summarised as follows: ‘+ Requirement of a Prisoner's Friend. There should be a requirement that a ‘prisoner's friend’ be present in cases where an Aboriginal suspect is-in custody or (though not in custody) is being questioned in respect of a serious offence. The question is whether the suspect should have an unrestricted right to choose a ‘friend’. Such a choice may have some psychological advantages and make the suspect: more at ease, but the chosen ‘friend’ may be able to do little or nothing to-prevent the sus- pect being overborne. Where the interrogation rules do apply, the Commission be- lieves that the function of a prisoner's friend is ‘to enhance the suspect's ability to choose freely whether to speak or to be silent” (Collins v R (1980) 31 ALR 257, 322 (Brennan J, dissenting). This function will not be fulfilled if the prisoner's friend is merely ‘part of the furniture’: Accordingly there should be a preference for a prisoner's friend who has been nominated by the local Aboriginal legal aid organi- sation or who is a barrister or solicitor. If no such person is reasonably available, then resort will have to be made to a friend or relative chosen by the suspect. The prisoner's friend should not be a police officer, an accomplice in the suspected of- fence, or a person the police reasonably believe should be prevented from commu- nicating with the suspect (eg because the person may destroy evidence or intimi date a witness). Notification of Aboriginal Legal Service. In evidence and submissions to the Com- mission, few objections were made to the suggestion that the local Aboriginal legal service be notified whenever an Aborigine is arrested, at least for more serious of- fences: Such a requirement is essential. The interrogation rules should accordingly require notification of an Aboriginal legal service in cases where the suspect is in police custody, or where the offence in question is a serious one, unless the interro-Questions of Evidencé and Procedure / 57 n should be carried out without delay to avoid danger to persons of serious damage to property, or unless there is already a prisoner's friend present who is lawyer or Aboriginal legal service nominee. * Excusing Non-Compliance with the Guidelines. There should be no separaté dis eretion to admit a confession obtained in violation of the guidelines, where they apply. The difficulty with such a discretion is that it would require the court to weigh up what are essentially disparate matters. Consistently with the test pro- posed in para 114, the only quéstions should be whether the suspect understood the right to silence, and the questions put, and whether the answers given were not given merely out of the suspect's suggestibility or deference to authority, and irre- spective of the suspect's own belief as to the facts. This test thus performs the dual functions of delimiting the class of suspects to whom the interrogation rules apply, and establishing a test for the admissibility of confessions where the rules were not complied with. * Application to Other Investigatory Steps. The interrogation rules should also apply to admissions given in the course of other investigatory steps (such as re- ‘enactments or identity parades) which require the presence and co-operation of the suspect, but they should not prevent the admission of material evidence as distinct from admissions. ‘*- Right to Waive Protection, A further question is whether the protection of the rules should be able to be waived by the suspect. The problem has some common fea- tures with that of choice of a prisoner's friend. If the suspect is at a disadvantage in the situation, the reality of-any ‘choice’ is doubtful. On the other hand an Abor- igine who (if necessary with the aid of an interpreter) understands the right not to answer and the nature of the questions may decide to do without the protection of the rules: if the suspect’s decision to waive is a real one (in the sense that it as genuinely voluntary) the basic test for admissibility will necessarily be satisfied. Accordingly waiver ought not to be a separate aspect of the rules. Legislation or Guidelines? The basic principles underlying the guidelines should be ‘enacted in legislation, to make it clear both to the police and to the courts that the iterrogation rules are to be taken seriously. The purpose of the interrogation rules. is not to regulate, still less to penalise, police misconduct but to regulate the admis- sibility of certain forms of evidence. Like other aspects of the law of evidence, the rules should be stated in clear and binding form. More detailed requirements can be laid down, if this is thought desirable, in police standing orders or rules of sit lar status, [para 566-73] Et Winey Other Issues 116.” Committal Proceedings. In some cases, committal proceedings, where the accused appears in court before a magistrate who hears the evidence and then refers the matter to another court, can cause confusion. For inany traditionally oriented Aborigines, having to appear in court for any reason at all’can be an unsettling and alien experience, and ‘multiple appearances at different stages of the process add to the coiifusion, For reasons ‘such as these, some commentators (eg Justice MC Kriewaldt) recommended that commit. tal proceedings for Aborigines should be abolished. On the other hand Aborigirial ‘de- fendants are now much more frequently represented by counsel than was the case when Kriewaldt wrote. Committal proceedings give the defence an opportunity to hear of the Prosecution case. They also enable some testing of the evidence. For these reasons, there58 / Aboriginal Customary Law should be no abolition of committals for traditional Aborigines, while they remain the normal procedure for other accused persons. In particular cases, various procedural de- vices are available (eg ex officio indictments, prosecution locally for a lester offence) which may be able to be used to avoid the need for committal proceedings in special cases where this is justified. [para 575-8] 117. Fitness to Plead. Problems sometimes arise with Aboriginal defendants whose un- fitness to plead is not the result of mental incapacity, or of linguistic problems which can be overcome by an interpreter, but are caused by lack of comprehension due to massive cultural barriers. The: Criminal Codes of Western Australia, Queensland and the North- em Territory have specific provisions dealing with the situation of a person unable to understand the proceedings at his trial, and these have had to be applied to traditionally oriented Aboriginal defendants in a number of cases. The problems created by incompre- hension of the nature of a guilty plea and of the trial that some traditional Aborigines suffer from are no reason for applying a procedure, designed for mentally ill persons, which may result in detention without trial. Nor are they a reason for in effect exempting such a person from the application of the criminal law. But such incomprehension is 4 good reason for requiring the prosecution case to be made out. ‘By definition, in such cases a plea of guilty is likely to be unreliable, even meaningless. It should be provided that, in a criminal proceeding against an Aboriginal defendant who appears to the court not to be fluent in the English language, the court should not accept a plea of guilt unless it is satisfied that the defendant sufficiently understands the significance of the plea, and the nature of the proceedings. If necessary, the court should adjourn the proceedings to allow legal advice or an interpreter to be provided, to assist in explaining the plea and its significance. This does not mean that the defendant needs to have a lawyer's understand- ing of the plea or the proceeding, only that the level of understanding should be sufficient to justify convicting the defendant solely on the basis of a guilty plea. If this does not ex- ist, a plea of not guilty should be entered. [para 579-85] 118. Aboriginal Juries. In the past, suggestions have been made that jury trial for Abor- igines should be abolished on the ground that ability 10 discern whether a witness <§peaking truly Vanishes when ‘the jury is confronted with witnesses of whose thought pro- ‘cesses they aré ignorant” (Kriewaldt), of that juries find it difficult to be impartial in cases involving Aborigines and non-Aborigines (Elkin). Problems of antipathy or strong feel- ing about a particular case or accused do certainly occur and may lead to the need for postponement or change in the venue of the trial. But there has been little or no support, in submissions to the Commission, for the exclusion of jury trial, and on: the basis of mote recent experience there is no adequate statistical ‘or other evidence from which it can be concluded that a problem exists in relation to jury trial of Aborigines sufficient to justify legislative change. Although more attention needs to be given to jury selection procedures (including the preparation of jury-rolls) to help ensure that a multi-racial so- ety is better reflected in the composition of juties, there should be no specific require- ment of Aboriginal representation on juries where Aboriginal defendants are on trial, However, one issue that has arisen is the question of the composition of juries in cases i volving Aboriginal customary laws, In several cases in recent years, juries composed en- tirely-of persons of one sex have been empanelled because it was submitted that evidence to be called in the trial about. Aboriginal customary laws relevant to the offence could not be disclosed to persons of the other sex. Some knowledge about Aboriginal traditions, rit- uals, and customary laws is regarded as falling within the domain ofa particular’ sex (male or female). It'may be that a witness will be unwilling to, give evidence, or will be Feticent or evasive in giving evidence, where to do so in the presence of persons of the ‘opposite sex would infringe the witness's customary laws, Before making such an order, the court would need to be satisfied that some lesser restriction (eg prohibiting publica” tion of the evidence in question) would not be sufficient. It would also be necessary to en-Questions of Evidence and Procedure / 59 sure that no similar difficulties would arise (with respect to persons of the other sex) to evidence of other witnesses, including especially the victim of the offence. Although the problem may not arise often, it is desirable that the court have power to make appropri. ate orders so that a jury of a particular sex is empanelled in such cases. This should be done on application by a party before the jury is empanelled, and only in cases where it is necessary to enable all the relevant evidence to be given. [para 586-95] 119. Interpreters. One obvious way of reducing the difficulties of language and compre- hension.of the trial process, referred to in para I11, 116 and 117, is through the provision of a trained interpreter with an understanding both of the relevant Aboriginal language and concepts, and of the nature and procedures of the trial. Although there may be prob- Jems with respect to the right to an interpreter, and the role the interpreter is permitted to play, these are not specific to cases involving Aboriginal defendants, and are dealt with as a matter of the general law in this Commission's Interim Report, ALRC 28, Evidence (1985). So far as Aborigines are concerned the problem is more a practical and logistic than a legal one. Guaranteeing rights to translation will achieve litte if there are no com~ petent interpreters available. Some steps have been taken in this direction but it remains an urgent need. Existing programs for the training and accreditation of Aboriginal inter preters should be supported and extended. The aim should be to ensure that competent interpreters are available as needed at all stages of the criminal justice process. [para 596-600] 120. Unsworn Statements, An unsworn statement is a statement made by an accused person, setting out the accused's version of the facts, but which is not on oath and not subject to cross-examination. Retention of the right to make an unsworn statement con- tinues to be a matter of considerable controversy. It has been abolished in Western Aus- tralia, Queenland, the Northern Territory and South Australia, but is still retained in the other States and the Australian Capital Territory. Whether or not unsworn statements are retained generally, there is a question whether special provision needs to be made for un- sworn evidence in the case of those Aboriginal defendants with difficulties of language and comprehension, who experience special problems in giving evidence and in cross- examiniation. The question of the right to make an unsworn statement is an aspect of the general law of evidence. But the special difficulties faced by many Aborigines are such that there should be some facility for them to make an unsworn statement. A majority of the Commission takes the view that an Aboriginal defendant should be permitted to give unsworn evidence unless he or she is found by the court not to be disadvantaged in rela tion to the giving of evidence in the proceeding. Two members of the Division (Justice MR Wilcox and Professor AE-S Tay), on the other hand, would extend the right only to those Aborigines whom the court positively finds to be disadvantaged in relation to the giving of evidence in the proceeding. The Commission further recommends thet, in con sidering whether disadvantage exists, the court should have regard to any ‘relevant characteristic of the defendant (including traditional beliefs and fluency in the English language) and any relevant mental or physical disability, and whether by reason of such a characteristic or disability the defendant is likely to be unfairly ‘prejudiced by cross- examination. Where the defendant is unable to read, the unsworn statment should be able to be read to the court, with leave, by counsel. Counsel should also be able to re- mind the defendant of any other matter which should be referred to in the statement, and to ask supplementary questions to claborate the defendant's case. Comment on the deci- sion to give unsworn rather than sworn evidence should be restricted to the judge and Counsel for other defendants, and that comment should not imply that the election to give unsworn evidence was a result of a consciousness of guilt, or that unsworn evidence is necessarily less persuasive than sworn evidence, However one member of the Division Gustice MR Wilcox) would also allow the prosecution to comment. In addition he would | aN60 / Aboriginal Customary Law only prohibit comment to the effect that unswom evidence is necessarily less persuasive than the sworn evidence of other witnesses in the case. [para 601-5} 121. Other Matters. A number of other more minor issues need to be referred to. ‘+ Aboriginal Dying Declarations. A number of decided cases have held that a tradi- tional Aborigine’s dying statement is not admissible in evidence under the dying declarations exception to the hearsay rule, on the ground of absence of belief in a supernatural judgment after death. It is doubtful whether this still represents the law, but for the avoidance of doubt, it should be declared that dying declarations made by Aborigines shall not, by reason of their adherence to traditional beliefs, be held inadmissible on grounds of any lack of belief in-a religious sanction or _| supernatural judgment. [para 606=11] a * Compeltability of Traditional Aboriginal Spouse. The recognition of traditional mar- | riage for the purposes of spousal rion-compellability was recommended in para 62 of this Summary Report: [para 612] ‘* Identification Evidence. Care is needed in conducting identification parades involv. ing Aboriginal suspects, but the matter is best left to the general law (with the addi tional safeguards in respect of ‘other investigatory action’ recommended in para 115 of this Summary Report). [para 613]15. Proof of Aboriginal Customary Laws 122. Methods of Proof. Under the present law and under the Commission's proposals for the recognition of Aboriginal customary laws, the existence and content of Aboriginal customary laws need to be proved as a question of fact. One way to avoid difficulties created by evidentiary rules for the proof of customary laws would be to empower the courts to take judicial notice of them. This occurs in some overseas countries and has in- volved the judiciary in developing and applying local custom. However this practice is not appropriate for the proof of Aboriginal customary laws. There is the danger that con- trol of the customary laws and practices in question may pass from. Aboriginal commu- nities to the courts. There is also wide variation in Aboriginal customary laws between different communities. Courts need to be able to make informed decisions on such ques- tions, Considerable damage may be. caused by decisions made on assumptions that are ‘unproved. For these reasons a party wishing to rely on a traditional marriage or on some ‘other aspect of Aboriginal customary laws should be required to prove the existence and ‘content of the relevant customary laws. It is necessary to consider whether existing laws relating to admissibility of evidence adequately allow for the proof of Aboriginal custom- ary laws, as well as various other forms of proof, and to deal with a number of ancillary issues of confidentiality and secrecy. [para 614-26] 123. | Expert Evidence. Under the laws of evidence, only a suitably qualified expert is permitted to give opinion evidence, and then only on matiers within the expert's range of expertise. Anthropologists and others with appropriate qualifications relating to custom- ary laws and practices may qualify as experts on matters of Aboriginal customary laws and traditions. But the law on who may qualify as an expert is not entirely clear. For ex- ‘ample it is not clear whether a person with general expertise but little local expertise will ‘qualify. Alternatively, the degree of local expertise may be treated as a matter relevant to Weight rather than admissibility. It is also not entirely clear, at least in Australia, whether a person not formally qualified but with considerable knowledge or experience of a par- ticular Aboriginal community may qualify as an expert. [para 628-32] : 124,” The Scope of Expert Evidence. Even it a person qualifies as ‘an expért, the scope of expert €vidence that may be given is limited by a number of common law rules, * Ultimate Issue Rule. This rule renders inadmissible the opinions of a witness parti- cularly an expert witness, on the basic question dr questions to be decided (the “ul- timate issue’). The rule is very often avoided in practice, and so far has not pre- vented the’ giving of opinion evidence by experts on Aboriginal customaty laws, Justice Blackburn's decision in Milirrpum v Nabalco Pty Lid (1971) 17 FLR 141 supports the view that opinion evidence is admissible where the ultimate issue is one of Aboriginal customary laws, at least in civil cases. However, in’ criminal ‘cases a strict application of the rule would render much evidence inadmissible. [para 633] aa : * Opinions Based in Part on Hearsay. It appears that while repetition of hearsay is inadmissible under the laws of evidence, expressions of dpinion by qualified ex- pert may be admissible although based in part on hearsay. However the law is by no means clear, and there are suggestions that opinion evidence based on hearsay62 / Aboriginal Customary Law may not be admissible at least in criminal cases, If so the courts would again be deprived of access to much relevant evidence of Aboriginal customary laws, know- ledge of which is necessarily gained directly or indirectly from Aborigines them- selves. [para 634-5] + Common Knowledge Rule. Expert testimony on matters of common knowledge are also inadmissible. On the other hand evidence given by anthropologists, for ex- ample on the accused's state of mind when acting under Aboriginal customary laws, has generally been admitted without objection. [para 636] 125. Aboriginal Evidence of their Customary Laws. Evidence of facts or situati the witness's immediate experience is admissible. However inevitably Abor nesses giving evidence about the customary laws and traditions of their community will be required to express opinions in more general terms: It may also be necessary for them to relate what occurred in similar situations to the event in question. But the admissibility i of such evidence is doubtful. This could present quite serious obstacles for the proof of f Aboriginal customary laws, given the importance of Aboriginal testimony as to their cus- tomary laws, and the fact that Aboriginal customary laws and traditions are handed down by word of mouth rather than recorded in writing. At times it may be possible to ‘ find legal technicalities that enable such evidence to be admitted, for example by 7 categorising evidence of customary laws as reputation evidence, as was done in Milirrpum's case: But these are exceptions only, and do not represent a satisfactory way of resolving the problem. [para 638-41] 126, Recommendations. To avoid. these difficulties, it should be provided that evidence of the existence and content of the customary laws of a community is not inadmissible by reason that it is,hearsay or opinion evidence or that it relates to a fact in issue, provided the evidence is given by a person with special knowledge or experience of the customary laws of that community. Such a provision would resolve difficulties in determining what qualifies a person as an expert, as well as other difficulties presented by the rules relating to admissibility outlined above. It would emphasise the need to prove Aboriginal custort- ary laws by evidence of concerned Aborigines and others. [para 637, 642]. * 127. Taking Aboriginal Evidence. Giving evidence may raise other obstacles for Aborigi- nal people. Language difficulties, deference to authority, lack of familiarity with the : eral legal: system and differing concepts of time, distance, and notions of responsibility ‘ : have already been referred to (see para 111 of this Summary Report), Considerations of secrecy and customary rules which prescribe who has authority. to speak; and to. whom, on any particular matter raise other sensitivities;'In some cases these can be minimised by i the careful choice of witnesses and interpreters, and a preparedness to be flexible in pro- 1 cedural matters and.in the way evidence is received. In other cases these problems may require additional powers to be cofferred on courts, or other reforms. [para 643)” 128. . Authority.to Speak, Customary rules determine what knowledge may be possessed by. whom, taking into account sex, age, ttaditional status and kin relationships. Custom- ary rules also determine who has authority to speak on these matters and in, what circum- stances, Care needs to be taken. in the selection of witnesses, having regard to who has authority, to speak; In particular there are dangers in relying on the opinion of one per- son only, or on. persons of one sex. An Aborigine may have authority to speak on a given a matter or may only possess such auth the presence of others. The land claim ex- perience demonstrates that evidence given in the presence of one’s peers who can confirm the truth of what is said increases the credibility of such evidence. It has become common practice during the land claim hearings to accept group evidence, a practice that has also ‘been followed in héarings of the Northern Territory Liquor Commission and the Austral- i ian Broadcasting Tribunal. There are also examples of the practice being applied in courta ips se | Proof of Aboriginal Customary Laws / 63 hearings. Courts should be empowered by legislation to take evidence in this way where appropriate. [para 644-8] 129. Secrecy. In Aboriginal communities the possession of secret or sacred information carries with it authority and status. Such knowledge is carefully guarded. Inappropriate isclosure can threaten the social order of an Aboriginal community and may entail the imposition of severe sanctions. Merely to acknowledge the possession of such knowledge when one is not entitled to it may result in punishment. On the other hand.a court can only act on information that can be communicated to it and tested by the parties, Thus Aboriginal people may sometimes need to choose whether to disclose secret information as a price for the protection of the general law. In almost every land claim the Aboriginal Land Commissioner has been presented with secret information, in the form of oral testi- mony, the performance of ceremonies or the revelation of sites and objects. The land claim experience demonstrates the ways in which such material may be received on.a re- stricted basis, either in secret session, in the presence of members of only one sex or, in certain circumstances, given to the Land Commissioner alone. The courts also have pow- et to protect secret information under their inherent power to regulate their own proced- ure. Thus they may hear evidence in camera, allow the production of evidence on a te- stricted basis and grant protective orders prohibiting publication of proceedings. These powers have to.a large extent been incorporated in statute. In customary law cases the courts, with the consent of the prosecution, have been prepared to exclude all members ‘of one sex from the court, or to allow evidence to be given by way of affidavit subject to Festrictions against publication. Legislation is desirable to confirm the existence of such Powers, that they extend to the proof of Aboriginal customary laws, and that they may be exercised on the application of a party and not only by consent. [para 649-56] 130, Confidential Communications. There may however. be cases in which Aborigines do not wish to give evidence even on the restricted basis referred to above. Yet they may be required to divulge information to the court. For example, the party opposing may subpoena information of a confidential nature. Alternatively confidential information in anthropologists’ reports, linguists’ notes or in the possession of lawyers, land councils or sacred ‘sites authorities may be subpoenaed. The disclosure of such material may breach “ customary law rules, or breach understandings between anthropologists, lawyers and the | privilege, 1 Aboriginal community concemed. The Warumungu Land Claim (Reasons for Decision (1 October 1985) provides an example of the issues that can arise when material of a confi- dential nature is subpoenaed. Under the law of evidence disclosure may be avoided should the material be classified as failing within certain categories of privilege. For ex- ample, public interest immunity operates to prevent the disclosures which may be con- trary to the public interest or the proper functioning of the public service, There are no cases in which the immunity has been held to extend to cover confidential material of Aboriginal customary laws, and in the absence of the involvement of some official body or agency it is hard to conceive of situations in which the privilege would apply. There will be circumstances in which confidential communications between an Aboriginal in- formant and another will be protected by legal professional privilege, where those ma- terials have been prepared solely. for the purposes of legal proceedings or land claim hearings. On the other hand there is no separate category of anthropologist ~ informant most circumstances communications between Aborigines and anthropol- ‘ogists, linguists and others working in Aboriginal communities will not be protected. This Commission's Interim Report on Evidence rejected the creation of new. categories of privilege (eg doctor-client, priest-penitent privilege), preferring instead to give the court a general discretion to decide whether to compel the disclosure of confidential communica- tions, This approach should be followed in the context of this Reference, There should be ‘no absolute privilege to cover communications of a confidential nature between anthro- pologists and Aboriginal clients or informants. A general discretion would enable the64 / Aboriginal Customary Law court to weigh the importance of the evidence and the nature of proceedings against the damage to the Aboriginal person concerned, to the Aboriginal community and to any confidential relationship involved that would result from disclosure. The provision should apply to proceedings of courts and other tribunals, such as the Aboriginal Land Commission, which have power to take evidence. [para 657-61) 131,” Self-inerimination under Aboriginal Customary Laws. An Aborigine may wish to avoid answering a question where the answer would indicate some violation of Aborigi- nal customary laws. It is unclear whether the common. law privilege against self- incrimination’ extends to this situation, eg by analogy with the privilege against self- incrimination under foreign law. A complete privilege is not desirable, but it is recom. mended the courts have power to excuse a witness from answering a question which would tend to incriminate the witness under his or her customary laws. In exercising this power the court should be required to weigh up the likelihood of harm from requiring the answer, against the importance of the evidence and taking into account the nature of pro: ceedings. [para 662-5] 132. Other Forms of Proof: Assessors, Court Experts, Pre-Sentence Reports. In some overseas jutisdictions, assessors and court experts have been widely used to inform the court on’matters relating ‘to the proof of indigenous law. There are also examples of magistrates in South Australia, the Northern Territory and Western Australia seeking the advice of local elders. However difficulties can arise with the use of assessors and court experts in relation to the proof of Aboriginal customary laws. The use of assessors may conflict with customary law ways of resolving disputes. The appointment of any one indi- vidinal as an assessor may also infringe kinship rules. It would be difficult to find an unin yolved member of the accused's community to’ perform the function. Choosing a single expert from outside the community would also be inappropriate in most cases. For these reasons, the Commission does not recotninend a special system of assessors, or court ex. erts. Aboriginal evidence should be taken in the other ways outlined in this Chapter. On the other hand pre-sentence reports may be a useful way of informing the court about the background to an offence, any customary law elements, and the possibility of rehabilita. «gion ‘involving’ the local community. Legislation should expressly confer power on the court to adjourn to enable.a pre-sentence report to be obtained from-a person oF persons with special expertise or experience, in any case where considerations of Abo1 tomary laws or traditions are relevant in sentencing. [para 666-76]16. Local Justice Mechanisms in Aboriginal Communities ‘Scope of the Problem 133. Terms of Reference. In addition to the question of the recognition of Aboriginal ‘customary laws by the general law, the Commission's Terms of Reference require it to consider-to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines. Re- quests from the Yirrkala community and other Aboriginal communities in the Northern Territory for assistance in handling their law and order problems were important factors in prompting the giving of the Reference to the'Commission. Questions of Aboriginal in- volvement in local law and order matters have been the subject of a number of reports and inguiries, including those prepared by GJ Hawkins and RL Misner, the Commission of Inquiry into Poverty, the South Australian Committee on Aboriginal Customary Law, the House of Representatives Standing Committee on Aboriginal Affairs, Magistrate T Syddall and the Groote Eylandt Aboriginal Task Force. Increased control over law and ordet matters has also been sought by Aboriginal pcople. [para 678-86] 134: Underlying Difficulties. Questions of the extent to which Aboriginal people should have power to apply their customary laws and practices in the punishment and rehabilita- tion Gf Aborigines raise a variety of issues, a number’of thein-apparently outside the Terms of Reference. © The Terms of Reference appear to be limited to empowering Aboriginal people to apply their customary laws to the punishment of offences against the general law. ‘This appears to assume that local customary laws can be readily extended to cover general law offences, and that even general law offences with traditional elements ‘would be regarded in a sufficiently similar way under local customary laws as ui- der the general law to enable them to be so dealt with. Merely delegating puni ments in this way sets up pressures for a response from the local community which may be artificial, depriving members of the local community of any real control over the process, or over the characterisation of the offence. * Alternatively official justice mechanisms (eg Aboriginal courts) might be estab- lished in Aboriginal communities to apply local customary laws in a broader way. In overseas countries the discussion of similar issues has generally focussed on the creation of indigenous courts to deal with criminal cases, whether these have tradi- tional elements or not, However, formal mechanisms of this kind have little in common with customary dispute resolving processes. The establishment of Abor- iginal courts may have the effect of ‘indigenising’ parts of the criminal justice sys- tem, but this is likely to do litte to reinforce traditional authority. Official mechan- isms may enable the transfer of some degree of autonomy to Aboriginal groups in relation to law and order matters. However if self-government is the aim, to limit such mechanisms to applying customary laws is inappropriate. To confer ‘auton- omy’ on Aboriginal communities on condition that it is only to be exercised in cer- wd66 / Aboriginal Customary Law tain recognisable ‘customary’ ways appears a contradiction in terms. The emphasis should be instead on the scope of autonomy to be conferred and on identifying the relevant Aboriginal unit of government with which to negotiate. In answering the larger questions whether and to what extent Aboriginal people yuld assume responsibility for law and order matters occurring in their commu- s, it cannot be assumed that Aboriginal people want to take on this respon- sibility. Care must be taken not to foist problems the general legal system has been unable to resolve onto Aboriginal people. [para 687-90] 135. The Commission's Approach. The Terms of Reference appear only to envisage em- powering Aboriginal communities to apply their customary law procedures and sanctions to offences defined by the general law. As pointed out in para 134, other questions, in- cluding the conferral of autonomy (which might include both customary and non- customary matters, and involve some form of control over non-Aborigines), the creation of Aboriginal courts and the use of Aboriginal personnel within the general legal system are-all of relevance. It is undesirable and artificial to consider the first of these questions in isolation from the others, whatever restrictions the Terms of Reference may impose upon the Commission’s actual recommendations. Accordingly, this Chapter discusses a broad range of issues, including those already identified, and others which are important aspects of ‘local law and-order’ (especially the policing of Aboriginal communities). {para 691] ‘The Existing Situation 136. Traditional Methods of Dispute Resolution. Traditional methods for the resolution of disputes and the maintenance of social control exist in various forms in Aboriginal ‘communities. But it cannot be assumed that these methods are, or even could be, used to deal. with introduced law and order problems, such as those relating to petrol sniffing or = alcohol abuse. Aboriginal people may not want, their customary laws to be extended to deal with such introduced problems. Research on Aboriginal dispute resolving mechan- isms is inadequate and sketchy. Nonetheless studies in individual communities, together with material collected during. the Commission's field trips and public hearings, enables some general understanding to be gained. For example, studies undertaken at’ Edward River (Qld), Yirrkala (NT) and Strelley (WA) illustrate not only how disputes are re- solved in Aboriginal communities but also how the role of niew authority figures (eg com- munity councils) relates to that of the more traditional leaders. These studies demonstrate that unofficial dispute resolution mechanisms do operate alongside the general legal sys- iem, sometimes in a collaborative way, but in other cases producing serious conflicts. [para 692-720) 137. Aboriginal Courts. Official responses to law and order in Aboriginal communities have generally been limited to the creation of special courts for Aborigines. These courts, as adaptations of the general court system, have not been based on existing Aboriginal authority structures, nor was much attention paid to the effectiveniess of existing custom- aty mechanisins before the imposition of such court systems. The refotms of the 1920s and 1930s outlined in para 14 of this Summary Report led to the creation of a Court of Native Affairs in’ Western Australia (1939-1954) and of special courts to hear offences committed by Aborigines resident on reserves in Queensland. There are Aboriginal courts still operating in Queensland and Western Australia. There is also a miodified court sys- tem in the Northern Territory. These will be discussed in turn, ipara 721-2]Local Justice Mechanisms in Aboriginal Communities / 67 138. Queensland Aboriginal Courts. Aboriginal courts, initially established under the Aboriginal Preservation and Protection Act 1939 (Qld), and presided over by Aboriginal justices of the peace, operate in 14 Aboriginal trust areas (formerly reserves). These ‘courts have been considerably modified over the past 20 years, most recently pursuant to the Community Services (Aborigines) Act 1984 (Qld). The courts are constituted by two Aboriginal justices of peace or by a majority of members of the Aboriginal Council es- tablished for the trust area, They have jurisdiction over breaches of local by-laws and ‘over local disputes where there has been no breach of the general law. In exercising its powers the court can take into account the usages and customs of the community. All Aborigines and non-Aborigines resident within the community, with certain exceptions (eg persons, such as police officers and nurses, who reside in-the community by reason of their. employment) ate within the jurisdiction of the court. The court is equated with the Magistrate’s court, so that normal rights of appeal apply. The Community Services (Aborigines) Act 1984 (Qld) $25 enables by-laws to be made for the peace, order, com- fort, food supply, housing, welfare and for the working of local government in the area, By-laws may also’ regulate the entry and residence of persons within the area and make provision for beer canteens. No community has yet been able to have new by-laws made. ‘The courts are subject to the provisions of the Aborigines and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth), which provides in particular for the right to legal representation before Aboriginal couris and the right of appeal. The Com- Services (Aborigines) Act 1984 (Qld) does not provide for a right of legal repre- sentation, and there are indications that Aboriginal courts have been reluctant to allow legal representation to occur, [para 722-33] 139. The Operation of the Queensland Courts. Little research has been done on the court systems or on the number of offerices heard and penalties imposed: During 1979, 1981 and 1984, members of the Commission visited Aboriginal communities in order to view the courts-and to exainine court records. * Aboriginal Courts. In almost all cases the charges were based on four offences: being under the influence of alcohol, behaving in a disorderly manner, assault and ‘& gambling, with the majority of offences falling within the first two categories. Ap- * peals were rare because of difficulties of access to appellate courts and general ig- norance of the right of appeal, There was considerable variation between the com- ‘imunities in the number of sitting days, the number of cases heard and the severity of penalties. Gaol was still regularly used in certain communities (it has been abol- ished by the 1984 Act as a sanction available to the courts) but the most common penalty was a fine. © The Aurukun and Mornington Island Courts. These courts are to be distinguished ftom the courts operating under the 1984 Act. The Aboriginal courts ceased to op- ‘erate at Aurukun and on Mornington Island in 1979. Instead the communities are now subject to'the Magistrates Court Act 1921 (Qld)'and the Justices Act 1886 (Qld). Aboriginal justices of the peace constitute the court and exercise the powers available to all justices of the peace. Heavier penalties are available, and there is greater involvement by the Queensland Police in these courts. The courts are courts. of record dealing with offences against the general law of Queensland, Neither community has established a system of by-laws, [para 734-40] 140, . Retention of the Aboriginal Courts. The Queensland Aboriginal courts have been criticised as being inferior or second class institutions, as lacking any real Aboriginal in- fluence or control, as failing to take into account local customs and-conditions and as representing’ an entrenched part of the reserve system as a whole (a system that is criti- cised as involving the imposition of alien structures and values). Some of these criticisms were addressed in the Community Services (Aborigines) Act 1984 (Qld). For example Ab-68 / Aboriginal Customary Law original courts have been given, in theory, greater autonomy in drafting their own by- laws, They now have greater powers to fine and to impose fine option orders, although they may no longer imprison. The role of the Queensland Department of Community Services (formerly the Department of Aboriginal and Islander Affairs) is said to be dim- inishing. Even with these and other improvements there are certain requirements that ‘must be met if the courts are to continue. They must maintain basic standards and be procedurally fair, Far greater attention needs to be paid to the training of justices of the peace and others involved with the courts. The relationship between the Community Ser- vices (Aborigines) 1984 Act and the Local Government Act 1936 (Qld) needs to be ad- dressed. Ultimately the Aboriginal communities concerned must be allowed to determine whether the courts should.continue to operate. However this choice is affected by the fact. that the courts have been operating for many years and have in most places become an accepted part of community life. [para 741~6] 141. Western Australian Aboriginal Courts. The present Aboriginal courts weré estab- lished in Western Australia as result of an enquiry in the Kimberley area by Mr Terry Syddall SM, MBE, who had adopted the practice of inviting local elders to sit with him in the courtroom in order to advise on sentence. In 1979 a scheme of Aboriginal courts was established to apply equally:to Bidyandanga Aboriginal Community La Grange In- corporated; and the Bardi Aboriginal Association. Since then, it has been exterided to Lombadina, Beagle Bay and Balgo Hills. The Aboriginal Communities Act 1979 (WA) enables community councils to make by-laws covering a large range of matters. The by: laws apply both to Aborigines arid'non-Aborigines. Penalties for non-compliance are lim- ited to a fine not exceeding $100, imprisonment for a maximum of three months, and payment of compensation not exceeding $250. The Act does'not create a special Aborig nal court: rather the intention is that the courts established pursuant to the Justice Act 1902 (WA) should be staffed by Aborigines. Aboriginal justices of the peace and staff have been appointed. It was envisaged that the magistrate would train the Aboriginal jus- tice of the peace who, once they became proficient, would then be left to run the courts themselves. This has apparently only occurred to a limited degree, In practice, Aboriginal communities still have little responsibility for local law and order problems. One recent Yeport was critical of the way the scheme operates. Its criticisms were principally based on the lack of independence for Aboriginal justices and on the scheme’s failure to incor- porate Aboriginal customary laws. Other accounts have been more positive. The oper- ation of the courts is currently under review. {para 747-58] 142, .. Northern Territory Schemes. Three different Northern Territory. schemes should be mentioned. + Community Government Scheme. In 1978 a Community Government Scheme was established pursuant to the Local Government Act (N7). It is not specifically limi ed to Aboriginal. communities, but was.-designed particularly ‘for them, The scheme, which has been introduced at: Lajamanu, Angurugu and Milikapiti, in- volves granting certain local government powers to the communities, including the power to pass.by-laws,on a range of matters. No by-laws have yet come into effect under the scheme. Justice (Courts) Project. A-second development which involves a gréatet Aboriginal involvement in the administration of the criminal justice scheme is the Justice Courts) Project, initiated in Galiwin’ku in November 1982. Under this scheme clan elders sit with the magistrate to give their views on the seriousness of an of- fence and to assist in sentencing. The accused's family and other community mem: bers may also attend. An. anthropologist and probation. officers play 4 major part in assessing community views on individual cases and on the wider issues, through re-sentence reports and in other ways. The scheme is intended to use traditional