Chambers, Fisher & Justices of Aboriginal Court at Cherbourg v Fisher; ex parte

[1992] QCA 444

COURT OF APPEAL [1992] QCA 444

FITZGERALD P.
McPHERSON J.A.

WHITE J.

C.A. NO. 92 OF 1992

SAM CHAMBERS, CYRIL FISHER, and THE JUSTICES OF THE ABORIGINAL COURT AT CHERBOURG Respondents

and

DOREEN IRIS FISHER

Ex parte DOREEN IRIS FISHER	Appellant
C.A. No. 93 of 1992

SAM CHAMBERS, CYRIL FISHER, and THE JUSTICES OF THE ABORIGINAL COURT AT CHERBOURG Respondents

and

RACHEL MAY LONG

Ex parte RACHEL MAY LONG	Appellant
BRISBANE
..DATE 16/10/92 JUDGMENT

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THE PRESIDENT: These are appeals by way of order to review the

appellants' convictions in an Aboriginal Court. Provision is made for such a court by subs 42(2) of the Community Services (Aborigines) Act 1984.

On 21 May 1992 each appellant was charged with a breach of by-law

6 of Chapter 41 of the Cherbourg Aboriginal Council By-Laws by an

Aboriginal Community Police officer in Cherbourg appointed under

section 39 of the Act.

Two Aboriginal Justices of the Peace, Joseph Roderick Button and

Alan Douglas, constituted the Aboriginal Court which dealt with

the charges on 1 April 1992.

The appellant Doreen Fisher pleaded guilty to a charge that on 20

May 1992, at Cherbourg, in the Magistrates Court District of

Kingaroy, in the State of Queensland, in contravention of a by-

law of the Aboriginal Council of Cherbourg, she behaved in a

disorderly manner in a public place, or so near a public place,

that any person who might be there could view, namely Bell

Street, Cherbourg.

The appellant Long pleaded not guilty to a charge that on 20 May

1992 at Cherbourg, in the Magistrates Court District of Kingaroy,

in the State of Queensland, in contravention of a by-law of the

Aboriginal Council of Cherbourg, she behaved in a disorderly

manner in a public place, namely Bell Street, Cherbourg.

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Both were convicted and subsequently discharged by the Aboriginal

Court.

A major issue raised for the appellants was that Mr. Button was not eligible to participate as a member of the Aboriginal Court because he was not a resident of the relevant area, the Cherbourg

Trust area, as required by subs 42(2) of the Act. Although Mr. Button was described as a senior member of the Cherbourg

Aboriginal Community, who spent a large amount of time in the

area, particularly in the administration and government of the community, the home where he lived was in Murgon, which is outside the area.

The Court has not found it necessary to resolve this matter,

either in order to decide whether Mr. Button was resident in the area, or whether, if he resided outside the area, the convictions were necessarily thereby vitiated: Cf. Re Aldridge (1893) 15 N.Z.L.R. 361; Luff v. Oakley (1985) 82 F.L.R. 91.

As has been said, the appellant Fisher pleaded guilty.

Nonetheless, it is apparent from the statement of facts from the

police brief placed before the Aboriginal Court that that plea

was incorrect. Her only relevant conduct was to criticise a police officer while both stood on the steps of a house in Bell

Street, Cherbourg, with loud music playing in the background.

According to the police brief, the appellant informed the police

officer that the owner of the house was not present, and then made an accusation against him concerning a relationship with a

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young girl. In the circumstances, the plea of guilty should not

have been accepted, and especially as there was no sworn evidence

of any kind against the appellant Fisher, her conviction should

be quashed.

The other appellant Long pleaded not guilty. The police brief

was read out by a police officer, who was not present at the time of the incident, and the appellant was given an opportunity to speak. No sworn evidence was given against her, and there is nothing to indicate that she made any admission in the face of the Aboriginal Court. The Aboriginal Court is recorded as having

considered the "evidence" and convicted her.

Plainly, at least in the absence of proof of some usage or custom

- assuming that a usage or custom relevant for this purpose could ever be established - there was no evidentiary basis for the conviction of the appellant Long, which must also be quashed.

The prosecutor should pay the appellants' costs of these

proceedings.

McPHERSON J.A.:	I agree.
WHITE J.:	I agree.

THE PRESIDENT: The order of the Court is that the appeals are

allowed, and the convictions quashed, the prosecutor to pay the

costs of the proceedings.

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