Jamilmira v Hales

[2004] HCATrans 18

[2004] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D6 of 2003

B e t w e e n -

JACKIE PASCOE JAMILMIRA

Applicant

and

PETER WILLIAM HALES

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2004, AT 9.39 AM

Copyright in the High Court of Australia

MR C.R. McDONALD, QC:   May it please the Court, I appear with MR G.R. BRYANT for the applicant.  (instructed by North Australian Aboriginal Legal Aid Services)

MR R.S.L. WILD, QC:   May it please the Court, I appear with my learned friend, MS R.E. BREBNER, for the respondent.  (instructed by Director of Public Prosecutions for the Northern Territory)

GUMMOW J:   Yes, Mr McDonald.

MR McDONALD:   Your Honours, this application raises two issues which it is submitted are of such importance that special leave ought to be granted.  The first relates to Aboriginal customary law and sentencing and the recognition to be given to the operation of Aboriginal customary law in assessing what is proper punishment.  The second relates to the conduct of Crown Prosecutors and Crown appeals.

The first issue is one of great importance to those many Aboriginal Australians who live in communities that are governed by or are influenced by Aboriginal customary law and who hold cultural beliefs.  The issue is what sentencing approach should be taken and weight in sentencing should be given to a defendant’s cultural realities ‑ ‑ ‑

GUMMOW J:   Is there more to be said than was said by Justice Brennan in Neal?

MR McDONALD:   Your Honour, we say that his Honour Justice Brennan in Neal – that is a proper articulation of principle, but the majority judgments of Chief Justice Martin and Justice Riley failed in the circumstances of this case, we say dramatically, to accord with that principle.  Their judgments, the majority judgments, deny effectively the legitimacy of Aboriginal Burarra society marriage practices and the applicant was ‑ ‑ ‑

GUMMOW J:   Just remind us of the sentencing situation, Mr McDonald.  What is the sentencing situation?  What was the initial sentence?

MR McDONALD:   The initial sentence was by a magistrate in the court of summary jurisdiction in Maningrida for the carnal knowledge charge - 13 months with four months to serve.  The matter came on appeal and fresh evidence from an anthropologist, Mr Geoffrey Bagshaw, was called for Justice Gallop.  He imposed a sentence of 24 hours in relation to the carnal knowledge charge and a charge not before the court of 14 days for a discharge of a firearm.

A Crown appeal followed from Justice Gallop’s allowing of that appeal, and the Court of Criminal Appeal by majority, Justice Mildren dissenting, imposed a head sentence of 12 months with one month to serve.  The applicant at the moment is at liberty at his out‑station 120 kilometres from Maningrida.

HAYNE J:   Having served any part of the sentence?

MR McDONALD:   He has served, your Honour, the 14 days.  There was a stay application in the High Court, but, nevertheless, he was arrested and he has served ‑ ‑ ‑

HAYNE J:   On the firearms.

MR McDONALD:   He served the firearm sentence, your Honour, but the 17‑odd days in respect to serve in the head sentence, well, of course, he is at jeopardy of going back to if special leave is denied in this case.

GUMMOW J:   The order you would seek from us is a restoration of the position after Justice Gallop dealt with it?

MR McDONALD:   Yes, your Honour.  Your Honour, the second issue relates to whether the Court of Criminal Appeal should have interfered at all given this Court’s decision in Everett and the South Australian decision of Wilton that Everett followed and referred to.  In circumstances where the Crown Prosecutor before Justice Gallop made very significant concessions in relation to the particular appeal, and in response to a direct question from the judge, that is quoted by Justice Mildren in his dissent, “What am I to do in relation to the carnal knowledge charge?” the Crown Prosecutor - in our submission, Justice Mildren characterised it correctly – actively said, “This case does not call for an actual term of imprisonment.”

The other concessions, your Honour, were, we say, significant, namely that Miss A, the promised wife, had not complained about having sexual intercourse with her promised husband ‑ application book 92, point 1, and she was not in need of protection from her Aboriginal customary law environment or marriage ‑ ‑ ‑

HAYNE J:   The first point you make means that a charge of rape was not open.

MR McDONALD:   No, your Honour.

HAYNE J:   Yes, I understand that.

MR McDONALD:   So it was carnal knowledge only and the facts ‑ ‑ ‑

HAYNE J:   Well, yes, it was carnal knowledge.

MR McDONALD:   I am sorry; I do not in any way belittle that, your Honour.

HAYNE J:   Yes.

MR McDONALD:   The agreed facts that were actually before the magistrate that worked their way, ironically now to this Court – I mean there is no expression of violence or anything like that.  Before the Court of Criminal Appeal the Crown adopted an entirely different approach; we say contrary, directly contrary, to what this Court has said in Everett v The Queen and in particular Justice McHugh’s judgment in Everett at page 307 and the other Justices at page 303.

Could I come back to the customary law issue.  The Aboriginal customary law issue raises an important point of principle in the context of Aboriginal customary law in sentencing.  This Court has not before considered the inter‑reaction between the wider criminal law and Aboriginal customary law, where an Aboriginal person actually acts in accordance with his beliefs in the Aboriginal customary law ‑ ‑ ‑

GUMMOW J:   Well, he is discharging an obligation under it, is he not?

MR McDONALD:   Yes, your Honour.  It is not the case where the applicant was raising any positive defence or seeking to diminish the rights or protections afforded to young women by the Criminal Code.  Your Honours, this issue was identified as an important issue of principle after extensive years of examination by the Australian Law Reform Commission in 1986 in its final report, particularly at paragraphs in volume 1, 261, 490 and 498.  The majority of the Australian Law Reform Commissioners favoured the functional recognition of Aboriginal customary marriage practices, including marriage to girls – and the text says invariably to women below the wider community’s marriageable age, on the basis that to deny recognition:

based on a different view of preparedness for marriage is a distortion rather than a recognition of Aboriginal customary laws ‑ ‑ ‑

HAYNE J:   Now, effect has not been given to that by statute.

MR McDONALD:   No, your Honour ‑ ‑ ‑

HAYNE J:   How can the common law, in particular, sentencing, give effect to that at all?

MR McDONALD:   Your Honour, we would say in terms of those matters set out in the Sentencing Act in section 5, the circumstances of the offender.  The fact that by reason of his membership with Burarra society, going back to what Justice Gummow said in Justice Brennan’s judgment in Neal ‑ ‑ ‑

HAYNE J:   In Neal, yes.

MR McDONALD:    ‑ ‑ ‑ these factors operated for him and were relevant, your Honour, to his moral blameworthiness and hence to punishment.  We say the majority erred in principle in not according any recognition to that marriage practice that he felt obliged to act in accordance with.  The point of principle which emerged was how the cultural realities and the pressures on the applicant, which existed by reason of his membership with Burarra society, were to be brought into account.  Justice Riley indicated that in his reasons at application book page 158 at lines 10 to 14.

It is our submission, your Honours, the majority judgments essentially rejected the legitimacy of the marriage practices based as they are on a different view of the preparedness of the marriage and the majority asserted the values of the wider community as being appropriate.  Thereby the applicant submits the majority gave no effective recognition to Aboriginal customary law and there is an error thereby disclosed.  We say that there is an error in terms of Justice Brennan’s judgment in Neal.

Your Honour, the case also raises an important issue of principle concerning what is proper punishment in the context of customary law.  Can I take the Court to Channon v The Queen 20 ALR 1 at 5 and Justice Brennan’s articulation:

The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes . . . Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society –

The question arises in this case, which society requires protection?  In our submission, it is not the Aboriginal society, nor the wider community.

Your Honours, the protection of Miss A becomes relevant only if it is perceived she needs protection from her customary law environment.  It was conceded by the Crown Prosecutor that in the individual case the victim was not in need of protection, application book page 93, point 1.  Now, it was also conceded that she had not complained of having sexual intercourse with her promised husband.

GUMMOW J:   She was only 15, was she not, at the time?

MR McDONALD:   I am sorry, your Honour?

GUMMOW J:   She was 15 years old.

MR McDONALD:   She was 15 and three months, your Honour.  The anthropological evidence, your Honour, shows that this is not unusual in Burarra or, indeed, surrounding Aboriginal societies.

HAYNE J:   But there is no differential treatment by statute?

MR McDONALD:   No, your Honour, no.  But, your Honour, not only this, the age difference in this case meant nothing in terms of the purpose of sentencing and, indeed, as the anthropologists’ report show this was, indeed, the cultural ideal; quite different from the wider community.  What the majority did was to sentence Mr Jamilmira by reference to the values of the wider society.

GUMMOW J:   He was born in 1951, is that right?

MR McDONALD:   Yes, your Honour, 1951.  But when you look at the report of Geoffrey Bagshaw and the documented anthropological evidence that goes back to Warner in 1926, this particular marriage practice not only operated but it was part, an intimate part, of a State tenure and religion in that particular society.  There are two fundamentally different ways of looking at the wider view.  It is a physical act in relation to an age, which is part of adolescence and entitled to protection, but when you look at Mr Curwen‑Walker’s report, the pre‑sentence report, and Mr Bagshaw’s report, the Aboriginal society looks at this in a very different way.  What, to the western sensibilities, is part of adolescence and part of protection the Aboriginal society sees as the beginnings of adulthood and part of the preparation of marriage.

In the pre‑sentence report Mr Curwen‑Walker notes he consulted all the relevant maternal relatives and this relationship, there being no formal ceremony in Aboriginal society that officiates and says the marriage begins on this date, as Justice Mildren found this was on the way to a tribal marriage and the maternal grandmother not only had given consent but she had handed Miss A over to the promised husband and the maternal uncle, who is responsible for the supervision of this, had also given his consent.  Indeed, Mr Curwen‑Walker notes the pressures that Mr Jamilmira asserted, and which were not challenged at any stage, of the pressures upon him to fulfil his customary law obligations as a promised husband.

So, your Honours, what we say is this.  The majority judgment disclosed that although Justice Riley and Chief Justice Martin refer to Justice Brennan’s judgment in Neal, it is clear from their judgments that they disapproved of the cultural reality of Burarra people’s marriage customs.  That can be seen in Chief Justice Martin’s judgment in application book 126, lines 1 to 5; application book 130, lines 14 to 16 and 131, lines 21 to 22, and Justice Riley at 159 at paragraphs [33] and [34].

It is our submission that the approach of the majority demonstrated error of principle and calls for intervention and special leave to be granted.  Justice Riley at application book page 158, instead of characterising the applicant’s moral dilemma and his decision to follow his customary law as less morally blameworthy and, hence, it is our submission entitled to greater mitigation of penalty, considered his choice was made the more serious by virtue of the applicant deliberately choosing to offend.  We say it was much more complex than that.  This approach, in our submission, fails to take into account the cultural realities facing the applicant and the pressures brought to bear upon him by reason of his membership of Burarra society.

Chief Justice Martin’s error, we say, was even greater.  At paragraph [28], application book 131, the Chief Justice took the view that the applicant would have been entitled to greater mitigation if his offending had been contrary to both the Territory law and customary law rather than where the custom itself gives rise to the offence.  So in a payback situation, if Chief Justice Martin’s judgment is allowed to stand, a person who offends and kills or – and contravenes both the white and the Aboriginal law, the person who, in accordance with customary law, effects payback gets less mitigation than the person who offends against both the wider and the Aboriginal customary law.

GUMMOW J:   What do you say about page 127, beginning line 37 over to the top of page 128?

MR McDONALD:   Page 127 of the application book?

GUMMOW J:   Yes.

MR McDONALD:   The references to promised marriages ‑ ‑ ‑

GUMMOW J:   Yes.  The sentence beginning, “It is much more likely”, line 37.

MR McDONALD:   Line 137, sorry, your Honour.

GUMMOW J:   No.  Page 127, line 37.

MR McDONALD:   Sorry, your Honour, I think the books may be numbered differently, your Honour, somehow.

HAYNE J:   The long extract from the LRC report.

MR McDONALD:   Sorry, 127.  The top, “Promised Marriages Today”, your Honour?

GUMMOW J:   That is right.

MR McDONALD:    I am sorry, yes, and line 37?  Yes, your Honour.

GUMMOW J:   Cultures are not necessarily static.

MR McDONALD:   No, by no means, your Honour, but this particular culture – it is clear from the evidence of Mr Djordila in Justice Mildren’s judgment, and Chief Justice Martin recognises that the marriage practice, although it may be declining, is still widespread.  What was interesting, Mr Djordila in his evidence, although he had chosen his wife, he had already promised his daughters to other members of that society.  Not suggesting that it is static, your Honour, but this case is about dealing.  The issue of principle is about how you deal with the reality for those people who live in accordance with custom, in accordance with the sentencing.

Your Honour, quickly in relation to the issue of Crown conduct, we say given the concessions of the Crown Prosecutor and the actual conversation - the actual submissions, the request put, that this case is one where the court - no error of principle was disclosed in Justice Mildren’s judgment and by operation of the decision in Everett, a decision of this Court, the majority erred in relation to that.  Your Honour, I see the time has ‑ ‑ ‑

GUMMOW J:   Yes, thank you, Mr McDonald.  We do not need to call on you, Mr Wild.

MR WILD   May it please the Court.

GUMMOW J:   The applicant was born in 1951.  He seeks to appeal against orders of the Court of Appeal of the Northern Territory made in a prosecution appeal against sentence.  By those orders the applicant was sentenced for the offence of unlawful sexual intercourse with a 15‑year‑old female to 12 months imprisonment to be suspended upon serving one month.  The Court of Appeal set aside a sentence of 24 hours imprisonment imposed for that offence by a judge of the Supreme Court on the applicant’s appeal against a heavier sentence which had been imposed at first instance by a magistrate.

It was and is the applicant’s contention that as an Aboriginal man and a member of a particular community his sexual intercourse with the complainant was not only permitted, but was the discharge of an obligation required, by Aboriginal customary law.  The applicant accepts that the relevant principle to be applied in sentencing is that stated by Justice Brennan in Neal v The Queen (1982) 149 CLR 305 at 326 and referred to by all members of the Court of Appeal in this matter. Justice Brennan said:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group.  But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group.  So much is essential to the even administration of criminal justice.

If special leave were granted here, the only questions that would fall for decision would concern the application of this principle to the particular facts of the case.  Not being persuaded that the actual decision of the Court of Appeal of the Northern Territory is attended by doubt, it is not shown to be in the interests of justice, either in the particular case or more generally, that special leave be granted.  Accordingly, special leave is refused.

AT 10.03 AM THE MATTER WAS CONCLUDED