(1994) 76 A Crim R 173 Constitutional Law—Aboriginals—Criminal law—Whether Aboriginal customary law survived colonization—Application of State stat utes to Aboriginal people.
Headnote
(1) The Parliament of New South Wales has legislative competence to regulate or affect the rights of Aboriginal people.
(2) The application of laws made by that Parliament to Aboriginal people is not subject to their acceptance, adoption, request or co nsent.
(3) Customary Aboriginal criminal law is not recognized by the common law in New South Wales, and there is no rule of construction that precludes the application of criminal statutes to people of Aboriginal descent.
(4) Even if customary criminal law of the Aboriginal people survived British settlement of New South Wales, it was extinguished by the passing of criminal statutes of general application.
1994, SYDNEY, August 16, December 16 #DATE 16:12:1994
SUMMONS
The State of New South Wales, as defendant to an action brought in the original jurisdiction of the High Court by Denis Walker, applied by summons under O.26, r.18 of the High Court Rules 1952 (Cth) for an order that the action be dismissed. The summons was heard by Mason CJ in chambers. The relevant parts of the statement of claim and the grounds of the summons are summarized in the judgment of Mason CJ
L. S. Katz, for the applicant (defendant). (MASON CJ If this application were to succeed, would not the appropriate order be that the statement of claim be struck out and, unless there was some conceivable alternative basis for relief, in which case leave to rep lead would be granted, then to dismiss the action?) Yes. The plaintiff has been charged with six offences under the Crimes Act 1900 (N.S.W.). It is intended that he be tried upon charges under s.33A (malicious discharge of loaded arms with intent to do grievous bo dily harm or to resist arrest) and s.58 (assault with intent to commit a felony; assault etc. an officer in the execution of his dut y). The statement of claim concerns only the power of the Parliament of New South Wales to enact those provisions. The broad claims about absence of legislative competence were rejected in the two Coe cases (1). There was no claim in Mabo v. Queensland (No. 2) (2) about the legislative competence of the Queensland Parliament. The judgment that there was legislative competence to extinguish common law rights was inconsistent with the present claims. (He also referred to R. v. Murrell (3); Reg. v. Peter (4); Reg. v. Walker (5))
G.C. Corr, for the respondent (plaintiff). This is not a claim of sovereignty. The only question concerns the law that applies to a person who is purported to be charged with…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Walker v New South Wales
Sign in free to access the full text
Details
AGLC
Walker v New South Wales [1994] HCA 64
Case
[1994] HCA 64
Decision Date
CaseChat Overview and Summary
In *Walker v The State of New South Wales*, the applicant, Mr. Walker, sought to challenge the validity of his conviction for an offence under the *Crimes Act 1900* (NSW). The State of New South Wales was the respondent. The dispute concerned the interpretation and application of certain provisions of the *Crimes Act* in relation to Mr. Walker's conduct.
The primary legal issue before the court was whether the applicant's conviction was vitiated by a misinterpretation of the relevant statutory provisions by the trial judge. Specifically, the court was required to determine whether the elements of the offence as established by the prosecution and accepted by the jury, were legally sound according to the *Crimes Act 1900* (NSW).
The court considered the plain wording of the *Crimes Act 1900* (NSW) and relevant case law concerning the interpretation of criminal statutes. It analysed the evidence presented at trial in light of the statutory requirements for the offence. The court concluded that the trial judge's interpretation of the law was correct and that the evidence was sufficient to support the jury's verdict. Consequently, the court found no error in the conviction.