Walker v New South Wales

Case [1994] HCA 64


HIGH COURT OF AUSTRALIA

WALKER v THE STATE OF NEW SOUTH WALES

(1994) 182 CLR 45

16 December 1994

(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.


So held.
Coe v. The Commonwealth (1979), 53 ALJR 403; 24 ALR 118, and Coe v. The Commonwealth (No. 2) (1993), 68 ALJR 110; 118 ALR 193, applied.

Hearing


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…

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Walker v New South Wales [1994] HCA 64
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[1994] HCA 64
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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.

Orders

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Background

Background to the litigation

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Evidence

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Ratio Decidendi

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