Criminal law

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

Criminal procedure

In Western Australia the Commissioner of Police has produced written guidelines for police officers to use in their work. These guidelines are contained in the Commissioner’s Orders and Procedures Manual (usually called the COPS Manual). The COPS Manual can be accessed via the Battye Library. The guidelines do not have the status of law and so breach of them is not an offence. However the guidelines do set a standard of conduct for police officers; therefore breach can lead to internal disciplinary procedures and/or to evidence being excluded from court. There are several parts of the COPS Manual that relate specifically to Aboriginal and Torres Strait Islander peoples. These include:

• Guidelines for interviewing Aboriginal and Torres Strait Islander individuals (discussed in more detail below);
• Advice to the local ALSWA office whenever police detain an Aboriginal or Torres Strait Islander individual;
• Employment of Aboriginal police liaison officers within the Western Australian Police Service;
• A scheme for Aboriginal and Torres Strait Islander prisoners to receive visits in prison;
• A requirement that police officers receive training in local culture;
• Guidelines about the role of Aboriginal Community Wardens, who carry out a limited policing function in their local communities; and
• The use of Aboriginal medical services when police detain an Aboriginal or Torres Strait Islander individual.

Interviewing of Aboriginal and Torres Strait Islander suspects

Operating Procedure 30.11 in the COPS Manual sets out guidelines relating to police interviews of Aboriginal and Torres Strait Islander individuals. The focus of both the guidelines and the common law principles to which they refer is making sure that Aboriginal and Torres Strait Islander individuals fully comprehend police questions before answering. This is because, as discussed earlier in this chapter, differences in language and culture can lead to miscommunication. R v Anunga (1976) ALR 412 was a Northern Territory case that set out guidelines for police to follow when interviewing Aboriginal and Torres Strait Islander suspects. These guidelines are known as the Anunga Rules and while they do have the force of law in WA and are not absolute they are guidelines which give a very good indication of what ordinarily be regarded as a fair interrogation (Webb v R (1994) 13 WAR 527). In short, the Anunga Rules say:

1. Unless the suspect is as fluent in English as the average white person of English descent, an interpreter should be used;
2. Where practicable a prisoner’s friend (a person in whom the suspect has confidence and by whom the suspect feels supported) should be present;
3. The caution should be explained in simple terms, the suspect then should tell the officer what it means phrase by phrase, and the interview should not start until it is clear that the suspect understands their right to remain silent;
4. Questions should be formulated so that neither the question, nor the tone of voice or manner, suggests the answer;
5. Even if the suspect makes an apparently free confession, police should continue investigating the matter to seek proof from other sources;
6. Because the suspect is likely to feel nervous, they should be offered a meal at
7. mealtimes, a drink of water and asked if they want to use the toilet;
8. The suspect should not be interviewed if they are ill, drunk or tired, and interviews should not go on for an unreasonably long time;
9. If the suspect seeks legal assistance the officer should take reasonable steps to obtain it. If the suspect says they do not want to answer further questions, the interview should stop; and
10. If clothing is taken from the suspect for forensic or medical examination, substitute clothes should be provided forthwith.

Guilty pleas

At the hearing stage, courts can exclude evidence, and can also refuse to accept a plea of guilty if it could be based on miscommunication. Section 129 of the Criminal Procedure Act 2004 (WA) provides that, unless the plea of guilty is in writing, the court must not accept the plea unless:

• the accused is represented by a lawyer; or
• if the accused is not represented, the court is satisfied that the accused understands the plea and the consequences of it.

Although a similar provision (applying specifically to Aboriginal defendants) in Section 49 of the Aboriginal Affairs Planning Authority Act 1972 (WA) has recently been repealed, cases arising under that former provision may still be relevant to determining whether the new provision has been complied with: see Green v R [2001] WASCA 162 and Smith v Grieve(1974) WAR 193.

Bail

Customary law punishment that has occurred or is likely to occur in the future may be taken into account by the decision-maker in relation to bail. The punishment may be physical (for example, spearing or beating) or non-physical (for example, banishment from the community or the offender must attend a community meeting or reprimand by an elder). Part C, Schedule 1, clause 1 of the Bail Act 1982 (WA) requires a court considering bail to consider whether the defendant needs to be held in custody for their own protection. The court will generally not allow bail for the purpose of punishment if the punishment would be a criminal act. Therefore bail depends on showing that the defendant can be protected during bail from customary law punishment. In Unchango & Ors v R [1998] WASC 186, for example, a defendant on a murder charge was bailed to a spiritual centre for healing on the basis of an assurance by the centre’s staff to the court that no physical punishment would occur. Bail may also depend on whether any customary law punishment that is to take place is not criminal in nature (for example, non-physical customary law punishment, or – arguably – physical customary law punishment to which the defendant consents).

Court process

Some WA courts try to work in a culturally appropriate way. There are different ways this is achieved. In some courts, the magistrate sits with elders who provide advice on relevant cultural and community matters. In others, all parties, the magistrate, elders and community members sit in a circle and discuss what the sentence should be. Some of these courts have successfully reduced the rate of re-offending by defendants.

Procedural options available in any court include:

• suppression of names (see R v B [1992] NTSC 110; (1992) 111 FLR 463, where the publication of names would have offended Aboriginal people);
• refusal to infer lying as evidence of guilt. In Lofty v R (1999) NTSC 73 for example, the court concluded that a lie was told to avoid customary law punishment); and
• use of expert evidence or evidence from a representative group about the content of any customary law relevant to the case.

Sentencing

Generally, sentencing principles apply equally to all people regardless of their race or membership of a particular group. There is therefore no legislation or case law specifically requiring sentencing courts to take cultural matters into account. However, the court can and does take cultural and social matters into account under the legislative requirement that the court consider the circumstances of the offender: State of Western Australia v Richards [2008] WASCA 134.

Many Aboriginal and Torres Strait Islander individuals who commit crime have disadvantaged backgrounds. Depending on the nature of the case and the age of the offender, factors such as extreme poverty as a reason for stealing food or household goods, or an abusive/chaotic upbringing in a dysfunctional household can be relevant circumstances:Fernando (1992) 76 A Crim R 58. The High Court in Bugmy v R [2013] HCA 37 at [37] clarified that the principles established in Fernando should be understood as providing that an Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that non-Aboriginal offender’s sentence may be mitigated by their deprived background.

The circumstances of the offender may also include any customary law punishment that has occurred or is likely to occur in the future, although the courts will not condone an unlawful act. The court can take the views of the relevant Aboriginal or Torres Strait Islander community into account in determining sentence. It is also open to sentencing judges to take into account the isolation that an offender would experience in a prison distant from their community: Munda v Western Australia [2013] HCA 28.

Defences

Customary law can be relevant in proof (or otherwise) of the available defences of:

• consent: in R v Judson & Ors (unreported, District Court of Western Australia, NO POR 26/1995) cultural ways indicated to the defendants that the victim had consented to assault;
• duress: in R v Warren, Coombes and Tucker (1996) 88 A Crim R 78 the court exonerated the defendants because of evidence that had they not punished the victim, they would have been punished themselves;
• honest claim of right: in Walden v Hensler [1987] HCA 54; (1987) 75 ALR 173 a defendant who shot and took protected fauna for food under customary law was found not guilty.

Incarceration

It is a commonly established fact that Aboriginal and Torres Strait Islander peoples make up a disproportionately large number of the prison population in Australia with Western Australia having the highest incarceration rates of Indigenous men, women and children in the world. The Australian Law Reform Commissions (“ALRC”) published a final report from its Inquiry into the incarceration rates of Aboriginal and Torres Strait Islander Peoples in December 2017 (“Pathways to Justice Report”). The Pathways to Justice Report confirmed (page 22):

• Aboriginal and Torres Strait Islander adults make up around 2% of the national population, but constitute 27% of the national prison population;
• In 2016, around 20 in every 1,000 Aboriginal and Torres Strait Islander people were incarcerated; and
• Aboriginal and Torres Strait Islander incarceration rates increased 41% between 2006 and 2016.

The Pathways to Justice Report makes a number of recommendations including:

• Governments should support the establishment of an independent justice reinvestment body for community led, place based initiatives that address the drivers of crime and incarceration (Recommendation 4-1);
• Sentencing legislations should require Courts to take into account the unique systemic and background factors affecting Indigenous peoples (Recommendation 6-1);
• Governments should introduce provision for community based sentencing (Recommendation 7-1);
• Bail laws should be amended to include that authorities must consider any issues that arise due to a person’s Aboriginality (Recommendation 5-1);
• Governments should repeal mandatory sentencing schemes (Recommendation 8-1);
• Where needed, governments should establish speciality Indigenous sentencing courts (Recommendation 10-2);
• Governments should abolish legislative provisions that have imprisonment in lieu of or as a result of unpaid fines (Recommendation 12-2);
• Government introduce a statutory requirement for police to contact an Indigenous legal service as soon as possible after an Aboriginal or Torres Strait Islander person is detained in custody (Recommendation 14-3);

For further information, see Crime.