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Working with Aboriginal Defendants

Identity

Many Aboriginal people do not refer to themselves specifically as an Aboriginal person. Rather, they will identify themselves in accordance with their language group, tribe or clan. It is particularly important for duty solicitors who regularly assist Aboriginal defendants to become familiar with the language groups they are likely to encounter during their work.

Aboriginal people are not a homogenous group. Many Aboriginal people reside in urban areas whilst other Aboriginal people live on the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands) in the north-west of the State, and there are many different language or skin groups, traditions and cultural beliefs. Distinguishing between people living in urban areas and traditional people living on the APY Lands is important. However, close and integrated family and kinship networks, complex social and political relationships, values of community and obligation, land, law and culture are common features in all Aboriginal communities.

Introduction

The responsibilities of duty solicitors when assisting Aboriginal people in courts of summary jurisdiction are no different to those which apply in relation to non-Aboriginal defendants [see Role of the Duty Solicitor chapter]. However, there are many unique attributes of Aboriginal societies, culture and history which should be borne in mind, and this chapter highlights issues which may arise when assisting an Aboriginal defendant, particularly a traditional Aboriginal defendant from the north-west of South Australia.

Many Indigenous communities and families suffer and continue to suffer ongoing emotional pain and upheaval as a consequence of colonisation, dispossession from land, loss of culture, the separation of families through past government policies, high levels of incarceration, ongoing discrimination and racism. Virtually all Aboriginal people have experienced institutional racism, repression and paternalistic attitudes from white authority figures. They, more than most other people, dislike being talked down to. An attitude of "noblesse oblige" from the duty solicitor will not aid effective communication and may provoke an angry response making legal representation so much harder. Again, courtesy, attentiveness, patience, and an ability to instil in the defendant confidence that one knows what one is about are vital attributes for a duty solicitor.

Application of the Cross-border Justice Act 2009 (SA)

The Cross-border Justice Act 2009 (SA) applies within a defined geographical region at the intersection of the South Australian, Western Australian and Northern Territory borders [see Cross-border Justice Regulations 2024 (SA) reg 4 and Sch 1] and will particularly apply to people located in the remote north-west of South Australia. The provisions of the Act apply upon suspicion or allegation of an offence committed within the region, and/or when an accused person is arrested in the region or normally resides in that region [see Cross-border Justice Act 2009 (SA) s 20(2)]. The provisions also apply for persons residing in the region at commencement of court proceedings [see s 20(3)]. Further information is available in the Police Powers and Forensic Procedures chapter as well as the Bail chapter.

How to assist an Aboriginal defendant

There are a combination of language, cultural and social factors to be considered to best assist an Aboriginal defendant. This section will consider language and culture insofar as they interact and impact communication.

Assessing the need for an interpreter

Aboriginal people in the remote north-west of South Australia may speak in the Western Desert language which has many dialects. Port Augusta has a settled population of Aboriginal people, and is also a traditional meeting place and crossroads for Aboriginal people who travel to and through this area from the north-west of the state and beyond. This means that people from many different Western Desert language groups are in this area at any one time.

For those people from the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), their first language may be Pitjantjatjara or Yankunytjatjara and their second language may be English. It is important to remember that Pitjantjatjara and Yankunytjatjara people identify as separate and distinct groups despite intermarriage between the two groups. Pitjantjatjara can be understood by Yankunytjatjara, Ngaanyatjarra, and Manjiljarra speakers. Interpreter services are available for both Pitjantjatjara and Yankunytjatjara, as well as several other Aboriginal languages.

There are two main services which have Aboriginal language interpreters available in South Australia. For further information on these interpreting services, please visit their websites as follows:

Be mindful that many people also speak Aboriginal English which is a recognised separate dialect of English. Not only may this be difficult to understand, it also incorporates indigenous words, and some English words have different meanings. As there is no interpreter service available to assist with Aboriginal English, the duty solicitor needs to be attentive when taking instructions in Aboriginal English to avoid making false assumptions and misinterpreting the defendant’s instructions. As discussed in the Role of the Duty Solicitor chapter, many legal terms and concepts are culturally foreign. It is therefore important for the duty solicitor to avoid using legal jargon, and instead to describe the situation the defendant is in and their rights in general terms and plain English. An interpreter would also be able to assist with this dilemma.

The Lawyer's Protocols for Dealing with Aboriginal Clients, Third Edition published by the Law Society of South Australia in March 2020 set out:

  • how to assess whether an interpreter is necessary before taking instructions (see box below).
  • how to talk to your client about using an interpreter.
  • the need to use plain English as much as possible. Northern Territory agencies have put together The Plain English Legal Dictionary – a useful resource for judicial officers, Aboriginal interpreters and legal professionals working with speakers of Aboriginal languages.
  • the importance of explaining your role to your client.
  • the importance of explaining the legal or court process to your client before taking instructions in such a way that:
    • they can tell you their story, being mindful or gratuitous concurrence and different ways of communicating (see further below).
  • the need to assess whether your client has a hearing or other impairment that also affects their ability to communicate.
REQUEST AN INTERPRETER

It is the task of the duty solicitor to try to relate abstract legal rights to the immediate experience of the Aboriginal defendant and their situation. Aboriginal people whose second language is English may give the appearance of understanding the court process. The duty solicitor must be on guard against the possibility that this appearance is deceptive, and may signify a familiarity with police procedures only.

The Lawyer's Protocols for Dealing with Aboriginal Clients sets out a 4-step process for assessing the need for an interpreter.

  1. Ask your client an open-ended question regarding working with an interpreter, the role of an interpreter and whether they would like to use one.
  2. If they decline, continue to assess their speaking ability.
  3. If speaking ability is sufficient, continue to assess their comprehension.
  4. If their comprehension is sufficient, then assess their overall communication against the table provided for an indication of whether to use an interpreter.

If the duty solicitor has reason to think that the defendant is unable to understand even the simplest concepts such as bail, adjournment or the circumstances that have brought them to court, then it will clearly be necessary to ask the court to arrange for the services of an interpreter [see Role of the Duty Solicitor chapter].

The Judicial Council on Cultural Diversity (the Council) has developed Recommended National Standards for Working with Interpreters in Courts and Tribunals These standards also recommend legal practitioners use the 4-step process outlined in the Lawyer’s Protocols as per the box above.

A further resource put together by the Council is the Interpreters in Criminal Proceedings Benchbook for Judicial Officers (PDF, 210 KB) These refer back to the recommended standards and cover other practical matters, as well as sample directions to the jury.

Gratuitous Concurrence

Gratuitous concurrence is when a person appears to assent to every proposition put to them even when they do not agree. For many indigenous people, using gratuitous concurrence during a conversation is a cultural phenomenon, and is used to build or define the relationship between the people who are speaking. For example, it may indicate respect towards a person, cooperation between people, or acceptance of a particular situation.

However, it is widely recognised that people who are in a position of powerlessness when confronted by alien institutions and authority figures, and who are disadvantaged due to a language barrier, may adopt a strategy of always agreeing or saying what they think the person in authority wants them to say, regardless of the truth of the matter. Gratuitous concurrence is not confined to traditional Aboriginal people from the north-west of the State [see Role of the Duty Solicitor chapter].

Different ways of communicating

Often taking an indirect approach to seeking information is more appropriate when taking instructions from an Aboriginal defendant. This may avoid gratuitous concurrence, as discussed above, as it removes the necessity to respond to direct questions, or respond to questions with expected “yes” or “no” answers. Allowing a person to tell in their own words what has happened is culturally appropriate when taking instructions from an Aboriginal defendant and allows moments of silence and pause while thoughts are put together. Silence and pause are an important and normal part of communication and the exchange of information. A duty solicitor has to possess the virtues of patience and sympathetic understanding and must listen attentively to an Aboriginal person's story. The story and the telling of the story are essential aspects of Aboriginal culture. Stories are only revealed to people who can be entrusted with them [see Role of the Duty Solicitor chapter].

The use of body language is an integral part of communication for many Aboriginal people. For example, hand gestures and movement of the head and eyes can be important. Direct eye contact may be taken as a sign of aggression, rudeness or disrespect; lowered eyes and talking in a quiet manner may be seen as respectful behaviour.

Working with an interpreter

Many of the points outlined below are further explained in the Australian Institute of Interpreters and Translators Inc information sheets, Interpreters: an introduction (PDF, 293 KB) and Communicating via an interpreter (PDF, 459 KB)

Before the session:

  • Be aware of kinship and gender issues when booking a particular interpreter.
  • Allow at least double the amount of time for the booking.
  • Provide the interpreter with as much information as possible regarding the appointment and the subject matter, including:
    • The client’s name, age, gender and community of origin and skin name to assist in identifying kinship and avoidance relationships.
    • The purpose of the interaction and expected outcomes.
    • Any legal terms that might be used
  • Confirm that the interpreter does not have any other role.
  • Ensure the interpreter is familiar with, understands and is willing to adopt the Code of Conduct for Interpreters in Legal Proceedings and understands their role as an officer of the court or tribunal [Recommended National Standards for Working with Interpreters in Courts and Tribunals (Second Edition, March 2022) (PDF, 938 KB) The Code of Conduct sets out the interpreter’s duty to the Court or Tribunal, to be compliant, accurate, impartial, competent and maintain confidentiality.

During the session:

  • Introduce all parties to one another and explain the interpreter’s role and each of your roles.
  • State that there is an expectation that everything communicated will be interpreted and kept confidential.
  • Speak plain English, making one point at a time and pausing for interpretation.
  • Ensure only one person speaks at a time.
  • Speak directly to your client in the first person (while being aware that direct eye contact might also be avoided due to different ways of communicating)
  • If possible, sit in a triangular arrangement so that you are facing both the client and the interpreter.
  • Allow the interpreter to clarify information.
  • Invite the client to ask questions at any time.
  • Clarify that the client has understood by asking them tell you back what you have said in their own words.

After the session:

  • Clearly indicate when the appointment has finished.
  • Consider de-briefing with the interpreter after the client has left.
  • Log the interpreter’s attendance, and when the appointment starts and ends.
  • Provide feedback and make adjustments for future appointments if necessary.

Mandatory Custody Notification Service

On 1 October 2021, Part 5A- Custody Notification Service was inserted into the Summary Offences Regulations 2016 (SA).

Under regulation 33C, Aboriginal Legal Rights Movement Ltd (‘ALRM’) must be notified if an Aboriginal or Torres Strait Islander person is arrested. This includes a person under 18 years of age, in the youth jurisdiction.

The new mandatory custody notification scheme builds upon the existing ALRM Visitor Scheme, in which information can be found on the ALRM website (link opens new window)

A responsible officer is defined in regulation 33A as the police officer who is for the time being responsible for the custodial management of the person detained at the police facility.

What must the responsible officer do?

The responsible officer in respect of a person (including a child) detained at a police facility must, as soon as reasonably practical after the person is detained at the facility, ask the person if they are an Aboriginal or Torres Strait Islander person.

If the person identifies themselves as (or appears to the responsible officer to be) an Aboriginal or Torres Strait Islander person, the responsible officer must inform the person that ALRM will be notified by telephone of the person’s detention. If the telephone call is unanswered, ALRM must be notified by email to a dedicated email address provided by ALRM for that purpose (being an email address that ALRM has undertaken to monitor).

[reg 33C(1)-(1a)]

What information will be given to ALRM?

The responsible officer must notify ALRM by telephone (or email if required), and provide the name of the person (if known), details of the police facility, and the name and contact details of the responsible officer.

[reg 33C(2)]

How can ALRM help?

The responsible officer must at the request of an ALRM representative allow the ALRM representative to speak via telephone, or visit (or both) the Aboriginal or Torres Strait Islander person for a reasonable period.

The responsible officer must be available to speak with the ALRM representative as soon as reasonably practical after their visit or telephone call, to discuss any concerns regarding the welfare of the person (including any need for medical attention) or whether an interpreter or support person is needed when being interviewed or applying for bail.

[regs 33C(3)-(4)]

Are any records made of the notification?

The responsible officer is required to make a record of the following:

  • that they have asked the person if they are an Aboriginal or Torres Strait Islander person
  • whether the person has identified themselves as (or appears to be) an Aboriginal or Torres Strait Islander person
  • whether ALRM has been notified (by telephone or email)
  • if ALRM have been notified, a record of such contact, and details of any matters discussed during contact with an ALRM representative and any police officers or responsible officer in relation to the detained person.

[reg 33C(5)]

What if the responsible officer refuses to make a notification?

A responsible officer who fails to comply with the requirements above (without reasonable excuse) may be subject to disciplinary action (under the Police Complaints and Discipline Act 2016 (SA).

[reg 33C(6)]

Issues for Duty Solicitors

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the final report handed down in 1991 demonstrated very clearly that disproportionate numbers of Aboriginal people compared to the mainstream community have contact with the criminal justice system. It is widely recognised that this contact has a destructive influence on Aboriginal communities, families and individuals. The over-representation of Aboriginal people in the criminal justice system continues to this day; arrest and imprisonment rates remain at disproportionate rates. Needless to say, a number of Aboriginal people have had a lot of experience of the criminal courts, Magistrates, police prosecutors and defence lawyers. Not surprisingly, they do not enjoy being defendants in criminal cases and in some cases hold cynical and negative views of defence lawyers. It is important for the duty solicitor to be culturally aware and behave in a culturally appropriate manner when assisting Aboriginal defendants.

Some responses to duty solicitors

Assuming that the language barrier has been overcome and the Aboriginal client is able to communicate effectively with the duty solicitor in English, then a variety of responses may be experienced. These responses are no different in kind from what may be experienced with non-Aboriginal defendants, but there will be differences in emphasis that reflect Aboriginal peoples’ cultures, society, world view and past experience. Both non-Aboriginal and Aboriginal duty solicitors may be experienced as alien because they are seen as part of the alien court system, and not “one of us”. Again, attentiveness, patience and courtesy to the defendant are of the utmost importance [see Role of the Duty Solicitor chapter].

Gender issues

Gender issues inevitably arise for duty solicitors dealing with Aboriginal people, particularly when dealing with traditional people [see Role of the Duty Solicitor chapter].

Charged up or seriously ill?

Aboriginal and Torres Strait Islander people have a disproportionate lower life expectancy and health status compared to non-Indigenous people. They die on average twenty years earlier than non-Indigenous Australians and infant mortality is three times higher than for non-Indigenous Australians. It is widely accepted that the ongoing disadvantage faced by Aboriginal people is due to a complex web of socioeconomic factors such as: poverty, overcrowding in houses, inadequate access to clean water and sanitation, inadequate access to education, housing and employment, lack of access to medical assistance and treatment, poor nutrition, drug and alcohol abuse (including petrol and solvent sniffing), ongoing discrimination and racism, dispossession from land, the separation of families, loss of culture, and emotional upheaval. Chronic diseases such as heart disease, diabetes, stroke, and renal failure are common and escalating, as is drug and alcohol addiction. Taking into account the prevalence of chronic illnesses within Aboriginal communities, it is important that the duty solicitor is aware that not all people who appear unwell or charged up are in fact high on drugs or alcohol, but rather are chronically ill.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) showed that Aboriginal people were disproportionately represented in relation to the offences of assault, drunkenness and public order offences. The deaths investigated by RCIADIC showed time and again that alcohol withdrawal in particular is life threatening, and that alcohol intoxication is potentially dangerous because it has the effect of masking effects and symptoms of other life threatening illnesses and conditions, such as closed head injuries [see Role of the Duty Solicitor chapter]. Taking these factors into consideration, it is important for the duty solicitor to not make assumptions about the condition of any defendant and be vigilant to the possibility that instructions may be needed in order to have the defendant medically examined.

Clearly, some defendants will be under the influence of alcohol or drugs. Where it is impossible to take instructions, the duty solicitor is obliged to obtain instructions to have the matter held over until the defendant is able to communicate effectively. Instructions should be obtained to warn the cell guards of the defendant's condition, and to remind them of their obligation and duty of care towards that person [see Role of the Duty Solicitor chapter].

The names of deceased people

For many Aboriginal people, raising the name of a dead person will cause serious offence and is culturally insensitive. For those people who speak Pitjantjatjara, the deceased person’s name is not to be spoken until the grieving family decides the name can come back into use. It is a matter of respect for traditional culture that one does not disturb its members’ memories of the dead by reviving the use of their name. In place of the person’s name, the word “Kunmanara” is used. Kunmanara means “one whose name cannot be mentioned” or “no name”. It is used by all people who have the same name as a person who has died recently, and may also be applied to the duty solicitor if it is appropriate. The rule is simple: if the defendant calls the duty solicitor “Kunmanara” or if the defendant calls somebody else “Kunmanara”, then it is very important the duty solicitor does not use that person's name, but rather call the person in question “Kunmanara”.

In addition, the duty solicitor should be aware that it is culturally inappropriate to show community members material such as video, voice recordings and photographs which contain images of the deceased person.

Ceremonial obligations

The Magistrates Court of South Australia, when it sits in the north-west of the State, will consider ceremonial obligations as reasons for absence from court, however more weight is given to such submissions where supporting information is also provided. This particularly applies to people of the Western Desert Language Groups, who reside at Yalata, Oak Valley and in the Pitjantjatjara Homelands. It is helpful to remember:

  • It is never appropriate to ask of a defendant the nature of the ceremonies, because they relate to secret and sacred business;
  • It is usually appropriate to adopt a euphemistic form of expression such as “going on business”;
  • Ceremonial obligations apply to young, middle-aged and old men as well as women. Both men and women occasionally travel on business, especially when relatives are involved;
  • Family relationships and obligations have a wide context; the obligation to attend funerals for more distant relatives is just as important as for direct family members. Community members are generally approachable in providing confirmation of when and where a funeral will be held.

Business usually takes place during the summer months, though this is by no means an invariable rule and there is usually a fairly long lead-up time prior to the occasion when the travelling starts.

It is obviously important to the maintenance of the tradition of the courts giving leeway to defendants at ceremony time that the present arrangements not be abused. Some communities have gone so far as to arrange for traditional leaders to speak with visiting Magistrates and to request them to impose bail conditions consistent with attendance on business, but requiring the immediate arrest of defendants who have absented themselves from the community during “business time” so as to go on a drinking binge. This is cited as an example of the seriousness with which community leaders regard the importance of Aboriginal people attending traditional ceremonies and not abusing the leeway that Magistrates give in those circumstances.

CHECKING INSTRUCTIONS

The duty solicitor may encounter cases where a defendant desires to mislead you and the Court by making claims of an urgent need to go on business, when there is simply no basis for it. In those cases it may be relevant to get instructions to make further enquiries with the defendant's community or relations as to the actual situation.

Applying for Bail

The same considerations apply when assisting an Aboriginal defendant apply for bail as for non-Aboriginal people [see Bail chapter]. However, there are a few considerations relevant to Aboriginal people which must be taken into account. Aboriginal people often have extended family and community networks. When bail is an issue it is desirable for the duty solicitor to know or to be able to find out how the family of the accused is reacting to his or her predicament. If the defendant wants bail because of an impending family funeral or birth, then they must emphasise in their submissions the importance of funerals and births to Aboriginal society and the need for the defendant to attend. It may be useful to call as witnesses senior members of the defendant’s family. Similarly communication with an Aboriginal defendant’s relatives may assist in bail applications by providing information as to possible guarantors, places to live or employment.

It may also be useful for the duty solicitor to get instructions to speak to an Aboriginal Justice Officer (AJO) as well as representatives of community organisations such as community development and employment programs, community councils, and Aboriginal health services, because they are in a unique position to provide information that will assist the Aboriginal defendant in court.

Sometimes instructions are obtained which would normally make it difficult to successfully apply for bail. An Aboriginal defendant may not have a fixed address, or may move from house to house, and in such a case, it will be important for the duty solicitor to demonstrate that these aspects of Aboriginal society are not inconsistent with an Aboriginal defendant being reliable when it comes to court appearances.

Guarantors and traditional people

When dealing with traditional Aboriginal people whose second language is Aboriginal English, it may be prudent to not put relatives up as guarantors. The reasons for this are complex, but basically the notion of a guarantor under the Bail Act 1985 (SA) is very difficult to explain to traditional people, and is fundamentally alien to traditional societies' notion of an autonomous individual. The relationship of “guarantor” does not apply ordinarily, except in specific contexts which relate to Aboriginal cultural practices. Except in those specifically Aboriginal contexts, traditional people do not ordinarily take on responsibilities akin to that of a guarantor, although they may be very keen to do whatever is necessary to get their relative out of custody. It is certainly true that traditional people are often very frightened of the consequences of custody for their relatives. In those cases, where the Court demands a guarantor, it will be necessary to ensure that the prospective guarantor gives his or her informed consent to being a guarantor through the services of an interpreter and fully understands their legal obligations and the financial consequences if the bailed person does not attend court. Generally speaking, the supervision of a probation officer may be a more viable alternative than having traditional people serve as guarantors.

Sentencing considerations

The same sentencing principles and considerations apply when assisting or representing an Aboriginal defendant with a plea of guilty and in making submissions in mitigation of penalty as for non-Aboriginal people [see Guilty Pleas and Sentencing chapters]. However, there are a few considerations relevant to Aboriginal people which must be taken into account.

Sentencing Conferences

Section 22 of the Sentencing Act 2017 (SA) provides for the sentencing of an Aboriginal defendant in a less formal manner by way of a sentencing conference, and empowers the sentencing court to take into consideration any views expressed at the conference [see s 22(1)(b)]. This section may be utilised by any court sentencing an Aboriginal defendant where the defendant consents to the process. Section 22(2), however, makes it clear that a sentencing court is not compelled to convene a sentencing conference if it so determines not to convene one after considering all the relevant sentencing principles, purposes and factors.

Therefore, the sentencing court has discretion as to whether or not a conference is convened.

Section 22 is outlined in detail in the Specialist Courts chapter.

General Sentencing Principles

The Sentencing Act 2017 (SA) sections 3, 4, 9, 10 and 11 prescribe the factors a sentencing court should consider when determining a penalty following a plea of guilty (discussed in detail in the Guilty Pleas and Sentencing chapters) there are some which are particularly relevant to Aboriginal defendants:

Aboriginal identity

  • The same sentencing principles apply to all defendants regardless of their identity with a particular ethnic group ‘ but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group ’[see R v Fernando (1992) 76 A Crim R 58 at 62]. Furthermore, in imposing sentences courts are bound to take into account ... all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group’ [see Neal v R (1982) 149 CLR 305 at 326; [1982] HCA 55];
  • Whilst the same sentencing principles apply to all defendants, ‘a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders’ [see R v Tjami (2000) 77 SASR 514 at 517; [2000] SASC 311)];
  • Whilst Aboriginal identity is not necessarily a mitigating factor, Aboriginal identity may serve to ‘ explain or throw light on the particular offence and the circumstances of the offender’ [see R v Fernando (1992) 76 A Crim R 58at 62];
  • The principles outlined in Fernando are not restricted to Aboriginal people from remote communities [see R v Abdulla (1999) 74 SASR 337 at 344; [1999] SASC 239); R v Fuller-Cust [2002] 6 VR 496 at 523-524, 533; [2002] VSCA 168 for recognition of the impact of the Stolen Generation]. There is no distinction to be made in applying sentencing principles and authorities to Aboriginal people who live in traditional ways and Aboriginal people who live in urban areas. The ‘heritage of Aboriginal people raised in urban settings is relevant in explaining matters personal to the offender’ [see R v Smith (2003) 86 SASR 132; [2003] SASC 263].

Customary beliefs

  • Where customary beliefs are relevant to sentencing, those factors must be put before the court [see R v Shannon (1991) 57 SASR 14 at 16,18
  • A sentencing court may take into account Aboriginal customary law and the likelihood of retribution through customary punishment. To do so, ‘is not to sanction that retribution; it is to recognize certain facts which exist only by reason of that offender’s membership of a particular group’ [see Jadurin v R (1982) 7 A Crim R 182; 44 ALR 424 at 429; [1982] FCA 215]. Physical punishment of the defendant by the community is a relevant consideration at sentencing [see R v Poulson (2001) 122 A Crim R 388at 392].

Alcohol Abuse and Violence

  • It is appropriate for sentencing courts to recognise that the problems of alcohol abuse and violence in some Aboriginal communities ‘are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment’ [see R v Fernando (1992) 76 A Crim R 58 at 62];
  • Alcohol abuse is not normally a mitigating factor. However, ‘where the abuse of alcohol ... reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves ... the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self- image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects’ [see R v Fernando (1992) 76 A Crim R 58 at 62-63];
  • In assessing case law, it is clear that ‘ the courts are prepared to recognise as a mitigating circumstance, the disadvantageous position of Aboriginal persons ... allowance must be made with respect to offences of violence which are a product of abuse of alcohol which so often accompanies their existence, living as they are in economically deprived circumstances ’ [see Ingomar v Police (1998) 72 SASR 232at 236; [1998] SASC 6875];
  • The Fernando principles will likely apply in circumstances involving petrol sniffing [see Bux v Police [2009] SASC 352 at 315-317].

Imprisonment

  • A lengthy term of imprisonment may be “unduly harsh” when imposed upon an Aboriginal person ‘who has come from deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways’ [see R v Fernando (1992) 76 A Crim R 58 at 63; R v Tjami (2000) 77 SASR 514at 521; [2000] SASC 311];
  • When considering the imposition of a term of imprisonment, the court should give ‘recognition of the debilitating effect on Aborigines of this form of punishment ... even though it must be weighed against the need to provide protection for the community and the necessity for specific and general deterrence’ [see R v Abdulla (1999) 74 SASR 337 at 344; [1999] SASC 239].

Rehabilitation

  • In taking into account all factors relevant to sentencing, ‘full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part’ [see R v Fernando (1992) 76 A Crim R 58].

Community Protection

Early Release on home detention

The Correctional Services Act 1982 (SA) allows for early release on home detention for Aboriginal or Torres Strait Islander prisoners serving a sentence of imprisonment who normally reside on traditional lands (including any place specified in the instrument of release as the person's residence) [see ss 37A(1) and 37A(6)]. However, prisoners sentenced in respect of certain offences, such as those involving violence, are not eligible for home detention [see s 37A(2)(d)]. For further information in relation to early release from imprisonment on home detention see the Sentencing chapter.

Sentencing Reports

Pre-sentence Reports

Detailed information in relation to pre-sentence reports and relevant considerations prior to requesting such a report is contained in the Guilty Pleas chapter. A pre-sentence report will provide the Magistrate with information on the physical or mental condition of the defendant, the personal circumstances and the history of the defendant [see Sentencing Act 2017 (SA) s 17(1)].

Psychiatric reports

Detailed information in relation to psychiatric reports and relevant considerations prior to requesting such a report are contained in the Guilty Pleas chapter.

Anthropological Reports

Anthropological reports may assist a sentencing court assess the social, historical, cultural, socioeconomic and environmental factors relevant to a particular community with whom an Aboriginal defendant may identity. Anthropological reports are valuable in providing a sentencing court with evidence ‘explaining Aboriginal heritage’ and is considered ‘ objective evidence in support of those personal matters which are put forward as mitigating factors particular to the person being sentenced ’ [see R v Smith (2003) 86 SASR 132 at 140-41; [2003] SASC 263].

Commonwealth offences

The Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) amended the Crimes Act 1914 (Cth) in significant ways by removing cultural background as a relevant consideration for bail and sentencing procedures related to Commonwealth offences.

Bail applications

A court may not consider customary law or cultural practices in certain bail applications where these excuse, justify, authorise, require or lessen the seriousness of the alleged criminal behaviour, or aggravate the seriousness of the alleged criminal behaviour [see Crimes Act 1914 (Cth) ss 15AB(1)(b)(i) and 15AB(1)(b)(ii)]. The bail authority must take into consideration the fact a person is from a remote community in considering the impact of granting bail on that person [see s 15AB(2)].

Sentencing considerations

Cultural background is no longer a specified sentencing consideration, with the relevant considerations being the character, antecedents, age, means and physical or mental condition of the person [see Crimes Act 1914 (Cth) s 16A(2)(m)]. Customary law or cultural practices used to excuse, justify, authorise, require or lessen the seriousness of the alleged criminal behaviour, or aggravate the seriousness of the alleged criminal behaviour are not relevant factors in the sentencing process [see s 16A(2A)].

Discharge without recording a conviction

See the Sentencing chapter for information relating to the power of a sentencing court to discharge a matter without conviction. Cultural background is no longer a relevant consideration for the discharge of offenders without proceeding to a conviction [see Crimes Act 1914 (Cth) s 19B(1)(b)(i)]. Customary law or cultural practices used to excuse, justify, authorise, require or lessen the seriousness of the alleged criminal behaviour, or aggravate the seriousness of the alleged criminal behaviour are not relevant factors to be considered in determining the discharge of a matter [see s 19B(1A)].

Relevant country courts and criminal court circuits

A Magistrate conducts the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), Coober Pedy, Leigh Creek and Ceduna criminal court circuit with the court sitting in the more populated areas of the APY Lands such as Ernabella, Amata, Fregon, Indulkana and Pipalyatjara.

The courts and registries located at Ceduna, Coober Pedy, Port Pirie and Kadina open only at court circuit times.

The Port Augusta, Whyalla and Port Lincoln Magistrates courthouses are open every weekday. Other courts, such as the Supreme, District and Youth Courts, also operate from these courthouses from time to time

Nunga Court (Aboriginal Court Day)

See the Specialist Courts chapter for information about Aboriginal courts in this State.

Judicial Education

The National Report of the Royal Commission into Aboriginal Deaths in Custody (1991) recommended that judicial officers and court staff whose duties bring them into contact with Aboriginal people be encouraged to participate in an appropriate training and development program designed to explain contemporary Aboriginal society, customs and traditions. It also recommended that they participate in informal discussions with members of the Aboriginal community to improve cross-cultural understanding.

The Court's Administration Authority of South Australia, together with PY Media, has produced a video capturing the expectations, experiences and reflections of judicial officers and court staff who travelled to the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands) in 2011. The trip was funded by the National Judicial College of Australia and is an example of the implementation of the Royal Commission's recommendations.

The video is called The Ripple Effect and is available to view through the Court's Administration Authority You Tube channel.