Editors --- "R v. Warren, Coombes & Tucker - Case Summary" [1996] AUIndigLawRpr 93; (1996) 1(4) Australian Indigenous Law Reporter 622

R v. Warren, Coombes & Tucker

Supreme Court of South Australia (Court of Criminal Appeal: Doyle CJ, Cox and Debelle JJ)

3 April 1996, Adelaide

Criminal Law - Cause grievous bodily harm with intent to cause grievous bodily harm - Duress - Whether acts lawful according to customary Aboriginal law constitute duress under general criminal law

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Each of the appellants was convicted of a number of offences against the person including causing grievous bodily harm with intent to cause grievous bodily harm (contrary to s. 21 of the Criminal Law Consolidation Act 1935 (SA)). The appellants are members of the Dieri people, living in Maree, South Australia. Tensions had arisen between the Dieri people and the Arabanna people, both of whom claim Maree and the surrounding area as their traditional land. Following an initiation ceremony performed by members of the Dieri people (including the appellants) in the company of guests from Hermannsburg in the Northern Territory, the Arabanna people sent the victim (C), a member of the Pitjanjatjara people, to warn the guests that they were trespassing on Arabanna land. When C was delivering the message, he was set upon by the appellants, and, as a result, sustained severe injuries.

At trial, counsel for the appellants argued that the appellants had acted under duress, as they believed that if they had not punished C for his provocative action, they themselves would have been beaten or killed in accordance with customary Aboriginal law. The trial judge rejected the claim that the appellants were inflicting traditional punishment, ascribing their motivations to different factors, including the overconsumption of alcohol and a decision by the group, led by Warren, that it was time for a show of strength by the Dieri people.

On appeal, counsel for the appellants submitted that the trial judge had erred when he ruled that the defence of duress was not available on the grounds that allowing it would circumvent Mason CJ's statement of the law in Walker v. NSW [1994] HCA 64; (1994) 69 ALJR 111 at 113 (in which his Honour stated that Australian criminal law does not accommodate any alternative body of law operating along side it).

Held:

It is not possible for two bodies of law to operate within the one territory and impose conflicting demands or requirements upon the one individual, without a rule which determines what is to happen in the event of conflict. However, this was not at issue in the instant case. The question which arose was whether the appellants' compulsion to act in accordance with customary Aboriginal law constituted the defence of duress as it is defined by the general criminal law in such cases as R v. Brown (1986) 43 SASR 33, R v. Palazoff (1986) 43 SASR 99. Therefore the trial judge erred in holding that Walker v. NSW was inconsistent with the defence that the appellants sought to advance. However, on the facts of the instant case, it was not necessary to decide if the defence was available as a matter of law.

Doyle CJ

Appeal against conviction and appeal against sentence.

These three appeals were heard together. The three appellants were convicted of a number of offences. Each of them was convicted of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to section 21 of the Criminal Law Consolidation Act 1935. The victim of this offence was Dean Ah Chee. Each of them was convicted of assault occasioning actual bodily harm, contrary to section 40 of the Criminal Law Consolidation Act 1935. The victim of this offence was Jeffrey Naylon. The appellant Warren was also convicted on a count of common assault, contrary to section 39 of the Criminal Law Consolidation Act 1935, the victim of this offence being Ross Coulthard.

Each appellant was also convicted on two counts of damaging property.

The appellants were convicted, after a trial by judge alone, and sentenced by that judge. In relation to the first two offences the appellant Warren was found by the trial judge to be the ring leader. The trial judge imposed cumulative sentences, except for the counts of damaging property, for which he imposed a single, concurrent sentence, which was, however, cumulative on the other sentences.

W received sentences (I refer to the offences in the order set out above) of four years six months, one year six months, three months and three months, making a total head sentence of six years six months. The judge fixed a non parole period of three years. Coombes and Tucker received sentences of three years six months, one year six months and three months, making a total head sentence of five years three months, the lesser sentence reflecting the fact that Warren was the ring leader and that Coombes and Tucker were not guilty of the offence of common assault. The judge fixed a non parole period for each of them of two years six months.

The appellants are Aboriginals. The offences arose out of what the judge described as 'a night of violence' in Marree on 12 January 1995. Marree is a small outback town of 100 or so people, about 650 kilometres north of Adelaide.

The appellants are all members of the Dieri tribe, living in Marree. For some time there has been tension in the town and in the surrounding area over rival claims to native title or customary title over lands in and around Marree. The source of those tensions is the existence of rival claims by people of the Arabanna tribe who also live in the town of Marree. Both the Dieri and the Arabanna apparently regard Marree as their traditional land. The tension between the two groups was described by the judge as 'long standing and deep seated'. At the time in question members of the Dieri tribe, including the appellants, were conducting an initiation ceremony near Marree. As well as Dieri people, present at the initiation ceremony and involved in the later events were about 20 men from Hermannsburg in the Northern Territory. They had come at the invitation of the Dieri people, with whom they had links of some long standing.

It appears that the Arabanna people were of the view that the conducting of the ceremony on what they considered to be their land was inappropriate. To them it was offensive and provocative. One of the Arabanna people, one Reginald Dodd, contacted Dean Ah Chee and arrangements were made for him to come from Ernabella to Marree with a letter warning the visitors from Hermannsburg that they were trespassing on Arabanna territory and should leave. It should be noted that Dean Ah Chee was, himself, a member of the Pitjantjatjara tribe.

When Mr Ah Chee arrived at Marree he was seen by a group of Dieri, including the appellants, and that group very shortly thereafter set upon him and beat him severely. This seems to have been the beginning of a series of incidents involving violence in the town.

The appellants at trial said that by entering the town when he did, and by entering uninvited and without their permission, and by driving near a house in which some newly initiated men were, and by some other insulting behaviour, Mr Ah Chee broke their customary law, as he would have well known. They said he behaved in a deliberately provocative fashion. Their case at trial was that Dieri tribal law meant that Mr Ah Chee must be punished by being severely beaten, and perhaps worse, and that if they did not punish him they themselves would attract the same punishment for the failure to punish Mr Ah Chee. Their evidence to this effect was supported by the evidence of an independent witness Mr Stoll, to whom I will refer later.

On this basis they advanced a defence of duress in relation to the count of causing grievous bodily harm with intent to cause grievous bodily harm. On appeal it was acknowledged that this defence was not available in relation to the other counts.

As I have already noted, they were convicted after a trial by judge alone. The judge published detailed and thorough reasons for his conclusions. In a nutshell, he rejected the claim of duress, finding that the real reason for the violent assaults was a combination of consumption of alcohol and a decision by the group, led by Warren, that it was time for a show of strength by the Dieri and that Mr Ah Chee was to be the victim of this show of strength. That decision arose, of course, out of the tension over the rival land claims. The judge accepted that Warren and the others may have taken offence at Mr Ah Chee coming into Marree when he did, but his view was that that was 'only a small part of the picture'. He specifically rejected the claim that the appellants were inflicting traditional punishment on Mr Ah Chee on the grounds of interference with the initiation ceremony. He described their evidence to that effect as 'a specious afterthought'. He said that none of the applicants acted under the influence of the threat of punishment under tribal law. He found that their will was not overborne.

On appeal, counsel for the appellants said that His Honour had erred, in saying as he did, that he had grave doubt as to whether a plea of duress was available in the circumstances of the case. His Honour said that if it had been a trial by jury, he thought he would not have left the defence to the jury. In saying this His Honour said that to allow the plea of duress would be to circumvent what Mason CJ said when sitting as a single judge in Walker v. New South Wales [1994] HCA 64; (1994) 69 ALJR 111. He referred to the following passage from His Honour's judgment (at 113):

'... English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it [the criminal law].'

In my opinion the criticism by counsel is sound. In Walker v. New South Wales (supra) Mason CJ dealt with an application to dismiss an action on the ground that the statement of claim did not plead a reasonable cause of action. In the course of dealing with that application he made two points. First, he rejected an argument that the parliaments of Australia lack legislative power to legislate with respect to Aboriginal peoples. But that is not in issue here. It is not suggested that the laws of the Parliament of South Australia do not apply to the Dieri people. Secondly, as is encapsulated in the portion of his judgment just cited, he held that Aboriginal customary law did not operate alongside our criminal law. He held that the general criminal law applies to Aboriginal people. But, once again, it seems to me that that point was not in issue in the present case either.

If the accused had argued that customary law applied to them of its own force, and that by reason of that their conduct was lawful, such an argument would of necessity negate the application of the general criminal law. By the general criminal law their conduct was unlawful, subject to the issue of duress. According to customary law, as described by them, their conduct was lawful. It is not possible for two bodies of law to operate within the one territory and impose conflicting demands or requirements upon the one individual, unless there is some rule to determine what is to happen in the event of a conflict. Section 109 of our Constitution is such a provision dealing with conflicts between Commonwealth law and State law. But the argument for the appellants was not couched in terms of conflicting laws.

The argument was simply that because the appellants believed that they would be severely beaten or killed if they did not punish Mr Ah Chee, they had acted under duress for the purpose of the general criminal law.

It is not here necessary to go into the law of duress in any detail. Suffice it to say that in this Court it has been said that to constitute duress the threats of harm must have overborne the will of the accused and must have been such that a person of ordinary firmness of mind and will might have yielded to the threat in the same way, and it has also been accepted that the threat need not be of immediate death or injury but may be a threat of future harm: see R v. Brown (1986) 43 SASR 33 and R v. Palazoff (1986) 43 SASR 99. For present purposes it suffices to say that it has never been suggested that the threat must be one lawfully made. Indeed, in the nature of things, duress is likely to arise from an unlawfully made threat to inflict harm. The appellants' defence, therefore, did not depend upon them showing that Aboriginal customary law was recognised by Australian criminal law or operated alongside it. It was sufficient for them to raise the issue of whether they did what they did because their respective wills were overborne by the threat of the infliction upon them of serious harm by members of the Dieri people if they did not punish Mr Ah Chee.

In my opinion, it therefore follows that the trial judge erred in saying that what Mason CJ said in Walker was inconsistent with the defence which they sought to advance.

But for reasons which will become apparent shortly, it is not now necessary to decide whether, in the circumstances of this case, the defence was available as a matter of law. It not being necessary to decide the point, I refrain from doing so. I content myself with making the following short points.

The Director of Public Prosecutions (DPP) argued that duress arose only if there was a threat of harm from what might be called an external source. He said that duress could not be raised when, as here, the accused simply claimed that the consequence of their customary law was that if they did not act in a certain way, they would be severely harmed. The DPP argued that it was necessary to show, as I understood the argument, that there was a specific threat of harm made by another person purporting to apply customary law to the circumstances of the case. If that is so then the law in this respect is somewhat formalistic. It would provide no defence to a person subject to a system of customary law in which there was no person or persons appointed to make. authoritative decisions and in which the application of the customary law was, in a sense, self regulated. I would need to be persuaded by citation of authority or by detailed argument that what the DPP advanced either was or should be the law.

On the other hand, it should also be observed that if duress is available in a case such as the present one, one cannot escape the fact that persons subject to customary law, such as that of the Dieri people, will be able to act in the same manner as the accused should the occasion so require in the future. In short, the acceptance of duress on the basis advanced by the appellants is to accept on a continuing basis the permissibility of the infliction of serious personal injury when members of a relevant group, which need not be Aboriginal people, consider that their law or custom has been broken and that they must punish the infraction under pain of punishment themselves. In saying this, I of course do not overlook the fact that this may well be how customary law operates among the Aboriginal peoples or in certain Aboriginal tribes, and certainly the evidence was to this effect. But the matter is one requiring very careful consideration and because it does not have to be decided I refrain from doing so.

The reason why I do not have to decide these questions is, as I have already noted, that His Honour specifically rejected the evidence of the appellants on the point in question. His attitude to the availability of the defence was, therefore, by the by, but the matter is of sufficient importance for the Court to refer to the arguments advanced on the point and to record, as I have done, its view that the trial judge was wrong in saying that the decision in Walker precludes acceptance of the defence.

The next complaint is that His Honour gave inadequate consideration to the evidence of Mr Stoll. He is a non-Aboriginal person who had long experience of Aboriginal customs. He is not an anthropologist. In general terms his evidence as to the relevant aspects of customary law supported the evidence of the appellants, although of course he could not and did not deal with its application to the particular circumstances of the case. Counsel for the appellants said that this evidence was important support for the credibility of the appellants. He made the point, which is quite sound, that it was all the more difficult to reject their evidence as to the requirements of customary law if that evidence had independent support. His argument was that, when it came to the question of the credibility of the appellants, the trial judge had put the evidence of Mr Stoll to one side and had failed to appreciate the important support which it provided for the evidence of the appellants.

In my opinion, having regard to the terms in which the trial judge expressed himself, there is no substance at all in this complaint. Granted, he dealt with the evidence of Mr Stoll relatively early in the judgment and in relatively brief terms. But what he said, or at least a central part of it, was this:

'I see no reason not to accept in a general sense what he said but at the end of the day his evidence does not assist me greatly in a resolution of the critical issues. That is for the obvious reason that the case basically turns on what happened in Marree on the night in question, the motivation for the violence and the credibility of the witnesses, including the four accused.'

That is plainly right. I can see no hint in the judge's reasons that his attitude to the credibility of the accused was infected by a view that their evidence about customary law was false. As His Honour said, the central issue for him was whether the accused had in fact acted for the reasons claimed, or whether they had acted with a view to putting on a show of force and affected by alcohol. In what I have just said I have ignored the onus of proof. In that context it was right for His Honour to say that the evidence of Mr Stoll could not assist much in the resolution of the critical issues. His Honour's main concern was obviously the question of whether the appellants did act in the vindication of customary law or whether they acted for some other reason, and in the end he found that they did act for some other reason. In this context it is worth noting that His Honour formed a strongly adverse view in relation to the credibility of the appellants. He made clear and specific findings in relation to their motivation, and he plainly rejected the claim that they were inflicting traditional punishment on Mr Ah Chee for his interference with the initiation ceremony.

That being so this complaint about His Honour's judgment must fail, and that being the last ground advanced each appeal against conviction must fail.

The appeal against sentence was advanced on the basis that His Honour made insufficient allowance for the fact that the appellants had been severely provoked by the conduct of Mr Ah Chee. In my opinion that complaint fails also. I have already referred to the fact that His Honour rejected as 'a specious afterthought' the claim that they had acted pursuant to customary law. Moreover, in his reasons for sentence he acknowledged that the appellants '... may have been somewhat offended by, and regarded as provocative, the fact that Ah Chee drove near where the young initiatees were ...'. I have considered His Honour's reasons for sentence and it seems to me that he has considered all relevant matters.

The sentences were severe ones, as His Honour recognised. But these were very serious offences. The injuries inflicted upon Mr Ah Chee were very serious, and His Honour described the injuries inflicted upon Mr Naylon as 'nasty head injuries'. The Judge was obliged to give considerable weight to personal and general deterrence. General deterrence was important because of the need to demonstrate that disputes in our society cannot be settled in this manner. Personal deterrence must always be a factor in cases such as this. Warren's conviction in June 1993 for assault occasioning actual bodily harm emphasises the need for personal deterrence in his case. It is not necessary to repeat the circumstances of the attack, but the conduct of the appellants can fairly be regarded as both brutal and cowardly. In my opinion it cannot be said that the sentences which His Honour imposed were excessive.

For that reason I would likewise dismiss each appeal against sentence.

Accordingly, in my opinion, the appeals against conviction and the appeals against sentence must be dismissed.

Cox J

I would dismiss these appeals for the reasons that the Chief Justice has given.

Debelle J

I agree with the substance of the reasons of the Chief Justice and would dismiss the appeal. I do not think it appropriate to comment on the question whether duress is available as a matter of law where reliance is placed on Aboriginal Customary Law. It is not necessary for the decision and it is preferable to leave the matter until it is directly raised.

See also (1996) 185 LSJS 461.