CAALAS' history: significant CAALAS cases
Casework is just one of the ways CAALAS advocates for our clients' rights in Central Australia, and for improved social justice outcomes for Aboriginal people. Over its 40 year history, CAALAS has acted in a number of significant cases. Some of the most high-profile cases are discussed below.
R v Anunga; R v Walker (1976) 11 ALR 412
CAALAS acted in the Supreme Court case of R v Anunga. In this case, Justice Foster set down guidelines for police conduct and practice when questioning, interviewing or detaining Aboriginal people. The guidelines have been incorporated into formal police guidelines in the NT and have informed police practice and policy in other jurisdictions. The decision is also an important precedent in this area of law in the NT. The Anunga guidelines (or the Anunga rules as they are sometimes known) are as follows:
“(1) When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person's language should be present, and his assistance should be utilized whenever necessary to ensure complete and mutual understanding.
(2) When an Aboriginal is being interrogated it is desirable where practicable that a “prisoner's friend” (who may also be the interpreter) be present. The “prisoner's friend” should be someone in whom the Aboriginal has apparent confidence. He may be a mission or settlement superintendent or a member of the staff of one of these institutions who knows and is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs. The combinations of persons and situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the “prisoner's friend” be someone in whom the Aboriginal has confidence, by whom he will feel supported.
(3) Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, “Do you understand that?” or “Do you understand you do not have to answer the questions?” Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in theTerritory already do this. The problem of the caution is a difficult one but the presence of a “prisoner's friend” or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.
(4) Great care should be taken in formulating questions so that so far as possible the answer which is wanted or expected is not suggested in any way. Anything in the nature of crossexamination should be scrupulously avoided as answers to it have no probative value. It should be borne in mind that it is not only the wording of the question, which may suggest the answer, but also the manner and tone of voice which are used.
(5) Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources. Failure to do this, among other things, led to the rejection of confessional records of interview in the cases of Nari Wheeler and Frank Jagamala.
(6) Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen it is particularly important that they be offered a meal, if they are being interviewed in a police station, or in the company of police or in custody when a meal time arrives. They should also be offered tea or coffee if facilities exist for preparation of it. They should always be offered a drink of water. They should be asked if they wish to use the lavatory if they are in the company of police or under arrest.
(7) It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time.
(8) Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal, states he does not wish to answer further questions or any questions the interrogation should not continue.
(9) When it is necessary to remove clothing for forensic examination or for the purposes of medical examination, steps must be taken forthwith to supply substitute clothing.”
Ebatarinja v Deland  HCA 62; 194 CLR 444
CAALAS acted for a deaf, mute and illiterate Aboriginal man charged with murder and two other serious offences. The man could not communicate using sign language. At the time, there was no way of communicating the charge of murder and the nature of the proceedings, nor was there anyway to obtain full instructions from Mr Ebatarinja.
Mr Ebatarinja was brought before a committal hearing (a pre-trial hearing to determine whether the Crown has a case). The Magistrate presiding over the committal hearing stayed the proceedings and referred the matter to the Supreme Court to ask whether the committal hearing could go ahead, given that Mr Ebatarinja was unable to understand and participate in the proceedings. The Supreme Court determined that the committal hearing could go ahead because Mr Ebatarinja was not required to enter a plea of guilty or not guilty at the committal hearing and the question of fitness to plea could be dealt with at the trial.
CAALAS appealed the case to the High Court. The High Court held that Mr Ebatarjni could not be subject to committal hearings because, under the Northern Territory Justices Act 1928 (NT), Mr Ebatarinja:
- had to see and hear the evidence given at the committal;
- had a right to be heard at the committal hearing;
- was entitled to be legally represented; and
- was entitled to cross-examine prosecution witnesses.
The High Court determined that, because these requirements under the Justices Act (NT) could not be met, the committal could not validly go ahead. Instead, the matter would need to proceed on ex-officio indictment (a special way to commence a trial without a committal or following a dismissed committal in exceptional circumstances). Unfortunately, the High Court largely confined its reasoning to issues relating to the interpretation of NT legislation, rather than considering broader principles relating to committal hearing.
This case led to the introduction of a legislative unfitness scheme in committal matters in the Northern Territory.
The Ti Tree Shooting
CAALAS acted in a number of court matters and inquiries arising out of the death of an Anamatyerre man (referred to as Jabanardi) in a police shooting on 20 July 1980 in Ti Tree, a community about 200kms north of Alice Springs. the police shooting became known as "the Ti Tree Shooting". The Ti Tree Shooting divided the community and heightened racial tensions. Many in the community held concerns about the actions of the police involved in the shooting and about the manner in which the police and the government dealt with the shooting.
Five Aboriginal men were charged with assaulting the policemen involved in the shooting and related offences. Because of highly emotive and prejudicial media reporting of the shooting, they had to be tried in Darwin (some of the media reports can be read here, here and here). Three of the Aboriginal men were convicted of some (but not all) of the offences charged.
Notwithstanding significant concerns about the actions of the police, some of which were conceded in the trial of the Aboriginal men, it was only after an inquest into Jabanardi’s death, a year after his death, that the policeman who shot Jabanardi was charged and tried for murder. He was acquitted by the jury. There were no Aboriginal people on the jury.
Many years later, the Royal Commission into Aboriginal Deaths in Custody inquired into the death. CAALAS made extensive submissions to the Royal Commission’s inquiry. Key issues raised by CAALAS and considered by the Royal Commission included:
- Problems with the way police conduct investigations into the actions of police;
- The use of non-standard issue weapons by police;
- The relationship between the police and the media and the divulging of police information to the media without proper safeguards in place;
- Problems with protective custody legislation;
- Deficiencies in police procedures for the interrogation of Aboriginal suspects and witnesses; and
- The need for an independent tribunal to deal with complaints against police.
The full Royal Commission report on Jabanardi’s death can be found here. The Royal Commission's findings in relation to Jabanardi's death in Ti Tree informed the the final report on the Royal Commission into Aboriginal Deaths in Custody. The final report remains a very significant document, and can be read in full here.