Justice John Dowd, former Deputy Chairperson of the Commission, does not agree with the recommendation that there should be statutory recognition of Aboriginal customary law. His view is that it is established by the existing law that Aboriginal factors may be taken into account in terms of sentencing and in terms of establishing offences and circumstances for the admissibility of evidence and that to give statutory recognition to one section of the community will create problems in relation to other principles of sentencing.
He is of the view that it is not the function of a reference on sentencing to endeavour to achieve other sociological aims in terms of the harms which have been done to the Aboriginal community since British settlement.
Justice Dowd acknowledges that the application of Aboriginal customary law may not be uniform and practices will vary but this is an Australia-wide problem rather than one demonstrated in New South Wales. The very fact of publication of this Report will assist in the education process. Failure to admit evidence concerning Aboriginality and to take it into account would, in each case, be an error in law.
Justice Dowd believes that considerable problems would arise in relation to the principles of parity with Aboriginal and non-Aboriginal offenders. There may be a tendency for people of Aboriginal descent who lead a non-tribal existence to call evidence of customary law during sentencing which would create difficulties for a court and a prosecutor who may not necessarily be in the position to address such evidence. The fact that expert evidence may apply to members of an Aboriginal group will not, in Justice Dowd's view, of itself, establish the extent to which a particular prisoner being sentenced is subject to that law. Assertions will be made but would usually not be supported by evidence which will necessarily be reliable. The calling of relatives of a prisoner being sentenced will be subjective. There will be a tendency for that evidence to favour the interest of the person under sentence, not community.
Justice Dowd is further concerned that statutory recognition of customary law is in opposition to the Commission's recommendations on sentencing generally:20 namely, that particular sentencing factors not be contained in legislation. He also argues that there are many communities within New South Wales who, for religious or culture-based reasons, may have an equally valid argument for statutory recognition of their adherence to a particular community, both in relation to sentencing and to the commission of an offence. In his view, this will create resentment if only one group is given statutory recognition. Evidence of membership of a particular group, and customs of that group, should be introduced in the normal way and its relevancy established.
FOOTNOTES
20. New South Wales Law Reform Commission, Sentencing (Report 79, 1996).
