McGrath, Shane --- "Traditional Punishment Prevented: Barnes v The Queen" [1998] IndigLawB 8; (1998) 4(8) Indigenous Law Bulletin 18

• Traditional Punishment Prevented: Barnes V The Queen

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Traditional Punishment Prevented:
Barnes v The Queen

Barnes v The Queen

Bail application

NT Supreme Court, Bailey J

Unreported

13 October 1997

No. 206 of 1996

Casenote by Shane McGrath

The applicant was charged with the murder of Cedric Ross at Darwin on 19 March 1996. The applicant's counsel informed the Court that his client intended to plead guilty to the manslaughter of Cedric Ross, who was the nephew of the applicant. The basis for the application for bail advanced by his counsel was for the applicant to be permitted to return to his community at Lajamanu to receive traditional punishment. The applicant's counsel called Mr Martin Johnston, a traditional elder, and the applicant in support of the application. Mr Johnston informed the Court that the traditional punishment would comprise:

• spearing both of the applicant's legs four or five times, using sharp and shovel-nosed spears;
• punches with fists to the applicant's face and chest;
• blows to the applicant's head and back with the use of large heavy wood boomerangs; and
• similar boomerangs being thrown at the applicant, who would have a small shield with which to protect himself.

Mr Johnston also expressed fears for the applicant's spiritual and physical wellbeing if he remained imprisoned without traditional punishment. The applicant gave evidence of his willingness to undergo traditional punishment for the sake of his family and himself.

As the applicant was charged with murder, he was subject to s7A of the Bail Act (NT). The effect of this section is that the applicant bears the burden (on the balance of probabilities) of persuading the Court that bail should not be refused.

The Court considered the case of R v Jungarai (1981) 9 NTR 30, where there had been bail application in circumstances similar to the present In that case the Court did not express approval or disapproval of the action to be undertaken. The Court was primarily concerned at resolving community unrest after killing. Such considerations were no longer considered applicable as that case preceded the present Bail Act (NT). Community considerations did not fit within the exclusive criteria in s24 of the Bail Act. Also in the present case, the punishment of the applicant was likely to be more severe.

The Court also considered the application in the light of the remarks by Mildren J in R v Minor [1992] NTCCA 1; (1992) 2 NTLR 183 at 195-196: that an assault is not unlawful if authorised by the victim unless the person committing the assault intends to kill or cause grievous harm. In the present case the Court was satisfied that the punishment consented to by the applicant would cause grievous harm, and the Court could not facilitate what would amount to a crime.

The Court took the view that the interests of the applicant under s24(1)(b) of the Bail Act would not be served by facilitating his release to be unlawfully stabbed and bashed before submitting to such sentence as may be imposed according to law.

The Court emphasized that the exclusive criteria for consideration of bail applications provided by s24 of the Bail Act does not allow consideration of any potential beneficial effects to the community generally, or particular groups within the community which might result from imposing traditional punishment.

The Court was satisfied that not only had the applicant failed to satisfy the criteria in s24, but was satisfied that there were positive reasons relating to his physical well being (another criterion under s24) as to why he should remain in custody.

In relation to the witness, Mr Johnston's, argument that the applicant might commit suicide, the Court noted the applicant had already spent 18 months in custody. Also the Court indicated that it had no doubt that after the fears expressed, the authorities would take appropriate action to ensure the applicant's continued well being.

[Postscript: On 28 November 1997, Justice Dean Mildren, of the Northern Territory Supreme Court, sentenced the applicant to four years jail for the manslaughter. However, as the applicant had already spent twenty months in prison, Justice Mildren suspended the rest of the sentence and ordered his release, after noting that his family still wanted to carry out traditional punishment. Justice Mildren said, 'I take it (the traditional punishment) into account, as I am obliged to, not because the court approves of payback as a form of punishment but because it is not right that a person should be punished twice, both by his own community and by the courts.'

Immediately after his release, the applicant returned to his family and received the traditional punishment.

Sydney Morning Herald, 4/12/97, p 3. Eds]