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Edney, Richard --- "R V Scobie: Finally Taking the Royal Commission into Aboriginal Deaths in Custody Seriously?" [2004] IndigLawB 39; (2004) 6(2) Indigenous Law Bulletin 20

R v Scobie: Finally Taking the Royal Commission into Aboriginal Deaths in Custody Seriously?

by Richard Edney


The Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’),[1] established in 1987 by the Hawke Labor Government, produced a landmark report on the relationship between Indigenous persons and the criminal justice system throughout Australia. In considering the 99 lives that were the subject of the RCIADIC, it offered a tragic portrait of the life histories of the deaths examined as well a distillation of the common themes in such stories. The report provided 339 recommendations aimed at reducing Indigenous overrepresentation at all stages of the criminal justice system.[2]

Notwithstanding the RCIADIC and the promise of Commonwealth, State and Territory governments to implement the recommendations of the report, thirteen years after its publication Indigenous overrepresentation in the criminal justice system, particularly in terms of imprisonment rates, has not fallen.[3] This article will not consider the complex reasons as to why Indigenous overrepresentation remains so high, or the reason for Indigenous involvement in criminal behaviour,[4] but will reflect on whether the RCIADIC report is now regarded as an ‘historical document’ rather than an opportunity to inform the practices of the criminal justice system to ameliorate harm produced by that system upon Indigenous communities.

The current status of the RCIADIC recommendations will be discussed in relation to a relatively recent decision by Justice Gray of the Supreme Court of South Australia in R v Scobie[5] (‘Scobie’). The decision is significant for its close analysis by the Court of the recommendations of the RCIADIC and how the imperfect realisation of those recommendations produced an outcome in this case that lead to the imprisonment of the defendant for a term that he should not have served. To consider that claim, and the reasoning process adopted by Justice Gray to arrive at that conclusion, it is first necessary to detail the facts of Scobie.

The Facts

Originally, R v Scobie concerned a Crown application against Mr Scobie for preventive detention on the grounds of tendencies to pedophilia, particularly when under the influence of alcohol.[6] The Crown was required to provide evidence from two psychiatrists that Mr Scobie was incapable of controlling his sexual instincts. However as both psychiatrists could not agree, the Crown application necessarily failed. For Justice Gray, however, this did not conclude the matter as ‘Mr Scobie’s personal circumstances and the cause of his sexually related offending required further investigation’ (my emphasis).[7] Furthermore while the Court considered the Crown’s application[8] Mr Scobie was involved in further offending and whilst those offences could ordinarily have been heard in the Magistrates Court, the Supreme Court elected to hear them as Justice Gray aimed to develop a program to address the ‘interests of community protection and Mr Scobie’s rehabilitation’.[9]

The Court’s depth of involvement in this case was partly due to the material facts that emerged during the course of the Crown application. Those facts disclosed that Mr Scobie was a traditional Pitjantjatjara man who had lived between Port Augusta, Coober Pedy and the Anangu Pitjantjatjara lands. As a young man he had engaged in petrol sniffing and suffered from a chronic alcohol dependency. He had a lengthy involvement with the criminal justice system, including terms of imprisonment. Mr Scobie also suffered from behavioural problems of a sexual nature and it was apparent to the Court that notwithstanding the long-term nature of such problems, he was not receiving appropriate treatment.

The Use of the RCIADIC Recommendations

In attempting to develop an appropriate strategy to deal with Mr Scobie’s sentencing difficulties, Justice Gray made great use of the RCIADIC recommendations. In particular, the treatment of Mr Scobie by the criminal justice system both historically and during the course of proceedings, was measured against those recommendations. Thus the recommendations functioned as a normative standard by which to evaluate the response of the criminal justice system to a person with a particular life story such as Mr Scobie. Significantly, at stages throughout the proceedings the criminal justice system was found to be wanting through a failure to incorporate the ‘spirit’ of the RCIADIC recommendations.

At each stage during more than two years that the case was before the Court, Justice Gray supervised and was sometimes critical of the services offered to Mr Scobie. For instance, the fact that during the proceedings Mr Scobie was remanded in custody for breaching bail conditions, without the Court being informed, evoked strong judicial comment. Justice Gray noted this was in clear breach of Recommendation 89 of the RCIADIC concerning bail with the net effect that:

The principle that a term of imprisonment should be a sentence of last resort was rapidly losing relevance.[10]

Ultimately the Court designed a strategy whereby

prompt notice would be given to this Court if Mr Scobie was taken into custody. This enabled the Court to immediately re-appraise the situation and where appropriate adjust the terms of bail.[11]

In addition, the decision to keep Mr Scobie in solitary confinement was criticised by Justice Gray as ‘unsatisfactory and inappropriate’, contrary to the recommendations of RCIADIC[12]. Thus the Court made clear that the administrative arm of government, in this case the Prisons Department, was not meeting its obligations under the RCIADIC.

Questioning the Value of Imprisonment

An important issue raised by Justice Gray was the value of imprisonment as a means of social control for a person such as the defendant. A connection was made between the history of Mr Scobie’s treatment by the criminal justice system and his current predicament and the abject failure to address the defendant’s difficulties, notwithstanding the recommendations by the RCIADIC. Justice Gray noted

At the time of sentencing Mr Scobie had spent a total of more than 10 months in custody. This occurred because there had been no assessment or apparent understanding of Mr Scobie’s personal circumstances over the preceding two decades. The failure to address his problems at an earlier time might have allowed his offending to continue. The only available control mechanism previously used was a blunt instrument – the criminal law. Implementation of some of the Royal Commission recommendations might have assisted Mr Scobie and might have prevented his further offending.[13] (my emphasis.)

This is perhaps the core of the judgment and emphasises the nexus between contemporary Indigenous offending and a failure to take into account the recommendations of the RCIADIC which results, as it did for Mr Scobie, in a situation arising where ‘[h]e was overlooked by a system designed for non-Indigenous offenders’[14] and by necessary implication, imprisoned unnecessarily. To implement the RCIADIC recommendations required extraordinary steps be taken by the Court and necessitated that the ‘court’s level of involvement was of a nature one would not normally expect’[15]. Thus the judgment exposed the range of service providers and justice agencies that are not effectively providing services to assist someone like Mr Scobie. Those services were only beneficial when there was constant judicial supervision and a measure of accountability. As Justice Gray noted, it was only after two years of ‘considerable effort and perseverance’[16] that a successful outcome was achieved in this case.


Scobie promises to gives content to the manner in which the recommendations of the RCIADIC may be implemented in a particular case, when the Court patiently observes the recommendations of the RCIADIC and measures the treatment of the defendant against the standards within the 339 recommendations. It also reconfigures the role of a sentencing judge in such a context.

The disturbing reality is that although the RCIADIC recommendations have been in existence for many years, it took an extraordinarily persistent effort of a Supreme Court Judge to give effect to them. Whilst the problems afflicting the respondent were complex requiring a high level of specialist therapeutic intervention, the reality is that the criminal justice system does not ordinarily assist Indigenous offenders in the manner envisaged by the RCIADIC recommendations. What happens then for the Indigenous offender in the Local or Magistrates Court where caseloads are high, and the ability of the Court to persuade other agencies and arms of government to comply with the spirit of the recommendations of the RCIADIC may not be possible?


The decision in Scobie is a significant reminder of the value of the RCIADIC recommendations, highlighting that where there is fidelity to the recommendations as practical edicts and codes of conduct for the criminal justice system, the potential for positive outcomes is greatly enhanced. However to do so requires the RCIADIC remains a living document whose value lies not merely in acknowledging the considerable pain and suffering caused by the criminal justice system to Indigenous communities but attempts to ensure that this suffering does not continue to be felt by future generations.

Richard Edney is a Solicitor and Lecturer in Law at Deakin University Law School.

[1] The RCIADIC was established in October 1987. The Commission’s letter patent provided for it to investigate the 99 Indigenous deaths in police and prison custody between 1 January 1980 and 31 May 1989.

[2] Commissioner Elliot Johnston QC. 339 recommendations involved matters of police and prison protocol as well as more general recommendations aimed at addressing the underlying reasons for the high level of Indigenous involvement with the criminal justice system. The recommendations also focused on the importance of the principle of self-determination in countering the social and economic disadvantage that contributed to Indigenous involvement with the criminal justice system.

[3] In Victoria, Indigenous representation in prison remains at extremely high levels. See Statistical Profile: The Victorian Prison System: 1995/1996 to 1999/2000 (2001), 19 and 51 which note that the imprisonment rate for non-Indigenous persons per 100,000 population at 30 June 2000 was 85.4 while for Indigenous persons the figure was 993.3 per relevant population. A significant recent reform in Victoria, in an attempt to provide a more complete understanding of Indigenous offender and community perspectives, is the establishment of the Koori Court. In particular the role of elders is formalised as part of the Koori Court’s process. See Magistrates Court (Koori Court) Act 2002 (Vic) s 1,4G and 17A.

[4] For an overview of the possible explanatory models to account for Indigenous offending see R Broadhurst, ‘Crime and Indigenous People’ in A Graycar & P Grabosky (eds) The Cambridge Handbook of Australian Criminology, (2002) 256-280.

[5] [2003] SASC 85; (2003) 85 SASR 77.

[6] See Criminal Law (Sentencing) Act 1988 (SA) s 23.

[7] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 87 (Gray J).

[8] The Court first became seized of the matter on 12 January 2001 and determined the matter on 24 March 2003.

[9] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 87 (Gray J).

[10] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 88 (Gray J).

[11] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 88 (Gray J).

[12] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 88-89 (Gray J).

[13] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 94 (Gray J).

[14] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 96 (Gray J).

[15] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 99 (Gray J).

[16] R v Scobie [2003] SASC 85; (2003) 85 SASR 77, 96 (Gray J).

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