Law Report

Indigenous man Mark Hogan was sentenced to jail for 16 months for dangerous driving causing death. In calculating how long he should stay behind bars, the judge in the Kalgoorlie District Court took in to account the likelihood that Hogan would be speared in the leg once he returned to his community.

Transcript

This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.

Damien Carrick: First, tribal punishment in WA. On Friday Indigenous us man Mark Hogan was sentenced in the Kalgoorlie District Court. He was represented by the WA Aboriginal Legal Service. Peter Collins is the director.

Peter Collins: Mark Hogan is a traditional Aboriginal man, Damien, from the Ngaanyatjarra and Blackstone Aboriginal communities on the Western Australian, NT and South Australian borders. Very traditional, isolated Aboriginal communities in the Central Australian area.

Damien Carrick: Now your client recently pleaded guilty to a charge of dangerous driving causing death. Who did he kill?

Peter Collins: He killed a close relative driving on an unmade road from Kalgoorlie to a remote community for sorry business following the funeral of another close relative in Kalgoorlie.

Damien Carrick: And your client I think had been driving at high speed and he had been drinking and I think he also had had for previous offences, he'd had his licence permanently taken away form him.

Peter Collins: That's right Damien.

Damien Carrick: Now your client pleaded guilty; in the legal service of sentencing submissions to Judge Robert Mazza, you asked a judge to take into account the likelihood that your client would have to face tribal punishment once he returned to his community. What did you tell the judge?

Peter Collins: I asked the judge to take into account the fact that once he was released from prison, Mr Hogan would be subjected to traditional punishment by his community, and I went on to tell the judge that it was my understanding through contact with the community, that Mr Hogan would be speared several times by members of the family of the deceased and perhaps other community members by virtue of the wrongdoing that he'd committed by driving the car and the person being killed. The information that was provided to me was that the spearing would take place in a public part of the community, that all of the community would be able to attend and witness it. It was designed to be an act of reconciliation, if you like, between Mr Hogan and the members of the family of the deceased and the wider community in order to heal the rift that had been created by virtue of him killing this fellow in the car accident.

Damien Carrick: So you put this to Judge Robert Mazza when making your sentencing submissions, that was a few weeks ago. Last Friday the judge handed down his sentence which was a 16 months jail sentence. Did the judge take into account the likely tribal punishment, the spearing through the leg?

Peter Collins: Yes, he did. In his sentencing remarks and I didn't appear on the sentence and one of our lawyers from Kalgoorlie did, but I've been informed by him that the judge took into account the likelihood of Mr Hogan being traditionally punished and the detail of it, in other words the fact that he would be speared. In his sentencing remarks he made it clear that first of all traditional punishment isn't part of the statutory law, if you like, of Western Australia, in other words there's no act of parliament in Western Australia requiring courts to take into account traditional punishment. However there is now a body of common law which recognises that traditional punishment can be taken into account, but in making that recognition, the judge also pointed out that he didn't condone what was likely to take place, by virtue of the fact that it could involve the infliction of unlawful physical punishment, but he did take it into account.

Damien Carrick: So your client, Mark Hogan, will spend less time behind bars than he might otherwise, because of this impending spearing through the leg?

Peter Collins: That's right. It's a form of double punishment if you like Damien, because he obviously has to be punished in accordance with the criminal justice system that exists in WA, but also he's receiving another punishment on top of that from his own community.

Damien Carrick: Is it common for judges to take into account tribal punishment in this way?

Peter Collins: It's not a common thing. It doesn't happen all that regularly, but in my experience with ALS, and I've been with the ALS here in WA for the best part of ten years on and off, it's the sort of thing that would crop up perhaps once or twice a year.

Damien Carrick: Of course there has been a lot of focus on violence against women and children in recent times; are you aware of any cases where Aboriginal women have received tribal punishment?

Peter Collins: I have. It's one of those very difficult areas Damien, and in answering your question I don't want to give the impression to your listeners that I'm the last word on this because I'm not, I'm coming at it from a purely lawyerly perspective, and I'm not a blackfella. However I've acted for female clients; in one particular case a young woman from a traditional and remote community who'd killed a very violent boyfriend, and she was subjected to traditional punishment by her community, notwithstanding the fact it was quite widely recognised within her community that the partner had been very violent and in one way or another she was morally justified in reacting in the way that she did in the circumstances which led to the death, but she'd been punished. And she was actually released on bail by a Western Australian judge in the Children's Court, and one of the reasons for her being released on bail was in order for her to be traditionally punished by her community. So it does apply to females as well in my experience.

Damien Carrick: And what punishment did she receive.

Peter Collins: From what I could tell, she was taken to the law grounds at her community, and she—again it was a public process—and she was struck repeatedly with objects called nulla-nullas, which in essence are big pieces of wood, about the upper body and I think some blows connected with her head, so she received a quite severe physical punishment from her community for what she did, which from memory led to her hospitalisation.

Damien Carrick: Peter Collins, this does raise extremely difficult questions about what violence the Australian legal system turns a blind eye to, or when it's acknowledged by lawyers in their arguments or by judges in their sentencing reasons, whether it's actually been tacitly approved of.

Peter Collins: It does, Damien, but again the courts continually make it clear that the courts aren't condoning it. And that's readily understandable. But in taking that approach, they have been very pragmatic and I've been involved in cases where police officers have actually witnessed the punishment, and in one case they did decline to intervene because they were fearful that if they did seek to intervene they might have been in physical danger themselves. In another very well publicised case from over here involving another young man from the same community as Mr Hogan, the police officer did intervene after a spearing. However with the purest of motives, to try and help the person who was being speared, the community took that as a cue to indicate that the person needed further punishment and further spearings took place. So I suppose the point I'm trying to make is that whilst there may be a concern as to tacit approval by the authorities to these practices, sometimes it happens in the presence of police officers who are really mindful themselves of the cultural practices that go on in these communities, and in the instances that I'm aware of, in one in particular, they didn't do anything and I can understand why.

Damien Carrick: We know that in some communities there is sexual abuse. There have been concerns expressed by many that sometimes cultural arguments are used to justify or to defend or explain the abuse of women or children. Is there a danger that the same argument can apply to tribal punishment, or the same issues arise in tribal punishment? Maybe it isn't traditional law, maybe it's violence by the strong, by those who hold power, or simply mob violence?

Peter Collins: The cases that I've made sentencing submissions in where traditional punishment has been administered, have arisen where I've endeavoured to do some research and establish contacts with the communities with a view to establishing whether or not it is tribal punishment according to traditional practice, or whether or not it will simply be an exercise in mob vengeance. And a very fine line is walked in that respect, from what I can see Damien.

In some court proceedings for example, in the NT, courts generally speaking there require evidence in person from people with authority to speak on behalf of their community to determine those very issues, and a fine line to walk. I don't think, and I've never made in the cases that I've been in, submissions to judges that they should take into account violence which might be administered by the mob, because that's plainly not traditional punishment, and that happens. There's no doubt that in some of these communities where for example the offender might be placed in a situation where other members of their community have been drinking, and they're set upon by an angry, vengeful mob, and it isn't traditional punishment. And I think as a lawyer, I just think you've got to be incredibly cautious about trying to dress those sorts of things up as traditional punishment because as I say, it's not.

Damien Carrick: Finally, in this day and age, shouldn't we take a strong line: all violence is wrong and our justice system, maybe it shouldn't be tipping its hat to politically correct notions like tribal punishment?

Peter Collins: Well I don't think it's a politically correct notion, Damien. And it gets back to considerations of fairness. There's a lot of good that can come out of these things, brutal as it may be, and concerning as it may be on a level that you've just indicated. Unlike other parts of the non-Aboriginal world where things might linger on and fester for a very long period of time, traditional punishment is designed, and does, heal the rift within communities, and in the case of Mr Hogan, once it's administered and received by him, everyone, as I say, will move on, and he'll be welcomed back into the community because the information that I had was that he was regarded as a very strong, traditional person within his community, not without his problems, but a strong traditional person within his community, and that's a mechanism for him to go back into the community in that sort of role.

Damien Carrick: Peter Collins, director of legal services with the WA Aboriginal Legal Service.

Guests

Peter Collins,
Director of Legal Services, WA Aboriginal Legal Service

Presenter

Damien Carrick

Producer

Anita Barraud

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