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Editors --- "Colin Goodsell v Galarrwuy Yunupingu - Case Summary" [1999] AUIndigLawRpr 19; (1999) 4(2) Australian Indigenous Law Reporter 29

Colin Goodsell v Galarrwuy Yunupingu



Court of Summary Jurisdiction, Northern Territory of Australia (Gillies SM)

20 February 1998

Criminal law - assault and damage to property - defence of authorisation by native title right - defence of honest claim of right.

Facts:

The defendant was charged with assault, criminal damage to film and a camera, and theft of a camera, arising out of an incident in which a commercial photographer who entered Aboriginal land without a statutory permit and contrary to Yolngu law (that is, the traditional laws of north-east Arnhem Land) had taken photographs of the defendant's extended family.

The defendant is the senior elder of the Gumatj clan and is responsible under Yolngu law for authorising photography on Gumatj land and ensuring the spiritual welfare of two children who were present (and were photographed). Attempts to settle the dispute failed and in accordance with Yolngu law, the defendant seized the camera and destroyed the film. Although there was no body contact, the seizing of the camera caused the camera strap to impart force to the photographer.

Held:

1. The defendant was authorised under s 26(1)(a)) of the Criminal Code Act 1997 (NT) to seize the camera (by means of a technical assault) and destroy the film. His entitlement to act under Yolngu law is recognised by, and enforceable under, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The beneficial purpose of this Act is to enable Aboriginal people to pursue traditional lives on Aboriginal land which implicitly means, inter alia, the observance and enforcement of traditional laws on that land. Since Yolngu rights are enforceable under the Act, it was not necessary to determine whether these rights are also recognised as native title under the common law.

2. Further, the defendant acted under an honest belief that Yolngu law had been recognised as native title by the Land Rights Act and the common law, thus could rely on an 'honest claim of right' (a 'mistake of law') under s 30(2) of the Criminal Code Act (NT). This section provides a defence regarding acts 'done with respect to property' such as criminal damage to a camera. The assault, being for the purpose of seizing property, was 'done with respect to property' and thus came within the section.

Note:

Some of the theoretical legal issues raised in this case have been the subject of consideration by the Supreme Court of the Northern Territory in separate and unconnected proceedings under s 162A of the Justices Act (Director of Public Prosecutions Reference No 1 of 1999 unreported 12 March 1999). Section 162A(9) stipulates that, to protect an acquittal in favour of an accused person, it is contempt to disclose the name or identity of that person.

In considering the Director's reference, Martin CJ held that the title recognised by the Land Rights Act and the common law is related to proprietary, possessory, occupational and usufructuary rights to land held or enjoyed under indigenous law or custom. His Honour held that this recognition does not sanction the commission of criminal offences in pursuance of those rights. The right to enforce traditional law by, for example, seizing and damaging film was not recognised by the Land Rights Act or the common law, such rights being properly characterised as owing their 'existence to a moral order, religious code or other non-legal regimen'. Further, a belief in an entitlement under traditional law alone cannot of itself found a defence of an honest claim of right, it being necessary that the belief relate to an entitlement under Northern Territory law. This may include an honest (but mistaken) belief that an entitlement under a traditional law has been recognised by the general law in force in the Northern Territory.

The decision has been appealed to the Full Bench of the Supreme Court. [1]

Judgment:

In Nhulunbuy last week, on 11 February, Mr Yunupingu appeared before me. He pleaded not guilty to four charges; three of those charges remain for consideration. The charges are these: that on 4 April 1997 at an area on the beach side of the Gove Yacht Club, approximately six to eight kilometres from Nhulunbuy, he unlawfully assaulted Michael McRostie.

The second charge is, at the same place on the same day he unlawfully damaged property, namely a Canon camera, to the value of $340, being the property of Michael McRostie. The third charge is that on the 4th - on the same day and the same place - he unlawfully damaged property, namely a Kodak slide film, to the value of $18, being the property of Michael McRostie.

I am satisfied beyond reasonable doubt of the following facts: The defendant is an Aboriginal. From the perspective of a non-Aboriginal person, he is a person of special importance. That special importance derives from his position as leader or senior elder of the Gumatj clan.

As the leader or senior elder, he has many responsibilities. One of his many responsibilities is to enforce the Aboriginal law in the land which the Gumatj clan owns. That Aboriginal law is referred to as Yolngu law. That law is not a law that relates only to his clan, and the land to which his clan belongs.

The Gumatj clan is one of 13 clans in north-east Arnhem Land which share a common-base language. By this I mean each clan has its own dialect, but the dialect is rooted in one language. Yolngu law is common to each of the 13 clans. Each of the clans are closely related to each other because of their relationship to the land. Each clan has its own land.

The defendant took the responsibility to enforce the law from his father, who was the senior elder before him. His responsibility to enforce Yolngu law is a responsibility to his land, which is the land the Gumatj clan occupies and with which they-or with which that clan identifies.

Yolngu law is very important to the people who accept the Yolngu law. It is important because, to use the defendant's words, 'It holds the land together.' By that I understand the defendant to say that the law is designed to create and promote harmony for members of the Gumatj clan who associate with and identify themselves as part of the land which they occupy and to which they belong.

One of the laws that the defendant is required to enforce concerns what I call, in non-Aboriginal terms, 'an offence against Gumatj land'. Under Yolngu law, if a stranger wishes to visit Gumatj land, it is expected that he approach the senior member of the land. He should approach the senior member with the purpose of seeking permission to enter the land and he should receive the permission of that senior member before entering. The senior elder has a discretion. He can refuse permission to enter.

Another offence against Gumatj land, which is also an offence against Yolngu law, is the taking of photographs for commercial purposes, whilst on Gumatj land, without the permission of the senior elder or senior member. Under Yolngu law, the image of the land is valued highly. It is believed that the reproduction of an image of the land interferes with Yolngu law because it diminishes the integrity or the strength or the wholeness of the land.

The land is considered to be what non-Aboriginal people would call 'land'; that is, the ground, the trees, rocks and streams - that is the landscape - as well as the people on the land who identify with the land - in this case the Gumatj people - images of the land, which include images of the people who identify with the land, and its spirits.

A photograph taken on Gumatj land of a Gumatj person, or of a part of the landscape, is an image of the land. A special significance is accorded to the image of a person. I apprehend, as a non-Aboriginal person, that the special significance is this: a photograph of a Gumatj person on Gumatj land captures the spirit of that person on the land; that spirit is important to the land for it is part of the land.

A Yolngu person has come from or is imbued with the spirit on death; that spirit must be released to return to its rightful place on the land, which might be, but is not limited to, for example, a waterhole or a rock. The act of photographing a person so that an image is produced of that person, is an act of capturing the spirit.

I apprehend that the taking of an image, including a photograph away from the land, without permission, results in a loss or diminution of the value of the land. This is because the capture of the spirit in the image means that the spirit cannot return to the land.

An image of the land can be taken away from the land with permission. That permission can be obtained as a result of payment for the image, and that permission could be given subject to a condition that the purchaser of the image will not use the image in a way that is disrespectful to the land. In other words, a person might promise not to tell wrong stories about the image and might promise not to reproduce the image.

To use my expression, if there is an offence against Gumatj land or, indeed, any Yolngu land, that offence being either trespass or taking photographs without permission, the senior elder has a responsibility to take action to preserve - using my words - the integrity of the land.

Opinions vary as to how that action may be taken. Mr Gawirrin Gumana, leader of the Dalwangu clan, says that the leader must take action. The defendant appears not to agree that the leader must take action. The defendant acknowledges the existence of a discretion not to take action, in the form of confronting a photographer, if such action might create further conflict.

This, indeed, is what the defendant did on 4 April 1997 when he noticed Mr McRostie taking photographs on the beach. He formed the view that Mr McRostie was breaking Yolngu law, but let it go because he did not wish to have a confrontation.

Opinions vary as to the action that should be taken. Mr Gumana gave his evidence through an interpreter. I am not satisfied that he had a full comprehension of what was asked of him and that his answers were faithfully interpreted. Mr Gumana appeared, to me, to distinguish between an apology and a settlement. Mr Gumana seemed to say that there must be an apology before settlement, but, at a later stage, appeared to say that compensation included an apology.

It is clear from Mr Gumana's evidence, however, that the process of taking action involves:

(1) the giving of an apology, for Mr Gumana said that if an apology is given, the photographer would be forgiven;

(2) the right to hit the transgressor or to send him out of the land;

(3) the giving of compensation - that is the giving of something back - where the transgressor has taken something without permission; and

(4) a more serious sanction if compensation is not given, such as spearing or sending away.

The defendant says that the action to be taken involves:

(1) a form of compensation or settlement to resolve the problem, and the defendant referred to the violation of a minor law and said that in the case of a violation of a minor law there had to be an immediate settlement to strictly avoid a serious confrontation - in other words, minor breaches are dealt with on the spot; and

(2) a more serious sanction if settlement is not given, such as the taking away of privileges or the things the transgressor has taken from the land, those things would be taken away. The transgressor should suffer and lose the privilege of being on the land.

The defendant said that in the compensation or settlement process, there can be negotiation to sort out the appropriate compensation.

Now I make this observation. I have taken evidence from the defendant and Mr Gumana, who are each the leaders of their clans. English is not their first language. When they speak of the law and the land, it is necessary that the concepts, as they understand them in their language, be translated into another language, English. Much could be lost in that translation because there might not be a direct English equivalent term or expression for the term, or expression that each is familiar with because of the language that they speak.

If it is that case that I have mis-stated certain aspects of Yolngu law, then it must be borne in mind the difficulty in trying to assimilate that law to the translation of a concept in one language to a concept in English where there might not be a direct equivalent expression for that concept.

I have already mentioned that I do not consider that Mr Gumana's evidence was faithfully interpreted. I do not say that the misinterpretation was deliberate; I simply say that I feel that Mr Gumana did not understand what was asked of him, on occasions, at certain stages of his evidence.

I'm not troubled by the discrepancies in the requirement for action and the choice of action to be taken by a senior elder, as disclosed by Mr Gumana and the defendant. Mr Gumana says the senior elder must take action; Mr Yunupingu seems to say he has a discretion. Mr Gumana talks of an apology; Mr Yunupingu concentrates on the settlement aspect.

These differences are minor and are easily explained by the fact that often there is not agreement on the law. High Court judges are not unanimous in their decisions. There is an old joke that if you have ten lawyers in a room and you ask them their opinion on a topic of law, you will get 11 opinions.

There is sufficient common material in the evidence of each of them to be satisfied beyond reasonable doubt, and I am so satisfied beyond reasonable doubt, that:

(1) the 13 clans in east Arnhem Land are subject to the operation of Yolngu law on their lands - that law is real and governs the life of Aboriginal people in and on their clan lands;

(2) the senior elder of a clan has the responsibility to protect the land which his clan owns;

(3) it is wrong for a stranger to come into or onto Yolngu land without permission of the senior elder;

(4) it is wrong for a person to take photographs of Yolngu land for commercial purposes, without permission; and

(5) if a stranger trespasses or takes photographs for a commercial purpose without permission, he is expected to expiate his wrongdoing.

'Expiate' means to pay the penalty of or make amends for. The expiation process involves the giving of compensation and the implementation of a more dire sanction if compensation is not given. That expiation process could, and probably does, involve an apology.

I pause here. That is the first set of facts I find. I now go on to the second [set of] facts.

The Gove Yacht Club premises on 4 April 1997 occupied Aboriginal and non-Aboriginal land. The clubhouse and verandah, and a paved area under canvas beyond the verandah, are located on non-Aboriginal land within a special lease. Part of the grassed area between the beach and the clubhouse verandah is located on non-Aboriginal land. The remaining grass area to the beach and the beach is Aboriginal land.

That Aboriginal land is Gumatj land. The closest that the clubhouse comes to Aboriginal land is a distance a little over six metres. A steel pipe, 20 metres in length, is located on the grassed area, running roughly parallel with the clubhouse verandah. That pipe is approximately 25.5 metres from the clubhouse and is about 19 metres into Gumatj land at the furthest point on the lease.

A little before 12 noon on 4 April 1997, the defendant attended the Gove Yacht Club. He attended in a group. That group included an old man named Yangaman; his brother-in-law Bruce - that is, the defendant's brother-in-law in non-Aboriginal terms, or, in Yolngu terms, his little brother; the defendant's wife, Violet; and Bruce's two children.

If an orientation is taken from the clubhouse verandah, the defendant sat with the old man on the far right of the steel pipe. Bruce sat part-way along the pipe.

Michael James McRostie, a professional photographer, attended at the area of the Gove Yacht Club whilst the defendant was present in the area. Mr McRostie, pursuant to the calling of his profession, had travelled to Nhulunbuy for the purposes of photographing a wedding. He attended at the yacht club for the purpose of looking for a suitable backdrop against which wedding photos could be taken.

He walked onto the beach, which is Aboriginal land; he took photographs whilst standing on the beach. At all relevant times Mr McRostie did not have a permit issued by the Northern Land Council permitting him to enter on Aboriginal land. He did not have permission to take the photographs for commercial purposes. So far as Yolngu law is concerned, Mr McRostie had not approached the senior elder, who is the defendant, to seek permission to enter Gumatj land or to take photographs.

The defendant spied Mr McRostie on the beach. He formed the view, from his observations of Mr McRostie, that Mr McRostie was taking photographs on the beach. His view was correct, for Mr McRostie was indeed taking photographs. He formed the view that Mr McRostie was a commercial photographer. His view was correct, because Mr McRostie is a commercial photographer.

The defendant determined that he would take no action in relation to Mr McRostie taking photographs on the beach. This is, as I said earlier, because he wished to avoid a confrontation. As to why he wished to avoid a confrontation, I know not. I can speculate that perhaps the defendant has experienced too many confrontations in his life and wished to avoid this one. I can speculate that somebody like Mr Gumana, who strikes me as a hard man, would have relished a confrontation.

However, it is pointless to speculate. The defendant elected not to confront Mr McRostie on the beach. The prosecution cannot rule out that it was not the defendant's right to avoid a confrontation.

Mr McRostie walked onto the grassed area between the clubhouse and the pipe. That grassed area was Gumatj land. He was invited by Bruce to take photographs of Bruce's children.

Bruce should not have made that invitation. Bruce comes from the Dalwangu clan. In Yolngu terms, he is the defendant's little brother. At that time Bruce was not fulfilling his responsibilities for he was being counselled for drinking and he'd been bad to his wife. Bruce was disrespectful to the defendant. Bruce should have directed Mr McRostie to the defendant in order for Mr McRostie to seek permission to take photographs of the children. That permission should have been sought because the defendant, as senior elder, was required to consider whether or not permission should be given for the taking of the photographs.

Bruce's children stood in a special relationship to the defendant. The defendant had a special role to protect the children, and that protection included the preservation of their spiritual well-bring.

The defendant became aware, as a result of hearing the clicking sound of the camera, that photographs were being taken of Bruce and the children. Bruce was sitting on the pipe, facing the clubhouse, with his children posed with him, one on each leg. The children were naked. Mr McRostie then beckoned the others in the group, including the defendant, to come together for a group photograph. The defendant said no.

The defendant said, 'Have you taken photographs of the children?' Mr McRostie said words to the effect of, 'Yes, I did.' The defendant said, 'Yes? Give them $50.' Mr McRostie said, 'No.' The defendant said, 'Give them $50.' Mr McRostie said, 'No.'

About this time, words were spoken by Mr McRostie. I cannot find the precise words, but they were words to the effect that Mr McRostie had permission to take the photographs. At about this time, the defendant rose from his seat. He walked towards Mr McRostie. The defendant said, 'Give me the film', and Mr McRostie said, 'What for?' the defendant said words to the effect of, 'You have taken and captured a spirit images of the children.' The defendant said, 'Give me that film.' Mr McRostie then backed away from the defendant.

The defendant reached for and grabbed the strap of Mr McRostie's camera. He took hold of the strap and pulled it towards him. There was a tug-of-war with the strap. In the course of the tug-of-war, the defendant applied force to the body of Mr McRostie without Mr McRostie's consent. By pulling on the strap, he exerted pressure on that part of Mr McRostie's body whereby Mr McRostie had hold of the strap.

I pause here. Mr McRostie says the defendant brushed his - that is, Mr McRostie's - left shoulder as part of the defendant's movement in seizing the strap. I'm not satisfied beyond reasonable doubt that this is the case. I prefer the evidence of the defendant and Mr McArdie in this regard. Both gave evidence that the defendant's focus was on the camera, or the camera strap.

It is possible that Mr McRostie's shoulder was touched, but I'm not satisfied beyond reasonable doubt.

The defendant was successful in obtaining the camera. He retired to the area of the pipe where he had earlier sat. After a moment he sat down. He opened the camera in his lap, grabbed the spool of the camera that sits on the left-hand side, and pulled it out from the right end of the camera - that is, pulled the film out from the right side of the camera.

The defendant stripped the film from the spool while the film was in the camera. He then tried to tear the film. He then placed the film in a plastic rubbish bin near the flag pole on the grassed area of the club.

The defendant then returned the camera to Mr McRostie. As to the precise location of Mr McRostie when the camera was returned, I cannot say. The defendant says that Mr McRostie was some distance from him. Mr McRostie says that he was separated from the defendant by a table. Mr McArdie says the defendant passed the camera across the table to Mr McRostie.

However, I feel that Mr McArdie is unreliable on this point. He's reconstructing and he has no recollection of the whereabouts of the parties where the camera was returned. I'm satisfied the camera's return did not involve the defendant throwing or slamming the camera down on the table.

The stripping of the film from the spool constitutes an act of damaging the film. Exposure to light, as a result of stripping the film, means that that part of the film upon which an image had been placed as a result of activation of the camera cannot be developed. The remaining film cannot be used to take photographs because it has been exposed to light.

Mr McRostie subsequently ascertained that his camera was damaged. Precisely when he did this, I cannot say. It was some time in the afternoon or evening of 4 April 1997. He ascertained that the zoom lens motor would not work the zoom lens. The prosecution does not rely on this damage and I, accordingly, am not satisfied that the defendant caused this damage.

Other damage was ascertained. The best evidence was that the damage was ascertained when seen by a professional camera repairer. The damage consists of damage to the shutter mechanism; is consistent with the insertion of a finger into or onto the shutter mechanism during loading or unloading the film.

As to whether Mr Yunupingu's finger caused that damage when he unloaded the film, I cannot say. The best I can say is that his finger might have, but then again it might not have.

When the defendant seized the camera and stripped the film, he was fulfilling a responsibility imposed upon him as senior leader or elder of the Gumatj clan. He is responsible for the land. He is responsible for the well-being of his brother-in-law's - or little brother's - children. He was enforcing Yolngu law. He had witnessed a transgression. He was dealing with the transgression on the spot.

In the exercise of his discretion as an enforcer of the law, he determined that compensation of $50 was appropriate for the act of photographing the children without permission, for the act of capturing their spirits in the image.

I apprehend that the request for $50 was a shorthand expression designed to commence a settlement process. $50 might or might not have been insisted on if Mr McRostie had said something other than, 'No', thus indicating an intention to settle or compromise.

When the request for $50 was refused, the defendant had the discretion to implement a more dire sanction. That dire sanction involved making sure that Mr McRostie did not profit from what he had taken from the land, namely, the images of the children. No settlement was given. What the transgressor had taken from the land should not be allowed to leave the land with him.

Accordingly, the camera was taken and the film stripped so that Mr McRostie could not profit from his actions, which were wrong in Yolngu law.

They are the facts I find. I now make some comments.

I'm satisfied beyond reasonable doubt that the defendant was acting honestly, reasonably and within the discretions he has pursuant to Yolngu law. He had an honest belief that he was entitled to do what he did.

I had difficulties with the evidence of Mr McRostie. I felt that he was a dissembler. His unreliability is demonstrated by considering:

(a) His evidence that the incident occurred within 10 or 15 minutes of 10.30/10.35 am. This is contrary to the evidence of Mr Yunupingu and Mr McArdie.

(b) His curious comment in cross-examination, 'I was under the impression that the vehicle permit would cover it'-that is, his entry on to Aboriginal land.

This particular answer comes after cross-examination whereby he gave evidence that he did not know he was on Aboriginal land; that he knew he could not go on to signed areas. If indeed this was truthful evidence, there was no need to proffer his impression that the vehicle permit would cover it, because he was stating that he was doing no wrong. Knowledge of the vehicle permit connotes an inference that perhaps he knew he was on Aboriginal land.

(c) The curious evidence about how he photographed the children from the waist up in the context of saying that they he did not notice if they were naked. If he did not notice that they were naked, why photograph them from the waist up?

(d) His evidence that he thought the Gove Yacht Club was in the township area, when you have to drive away from Nhulunbuy to get to the Yacht Club.

(e) His qualification as to how the camera was placed on the table. He said it was 'thrown down' in chief; qualified to 'pushed down' in cross-examination.

The charge of unlawful damage to the camera has not been proved beyond reasonable doubt. I feel it is dangerous to convict the defendant on this charge. I feel that it is possible that his finger might have damaged the shutter. However, a possibility does not equal proof beyond reasonable doubt. If it was his finger that damaged the shutter mechanism, I see no reason not to accept his evidence that the damage was not intended and that he did not foresee the possibility of damage.

However, there is a worrying aspect to this case. Mr McRostie ascertained the zoom lens did not work some time on

4 April 1997. However, he made no mention of damage to the shutter mechanism. He does not report damage to the police on 8 April 1997 until four days after the event.

I have a concern that it is not beyond the realms of possibility that the shutter mechanism was damaged afterwards when the camera was in Mr McRostie's care, and such damage is sought to be blamed on the defendant.

I turn now to consider the charges of assault and unlawful damage of the film.

The defendant says that the prosecution cannot rule out that the defendant's actions were excused, in this fashion: both charges are excused pursuant to s 43 relating to damage to property incurred when protecting another from imminent injury.

The assault charges are justified pursuant to ss 27H and J, and s 27H relates to the resisting the taking of movable property by a trespasser. Section 27J relates to the defence of the possession of movable property under a claim of right. The defence also say the prosecution cannot rule out the application of s 26(1)(i), the exercise of a right recognised by law.

So far as a s 30(2) Criminal Code claim of right argument is concerned, I agree that the prosecution cannot rule out that the defendant acted in the exercise of an honest claim of right and without intention to defraud.

'Claim of right' is not defined in the Criminal Code. However, the expression 'claim of right' in s 22 of the Queensland Criminal Code has been considered by the High Court in Waldon v Hensler [1987] HCA 54; 163 CLR 561. Section 22 is differently worded to s 30(2) of our Criminal Code. Section 22 relates only to offences relating to property.

Section 30(2) of the Criminal Code relates to non-property offences such as assault of the act, that is the assault, is made with respect to property, and this case is an appropriate example. The application of force to Mr McRostie's body, consisting of the tug-of-war between them both, was designed to secure the release of the camera to Mr Yunupingu. The defendant was directing his attention to the camera so that he could remove the film, and the application of force occurred in that context.

There is a similarity in wording between s 22 of the Queensland Criminal Code and s 30(2) of the Northern Territory Code. Omitting irrelevant parts for the purposes of a comparison, s 22 says:

A person is not criminally responsible for an act done with respect to any property in the exercise of an honest claim of right and without intention to defraud.

Omitting irrelevant parts for the purposes of a comparison, s 30(2) of the Northern Territory Criminal Code says:

A person is excused from criminal responsibility for an act done with respect to property in the exercise of an honest claim of right and without intention to defraud.

I apprehend that a useful definition of 'claim of right' is this:

(1) an accused person acts in the exercise of an honest claim of right if he honestly believes himself to be entitled to do what he is doing;

(2) the belief has to be honest; and

(3) an accused should be acquitted if he has an honest belief, no matter how wrong his belief may be.

These three points are derived from a consideration of R v Pollard (1962) QWN at 29, which is extracted at 569 of Waldon v Hensler. To these three points should be added:

(4) it is not necessary to expressly declare a claim of right or the existence of a right when the act is performed - that comes from 569 of Waldon v Hensler, Brennan J's judgement;

(5) it is not necessary that the right claimed be recognised at law - this reference comes from 568-9 of Waldon v Hensler, where a passage from Mitchell v Norman ex parte Norman (1965) QR at 594, 595 is reproduced; and

(6) a belief of the entitlement to a right according to Aboriginal law would suffice to raise an honest claim of right in the absence of any knowledge that the entitlement claimed had been overridden by the law of the Northern Territory legislature or common law. This is derived from 569 of Waldon v Hensler.

In this case, the prosecution has submitted that I can be satisfied that it has excluded the application of a common law claim of right because the defendant knows that the right he exercised has been overruled by the Northern Territory. The prosecution seems to say that right has been overruled by knowledge that the defendant must have that it is wrong to assault people and damage property, according to the law of the Northern Territory legislature.

The difficulty with the prosecution's argument is that a mistake has been made as to the nature of the law, including Northern Territory law, about which the defendant must have knowledge. A knowledge of the Northern Territory criminal law - or indeed any other criminal law - specifically a knowledge that it is wrong to assault, or a knowledge that it is wrong to unlawfully damage, is not the type of knowledge of the law to which Brennan J referred at 569 of Waldon v Hensler.

The knowledge that the defendant must possess relates to the right he claims or the right he is exercising. If the Northern Territory legislature, or indeed the Commonwealth Parliament, enacted a law which says a senior elder of Yolngu land shall not enforce Yolngu law when dealing with trespassers to Yolngu land or commercial photographers who take photographs without consent on Yolngu land, and if the defendant had knowledge of that law, then the defendant plainly would not have a claim of right.

Indeed, the question of knowledge in the defendant of that law, if it existed, is probably irrelevant. Under s 30(1) of the Criminal Code, ignorance of the law is no excuse.

The cases dealing with claim of right come before the courts because defendants are seeking to avoid being found guilty of criminal offences of which they are presumed to have knowledge. The law about which the defendant must have knowledge to disqualify him from relying on a claim of right is a law which specifically over-rules the right relied on.

I'll say that again. The law about which the defendant must have knowledge to disqualify him from relying on a claim of right is a law which specifically overrules the right relied on.

The prosecution in this case has not been able to point me to a law of the Territory or the Commonwealth which says that a Yolngu senior elder on Yolngu land is prohibited from enforcing Yolngu law. The prosecution has not pointed me to a law which says that a Yolngu leader on Yolngu land is prevented in his capacity as an enforcer of Yolngu law from seeking expiation from a commercial photographer who takes photographs on Yolngu land without permission.

If these two laws existed, and if the defendant had knowledge of them, then the prosecution could rule out the applicability of a claim of right. The defendant had a belief in a claim of right; he is a law enforcer of Yolngu law; he has an honest belief that he is entitled to seek compensation as part of the enforcement process, the process of enforcing the law. He has an honest belief that if compensation is not forthcoming, a more dire sanction can be imposed.

It is not really necessary for me to go on to consider the other arguments raised by the defence. However, this has been a long case so I would not be inappropriate to make some comments.

In relation to ss 27H and 27J, for the assault to be justified the defendant has to be in peaceful possession of moveable property. The difficulty I have is trying to work out if the defendant possessed anything, and if he did, could it be considered to be 'property' within the meaning of the definition of 'property' in the Criminal Code.

What did he possess? Did he possess the children? He was responsible for the children, so I suppose it could be said that he had control of the children. By virtue of having control of the children, under the definition of 'owner' in the Criminal Code he might be considered to be the owner of the children. However, if it was the spirit image of the children that was taken when the camera was used, is a spirit capable of ownership? The image is. However, is the spirit?

The evidence before me indicates that the spirit returns to the land and that there are ceremonies to aid its return to the land when a person dies. Can it be said that a spirit is owned? If it is part of the land and it returns to the land after death, it could be said that a person possesses a spirit when that spirit is in a person. I don't know what the answer is.

I ask myself this question: what property has the defendant taken? He has not taken the children, if they are to be considered property. He has taken something that previously did not exist at that moment, namely their image at that moment - that is, the moment of the act of photography. He has, in a sense, created property. It cannot be said that the defendant was in peaceful possession of the property. The defendant possessed nothing because it was the photograph that created the image.

It would seem to me that the prosecution could rule out the application of ss 27H and s 27J of the Criminal Code. I've not given much thought to s 43. I cannot say, in the short time that I have had to consider this case, if the spiritual wellbeing of a person can constitute property. The damage to the film was reasonably necessary to eradicate the images on the film so that Mr McRostie could not profit from his photography.

Was he defending another person? That is, was the defendant defending another person or any property? He was defending the spiritual integrity of his land. He was avoiding the possibility that photographs could be reproduced which would mean that the land for which he had responsibility would suffer. This land included the children and their spirits. Property can be intangible, and I refer there to the definition of 'property' in the Criminal Code.

I do not know, at the moment, what the answer is. My tentative view is that an assault on a person consisting of an assault on their spiritual wellbeing, if it has the potential to affect their mental health, could attract the operation of s 43. However, I have no final opinion.

Before I go on to consider s 26(1)(a), I feel I should make a comment about a prosecution submission. The prosecutor made a submission that is obvious; that Mr Yunupingu was not acting in accordance with Yolngu law. The prosecutor said that Mr Yunupingu was 'confrontationalist', and, although this was not said, the impression gained on the submission was that I should consider that the defendant was engaging in a process of extortion.

To that I say this. It could be considered in non-Yolngu terms that the defendant was performing the role of policeman, jury, sentencer and bailiff, all in one. There is no rule that, for example, a policeman has to be pleasant in the performance in his duties. I think we've all experienced unpleasant policemen.

There should be no requirement that the defendant be pleasant in the enforcement of his duties. After all, if he had been pleasant and conciliatory, his pleasantness might have been considered to be weakness.

To my mind, the confrontationalist fashion, the quick seizure of the camera, the discretion earlier exercised when Mr McRostie was not spoken to on the beach, are simple indicators of the discretions that reposed in the defendant as senior elder enforcing Yolngu law on his land. There is no law that says that a law enforcer has to be pleasant in the job that he does.

I now turn to s 26(1)(a). There is little to be said about this - from what I understand Mr Levy's argument to be, it seems to me to be correct. I must recognise the rights of the defendant to enforce Yolngu law on Yolngu land, as well as the discretions he has.

The reason can be simply expressed:

  1. The source of the enforceability of native title in this or any other Australian court is and is only 'as an applicable law or statute provides'. That comes from His Honour Kirby J in Wik Peoples v Queensland 187 CLR 1 214.
  2. Native title can be described as 'the possession, occupation, use and enjoyment of land by native people who have, for want of a better expression, a connection with the land'; that is, a spiritual or religious relationship to the land.
  3. The use of land includes the enforcement of laws on that native land applicable to and accepted by the natives on that land who have a connection with that land; that is, those people who are part of the land.
  4. The land occupied by the Gumatj clan lies within land deeded to the Arnhem Land Aboriginal Land Trust.
  5. What is the purpose of that deed? Its purpose is to benefit Aboriginal people entitled by Aboriginal tradition to the use or occupation of the land concerned. See s 4(1) Aboriginal Land Rights (NT) Act 1976.
  6. What is the benefit conferred? The land is deeded so that Aboriginal people may pursue, if they wish, traditional lives which means, amongst other things, an observance of and the administration of the Aboriginal law applicable to the area where they live.
  7. I'm required by s 26(1)(a) to recognise the right asserted by the defendant because it is the right that has been impliedly recognised by the Commonwealth government pursuant to the Aboriginal Land Rights (NT) Act 1976, when the land was deeded to the Arnhem Land Aboriginal Land Trust. That right is derived from the purpose of the deed, namely to benefit Aboriginal people entitled by Aboriginal tradition to the use or occupation of the land. That right is to enforce Aboriginal law, that is Yolngu law, on Yolngu land.

I suppose I should add this rider. That right exists in the absence of any law of the Commonwealth Parliament or the Northern Territory legislature stating that Aboriginal law should not be enforced on Aboriginal land.

The prosecution cannot rule out the application of s 26(1)(a). The prosecution cannot rule out the right asserted by the defendant as being recognised by Commonwealth law.

I am not satisfied beyond reasonable doubt that the charges are made out and the charges are dismissed.

Counsel for the informant: Peter Elliot Office of the DPP

Solicitor for the informant: Malcolm Ramage QC

Counsel for the defendant: Ron Levy

Solicitor for the defendant: David Dalrymple of Dalrymple and Associates

Endnotes

[1] A text of the judgement is also available at <www.atsic.gov.au/nextgeneration/appendix_q.htm>.

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