Introduction

543. Relationship between Substantive Law, Evidence and Procedure. In Chapters 17-21 the general issue of the application of Aboriginal customary laws in criminal cases was discussed. The general conclusion reached in those Chapters is that, while Aboriginal customary laws should be taken into account in various ways — in the substantive law, in various aspects of criminal procedure and in sentencing — this should occur within the confines of, and not to the exclusion of, the general criminal law. But if it is right that the criminal law should continue to be applied to Aborigines, including traditionally oriented Aborigines, it may be necessary for procedural and evidentiary rules to be modified or reinforced to ensure that justice is done. The question of procedural safeguards is thus a related matter within the Commission’s Terms of Reference. Indeed, procedural safeguards of various kinds may themselves be a way of recognising Aboriginal customary laws.[282] Many of the difficulties experienced by Aborigines, and especially traditionally-oriented Aborigines. arise from problems of language, of comprehension of the criminal justice system and of conflicting cultural and legal assumptions and values. For example, the criminal justice system assumes that a defendant has a right to remain silent, that is, a right not to incriminate oneself. But in the case of traditionally oriented Aborigines under police interrogation, this right will often be quite illusory. Special protection may be required to avoid discrimination against such Aborigines charged with offences against the general criminal law. Similar problems have occurred in such areas as:

• comprehension of the trial and fitness to plead;

• oaths and unsworn statements;

• dying declarations;

• jury trial;

• provision of interpreters;

• the taking of Aboriginal evidence; and

• the proof of Aboriginal customary laws.

This part of the Report will discuss the extent to which difficulties have arisen in practice, and the desirability of general or particular reforms in the law or its administration. Because the problems arise in a variety of areas, the topics dealt with are inevitably diverse and rather miscellaneous. In some cases the extent to which proposals for reform can be made in the context of the present Reference is limited. The Commission has however made a number of specific recommendations for reform. In doing so, the problems that arise and the possible solutions that have been suggested to the Commission in the course of its work on the Reference have been outlined. This Chapter deals with the first, and one of the most important, of these problems, that of police interrogation of Aboriginal suspects, and the admissibility in evidence of any resulting admission or confession.