Fisher, Mary --- "R v Charlie Limbiari Jagamara (Criminal law - unlawful killing - Aboriginal customs and laws - traditional punishment - sentence to the rising of the court)" [1985] AboriginalLawB 8; (1985) 1(12) Aboriginal Law Bulletin 11

• R V Charlie Limbiari Jagamara
• Criminal Law-Unlawful Killing-Aboriginal Customs And Laws-Traditional Punishment-Sentence To The Rising Of The Court.

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R v Charlie Limbiari Jagamara

Criminal law - unlawful killing - Aboriginal customs and laws - traditional punishment - sentence to the rising of the court.

R v Charlie Limbiari Jagamara

Supreme Court of the Northern Territory (Muirhead J); at Alice Springs

28 May, 1984

Casenote by Mary Fisher

This case contained many similarities to R v Jacky Jagamara. The accused, a Warlpiri man, aged about 75, had stabbed the deceased with a spear. He died later the same day. In turn the accused had undergone particularly severe punishment from the Willowra people. Initially he had been speared in the leg, cut with a knife on the back, beaten with a nulls nulls on the back and hit on the head with a tomahawk.

Later during the adjournment of the committal hearings, he had been stabbed in the back. The accused had also been banished from his place of birth. There was evidence that a senior Warlpiri man and a close ritual relation to the accused had intervened to prevent the violence escalating.

The evidence before the court was that the accused's wife had accompanied the deceased on an organised camping trip for Aboriginal school children to Queensland. On their return there were rumours of an improper liaison between them, and the accused's wife had ceased to perform traditional assistance to the accused and had withdrawn to the single women's camp. This wasa matter of great concern to the accused.

Expert anthropological evidence was adduced in proof of the following facts:

• that the accused followed traditional law and was traditionally married;
• ‘that the accused's wife was seen to behave in a way which could leave somebody to believe that she was engaged in a relationship with a person who stood as a son-in-law to her - and this was one of the most tabooed relationships’;
• that the accused would have to see his wife's actions as involving a very serious transgression that would require a response from him;
• that the accused merely intended to teach the deceased a lesson;
• that the accused held a highly important position within the community and that his presence was critical for the continuance of certain ceremonies.

The Crown accepted the fact that there was no intention to kill the deceased but that the accused intended merely to inflict a wound which would satisfy his traditional views as to the appropriate response to the situation in which he found himself. In sentencing the accused to the rising of the court, Muirhead J. stated:

He is a man who probably never saw a white man until he was 30 years of age or so, and in that time the Aboriginal law became the law pursuant to which he lived and will no doubt in his own mind be the law pursuant to which he will always live if circumstances enable him to do so.

He is a man whose memory of the early days still has importance to his people. He is a man upon whom, at times, they must relyforcertain aspects of Aboriginal life which are still important to those who understand it. In all these circumstances it seems to me that this court should endeavour not to intervene. I say this because I have evidence, which satisfies me that the consequences of this matter have permitted a no easy resolution ... and that ... the Aboriginal people are themselves endeavouring to cope with what seems to have been somewhat of a crisis. I am told that steps are now being taken to settle the whole matter without further bloodshed or disturbanceof the community.

I am satisfied that if I impose a sentence of imprisonment, and in this case I have nowish to do so, the problems of the Aboriginal people would probably be exacerbated, and his withdrawal from Aboriginal society would increase the difficulties. In all these circumstances I propose to treat this matter as a somewhat exceptional matter. Many cases that come before this court which involve the killings of other people, especially where alcohol comes along and serves to confuse the issues, may have a cultural or traditional basis and at times it is necessary, or at times I have considered it necessary that punishment provided by the law that we adminsiter must be imposed for the general protection of Aboriginal people, and to prevent larger areas of misunderstanding.

But in this event, this is truly a cultural matter which has been tackled energetically by the people. The accused has already suffered punishments far more severe than any that I would be authorised to inflict, and beyond the physical matters that I have adverted to, he has also the countinuing knowledge that he is no longer welcome in his birth place and his future in the Aboriginal society is by no means yet on a fixed course ....

... There are cases, I don't say necessarily many of them, but there are cases where I consider complete regard should be had for Aboriginal custom and tribal law. This is one of them. The sentence of this court is that the prisoner will be sentenced to the rising of the, court.

Ms P. Ditton, Central Australian Aboriginal Legal Aid Service appeared for the accused.

Mr. Doman appeard for the prosecution.