Fisher, Mary --- "R v Jacky Jagamara (Criminal law - unlawful killing - traditional spearing - accused punished by his community - sentenced to the rising of the court - appropriateness of plea of 'guilty')" [1985] AboriginalLawB 9; (1985) 1(12) Aboriginal Law Bulletin 12

• R V Jacky Jagamara
• Criminal Law-Unlawful Killing-Traditional Spearing-Accused Punished By His Community-Sentenced To The Rising Of The Court-Appropriateness Of Plea Of 'Guilty'.

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R v Jacky Jagamara

Criminal law - unlawful killing - traditional spearing - accused punished by his community - sentenced to the rising of the court - appropriateness of plea of 'guilty'.

Supreme Court of the Northern Territory (O'Leary J); at Alice Springs

24 May. 1984

Casenote by Mary Fisher

Jacky Jagamara, a full blood Aborigine, and one of the last Pintubi men to come in from the desert in 1966, was charged in Alice Springs in 1979 with unlawful killing. At that time he was released on bail but failed to return to Alice Springs to face trial. The accused had been told that the trial would come up later and had returned to Warburton to attend ceremonies. He later returned to Alice Springs where he had asked an interpreter to find out when the case would come up. When nobody came to see him for two or three days he returned to home to wait until he was called to court. Five years later he was recognised from a warrant and extradited from Western Australia to face trial in Alice Springs. The case came before O'Leary J. in Alice Springs in May 1984. The evidence before the court was that the deceased had originally stabbed the accused through the thigh. This was regarded as highly improper because the deceased was the son in law of the accused. The accused subsequently speared the deceased who died from severe blood loss resulting from the severing of an artery. Following the incident the accused was speared and severely wounded by the deceased's family on three separate occasions. On two occasions the accused was reduced to crawling for some three or four weeks after the infliction of the wounds.

In sentencing Jagamara to the rising of the courts, O'Leary J. stated:

It was an offence that was committed in an entirely tribal andtraditional Aboriginal setting, and the prisoner has received very severe traditional punishment by way of pay-back at the hands of the deceased man's family.

In my opinion it is not an offence that calls for any deterrent or retributive punishment by this court. He is in no sense a threat to the community at large. There is no reason to fear that he will offend again in this way in the future, and I think that in all the circumstances he ought not to be subjected to any further punishment beyond the very severe punishment he has already received. He has, in any event, now spent some 13 and one half weeks in custody in relation to this offence. I take that into account and I think that must, for him, have been quite severe punishment, as well as the other physical punishment he has received.

An initial difficulty confronting the court was that the accused had virtually no command of the English language and itwas difficult to interpret meaningfully the plea of not guilty into the Pintubi language. A formula was arrived at which amounted to an admission of the facts and a statement that the accused did not wish or need the witnesses to be called to gain evidence. This formula was accepted by the court. It amounted to the legal effect of a plea rather than the English formula.

Mr. M.F. Adams appeared for the accused on instructions from the Central Australian Aboriginal Legal Aid Service.

Mr. O'Loughlin appeared for the Crown.