A Fair Trial for Whom? Due Process Given Indigenous Males in NSW Criminal District Courts

Abstract

This project is a mixed methods, sociolegal inquiry into whether the NSW District Court criminal litigation system negatively impacts and/or potentially racially discriminates against Indigenous males accused of indictable offences. Its primary research questions are (1) Do race or Indigenous status of Aboriginal defendants, as a class, negatively impact Indigenous accused persons in New South Wales at trial? And (2) If so, do those negative impacts potentially 'racially discriminate' in a general, sociolegal sense of the term? The project uses a number of interrelated methodological components including: (a) the 'Rombauer Method of (doctrinal) legal research,' (b) statistical antidiscrimination testing using both freely available datasets and datasets purchased from NSW BOCSAR, (c) observational-ethnographic data collection using a single blind random sample of an equal number of matters involving Indigenous and non-Indigenous accused males, (d) practitioner interviews, and (e) multisite photographic analysis. Notably, this methodology won the inaugural Simon Fenwick Award for Indigenous research, and the Simon Fenwick Foundation largely funded fieldwork. With regards to findings, this research uncovers that statistically, in NSW District Court criminal litigation, an accused's race can objectively detriment Indigenous males. The NSW pretrial detention system is arguably racially discriminatory, as is how the NSW Office of the Director of Public Prosecutions exercises its non-reviewable prosecutorial discretion to withdraw charges. However, race is a complex social phenomenon, as is racism. In certain instances, this project observed that an accused's race and/or the alleged victim's objective racism can also benefit Indigenous males. Similarly, other aspects of NSW District Court criminal litigation negatively impact Indigenous males in ways falling outside the scope of present legal understandings of racial discrimination. For example, introducing tendency and coincidence evidence using convictions obtained prior to the RCADIC and Wood RC allows the possibility of extant legal injuries caused by prior events occurring during a demonstrably racist and corrupt period in NSW history. Likewise, colonial era courthouses are more likely to affect compound trauma responses amongst Indigenous accused persons and overlap with insufficient judicial infrastructure in western NSW in a manner that disparately impacts criminal legal proceedings in localities with elevated per capita Indigenous populations.