Doing time the whitefella way

Mirian Margoyles' view of Australia as a land of opportunity and equality doesn't quite fit with the way whitefella law is dished-up to Aborigines in the Top End ... What to make of Dennis Rostron's case ... Observations from visiting London criminal lawyer Felicity Gerry 

Miriam Margolyes, with another new Australian

THE actress Miriam Margolyes has taken Australian citizenship. She was quoted as saying:

"I don't like class distinction and there is far too much of that in England. There's an energy here, an optimism, a vitality. I think England doesn't have that anymore."

There's something about the hot weather that lulls an individual visiting Australia into thinking there are no political issues.

Ms Margolyes has been visiting Australia for years. I have only been here for a few weeks and it is enchanting but, having taken the opportunity to observe the local lawyers in action, it is plain that there is a continuing disconnection between European law and traditional aboriginals.

It is remarkable that Australia Day is celebrated on January 26 since that is the day that the first prisoner ship dropped anchor in Botany Bay and the Aboriginal way of life was destined to change forever.

It shouldn't take much to change the date but, it seems, some are quite jingoistic about it and it will take more than an ounce of good sense to change a national holiday.

Meanwhile, the celebrations are tainted by the effective exclusion of the indigenous population (they call it "invasion day").

The best way to look at political issues is from the perspective of the person at the bottom. This is usually a prisoner.

If Ms Margolyes were to meet Dennis Rostron on the outside, she would no doubt want to purchase a piece of his art. He is descended from a long line of traditional bark painters. His art teacher described him as a man with outstanding talent.

Even the judge was lulled for a moment into expressing the opinion that his paintings were beautiful.

However, Ms Margolyes is unlikley to meet Mr Rostron as he is currently unwell and in prison. In any event, she probably won't want to meet him when she finds out he was convicted of the murder of his wife, her parents and his own two young children.

Can anyone have sympathy for such a man?

Common Law justice is to lock-up such a defendant for the vast majority, if not all, of his life.

It is the whitefella way and here, the whitefella way still goes first.

These issues came to light this week when judgement was issued in a sentencing appeal where the prosecution applied to extend the period Mr Rostron will have to serve before he can apply for parole.

In 1988, Dennis Rostron was convicted of five counts of murder. The jury rejected his pleas of manslaughter on the grounds of diminished responsibility/provocation.

At that time he was sentenced to a whole life sentence although that was later altered by a change in the law, reducing his non-parole period to 25 years.

Just as he was due to apply for parole (and there is no guarantee he would be released) the prosecution applied to extend that non-parole period.

There were no findings of fact in 1988 so the judge at the hearing a couple of weeks ago had to decide whether the case warranted a longer period and then whether she (and it was a she) could exercise her discretion not to do so.

Dennis Rostron in 1988: non-parole extendedUnsurprisingly, given that two victims were young children, she found that a longer period was warranted.

In considering whether to exercise her discretion, she took into account submissions from both counsel: It was a single event. He had shown remorse. In the lead up to events he had been bullied and starved by his wife and her family. They were threatening him with rejection and he was told the children were not his own.

Having walked enormous distances in the appalling heat of the "build-up" (believe me it's horrific weather), suffering from chronic headaches as a result of a childhood accident and faced with isolation, he took up a gun and shot his closest family members.

It is an unusual case specially since all aboriginal life revolves around family and ancestry.

One wonders who made up the jury in the original trial to reject his combined defences.

Shockingly, the life expectancy of an average traditional aboriginal male born before 1965 is 52 years of age.

Mr Rostron was born in 1963 and is sick.

Judgment was that he would not be eligible to apply for parole for another three years (after a minimum of 28 years).

Suzan Cox QC who was the junior in the original trial and represented him at the sentencing appeal 24 years later is now the Director of the Northern Territory Legal Aid Commission (effectively a State defence department).

Over the intervening years Suzan has maintained legal contact with Mr Rostron, always believing that the jury got it wrong when they rejected the evidence that her client was suffering a major depressive illness at the time of the offences.

Suzan has seen him age from a young 25-year-old male, who was able to hunt and shoot two emus in 40 degree heat in Arnhem land, to a prematurely old man living confined for the last 24 years eating the alien diet of prison food and succumbing to illness.

She threw everything she had at the discretionary argument including compelling photographs of Mr Rostrom's family who have forgiven him and are prepared to have him home.

They still live as best they can in a traditional Aboriginal way. Not for them the air conditioned tropical houses, coffee shops and excellent education.

Life for Miriam Margolyes in Australia may well be free of old fashioned notions of class and etiquette that we seem to cling to in the UK, but she would do well to remember that there are a whole race of people who should not be required to fit in.

For Dennis Rostron, doing time the whitefella way might be a punishment, but it is not a cure.

While we contemplate whether prison is the right place for more than 80,000 people in the UK, Australia has a similar problem, but both inside and outside.

Criminal law and justice is less about the people in the system and more about our reaction to them.

With an election in Australia in September, one wonders whether changing the date of Australia Day will even reach the political or legal agenda, but it might be a good place to start. 

See report in NT News 

Felicity Gerry is a London criminal barrister who has been visiting William Forster Chambers in Darwin