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Elijah Doughty decision shows there is rarely justice for aboriginal victims

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As the news came through on Friday that the man who had run down young Elijah Doughty in Kalgoorlie last year had escaped a manslaughter conviction and instead had been sentenced for three years for the charge of reckless driving causing death, I saw Aboriginal community members dissolve. Many expressed grief for Elijah's family and community. Others set about highlighting how there is rarely any justice in this system for Aboriginal people and how our lives mean nothing to greater Australia. Others set about activating the community by calling rallies and actions to protest this ruling and highlight the injustice.

Survival Day protesters 2012Despite all this, the one reaction I did not see coming out of the community was surprise. Because we weren't surprised. From one end of the country to the other, Aboriginal community members were expecting this ruling and had been ever since police decided not to charge the 56 year old male driver (whose name has been suppressed) with murder, instead opting for the lesser charge of manslaughter.

We have seen it all happen before and history dictates that, at the end of the day, it is highly unlikely that killing an Aboriginal child, or man, or woman, will attract a sentence at all—if it even goes to court in the first place.

As Chris Graham points out, the number of Aboriginal people who have been killed, and for whom the justice system has failed, continues to climb. Yet there is rarely any outcry from the general public. It is telling that in the case of Elijah, not only has the conviction been watered down to what essentially amounts to a bad traffic misdemeanour, continuously in articles—in online commentary and so forth—it seemed the populace was excusing the perpetrator's actions by stating that Elijah had “stolen a motorbike” from him.

Never mind that the circumstances around how Elijah came to be riding that bike have never been established. Never mind that it also hasn't been established whether Elijah even knew the bike was stolen. Never mind that Elijah actually had two bikes of his own which had been taken by the police under “suspicion” of being stolen, only to be returned after his death when it was established that they weren't.

None of these facts seems to matter. Due to the racist undercurrent which permeates Australia, what seems to matter most is how the actions of a 56-year-old man, driving a two tonne vehicle, can be reconfigured so that when he decided, on impulse, to chase down and kill an Aboriginal boy it can be implied that the responsibility for the death lies solidly with the boy.

It doesn't matter that there was no evidence of braking or swerving at the crime scene. According to them, this boy's life was not even worth the motorcycle he was riding on—as if he was the true criminal in all of this.

As someone who lives in Melbourne, where the horrific Bourke Street attack happened earlier this year, I could not help but compare the two crimes and the reactions to them by the media, the justice system, the politicians and the public. There was never any question that Jimmy Gargasoulas would face murder charges for running down people. We knew that politicians would make sorrowful statements and act swiftly. We knew that the media would honour the victims and show it for the tragic loss it was. We knew that the general public would rally and also ensure that the victims were remembered and honoured.

Yet there were no murder charges for Elijah's death. There were no multiple page spreads in the newspaper respectfully remembering an Aboriginal boy whose life had been tragically cut short. And when the distraught Aboriginal community of Kalgoorlie-Boulder rioted over this injustice, the media instead decided to focus in on that violence, rather than the cause of the grief.

 

"As someone who lives in Melbourne where the horrific Bourke Street attack happened earlier this year, I could not help but compare the two crimes and the reactions to them by the media."

 

As highlighted by Dr Lissa Johnson, the best the then-State Attorney General, Michael Michin, could manage was to call the rioters a lynch mob and deny 'any role of the justice system in their distress, saying that they had 'taken advantage of… the death of this young teenager in order to exploit the situation'.

A reasonable portion of white Australia is not prepared to acknowledge there is any narrative in which Aboriginal people are the victims of white people, white systems or white governments. For far too long, the narratives have revolved around our criminality and our alleged shortcomings.

As Gerry Georgatos has highlighted, one in six Aboriginal people in Western Australia has been to prison. Yet while this state has no issue imprisoning Aboriginal domestic violence victims for unpaid fines and then allowing them to die in their cell after not receiving appropriate medical care three times—or imprisoning an Aboriginal child for stealing a chocolate frog—it has trouble applying that same harsh judgement to non-Indigenous people.

The failure to charge Elijah's killer with murder in the first instance, and the the failure to uphold a manslaughter charge in court—eventually passing a sentence which will probably see him out before an Aboriginal man who was imprisoned following the riot—suggests that race plays a huge part in sentencing.

To return to the community response, though, what I saw more than anything else was despair. Despair that regardless of how many years go by, our lives, and the lives of the generations which follow us, just simply don't matter.

Like so many others, I worried for the safety of my niece and nephews in a country which continually shows that their life and liberty is worth less than a motorcycle, or a building, or a parking fine. I worry that if something does happen to them, there will be little hope of justice—if indeed the perpetrators are ever held to account in court in the first place unless there is community outcry. I certainly was thinking these thoughts as the gavel came down last Friday. 

 


Celeste LiddleCeleste Liddle is an Arrernte woman living in Melbourne, the National Indigenous Organiser of the NTEU, and a freelance opinion writer and social commentator. She blogs at Rantings of an Aboriginal Feminist.

Topic tags: Celeste Liddle, Elijah Doughty, reckless driving, sentence


 

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Why does 3 years in jail not represent justice, Celeste? What would you consider just?
john frawley | 27 July 2017


"or imprisoning an Aboriginal child for stealing a chocolate frog" ... I was skimming through this article, but when I saw that, I was horrified. An indigenous child, sentenced to prison for stealing a Freddo Frog !! I could see the red-faced, bewigged judge slamming down his gavel, with the frowning jury in the background, and the innocent, sad face of the hapless accused. Charles Dickens, eat your heart out. But I followed the link. Turns out, all it meant was that the boy was held in custody for a few hours at the police station. Even his pro-active lawyer didn't object to the custody ('imprisonment') as such, just to the fact that, in his opinion, the custodial conditions weren't suitable for children. The further story is that the boy was also involved in receiving other stolen goods, not just a chocolate frog. And that he'd had warnings in the past and that the police decided it was now time to take the next step. Possibly to bring him to his senses and divert him from a self-destructive path in the future. For his own good. Yes, theirs was a judgement call. One can argue that it was the wrong decision. But it's hardly prima facie evidence of white racism, of a conviction that black lives don't matter. To the contrary.
HH | 27 July 2017


I am horrified by the charges, the sentence and the media reaction. The West Australian's headline "Time for Healing" was was a cruel public version of "get over it". But where or what is there to change the way the system is working.
Anita | 27 July 2017


Celeste Liddle's comment is timely and well judged. I am unimpressed by most ES responses so far. Justice in all its aspects- charging and sentencing - is supposed to be colourblind and evenhanded. Clearly for Australian Aboriginal people it is not. Why is it so hard for conservative commentators to acknowledge this? I would put aboriginal judicial and police law enforcement disadvantage at the top of the agenda for the next Human Rights Commissioner. That is, if we are serious about being a laws-based democracy. Thank you, Celeste. As an interim suggestion , I could only say to your relatives - please consider moving to NSW or Vic where their human rights might be better respected than in WA, NT or Qld. But this in itself is a violation of their human rights as Australians. Who should get equal treatment under the law anywhere in Australia they choose to live. What this unnamed man did to Elijah Doughty was deliberate manslaughter or worse. The jury just got it wholly wrong. I hope someone will publish what the judge's final advice to this jury was, before they withdrew. I would like to read how he/she advised them.
Tony Kevin | 27 July 2017


As a privileged white Australian I can say little that is meaningful to the family of this boy except to offer my profound apology and sadness for the bastardry of my country which treats Aboriginal people so cruelly and without justice. I respect their strength and endurance. I am sorry.
Pamela | 27 July 2017


Here you go John Frawley: "For murder an offender is sentenced to life imprisonment and the court must set a minimum term of at least seven years and not more than 14 years.33" Law Reform Commission of Western Australia – Review of the Law of Homicide: Final Report, http://www.lrc.justice.wa.gov.au/_files/P97-ch07.pdf
Josh Stack | 27 July 2017


Spot on Celeste. I wish the other commentators would go an read the 'Bringing them home' report https://www.humanrights.gov.au/publications/bringing-them-home-report-1997 . Entrenched structural racism has been and remains a problem in Australia. Anyone who says otherwise is ignoring the reality. Unlike many other countries our appreciation of history and the ideas which really shaped this nations institutions (racism, xenophobia) are severely lacking. We are happy to celebrate those who fought to keep Turkey British and April 25 each year but put little effort into understanding why indigenous communities face the problems they do. Why is this? Thank you for your great writing.
Francis Killackey | 27 July 2017


It sounds terrible. I wonder if there are grounds for the Director of Public Prosecutions to appeal either against the leniency of the sentence or the charge itself.
Brett | 27 July 2017


@John Frawley, I think Celeste was pretty clear on wanting the killer to be charged with murder. And so are most of the people who have been speaking and writing publicly about this injustice. I don't think that's unusual or difficult to understand.
Shiela McCloskey | 27 July 2017


How could you think that three years for taking a child's life is justice, John Frawley?? If he was a white child it would have been murder and would have been 20 years plus. Purposely running down a child in a 4WD is pure evil.
Jillian Henderson | 27 July 2017


I share your despair and outrage. The fact that so many people can look at that boy and see something other than a child, full of potential, with so much life in front of him, speaks volumes about the racism of Australian society.
Sally Thompson | 27 July 2017


Why is there no appeal of the not guilty of manslaughter finding?
Denis | 28 July 2017


As a West Australian I would plead with those commenting to try to understand that this is not just (or even primarily?) a story about justice for aboriginal people.It is a story about Kalgoorlie, which for decades now has been a tragedy waiting to happen. This is in spite of genuine effort by many people (including the police and legal and government services) which still continues. Elijah's mother has pleaded for reconciliation within the Kalgoorlie community and I'm honestly doubtful that many of the comments here and elsewhere make a positive contribution in that respect. No one has listened to the Kalgoorlie story and frankly "you're not listening still".
Margaret | 28 July 2017


"The jury just got it wrong" At least, Tony Kevin et al, they heard all the evidence and the judge's directions on the law before reaching a majority or unanimous verdict. Unlike so many commentators today I'm prepared to admit that they know more about the case than any of us and for our society to work have to be trusted in their verdict. If the prosecutors believe that the ruling and sentence are unjust they will appeal. Thank goodness our society has such a just system in place. I simply asked where the injustice in a three custodial sentence lies and none of the dissenters seem able to answer that.
john frawley | 28 July 2017


Dear Celeste, I am so saddened to hear of Elijah's death and acknowledge the truth of your article. Australia is still a very rascist country sadly. We as non indigenous people have to speak up and call rascism out and change the inhumanity and murder and violence inflicted on our First Nations people. We need a national rememberance day to acknowledge and never forget all the aboriginal deaths in custody. Lest we forget.
Marcia Howard | 28 July 2017


House burnt down and family take refuge in the East. He can't return home. This man's life has been destroyed. How much more is needed to see justice served.
Iggy | 28 July 2017


Celeste, my heart is broken for what happened to young Elijah. Thank you for keeping me in the loop, so I can add my humble protest to your's about this egregious injustice to his memory. Recently Colin Tatz of the UNE wrote a piece in The Conversation (which was suddenly shut down from comments, even though only two were deleted, after only 35 posts). In the article, Colin links the Aboriginal holocaust with appallingly high Indigenous suicide rates. I protested vehemently at the shut down and posted a number of pleas on various sites with The Conversation to re-open the blog but unavailingly and copped a great deal of abuse for it. Be strong, Celeste! The road ahead for justice is hard but, never fear and be assured that by working together we shall bring about the Kingdom of God!
Michael Furtado | 28 July 2017


Have you read about the many white families devastated by criminals walking free after hurting/killing their loved ones? Elijah's family isn't being treated any differently than what thousands of white people have suffered. In fact, they have been treated just like other devastated families regardless of colour.
Ang | 28 July 2017


As I read this article I found my defences/prejudices slowly being peeled away and revealed for what they are. Thank you Celeste.
Steve Sinn | 28 July 2017


Many thanks Celeste for speaking out on this terrible act of injustice and reminding us here in Australia, yet again, how much of a racist society we are part of. Might I add my apologies as a white male for this lack of justice.
TomK | 28 July 2017


I am outraged by the endemic, structural racism in this country. To E's family please convey my deepest sympathy, I am so sorry they have had to endure the loss of their loved one. To all the racist killers in Australia may you realise the grossness of your character flaws and act with repentance.
Claire McHalick | 28 July 2017


Thank you for this article and analysis Celeste. Shame, shame shame on us and the lawless system of 'legality' not morality which continues in Australia. Shame also in the comments of the first two correspondents - in the minority at least in responses. We're so far in our nation from 'the Truth will set you free. '
Michele Madigan | 28 July 2017


I wouldn't presume to make a judgment on this as I've never been to Kalgoorlie and I can't know the facts as I'm only a media viewer/reader/listener. But I have lived in a very remote indigenous community where aboriginal children died because aboriginal parents were drunk or negligent. These stories didn't make national news.
Anne Shannon | 29 July 2017


More power to your epistemic voice, Celeste, since relying on white Australians to speak and act up will achieve no more than sympathy at best and avoidance and antagonism beyond. In recent days Professor Colin Tatz of the UNE, a global expert on Holocaust Studies, had an article of his linking the Aboriginal Holocaust with egregiously high Indigenous suicide rates mysteriously shut down by the people who commissioned it no more than two hours of it having been posted. White Australia simply doesn't want to know because if it did it would have to acknowledge its collective complicity in the murder of children like Elijah. Keep fighting and writing!
Michael Furtado | 29 July 2017


I lived in WA for 13 years and have been to (and fortunately quickly through) Kalgoorlie, which, as Margaret says, is something else. As far as 'justice' goes there are parallels between the investigation of the killing of Elijah Doughty and the investigation, trial and sentencing of Andrew Mallard, later overturned. I was impressed by Elijah's mother, Petrina James, who was greatly underwhelmed with the sentence but also grateful for the support she received from the broader community. On ABC television she said: ' I think everybody should come together. Not just Aboriginal people, everybody. It's not about racial issues, it's more than that.' Of course there are racial issues in Kalgoorlie and Australia, but you and Ms James are right, Celeste, we need to rectify the system and move on. People like Gandhi and Nehru in India and Trevor Huddleston and Nelson Mandela in South Africa were more than about hate, or even replacing an unjust system. They wanted to build a better and more just world. We may have a way to go here.
Edward Fido | 29 July 2017


When will we ever learn? A 56 year old man deliberately runs over a 14 year old boy and kills him. From a distance it appears there has been an extraordinary effort to protect the offender. Is that not doubly reprehensible? First, for making the boy's family, peers, and community justifiably angry and disillusioned with the law; and, secondly for encouraging racists to believe such actions are scarcely evil at all. This unnecessary death and numerous others are studied around the world and raise a stench that adds to perception of us Aussies as a nation of abusive & genocidal orcs. World-wide, the people who looked after this lovely country for over 65,000 years are considered to deserve far better from us new-comer colonialists. The many ways Aborigines have been mistreated for over 200 years cries out for strong provisions in the Australian Constitution to give them special rights, privileges, and protection. To deliberately harm a First Nations' person should attract severe community condemnation & heavier sentencing. Providing quality education, counseling, and employment for Aboriginal youths should attract really substantial incentives. We could remedy our nation's festering wound tomorrow. The only question is: "Do we have the gumption?"
Dr Marty Rice | 29 July 2017


If the youth who was killed was non-aboriginal, and the driver was aboriginal, would the charge and sentence be any harsher? Apparently not. So where's the racism? Likely the only difference in that scenario would be there would be riots demanding that the driver be set free because somehow non-aboriginals were really to blame.
Peter K | 29 July 2017


I believe you are very wrong comparing this criminal act with the one that occurred in Bourke Street. In that case there was a clear intent to kill or maim. In the case of Elijah, the driver's intent was to chase Elijah and try to get the bike. The intent was not to kill Elijah. So murder would never have been an appropriate charge. I am however, very upset that he was not found guilty of manslaughter. I do not understand how the jury made the decision they did. And it is not about race. There are many cases in this state where the actions of one result in the death of another, and the sentences are nothing short of pathetic. the perpetrators and victims are of many different backgrounds.
JT | 30 July 2017


Peter K, why do you say "apparently not"? In the scenario you outlined there is every possibility of a significantly stronger charge and sentence.
Brett | 31 July 2017


"... at the end of the day, it is highly unlikely that killing an Aboriginal child, or man, or woman, will attract a sentence at all—if it even goes to court in the first place." This part of the article is correct. I heard Bess Price say a few years back that, as a matter of policy, first time convicted indigenous domestic violence killers in the Alice Springs area do not go to prison. But if the policy were reversed, there would be a huge leap in the indigenous prison population, accompanied almost certainly by cries of "racism!" You're racist if you do and you're racist if you don't.
HH | 31 July 2017


You reject the obvious explanation, and choose to believe, and proclaim to others, that a middle-aged father of a family, with apparently no history of violence, racism or any other offence, was just so consumed by racist hatred that he simply "decided on impulse to kill an aboriginal boy" chosen at random. Sorry you fail the rationality test.
Peter K | 31 July 2017


Why do you say 'apparently not', Peter K ?
Ginger Meggs | 31 July 2017


Generally, I favour trial by jury in criminal cases. Trial by a jury of the accused' peers, rather than 'alooof' judge sounds good. But what about when the jury is clearly not the peers of the victim? It would be almost inevitable, in Perth, that a jury will be composed of non-indigenous people drawn from a population that is antagonistic, if not hostile, to indigenous people. No matter how conscientiously each jury member sought to roach an opinion based on the facts alone, it would be hard to persuade indigenous people that the decision of the jury was not influenced by racial bias. Perhaps it would be better in matters like this for the trial to be by judge who would then, unlike a jury, be required to give reasons for her/his decision.
Ginger Meggs | 31 July 2017


I was sickened to see so many old white people claim he asked for it by stealing the bike in the first place, the racism was monstrous. Another thing about Jimmy in Bourke Street running down 34 people, killing 6 of them, is that he was not called a terrorist and is having mental health care. A muslim who committed the same crime would be long dead and the headlines would have screamed in 20 letters TERRORIST, his whole family would have been rounded up, everyone he ever had tea with arrested, their homes searched and so on because the racism extended to any muslim is that they seem to be incapable of committing a crime by themselves. The sentence for Elijah was monstrous, the sentence for death by reckless driving is three times longer and if an aboriginal man did this to a white kid 10 years would be the sentence. Hell, in the Gibbs case the white cops fit up aboriginal kids for killings they didn't do. Australia was ''born' in racism and nothing has changed.
Marilyn | 31 July 2017


There is quite a difference, Marilyn, between a mentally unstable person mowing down innocent people in the street with his car and people who carefully plan, build the weapons (bombs) in their kitchens, choose their targets carefully and claim responsibility in the name of their God. The first is called insanity, the latter is called terrorism. Elijah's case bears no resemblance to either.
john frawley | 01 August 2017


I spent some time as a doctor serving the Aboriginal and Torres Strait Islander people. In the Islander people school attendance, absence of childhood disease, care of dwellings, baby care and immunisation rates were far superior to that of the Aboriginal people. There was also a noticeable absence of open drunkenness, domestic violence, child neglect and law breaking in the Islanders. Perhaps some commentators who spend so much time working for the emancipation of Aboriginal communities might learn a few useful strategies if they were to take a sabbatical in the Torres Strait, It is noted that Eddie Mabo was a Torres Strait Islander.
john frawley | 01 August 2017


People have different personalities. If you’re an excitable sort of person, and prone to become more so because you’ve already had previous break-ins to the extent that you couldn’t sleep that night, you enter a chase in the heat of impetuosity because you don’t want to lose sight of the bike and a mere minute later, perhaps too soon to call yourself back to ask what you are doing, driving with no braking distance between your vehicle and the bike rider, it’s all over, how guilty are you of the boy’s death? Was it not open to the jury to take the tack that it was all really an unfortunate accident but that some fault had to be attributed to the driver because the law doesn’t allow impetuosity as an excuse for driving too fast?
Roy Chen Yee | 04 August 2017


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