Silence in Court! Problems and Prospects in Aboriginal ... and Prospects in Aboriginal ... 10 Dairy Farmers Cooperative v Acquilina (1963) 109 CLR 458, ... AUSTRALIAN JOURNAL OF LAW

"Silence in Court!"Problems and Prospects in Aboriginal

Legal Interpreting*

Russell Goldflam

Why is it that in cases where we have someone from Europe who does not speak English very well that we spend a lot of money getting interpreters here to court; for the very reason that judges in other States... would never dream of accepting a plea from a foreigner from another country where the judge was not satisfied that the foreigner did not fully understand what he was pleading to there and then in court in front of him. And if there was any doubt about it, at great

This paper draws extensively on a Chapter I have contributed to D Eades, (ed) Language and Evidence: Linguistic and Legal Perspectives in Multicultural Australia UNSW Press, Sydney, 1995, and on a research project conducted under the auspices of the School of Law at Macquarie University. My former employer, the Institute for Aboriginal Development, Alice Springs, has kindly allowed me access to its records, and been of general assistance. Particular thanks go to the Head of the Language Centre, Loma Wilson, the Co-ordinator of the Aboriginal Interpreter Service, Nora Wheeler, and my many former colleagues and students in the Interpreter Training Program. I acknowledge the permission of Greta Bird, Michael Cooke and Diana Eades to refer to unpublished work. I am indebted to the following for information, comments, suggestions and encouragement: Gavan Breen, Pam Ditton, Diana Eades, John Henderson, Nanette Rogers, Peter Wilmshurst and Susan Woenne Green. In particular, Pam Ditton permitted me to delve into her unique personal archive of Central Australian criminal cases. Finally, my thanks to those who made their time available for interviews. Many of their insights and experiences have been incorporated into this paper. All responsibility, however, for any errors or omissions is my own As my experience has been mainly in Central Australia, most of the examples provided, and conclusions drawn, are based on the situation in this region.

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AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1997) 13

expense, a panel of interpreters are kept... for Yugoslavs, Italians, Lebanese, Egyptians, Frenchmen, Finns — anything you like. You will find an interpreter with an official card who will come along to the court and the proceedings, in effect, will be, as far as the accused is concerned, conducted in his language and interpreted by the interpreter.

Now I find it difficult to understand why a person who comes to this court who does not speak English — because that seems to be the fact: not in the sense which the courts require people to understand English — because that person happens to be an Aboriginal Australian, we are supposed to take all this on faith. I know things have been going on for a long time, but that does not mean they will go on forever. What I want to know, before I accept the plea, is that she understands it...

Have I said anything too outrageous, Mr Crown?

_ No, Your Honour... Hopefully something will be done about it. To use the word deplorable would not be putting it too highly; it almost makes a farce of proceedings on occasions when an interpreter is not available.1

Introduction

The Australian criminal justice system has failed the Aboriginal community, and failed it with what looks remarkably like a vengeance. The Royal Commission into Aboriginal Deaths in Custody found Aboriginal people are 27 more times more likely to be taken into police custody, and 15 times more likely to be imprisoned, than the general Australian population. These are national averages: in Western Australia, for example, things are almost twice as bad.2

This paper examines one aspect of the institutionalised discrimination which lies at the root of this failure — how some Aboriginal clients of the legal system are disadvantaged because it uses a language which is alien to them. Whether this is merely a "deplorable farce", or something more sinister, is

1 R V Ivy Allen (unreported decision on Nader J of the Supreme Court of the Northern Territory given in Alice Springs on 18 May 1982).

2 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) (Commissioner Johnston) National Report, Vol 1, AGPS, Canberra, 1991, pp 223-225.

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"SILENCE IN COURT 1

debatable. In any event, the silence to which Aboriginal people have been confined by the criminal justice system is profound and endemic.

The Royal Commission itself identified the importance of this particular issue with a key recommendation, which has since been supported by the Commonwealth and all State and Territory governments:

Recommendation 100That governments should take more steps t<o recruit and trainAboriginal people as court staff and interpreters in locations wheresignificant numbers of Aboriginal people appear before the courts.3

Nevertheless, Aboriginal people throughout the areas of Australia where traditional languages survive are being victimised on a daily basis by a legal system which persists in imposing a foreign language, culture and structure of discourse on them.

The Australian legal system routinely fails to provide Aboriginal clients who do not speak English as a first language with access to interpreters. The first section of this paper describes the limited legal rights to an interpreter available to Aboriginal people dealing with both police and the courts, as well as aspects of the arrangements currently in plaice. The second section explores the causes of the general failure to use Aboriginal legal interpreters. It draws on a critique of "Aboriginalism" to analyse the way in which participants in the legal system have ’’conspired" to construct a "cone of silence" around both Aboriginal clients and interpreters, and examines associated linguistic, cultural and practical difficulties. The final section considers strategies for addressing the problem, while acknowledging its intransigence.

Court transcripts, reported and unreported judgment's, and published reports, articles and other documents have been a major source of information. Use has also been made of documents from a number of unpublished sources, including personal archives, the extensive files of the Institute for Aboriginal Development, and articles in press. As a former staff member of the Institute for Aboriginal Development, including four years as the Co-ordinator of the Institute’s Interpreter Training Program, I gained invaluable first-hand experience and knowledge without which it would n ot have been possible to

3 RCIADIC, above, n 2, p 80. Response by Governments to the Royal Commission, AGPS, Canberra 1992,p 367.

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undertake this project. Finally, interviews were conducted in Alice Springs with key personnel from the various agencies involved in the use of Aboriginal interpreters.4

Maintaining the Silence

Interpreters are seldom used by police or the courts in dealing with Aboriginal people. A Northern Territory Supreme Court judge reports that in his eleven years on the bench an interpreter has only been used once or twice in cases heard before him: "The first and most surprising thing when I came to practise here [from Papua New Guinea, where interpreters are used as a matter of routine] was ‘Where the interpreters?’".5 Interpreters are also only very rarely used in matters which come before the Alice Springs Court of Summary Jurisdiction.6 Australia’s only Aboriginal Interpreter Service, based at the Institute for Aboriginal Development in Alice Springs, reports that "the police don’t ring us up for anything... we get about five or six calls a year from the police. That’s not enough. I see a lot of people there in court, and they don’t know what’s happening, what’s going on."7

This section describes the legal situation with respect to the use of Aboriginal legal interpreters, and how it is applied in practice.


4 Interviews were conducted with: Stewart Brown (former senior solicitor, Central Australian Aboriginal Legal Aid Service), Mai Comock (Prison Welfare Officer, Northern Territory Department of Correctional Services), Kunmanara Cousens (Arremte/Luritja interpreter, Institute for Aboriginal Development), Detective Superintendent John Daulby (officer in charge of Crime Division, Central and Southern Command, Northern Territory Police), Ms Cathy Deland SM (Alice Springs Court of Summary Jurisdiction), Pam Ditton (former senior solicitor, Central Australian Aboriginal Legal Aid Service), Veronica Dobson (Arremte interpreter, former Co-ordinator Aboriginal Interpreter Service, Institute for Aboriginal Development), Mr Justice Kearney (Supreme Court of the Northern Territory), Chris Roberts (Crown Prosecutor, Office of the Director of Prosecutions), and "C.S." (Arrernte interpreter, former Co-ordinator, Aboriginal Interpreter Service, Institute for Aboriginal Development). An interview was also requested from a second magistrate, but no response was received.

5 Kearney, J, interview, November 1993.

6 Deland, SM, interview, November 1993.

7 Former Co-ordinator, Aboriginal Interpreter Service, interview November 1992.

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"SILENCE IN COURT"

The Legal Right to a Legal Interpreter8

With the exception of the Anunga Rules, which will be discussed below, and an obscure section of the Crimes Act 1914 (Cth),9 thie situation of Aboriginal people with respect to legal interpreting is governed by general Australian law, under which there is no fundamental right to a legal interpreter. "The general proposition that a witness is entitled to giv e evidence in his native tongue is one that cannot be justified."10 The matter is one for the discretion of the court.11 No legally recognised criteria have ibeen developed to guide judges and magistrates in the assessment of the need for an interpreter to assist parties or witnesses. In other fields suclh as education, where appropriate assessment instruments have been developed,12 it is generally acknowledged that the task of assessing language proficiency in English can only be properly administered by a professional w ith specialised linguistic skills.

Furthermore, the discretion enjoyed by the courts is itself in practice a fettered one. The right of counsel to run his or her o>wn case would arguably be infringed if the court were to insist on calling an interpreter for a client over counsel’s objections. And in the Northern Territory, this is precisely what occurs: Kearney J reports that he has on man;y occasions suggested to defence counsel that an interpreter be brought in, but that counsel almost invariably decline the bench’s invitation. In these circumstances, Kearney J maintains, it is wrong for a judge to "impose" an interpreter on a party or witness against the advice of the party’s legal representative, as to do so would impinge on counsels’ right to conduct their case as they see fit.13 With respect, it is suggested the judicial discretion to> call an interpreter is not altogether vitiated by the rights of counsel, which shiould more appropriately be considered as being subordinate to the legal right, whether at common law or by statute, to an interpreter. The apparent reluctance of Kearney J to invoke his discretion to call an Aboriginal interpreter* is by no means atypical

8 This section draws generally on G Bird, "International Law, Justice aind Language Rights in Australia" in Language and Evidence: Linguistic and Legal Perspectives in Multicultural Australia, D Eades, ed, UNSW Press, Sydney, 1995.

y Section 23J (3) provides that "a list" of Aboriginal interpreters shouild be maintained by the Minister. If such a list indeed exists, it has not been widely publicised.

10 Dairy Farmers Cooperative v Acquilina (1963) 109 CLR 458, at T64, cited in Bird, above, n 8.

11 Filios v Morland [1963] SR NSW 331, cited in Bird, above, n 8, p) 8.

12 For example, D Ingram, Report on the Formal Trialling of thie Australian Second Language Proficiency Ratings (ASLPR), AGPS, Canberra, 1984.

13 Kearney J, interview, November 1993.

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of the courts. This behaviour, which might appear somewhat inconsistent with his powerful and repeated calls from the bench for the use of Aboriginal interpreters in police interrogations,14 can more satisfactorily be explained with reference to broader issues concerning the legal system as a whole.15

There are of course many points at which interpreters may be used in legal proceedings other than in court. Aboriginal people are interrogated by police, advised and proofed by solicitors and barristers, processed by court and correctional services staff, and interviewed by probation and parole officers. The law is, subject to the limited exceptions discussed below, silent on the right to an interpreter in these situations. In practice, it is only at the arbitrary discretion and on the rare initiative of the agents of "the system" that an interpreter is called.

The International Covenant on Civil and Political Rights (1966) (ICCPR), which "guarantees" the right to "have the free assistance of an interpreter if [the accused] cannot speak or understand the language used in court", has been ratified by Australia and incorporated into Commonwealth legislation.16 The provision is unsatisfactorily broad, failing to specify the quality or extent of assistance to be provided, or a standard by which the language level of the accused can be measured. In addition, it is restricted in its application to criminal defendants. A further limitation is that responsibility for implementing the Covenant lies with the Human Rights and Equal Opportunities Commission, which lacks enforcement powers.

It has been suggested that since Australia is now a signatory to the First Optional Protocol of the ICCPR, an alleged violation of the right to an interpreter under the Covenant could, once all domestic remedies have been exhausted, be placed before the United Nations Committee on Human Rights.17 Hopefully, the right to an interpreter will be given the legal teeth it requires in Australia without the need for such action.

The Commonwealth Government, acting on the recommendation of the Australian Law Reform Commission, has included in its Evidence Act 1995, a provision which vests the right of a witness to an interpreter. The provision (s 30) specifies a standard of comprehension and production

14 For example, R v Martin (1991) 105 FLR 23.

15 See below, s 3, "Understanding the Silence".

16 Art 14 (3), in Schedule II, Human Rights and Equal Opportunity Commission Act 1986 (Cth).

17 Bird, above, n 8, p 5.

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sufficient "...to enable the witness to understand, aind to make an adequate reply to, questions that may be put about the fact".18 It places the onus of establishing that no interpreter is required on a party who objects to the use of an interpreter. A statutory right to an interpreter for a person under police interrogation has also been recently introduced.19

These progressive provisions will be of limited direct benefit, as they apply only to the investigation and prosecution of Commonwealth offences. They may serve as a model for future legislation by the States and Territories.

South Australia is the only State or Territory with a significant population of Aboriginal people who do not speak English as a first language with any statutory recognition of the right to an interpreter.20 21 The relevant provisions effectively go no further than to reproduce the situation at common law, conferring a discretion on the court or investigator fto call an interpreter.

The Anunga Rules

One area in which judicial guidelines have been established for the use of interpreters specifically for Aboriginal people is the police interview. In R v Anunga,11 Forster J laid down the nine celebrated, or, depending on one’s point of view, notorious, Anunga Rules, the first of which states that:

When an Aboriginal person is being interrogated! as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person’s language should be present, and his assistance should be utilised whenever necessary to ensure complete and mutual understanding.

Not surprisingly, these new procedures were hardly welcomed by the police, many of whom must have wondered how they were ever going to obtain an admissible Record of Interview from an Aboriginal suspect again. As Aboriginal confessions frequently form virtually the entire prosecution case, it appeared to many the new rules would operate to prevent a great number

18 Australian Law Reform Commission, Report No 26 Evidence (Vol 2), Commonwealth of Australia Canberra, 1985, Cl 27. NSW has enacted an identical provision in its Evidence Act 1995.

19 Crimes (Criminal Investigation) Amendment Act 1991 (Cth), incorporated into the Crimes Act 1914 (Cth) s 23N.

20 Evidence Act Amendment Act, 1986 (SA), s 14 (1); Summary Offences Act, 1986 (SA), s 83(a).

21 (1976) 11 ALR 412.

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of offenders from being brought to justice. On the other hand, the Anunga Rules represented to supporters of Aboriginal civil rights a potential breakthrough in combating the institutionalised racism of the legal system.

In one widely reported case heard soon after the introduction of the Rules an attempt was made to admit a Record of Interview as evidence in which the response of the accused to eighteen consecutive questions was the singleword "yes". The Northern Territory Supreme Court had little difficulty in deciding not to allow this confession to be used in evidence.22 The court also criticised the police in that case for breaching another of the Anunga Rules, which provides for the presence of a "prisoner’s friend" during the interview. On this occasion, the accused had attempted to shoot his wife, but had missed and hit someone else. The interview was conducted with the wife of the accused - his intended victim - as the prisoner’s friend.

The Anunga Rules have now been incorporated, with some variations, into police procedures which currently apply in the Northern Territory, South Australia, Queensland and the ACT.23 Other States provide varying degrees of protection to Aboriginal suspects. In practice both the courts and the police have manipulated the rules to ensure that their intention - at least with respect to the use of interpreters - is frustrated.

The Rules have not been accepted without intense judicial resistance, and the following account of the resulting conflict provides a useful case study of some of the salient features of the field of Aboriginal legal interpreting in general. One staunch critic of the Rules was outspoken Alice Springs Magistrate Denis Barritt SM (now retired):

I would think that if they applied literally within 12 months there would be the greatest exodus from the Northern Territory that anyone could imagine... I think that sociologically [they were] not thought out with any great realisation of the problems that beset the community in the Northern Territory, because to get the whole lot of the Anunga’s applied in the one case, to get them all done perfectly, is about as easy as it is to work out one of those cube blocks that they are selling around town at the moment.24


22 R v Cedric Kennedy (unreported decision by Gallop J in Northern Territory Supreme Court, No. 232 of 1978).

23 For a more detailed discussion of how they are applied, see below, text following n 31.

24 Quoted in Coulthard v Steer (1982) 12 NTR 13.

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His virtual defiance of the law on the issue earned Barritt SM a rebuke from the Supreme Court, which overturned his decision to admit a Record of Interview into evidence, although it had not been obtained in compliance with the Anunga Rules:

The stipendiary magistrate also appears to have difficulty in understanding that in the exercise of his functions he is required to follow and be guided by relevant principles of law, procedures and practice enunciated by superior Courts... His references... were unfortunate and inaccurate ...25

One might think Magistrate Barritt would have been suitably chastened after this reprimand, but not long afterwards he decided to admit another confession, again taken without an interpreter, into evidence. During this trial, the defence contested the admissibility of the Record of Interview, and called the accused himself to testify as to his own understanding of what had taken place at the police station. The following extract from that testimony provides a glimpse of the depressingly familiar scenes of non-communication which are enacted daily in the police stations and courtrooms of outback Australia:

What did the policeman say to you at Papunya Police Station?— They was keep asking.

What did they keep asking you?— About the car.

Now, when you - when a policeman asks you questions in the police station do you have to talk to the policeman?— I had.

Why did you have to talk to the policeman?— Because he keep asking me.

Did the policeman say to you when you were in the Papunya Police Station, did the policeman say to you, "Look, Bob, if you talk to me I’m going to write down what you say and I’m going to show it to the judge". Did he say that?— Yes.

25 Coulthard v Steer (1982) 12 NTR 13, per Muirhead J.

25


What does that mean.— I don’t remember.

Now, did the policeman say to you "Bob, you don’t have to talk to me if you don’t want to". Did he say that?— Yes...............................................

What does that mean?— It mean write (inaudible) to magistrate.

And what happens?— And then he keep asking me.

What, he just keep asking you?— Yes.26

Justice Muirhead was no more impressed by this performance, or the judgment of Barritt SM, than he had been two years previously. In his decision to uphold the defence’s appeal, he said:

There is a tendency in all of us to assume that as we may understand a person who is talking in his second language in a simple conversation in English, his understanding of our conversation is reciprocal. That is not so when the conversation involves rights or principles which are pretty confusing, such as an explanation of a right to silence followed by questioning of an offence and references to telling it all to a judge. It involves competing pressures and odd logic to the mind of many an Aboriginal person in custody hence the very real need of painstaking care to ensure each phrase of the caution is truly comprehended. And it is for this reason that the use of an interpreter is so essential.27

Nevertheless, and regardless of how unarguably fair and reasonable the above comment may appear, it is Magistrate Barritt’s view which has in practice prevailed. First, the courts have generally been prepared to connive at the continuing police practice, discussed below, of not using interpreters. Second, the courts, perhaps influenced by criticism of the Anunga Rules,

26 Jabarula v Svikart (1984) 11 ALR 8, 11 A Crim R 131.

27 Jabarula v Svikart (1984) 11 ALR 8, 11 A Crim R 131, per Muirhead J.

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blunted their impact by conferring on them the status of mere discretionary guidelines, rather than binding rules.28 And third, it is generally agreed the Rules’ standard ("as fluent in English as the average white man of English descent") is both unrealistic and unnecessarily rigorous,29 a weakness which has made them vulnerable to attack.

The Australian Law Reform Commission has criticised the status quo and proposed legislation which would prevent the admission into evidence of confessions from Aboriginal people unless the court is satisfied that the suspect:

• understood the caution (that is, understood that there was no requirement to answer questions and that any answers might be used in evidence),

• understood the nature of the questions put, and• did not answer merely out of deference to authority or suggestibility.30

In the Northern Territory, the Anunga Rules have been incorporated into Police Orders.31 They state (correctly) the prisoner’s friend "may be the same person as the interpreter", and set out in no less than 12 paragraphs of fine detail the procedures to be followed for selecting, briefing and utilising the prisoner’s friend. There are no equivalent instructions concerning interpreters. The only operational guidelines for the use of interpreters included in the orders are apparently adapted from procedures relating to speakers of foreign languages:

17 If a statement or answers given by a suspect or witness is in a language other than English, an interpreter must be used. The following procedures also apply:

17.1 the interpreter should take down the statement in the language in which it is made;

28 Collins v R (1980) 31 ALR 257.

29 Interviews with judiciary, police, lawyers, November 1993.

30 Australian Law Reform Commission (ALRC) Report No 31: The Recognition of Aboriginal Customary Laws, AGPS, Canberra, 1986, Par 677.

31 Police General Orders Q2: Questioning People Who Have Difficulties With The English Language — The "Anunga" Guidelines, May 1992 (unpublished, used by permission). Interestingly, the interpretation of the "guidelines" taken by the police is in one respect broader than was originally intended by Forster J. They purportedly apply not only to Aborigines, but extend "to migrants and possibly other groups as well".

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17.2 an official English translation should be made in due course and be proved as an exhibit with the original statement; and

17.3 the suspect should sign only the original statement.32

If the Anunga Rules themselves can be criticised as being "unrealistic" in part, this section of the Police Orders is patently absurd. First, no interpreter in any language should be expected to simultaneously interpret for and transcribe a police interrogation. Second, Aboriginal languages are not traditionally written, and even today, very few speakers, including competent interpreters, would be sufficiently literate in their first language to be able to transcribe a police interview. And third, in the ten years for which the Aboriginal Interpreter Service has operated in Alice Springs, there has never been a request for an "official English translation" of a record of interview.

These objections would be serious if Aboriginal people did in fact make statements in their own language to police in the course of being interviewed. The reality is that their contribution to the interview is, linguistically speaking, almost negligible, usually amounting to little more than ritualised monosyllabic responses.33 One recent account cites a transcript of a police interview in which "although forty-one questions had been asked of the witness, he had only uttered four audible words apart from yeah and no.. ,".34

In a recent and by no means extraordinary committal hearing,35 the viewing by the court of a videotape of an interview with a rape suspect showed unmistakably, and despite the protestations of the interviewing officer to the contrary, that the interview had been little short of a farce: unfortunately, the police were faced with a genuine and common difficulty, the inability to find a male Pintupi-speaking interpreter, and had instead taken the common course of using the ’prisoner’s friend’ to do the task. The videotape showed this friend, whose garrulous behaviour created the unavoidable impression he was mildly intoxicated, had only a limited command of English himself, no idea whatsoever of the role of a professional interpreter, and a profound lack of

32 Above, n 31, par 17.

33 See above, n 22.

34 M Cooke, "The Aboriginal Witness in Court" in Eades, above, n 8 p 13.

35 Police v Jungari and Others (unreported matter in Alice Springs Court of Summary Jurisdiction, heard on 24 April 1991).

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understanding about the procedure of police interviews, specifically the caution. That interview should never have taken place, but the officers who had conducted it testified they had been acting within police guidelines.

The overall effect, then, of these police orders is to focus on the prisoner’s friend, rather than the interpreter, and the comm<on result has been that possibly appropriate and adequate prisoner’s friends are almost invariably co-opted to become highly inappropriate and inadequate "instant” interpreters. The police officers in charge of the investigation Deferred to above did act within the guidelines, and the guidelines are based on the Anunga principles, but in the translation, so to speak, an essential point of these principles — the entitlement of a suspect to understand what is going on when he or she is being interrogated — has fallen by the wayside.

The use of the prisoner’s friend as an untrained interpreter, as well as the widespread practice (especially in the bush) of using an Aboriginal police aide as an (also untrained) interpreter, are undesirable from another perspective too: the need for interpreters to be impartial. For different reasons, neither of these two categories of people could reasonably be expected to be completely free from bias. Should conflicting accounts arise concerning the events that took place during an interrogation, it is essential the interpreter be an independent participant whose testimony regarding what was, and what was not said, is reliable and credible.

•Recent changes to police procedures, notably the recording of interviews,36 have added a new dimension to the debate. The court now has the opportunity to hear and in many cases see exactly what happened behind the doors of the interview room, and to decide on that ba sis whether an interview was conducted properly, instead of having to rely on the indirect evidence of the police transcript of a Record of Interview. lit cannot of course rely unquestioningly on the evidence of video-taped interviews: the camera does not record prior exchanges between police officers and suspects, in the course of which inducements or threats may have been made. Nevertheless, in the words of a senior serving police officer, "the old cowboy antics" are no longer an option, as Records of Interview do not pass muster at the voir dire unless they have been obtained in "strict adherence" with the new rules. On the other hand, in some cases confessions which are Hater proved to be untrue

M' Under the Police Administration Act 1992 (NT), ss. 139-143, from 1 July 1994 Northern Territory police will be obliged to electronically record all investigative interviews conducted in relation to offences carrying a maximum penalty in excess of 2 years imprisonment. These provisions currently apply for offences carrying a penalty of 7 years or more imprisonment.

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continue to be obtained from Aboriginal suspects by skilled police interrogators working within the letter of the Anunga Rules and the requirements of the Police Administration Act 1992 (NT).37

Interpreters (as distinct from ’’friends" or police aides pressed into service as ersatz interpreters) are still rarely used by the police. The Aboriginal Interpreter Service in Alice Springs receives only a handful of requests from police each year. The police themselves concede that while they don’t "often" call an interpreter, "we go to great lengths to use a prisoner’s friend, and in some sense they are being used in that [interpreter] role".38 According to Justice Kearney this practice, which he has criticised from the bench on a number of occasions, is wrong:

In a situation where [Aboriginal people with a limited command of English] are to be interrogated, the use of a competent interpreter should be more the rule than the exception it appears to have become... The importance of using interpreters... appears to be somewhat overlooked these days when it comes to non-sophisticated outback people. This is a trend which must be smartly reversed.39

Yet it apparently continues as the norm, a strong indication it has received the de facto sanction of at least some sections of the judiciary.

In the view of a former Principal Legal Officer of the Central Australian Aboriginal Legal Aid Service (CAALAS), the police may apply the Anunga Rules literally, but they have never been committed to applying them in spirit: "I have never seen a prisoner’s friend who played a useful role. They are a mere token."40 A clear instance of this is provided by the ritualistic manner in which the caution is administered. What used to appear in a transcript as a relatively coherent and succinct exchange of information is nowadays often revealed on videotape as an extraordinarily drawn-out and virtually meaningless formality, after the ordeal of which the interrogation itself becomes, as one Magistrate puts it, "hopeless".41

37 Stewart Brown, interview, November 1993.

38 Detective Superintendent John Daulby, interview, November 1993.

39 R v Martin (1991) 105 FLR 23, per Kearney J.

40 Stewart Brown, interview, November 1993. A similar view was expressed by a prison welfare officer (Mai Comock, interview, November 1993).

41 Deland, SM, interview November 1993.

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The principle objective of the Anunga Rules was to give practical effect to the right to silence.42 That objective has not been achieved. The long- established practice of police verballing of Aboriginal suspects who do not speak standard Australian English43 may be difficult to sustain in the brave new world of videotaped interviews, but there is no doubt that suspects’ rights, including their right to an interpreter, continue to be systematically frustrated in the bush.

Court Interpreting

The divide in opinion between upper and lower courts over the use of police interpreters is also reflected in the differing attitudes of judges and magistrates about whether, how, and under what circumstances, court interpreters should be used with Aboriginal witnesses and defendants. There are exceptions on both sides of course, but on the whole judges, who work in Ma much more ‘considered’ atmosphere",44 tend to encourage the use of interpreters, while magistrates do not. Pam Ditton, a former senior solicitor with the Central Australian Aboriginal Legal Aid Service, recalls:

One of the worst situations is where I’ve gone into court (this has happened on more than one occasion, with more than one magistrate) saying that my client doesn’t speak much English and that I’d like to use an interpreter, and the magistrate says "I’ll determine whether the client can speak English", and puts the client in the witness box, and then the client is asked a question and says "yes", and the magistrate says, "well, she can speak English" and the trial proceeds in English.I haven’t had that experience with the Supreme Court. ... There are a few things that may explain the magistrates’ attitude. The magistrates have a horrendously high workload. They have got lists pages long every day, and they somehow want to end at 4.21 [the official "knockoff time for Northern Territory public servants], so they develop a culture of feeling resentful of anything which takes up more time. I don’t think that’s good enough, but it is a partial explanation.45

42 See R v Jimmy Butler No 1 (unreported decision in Supreme Court of Northern Territory of Kearney J in (1991) Northern Territory Judgments 1061).

43 See D Eades, "Stuart and Condren: The Case for Aboriginal English" in Eades, above, n 8 for the application of forensic linguistic analysis to two well-known cases involving the police verballing of Aboriginal suspects who were not proficient in standard English.

44 Stewart Brown, interview, November 1993.

45 Interview with Pam Ditton, November 1992.

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The Royal Commission into Aboriginal Deaths in Custody discovered similar attitudes: "One Magistrate advised that Courts of Petty Sessions are already overworked and that to explain everything to each defendant would result in the court becoming completely ‘bogged down’".46 Ditton also attributes some of the negative attitudes she has encountered to the effect on the courts of experiences with inadequate interpreters.47 There is something of a vicious circle here: as with any specialised skill, proficiency comes with practice. One of the only ways for Aboriginal court interpreters to acquire the practical experience needed to achieve a level of competence acceptable to the courts is in the courtroom on the job. In the words of one interpreter, "You’re still learning while you’re doing interpreting. You get confidence. I’ve got more confidence in myself from doing interpreting."48

As with police interpreting, there are problems with a perceived lack of impartiality. When an interpreter is called to court, usual practice is for one side or the other, rather than the court itself, to do so. This not only undermines the credibility of the interpreter’s independence, exposing him or her to the suspicion of "the other side" and frequently the magistrate or judge, but it also means that it is up to the parties to take the initiative of arranging, and paying for the interpreter. A better model would be for interpreters, at least in criminal matters, to be retained by the court itself, at no direct expense to the parties. In the Northern Territory at least, however, the courts themselves do not generally share this view.49

At a recent Coronial Inquest50 into the shooting of an Aboriginal man by Northern Territory police, a non-Aboriginal interpreter was retained throughout the hearings, much of which were conducted at the home community of the deceased, on Elcho Island off the coast of Amhemland. This in itself was unprecedented, and due no doubt to the extraordinary sensitivity of the case and its implications for community-police relations.

46 RCIADIC (Commissioner Dodson) Regional Report of Inquiry into Underlying Issues in Western Australia, AGPS, Canberra, 1991, p 146.

47 See below, text at n 103.

48 Interview with "CS", November 1992.

49 For example, comments of Asche CJ in Queen v Lauder (unreported decision of Supreme Court of Northern Territory. February 1991), in which he stated that it is not the court’s responsibility to pay for an interpreter.

5<) Referred to in Cooke, above, n 34. The findings of the inquest were delivered by Coroner McGregor SM at Galiwin’ku, Northern Territory, 3 June 1991. In deference to Aboriginal law the name of the deceased is not used here.

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SILENCE IN COURT'

Of particular interest here is the interpreter’s own account of the response of counsel when he was called on to interpret for Aboriginal witnesses:

[Some lawyers] were obviously irritated by the way the presence of an articulate, bilingual interpreter transformed the course of crossexamination, counter-balancing the immense advantage counsel could otherwise use over a witness through his mastery of the English language as the primary manipulative tool in the court-room context...There was frequent contention among counsel over whether particular witnesses required an interpreter.31

Understanding the Silence

"Aboriginalism" and the Conspiracy of Silence51 52

This identification of language as a "primary manipulative tool" is critical. The criminal justice system is a coercive state apparatus which utilises a variety of strategies, one of which is the imposition of a particular mode of discourse on its "clients". The linguistic acts which constitute legal discourse are not merely, or even primarily, a means of communication, but, as Muecke terms them, "interventions”:53 "what is important in a text is not what it means, but what it does and incites to do".54 And what does the language of the law "do" to non-English speaking Aboriginal people? Among other things, it constructs them as silent, and hence unknowable, depersonalised and objectified Others. They are not admitted as participants in the system, but as components which are processed by it. The metaphor of a "sausage machine" is repeatedly and aptly invoked when discussing the nature of the legal system in this context.55 And the image, however unpalatable, of Aboriginal defendants, witnesses and complainants as pieces of meat, vividly conveys their mute status in court.

The "cone of silence" which is placed over Aboriginal people who are drawn into the legal system is but a particularly stark example of both a strategy

51 Cooke, above, n 34, p 4.

52 The epithet "conspiracy of silence" has also been applied, in a distinct but related context, by Fesl: Conned! Language and the conspiracy of silence, A Koorie perspective, UQP, St Lucia, Queensland, 1993.

53 S Muecke, "Lonely Representations: Aboriginality and Cultural Studies" in Power, knowledge and Aborigines (1992) 35 Journal of Australian Studies 38. (Emphasis in original).

54 Lyotard, J, Driftworks, edited by R McKeon, New York 1984, quoted in Muecke, above, n 53, 39.

55 Interviews with Deland SM, Stewart Brown, Mai Comock, Prison Welfare Officer, November 1993.

33


employed by the criminal justice system against people in general, and of what Attwood, drawing on Said’s critique of Orientalism,56 calls "the discourse of Aboriginalism", "how European power and knowledge have constructed Aborigines (and Aboriginally)".57 A key aspect of this characteristically colonial mode of discourse is that "European knowledge of the autochthonous people is peculiarly dependent on representations which construct ‘the Aborigines’ in their absence. These representations impose very real limits on what can be thought, said, or even done about Aborigines."58 In the legal system, "the Aborigines" are, in a literal and formal sense present at their trials, but, through the exclusive use of a language foreign to them, they are, for most intents and purposes, effectively absent.

Until very recently, the legal system has produced a construction of Aboriginal property rights based on the concept of terra nullius. That same system continues to construct their language rights on the (unspoken) assumption of a "vox nullius". A similar device is also observable in the terrain of Australian historiography, which, at least up to the last decade or so, legitimated European dispossession of Aboriginal people through "strategic forgetting [which] gave rise to what the anthropologist W E H Stanner called ‘the great Australian silence’".59 By effectively depriving Aboriginal people of a voice, institutionalised organs of state coercion, of which the legal system is a prime example, simultaneously claim for their own discourses a position of privilege, and subvert any potential contestation of this social order by Aboriginal discourses, which are simply erased.

The language of the law creates a powerful but illusory myth that by following its baroquely technical conventions, a court can find out what "really" happened, when in fact it is more accurate to say that all it does is to "’ensure a narrative of a particular shape and style... examination and cross-examination of witnesses is about the construction of a body of belief, rather than about uncovering a simple and unchanging ‘objective truth’".60

56 E Said, Orientalism, Pantheon Books, New York, 1978.

57 B Attwood, "Introduction" to Power, knowledge and Aborigines (1992) 35 Journal of Australian Studies ii.

58 Attwood, above, n 57 (emphasis added).

59 Above, n 57, vi.

60 H Goodall, "’The Whole Truth and Nothing But..Some Intersections of Western Law, Aboriginal History and Community Memory" in Power, knowledge and Aborigines (1992) 35 Journal of Australian Studies 111.

34

"SILENCE IN COURT "

The critique of "Aboriginalism" suggests that "power, knowledge and Aborigines are mutually constitutive - they produce and maintain one another".61 If this is true with respect to the treatment of Aboriginal people by the legal system, then one would expect to find tlhat the "cone of silence" is so deeply embedded in the system that those responsible for its operation at all levels, as well as Aboriginal people themselves, accept and in practice support the non-use of interpreters. By and large this is the case: there is, rhetorically speaking at least, a "conspiracy of silence" in which police, lawyers, magistrates, judges, Aboriginal people and even those responsible for the provision of Aboriginal language services are all complicit.

And perhaps the term "conspiracy", which is defined as "a combination or agreement between two or more persons to carry into effect a purpose harmful to some individual, or to particular classes of the community...",62 has more than rhetorical relevance here. There is no doubt that the denial of Aboriginal interpreters is systematic, harmful, and intended by a "combination" of people. To the extent that it intentionally contravenes legal rights it would appear to constitute joint action for an illegal purpose.

Inside the Cone: Aboriginal Parties in Court

One obvious reason why Aboriginal interpreters are seldom used to assist in the taking of evidence from non-English speaking Aboriginal suspects and witnesses, is that non-English speaking Aboriginal suispects and witnesses are seldom called to give evidence. This is because they are considered by counsel to be very poor witnesses who Cannot be relied on to withstand the rigour of cross-examination, with or without an interpreter.63 And, as has been seen, on occasions when such witnesses are call ed, there is considerable resistance to the use of interpreters, who are seen to impede cross-examining counsel.64

On the infrequent occasions where they are called, Aboriginal witnesses are usually required to present evidence which will not be strongly contested. And a convention has arisen in the Northern Territory that to mitigate the embarrassment and delay which would inevitably ensue if the normal rules of evidence were observed, objections are, by "tacit arrangement" ’, not raised

61 Above, n 57, ii.

62 I E Hardy, Mozley & Whiteley's Law Dictionary (10th edition) Bufcterworths, Sydney, 1988, p 100.

63 Kearney J, Stewart Brown, interviews, November 1993.

64 See, Cook, above, n 50.

35


when counsel use leading questions in their conduct of the examination-inchief. Kearney J describes this practice as a "little bit of a fraud",65 a convenient bending of the rules to facilitate the introduction of evidence by a witness who actually says almost nothing in the box, but is merely required to signify agreement with evidence which is, in effect, led from the bar table.

The regressive decision in the Northern Territory to abolish the use of either unsworn or sworn statements from defendants has further narrowed the extent of their actual participation in proceedings. The Australian Law Reform Commission has recommended their re-introduction.66

I have not sought to interview non-English speaking Aboriginal people who have been "through the sausage-factory" about these issues. In part this is because I too am complicit in the construction of these people as "poor subjects", people without a voice, or by extension, a view. Having seen scores of them sit uncomprehendingly through the criminal proceedings against them, I am tempted to conclude that their muteness is itself eloquent enough: they are conspicuous by their silence, and neither expect nor desire to participate more actively in the system. Such an "Aboriginalist" conclusion would be both glib and unsubstantiated, although it is commonly expressed,67 and there is no evidence to suggest that it is seriously inaccurate. But Aboriginal interpreters themselves, who are uniquely qualified to break the silence, do report an occasional dissenting voice, as with this vignette from the 1986 Judicial Commission ("’the Morling Inquiry"’) into the Chamberlain case. Kunmanara Cousens interpreted the prolonged examination and cross-examination of two Aboriginal trackers:

What the witnesses didn’t like was why these people kept asking the same questions. The witness said to me [in Pitjantjatjara] "why have you fucking gotta ask the same questions over and over again? I’ve already told you that!" But I didn’t use the swear word when I was interpreting back into English. I was ashamed. Too many people. The courtroom was full. The next room was also full of people watching it on video [closed circuit television]... The media chased you up the [corridor] and asked you questions, photographers and that, but we were told by the lawyers to say "no comment".68

65 Kearney J, interview, November 1993.

66 ALRC, above, n 18, ss 21, 22.

67 Interviews, Stewart Brown, Mai Cornock, November 1993; various personal communications.

6X Interview with Kunmanara Cousens, November 1992.

36

"SILENCE IN COURT"

Here, the presence of an interpreter empowered the witness to contest the hegemonic mode of discourse. But the interpreter herself was subject to that same hegemonic power and, capitulating to it, became its agent by ’erasing’ her client’s expression of anger from the record. The sense of constraint is re-inforced by the silence imposed on her by the lawyers when she was confronted by journalists.

Inside the Cone: Aboriginal Interpreters in Court

This example raises the disturbing suggestion that when interpreters are called, instead of representing an authentic Aboriginal voice, they may in fact serve primarily to impose the oppressive discourse of the law more effectively onto Aboriginal people. In South Africa, where interpreters are used as a matter of routine in criminal cases (and where, as a matter of routine, the accused is undefended),69 interpreters have themselves been routinised "as an integral part of the state machinery,... susceptible to its ideology, and, in turn, reproducers thereof... The result was that undefended accused... were routinely denied a fair trial."70 Without wanting to draw an odiously strict comparison with the South African experience, it does caution that the uses to which legal interpreters are put may be dictated by the functional requirements of the system itself. The interpreters become, as Steytler puts it, "a cog in the court machinery".71

The liberal Australian legal system can of course be distinguished from the authoritarian apparatus of an apartheid regime. Aboriginal accused are invariably defended in court, and a central aspect of the ideology which frames our legal system is a commitment to equality before the law, which underpins the limited but justiciable rights to an interpreter discussed above.72 Nevertheless, in practice the system devolves responsibility for protecting the rights of Aboriginal accused onto a legal aid agency which itself is formed by, participates in and reproduces the hegemonic mode of legal discourse, a mode which, as has been seen, effectively denies the personal voice of the accused.

69 "Undefended accused... constitute almost 85 per cent of ail accused today [in South Africa]": N Steytler, "Implementing Language Rights in the Court: The Role of the Court Interpreter" (1993) 9 South African Journal on Human Rights (Part 2) 206.

70 Steytler, above, n 69, 220.

71 Steyler, above, n 69,

72 See, above, pp 20-31.

37


In South Africa, the interpreter is regularly used by the state to ’’facilitate the expeditious completion of cases"73 on its behalf. In Australia, by contrast, the Aboriginal interpreter is rarely used to expedite the completion of cases, as there is general agreement that their use in court would generally slow down, complicate and increase the cost of proceedings.74 In those exceptional cases where the system is unable to tolerate the continued silence of Aboriginal people because, as for example in the Elcho Island inquest or the Chamberlain case, obscure and problematic events have occurred to which Aboriginal people were uniquely privileged witnesses, then an interpreter is called. And as has been shown, in those cases various constraints both explicit (such as objections from counsel) and implicit (such as the oppressive formality of proceedings) serve to ensure that the role of the interpreter is confined, as far as possible, to maintaining the integrity and dominance of the system’s mode of discourse. Aboriginal voices are heard, but their voices are mediated in such a way as to confine them within narrow bounds established by the court. The interpreter, as in South Africa, becomes, after all, "a cog in the court machinery”.

This may help to explain the marked reluctance of many otherwise suitably qualified Aboriginal people to work as court interpreters.75 The interpreters’ primary orientation is towards assisting their own people:

The reason we set up the Aboriginal Interpreter Service was because we really needed it, so we can train up our mob and get them to go along and get them to interpret for their own people... Our people were just getting into trouble and getting put into gaol and that was it, nobody did anything about it like go along to interpret.76

By contrast "the system" requires that the interpreter’s primary orientation is to assist the court. Without exception, the mono-lingual non-Aboriginal people interviewed identified as a disadvantage of working with interpreters, the occurrence of uninterpreted "conversation" between the interpreter and the suspect, accused, witness or client. This intrusion of "the Other" language into the pristine world of English is perceived as a threat to the control which judges, magistrates, lawyers and police "naturally" exercise. Moreover, it

73 Steytler, above, n 69, 208.

74 See, above, text at n 45-47; interviews with Deland SM, Chris Roberts (Crown prosecutor), Kearney J, Mai Comock, Stewart Brown, November 1993.

75 Deland SM, Stewart Brown, interviews, November 1993; personal experience.

76 Interview with Veronica Dobson (first Co-ordinator, Aboriginal Interpreter Service), November 1992.

38

SILENCE IN COURT'

reveals a persistent sense of distrust about just who the interpreter is working for, an unease to which the interpreters themselves are keenly sensitive:

I reckon — yeah, they thank you after you’ve finished — but still, you’ve got that feeling they sort of still don’t believe you, the feeling I’ve got is they’re up there and we’re still sitting down here interpreting, and they are still sort of putting us down, like we are interpreting all right, but they are still sort of like controlling us, you know? I think every interpreter feels this.77

Not that these feelings are confined to Aboriginal interpreters, as this complaint by a Greek interpreter from Sydney reveals:

In my twenty-one years as an interpreter I have discovered that there is no such thing as the status of interpreters. What is an interpreter?In courts we are invariably treated as a necessary evil by a lot of people... We are forced to sit around and wait for hours in case we are needed in an adjournment and, while we are waiting, nobody takes any notice of us. What is the status of the interpreter? Who cares about the interpreter?78

The conclusion to be drawn from this discussion is that, as suggested above, Aboriginal interpreters have been co-opted into complicity with all other participants in the legal system to maintain "the cone of silence". Unlike in South Africa, where the veneer of legality covering a coercive system is almost transparent, in Australia that system is decently clothed in a more substantial and publicly acceptable mantle of ideology which relies heavily on the invocation of liberal rights. But in places such as Central Australia, the sharp edges of the underlying structure poke through. This rent in the fabric is evidenced by the contradiction between, on the one hand, generally stated agreement that interpreting is not only "a good thing", but, moreover, "the right thing", and on the other, a general practice which either excludes or seriously constrains the use of Aboriginal legal interpreters.

77 Interview with "CS",November 1992.

78 N Galanos, in Interpreting and the Law: Proceedings of a Conference, P Martin, ed, NAAATI Canberra, 1991, p xviii.

39


Linguistic and Cultural Issues

This marginalisation of Aboriginal legal interpreters has in turn been seriously exacerbated by the immense linguistic, cultural and practical problems they face.

The linguistic situation in Central Australia is extraordinarily diverse, even by the standards of a country as polyglot as Australia. Some sixteen Aboriginal languages are widely spoken in the region, and although most of them fall within three major groups (Arandic, Western Desert and Warlpiri), this diversity sets language services providers a major challenge. These language communities are typically small, remote and confined to a particular geographical area. The task of finding a competent interpreter, often at very short notice, from amongst perhaps only a handful of available speakers living in Alice Springs — for it is in Alice Springs that the bulk of legal matters in the region are dealt with — can at times be an impossible one.

And difficult as the situation is in Central Australia, it is even more complex in another region in which there is a high concentration of predominantly non-English speaking Aboriginal people: the Northern Territory’s Top End. The number of languages there is closer to one hundred; many communities are traditionally multi-lingual, with members of different clans using different languages; and the tyranny of remoteness is compounded by the isolation imposed by the tropical Wet, which more or less cuts off many areas for months at a time. These reasons alone go a long way to explaining why, despite much talk and several attempts, the establishment of an Aboriginal interpreter service in the Top End has yet to be achieved.79

Another set of linguistic issues concerns the language of the legal system, and the difficulties faced by Aboriginal interpreters in faithfully and intelligibly rendering it for their Aboriginal clients. Legal interpreting is not an easy area for professionals working with European or Asian languages: the extensive and obscure terminology, and the excessively formal and even archaic manner of speech used in the courts require a particularly high level

79 Calls for the establishment of a Top End Aboriginal interpreter service date from the 1970s, and continue to be made (see, for example, Cooke, above, n 34, p 29.) A detailed history of the establishment of the service in Central Australia can be found in R Goldflam, "Silence in Court" in Eades, above, n 8. A third region in which the need for an Aboriginal interpreter service has long been identified is the Kimberleys. In November 1993 staff of the Language Centre at the Institute for Aboriginal Devlopment (IAD) in Alice Springs were invited to visit the Kimberleys to assist in the establishment of a service through their experience of the one set up by IAD in 1983.

40

SILENCE IN COURT'

of skill on the part of interpreters.80 But in addition to these challenges, Aboriginal interpreters are faced with another, more fundamental difficulty. Not only are the words used in court unusual and strange, but virtually all the concepts they express — and indeed the entire legal setting — are alien to traditional Aboriginal society, and therefore extremely difficult to express in its languages.

Interpreters are caught in an unenviable position here: if they try to explain the meaning of a particular key concept, such as "indictable offence" or even such a seemingly innocent term as "intend", they will disrupt the flow of proceedings and quite possibly be suspected by the court or police of indulging in unauthorised conversation with the client. If, on the other hand, they gloss the concept with a "shorthand" interpretation, there is a very real risk that the client will not have understood what was meant at all. Training can go some way to address this problem, but the courts too can assist, as was pointed out recently in a letter to the judiciary by a group of Pitjantjatjara interpreters:

We want to work as interpreters to help the courts and our own people to communicate better. We believe there is an obstacle to our work, however, and this is the "lawyers" language’ used in the courts. Some of the words and expressions used in court are not only hard for Aboriginal people to understand, they are also almost impossible to translate into our language. This problem is worrying, frightening and frustrating for us. When we are interpreting we feel as if someone’s life is in our hands — if we make a mistake we feel we could be to blame for a person not getting justice in court. We think that the courts can help us with this problem by making the English we have to interpret simpler. Please speak to us in plain everyday English. This would enable us to do our job properly and professionally. We are looking forward to continuing and increasing our work for the courts to bridge the gap between white and black Australians.81

80 See Y Maley, "The Language of Legislation" (1987) 16 Lang Sac 25, for an analysis of the linguistic features of one aspect of legal language, and her conclusion that "legislative communicative competence is not simply ‘picked up’; it is a learned communicative skill or craft which produces a craftbound discourse, an insider language..." (at 26).

81 Letter to Peter Manuel, Clerk of Court, Port Augusta, from Rex Stuart, Maria Stewart and Millie Taylor, 19th September 1992.

41


The "Plain English" approach has received some attention from the Victorian and South Australian governments,82 but clearly more could be done in this area. It should also be recognised that there are limits to what can be achieved in this way. Long and obscure terms can be replaced by shorter and simpler ones, but the complex legal and linguistic concepts which lie behind them may not be similarly susceptible. In some cases, the well- intentioned substitution of a commonly understood word or phrase for a piece of legalese (such as "want" for "intend", or "big trouble" for "indictable offence") may mislead an interpreter into inappropriately rendering it with its everyday meaning instead of its technical legal sense.

There is also the problem of the discourse structure of examination and interrogation.83 These rely heavily on the use of direct questioning, a speech style which is highly inappropriate in Aboriginal languages as a means of eliciting information. Eades’ work in this area in relation to Aboriginal English84 is also highly pertinent to speakers of traditional Aboriginal languages: the normal methods of examination and interrogation will often simply not work, because they are in breach of the sociolinguistic rules which Aboriginal speakers use. Interpreters, usually the only bi-cultural and bi-lingual people in the situation, may well have the skills required to help resolve this problem, but the narrow way in which their role is defined — "interpret exactly what is said, and nothing else" — prevents them from doing anything much about it.

As Mr Justice Forster put it in the Anunga case85, "some Aboriginal people find the standard caution quite bewildering even if they understand that they do not have to answer the questions because, if they do not have to answer questions, then why are the questions being asked?"86

Police officers and lawyers ply suspects and witnesses with seemingly endless questions to assist the legal system to find out exactly what actually happened, and it is in this relentless search for the precise facts that Aboriginal interpreting so often comes unstuck. Aboriginal languages are so

82 Bird, above, n 8, p 18.

83 The term "discourse" is used here in its conventional linguistic sense, referring to "the organisation of sentences in texts", rather than, as in the previous section, in its "Foucauldian" sense (see Muecke, above, n 53, p 34).

84 See, for example, D Eades, Aboriginal English and the Law: Communicating with Aboriginal English speaking clients: A handbook for legal practitioners, Queensland Law Society, Brisbane, 1992.

83 R v Anunga (1976) 11 ALR 412.

86 For a discussion of the problem of "gratuitous concurrence" see Eades, above, n 84, pp 51-54.

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SILENCE IN COURT"

unlike English it is sometimes very difficult to get th<e message across. Even the most commonplace and cliched of courtroom questions, from "where were you on the night of the 24th?" to "I put it to you that you didn’t see the victim again after midnight, did you?"87 can be extremely difficult to interpret into Aboriginal languages. Cooke’s graphic and detailed account of Aboriginal evidence given at an inquest both with and without the assistance of an interpreter is peppered with examples of linguistic interference of this type.88

All these difficulties are exacerbated by "cultural" factors: for example,speakers of Central Australian Aboriginal languages, and of Aboriginal languages generally, are bound by sociolinguistic rales which prohibit the discussion of "women's business" or "men's business" with members of the opposite sex. On occasions, the courts have shown a lack of sensitivity to this important feature of Aboriginal culture, as "CS"' recounts:

Once when I was interpreting for a woman — she was raped — the prosecutor was asking me to say how she was laying and how that man was — thing, you know, and I was ashamed to say that because that bloke was sitting down there. For us we Aboriginal people we can’t say the exact things they want us to say because that's how we are... that judge was getting a bit annoyed too because 1 told him I can't say that in English, you know I'd be shamed, we have been brought up like that, but in the end I said it anyway but I still felit shamed. And that woman, she didn't want to answer me but I told her "you've got to answer me because these people are saying so’". If I was in that situation again I reckon I'd walk out. You know if we interpret those words Aboriginal people might get offended, and they might see us if they're out walking and say "you think you're white! What you got to go and say them things like that for?"89

87 The first example involves a date, no equivalent for which exists in Aboriginal languages. The second uses the "you didn’t... did you" question tag. Even if the interpreter' is able to convey the emphatic skepticism implied in this question, and find a meaningful equivalent for the legal term "victim", and the word "midnight", there is likely to be a problem in interpreting the witness’ response: a "yes" would probably mean "what you say is right, I didn’t see her again", rather than "I did see her again, what you say is wrong", which is the Standard English meaning of the answer "yes" to this question.

88 See Cooke, above, n 34.


43


On some occasions when a woman has been sent to interpret for a man, she has been unable to do the job because he was involved in ceremonial ’’business", during which any contact with women is strictly prohibited:

One time we went and there was that young man there and he was from the bush [ceremonial] camp, and he was all covered up [ie wrapping himself in a blanket to avoid being seen]. I just took one look and that was it. No way.90

Another frequently identified problem of interpreter selection is the use of kin.91 With small language groups and extended families, it can be extremely difficult to find an interpreter who is not compromised by their relationship to one, or even both parties:

You know when they had those killings at [place name]. They rang me and I went "for a witness". I didn’t ask then, maybe I should have. Anyway I said "All right I’ll go in then." When I went in and they told me [who it was for], I said "Oh no!" And I went into the courthouse and all the people were sitting there, all the [family name] and all the [other family name]... I told the prosecutor "I’m sorry I can’t do it" and they asked why, and I said "No, that’s my relations, and that’s my relations too both sides, and how am I going to interpret like that?" And they reckoned to me "Could you get somebody else please?" and I thought I’ll get [name of a non-Aboriginal interpreter]. And especially with the [place name] mob, if you’re interpreting, they might get the wrong idea, they say "Oh you’re supposed to be my relation and you’re doing things for [the other family] - you’re working against us". That’s the first thing they’ll say to you. So I just refused to interpret. And my big brother said "That was good you done that".92

The moral of this story is of course that full details should be specified at the time of making the original request. Getting a non-Aboriginal interpreter was the solution in this case, but is not always appropriate either. In R v

9(1 Interview with Kunmanara Cousens, November 1992.

91 See O Bieundurry, "Mother-in-Law in Court" in Ngali December 1980, pp 10-12, for an account from the Kimberleys of the difficulties that would be faced by a Walmajarri man in trying to interpret for his classificatory mother-in-law.


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"SILENCE IN COURT

Williams, the defendant refused the services of an interpreter who was not an initiated man.93

These general linguistic and cultural problems are exemplified by two critical moments in the legal process at which the "cone of silence" is sometimes almost palpable: the administration of the oath, and the taking of a plea.

Of particular concern to nineteenth century courts was the problem of how to obtain evidence under oath from godless people who were considered to be quite beyond the prevailing cultural and religious pale. As recently as the 1930s this dilemma concentrated the mind of our legislators, who passed a special Ordinance in the Northern Territory which enabled Aboriginal witnesses to be sworn in the following bizarre manner:

You bin savvy that trouble bin come up alonga Mt Doreen, along that one Jimaja. Now we want you to tell us about that trouble. No more gammon, no more humbug. You tellum true fella all the time; no more what other blacks bin talk alonga you, but what you bin see yourself alonga your own eye. Now talk out loud fella, all bin want to hear, big fella boss, and all about, talk true fella, all the time, no more be frightened.94

The courts are less patronising and more flexible in their approach to the administration of the oath (or affirmation) these days, but its interpretation remains a challenge for Aboriginal court interpreters. Here is how one Pitjantjatjara-speaking group dealt with the problem in the course of a recent training program, with an (approximate) English gloss:

Nyuntu mulamulangku kututunguru kalkuni Mamaku Bible-angka [Do] you truthfully [the] heart-from promise [the] Lord's Bible-on

ara panya wangkantjaku court-angka wangka kutjulikutu mulapa story that to say court-in word each [the] truth

w 14 SASR 1, cited in A Ligertwood, "Aborigines in the criminal courts" in Aborigines and the Law, P Hanks, & B Keon-Cohen, eds, George Allen & Unwin, Sydney, 1984, p 203.

94 Application of Evidence Ordinance NT (1939) s 9A, in R v Braitling and Wilson (Supreme Court of Northern Territory Wells J, 2 August 1945, unreported), cited in J McCorquodale, Aborigines and the Law: A Digest, Aboriginal Studies Press, Canberra, 1987.

45


wangkantjaku? Munu alatji watjala,"So help me God". to speak? Then like this say, "So help me God".95

Another, more ceremonious, version of the oath translated into Gupapuyngu (a Top End language) has been rendered into English as "By your father’s father’s head, or by his bones, or by his sacred totem, is this really true?"96 In the actual courtroom the oath is administered with due solemnity daily to Aboriginal people without an interpreter, in a situation in which all present are aware that the person so swearing has no more than the vaguest idea of what he or she is actually swearing to.97

Another element essential to the conduct of a criminal trial is the taking of a plea from the accused. In the Northern Territory the court is required to inquire into the fitness of a person to plead if "it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial so as to be able to make a proper response...".98 One case in which the courts grappled with the problem of explaining the complex and technical meaning of the legal term "guilty" was the 1985 trial of a Pintupi man who had been one of the last of his people to come in from the desert just a few years before. In consultation with the interpreter, the court finally accepted a plea of guilty on the basis of a Pintupi formulation "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 give evidence".99 A more common response is for the court to turn a blind eye to the provisions of the Code by simply accepting the submission of defence counsel that the accused has provided "instructions".

Aboriginal interpreters themselves have attempted to develop appropriate means of interpreting the plea in the course of their training, as with this example of translating the guilty plea into Pitjantjatjara:

Ngayulu mukuringanyi watjantjaku court-angka ngayulu katantanu kura palyara walpalaku tjukurpa panya walkangku watjanta ngayulu kunyu

95 Language Centre, Institute for Aboriginal Development (IAD), Leghal Interpreting: A NAATI Level 2 Course for Pitjantjatjara Interpreters, Port Augusta, Adelaide College of TAFE, Adelaide, 1992.

96 G Lanyipi, in Ngali Dec 1980, p 19. A Kriol translation of the oath, affirmation and an "Aboriginal Ceremonial Oath" has also been published (E Roberts, and R Tukumba, in Ngali June 1982, p 9.

97 Deland SM, interview, November, 1993.

98 Criminal Code, 1983 (NT), s 357 (1).

99 R v Jacky Jagamara, Supreme Court of Northern Territory, O’Leary J. (1985) 12 ALB 12, cited in J McCorquodale, above, n 94, p 400.

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SILENCE IN COURT"

palyantja, mununya patani court-angku ngapartji kura palyaltjaku ngayunya.

(7 want to tell the court that / have broken the law, that I did that wrong thing the way the police say I did, and that I am waiting for the court to punish me.)100

The problem is not unique to Aboriginal Australia. Steytler reports that a Zulu equivalent to "guilty" has yet to be "fully developed".101

This has been a necessarily superficial examination of the linguistic difficulties involved in Aboriginal legal interpreting. A further insight into the dimensions of the problem can be gained by reference to the experience of Tanzania, a nation with a viable national vernacular language, Kiswahili, and a long-standing political commitment to its adoption as an official language of the law.102 And yet in the three decades since independence, progress towards that end has been painfully slow, despite the marked general decline in the use of English, and the fact that the judiciary and the bar have been successfully indigenised. This can be attributed to various factors, one of which is the enormity of the task of "processing" the language of the law from English into Kiswahili. In a Parliament where many MPs do not speak English at all, all legislation is still drafted, enacted and promulgated in that language.103 Although proceedings are often conducted in Kiswahili, they are published in English. Legal education continues to be dominated by English. In short, if Tanzania, with the considerable resources of a sovereign state at its command, has been unable to shrug off the colonial legacy of an imposed legal discourse, it could hardly have been otherwise that Aboriginal interpreters in remote areas of Australia have been similarly hampered.

Practical Problems

Since the establishment of an Aboriginal Interpreter Service in Alice Springs ten years ago, the provision of trained and competent Aboriginal professionals in any of more than a dozen languages at little or no notice for

1<K) In Language Centre, IAD, above, n 95.

101 Steytler, above, n 66, p 212.

102 See B Rwezaura, "Constraining Factors to the Adoption of Kiswahili as a Language of the Law in Tanzania" [1993] 37 Journal of African Law (No. 1) 30.

103 Only the Constitution (1977), the Law of Marriage (1971), the Penal Code and a handful of other Acts have been translated into Kiswahili (above, n 102, p 41).

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complex and sensitive court or police interpreting has turned out to be something of an unattainable ideal. At the same time, the Service, in promoting itself, inevitably created unrealistic expectations of what could be achieved. It was often unable to provide properly skilled interpreters, particularly in its first years of operation, and it sometimes underestimated the skills needed to get jobs satisfactorily done. With hindsight it must be admitted that the Service’s early approach, which on occasions could have been fairly described as "half an interpreter is better than none", while understandable, was misconceived.104

I’m afraid that some of the [negative] attitudes of some of the magistrates were fuelled by some of the grossly premature releasing of various IAD so-called "interpreter graduates" onto the court system.It just wasn’t working. The majority of those early interpreters just had no comparison to the interpreters who came from the ethnic interpreter service in Sydney... It’s not entirely surprising that the service was different, but the service provided by those early IAD interpreters was just so inadequate to a court system so as to turn some magistrates and, I admit, some lawyers, to the view that we’d better struggle on without.105

Unfortunately, legal interpreting standards aren’t particularly negotiable: the consequences of one small legal interpreting error can in some cases be devastating to the people involved. And although the quality of interpreters available through the Service has significantly improved over the last ten years, the problem of standards remains. Training for Aboriginal interpreters, where it is available, is to NAATI Level 2. The nationally recognised standard for court interpreting is NAATI Level 3.106 Whereas Level 2 courses are in the order of 200 hours in length, corresponding to a TAFE Certificate, Level 3 courses are offered as three year full-time university courses at Bachelor degree level. And to be frank, there is no prospect of developing Level 3 training programs for Aboriginal interpreters in the foreseeable future.107

104 As Co-ordinator of the Interpreter Training Program for some of this time, I accept a share of the responsibility for this well-intentioned but unfortunate approach.

105 Interview with Pam Ditton, November 1992.

106 See Martin, above, n 76, p 67. (NAATI: National Accreditation Authority for Translators and Interpreters).

107 There have been some discussions between NAATI and the Institute for Aboriginal Development regarding the recognition of Aboriginal interpreters at Level 3 by means other than through completion of an accredited course

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"SILENCE IN COURT

Even where there is an interpreter service, finding a suitable interpreter can be difficult:

Well, sometimes they ring us up and want an interpreter straight away.I always say that they should ring us a couple of days earlier, to give us enough notice. Sometimes, I have to ring them back and say sorry but we can’t find anybody.108

The problem was that we didn’t have any actual men interpreters and if the courts needed a man interpreter it was pretty hard for us to get a man to do the job. We’d usually just tell them that we couldn’t find a man to do it. You had to try and see if you could get a woman, but the women normally always refused to go and do interpreting if it’s a man’s problem.109

Breaking the Silence

The Problem of the Market

The literature is littered with authoritative pronouncements endorsing the need for Aboriginal interpreters in court. For two decades the judiciary, academics, Aboriginal people and organisations, and government reports have called for the provision of Aboriginal legal interpreting services.110 Comments in the National Report of the Royal Commission into Aboriginal Deaths in Custody are typical in tone of many:

Interpreters must be provided to Aboriginal defendants whenever necessary... The tension engendered by court proceedings, the style and formality of language used by lawyers often means that much of what occurs is foreign to the defendant... I stress that reducing the intimidating atmosphere of courts is not only necessary to reduce the

108 Interview with ”CS" (former Co-ordinator, Aboriginal Interpreter Service), November 1992.

109 Interview with Veronica Dobson (former Co-ordinator, Aboriginal Interpreter Service), November 1992.

110 For example: E Eggleston, Fear, Favour or Affection: Aborigines and the Criminal Law in Victoria, South Australia and Western Australia, Canberra Press, Canberra, 1976, p 153; Y Lester, Aborigines and the Courts and Interpreting in Court, Institute for Aboriginal Development, Alice Springs, 1974; G Brennan, The Need for Interpreting and Translation for Australian Aboriginals, with Special Reference to the Northern Territory — A Research Report, Department of Aboriginal Affairs, Canberra, 1979; Ligertwood, above, n 92, p 208; RCIADIC, above, n 2, Recommendation 100; Cooke, above, n 34, p 29.

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perception of racism and injustice, which many Aboriginal people feel characterises the court process, but is also essential if the courts are to gain an accurate appreciation of the issues which are relevant to questions of guilt or innocence and to sentencing.111

Similarly, the Australian Law Reform Commission has recommended: "interpreters [be made] available where needed at all stages of the criminal justice process (ie during police interrogation, as well as in the courts)".112 Yet like so many carefully researched and thought out recommendations for improvements to the law, these measures have so far remained on the drafting table. This cannot be just because either resources or political will are lacking. The Royal Commission itself reportedly cost over $30,000,000. The introduction of Aboriginal interpreter services across the board could not conceivably cost more than a small fraction of this amount. And, unlike the Mabo debate, for example, it is not as if the issue is hotly contested: there are no public calls to stop interpreters, or claims that their use would infringe the rights of one or other section of the community.

Despite this, there is no imminent prospect of significant improvement in the provision of Aboriginal legal interpreters. As in Tanzania, where the erratic progress towards using Kiswahili in the courts "is a matter of expedience rather than a deliberate policy decision",113 the reformist calls for change here will continue to be ignored simply because they will not work, and furthermore, despite the supportive rhetoric, those responsible for managing the system know it.

As long as the system continues to construct what I have called a "cone of silence" around Aboriginal people, and there is no reason to suppose that this is likely to change, the system will not, except in certain highly restricted situations, accommodate Aboriginal interpreters. The proposed introduction of interpreters is a form of welfarist intervention to make the "market" of the legal system a fairer one. But regulating markets is a tricky business, and where there is neither latent demand nor an assured supply of quality product, the prospects for stimulating "trade" in a socially beneficial but unwanted and unavailable commodity are meagre.


111 RCIADIC, above, n 2, Volume 3, p 77.

112 ALRC, above, n 30, par 600.

113 Rwezaura, above, n 102, p 7.

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"SILENCE IN COURT

From this perspective, some continuing calls for an increase in Aboriginal interpreter services can be seen to perform something of a disservice. One recent account of the sensitive use of an Aboriginal interpreter enthusiastically concludes that such use will, if generally adopted, "ensure that justice will be afforded to all who come before Territory Courts."114 This type of optimism is misguided. Its reformism presupposes the possibility of successful implementation, and obscures the structural barriers which this paper has tried to show conspire to defeat such well-meaning initiatives. Certainly, this has been to a significant extent the experience of the Aboriginal Interpreter Service over a decade in Alice Springs. Furthermore, the liberal appeal to the right to equality before the law which underlies the calls to reform serves to validate and legitimise a system which continues to coerce Aboriginal people through its "Aboriginalist" discourse.

And if substantial intervention is not going to work, then it would be a mistake to commit substantial resources to it. The Commonwealth Attorney- General’s Department, using funds made available to implement the findings of the Royal Commission into Aboriginal Deaths in Custody, has recently committed considerable funds to Aboriginal legal interpreter training in South Australia.115 Before spending more on this program the Department should evaluate what has been achieved so far. As one of three lecturers employed in it, my own view is that it has probably achieved very little. There may well be other, more effective programs aimed at reducing Aboriginal levels of imprisonment which are more deserving of government funding.

Practical Proposals

Despite these reservations, a number of worthwhile suggestions have been made. One approach would be to attempt to negotiate a consensus between service providers and users on a more appropriate role for the interpreter than the relatively strict and technically narrow one currently in place.116 The idea of using a "cultural broker" in this way was proposed as long ago as 1979, but has received little attention:

114 K Gillman, "Going to Court in Deafness Awareness Week" (1991) 16 Legal Service Bulletin (No. 5) 247. The case referred to in the article is R v Lauder (unreported matter heard before Kearney J. in the Supreme Court of the Northern Territory in Alice Springs on 26 August 1991).

115 This involved training programs in 1992-3 at Port Augusta, Yalata and Coober Pedy which were conducted by the Institute for Aboriginal Development for the South Australian Department of TAPE. See Language Centre, I AD, above, n 95.

116 Not that the role of the court interpreter in Australia is generally settled. See for example the ’court official v expert witness’ debate in Martin, above, n 76, xvii ff.

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Trained interpreters ... would have a task extending beyond strict interpreting: as "cultural brokers” they would explain the proceedings of the court to the defendant or witness, as well as report that person’s statements to the Court in standard English. It would be best if they were allowed to use their discretion as to which utterances are interpreted, and speak up only when requested (by any participant) or when they spot a potential misunderstanding.117

A major stumbling block with this approach is likely to be that the judiciary would not easily relinquish its monopolistic exercise of "discretion” in the courtroom, a matter which goes to the very heart of the issues discussed above regarding the control of legal discourse.

A related suggestion, put forward by a magistrate who rejects the "cultural broker" model described above, is for interpreters to be attached to courts of summary jurisdiction to assist with the "routine" processing of bail applications, guilty pleas, sentencing and so on.118 This would not involve either the rigour or the formality required of an interpreter in the more traditional role associated with the taking of evidence, and could be an effective method of familiarising less experienced interpreters with the court setting without subjecting them to the pressure of trial conditions. Participants in such a scheme would however run the risk of being co-opted, as has occurred in South Africa, to be mere "cogs in the machinery".

There is scope too for interpreters to play an increased role before and after actual court hearings, to ensure that defendants are properly briefed and proofed, to assist solicitors to give advice and take instructions, and to communicate the meaning and effect of sentencing decisions and other court orders.119 Some of these tasks are currently carried out by Legal Aid field officers, who should be strongly encouraged to undertake interpreter training.

One specific function expected generally of Australian court interpreters is to keep the defendant informed, usually through "simultaneous whispering interpreting", of the entire proceedings. In Central Australia at least there does not seem to be any expectation on the part of either courts or counsel that this should occur, and so far as I am aware it has rarely been requested of Aboriginal interpreters in this region. Presumably, it is expected that

117

118

119

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D Nash, "Foreigners in their own Land: Aboriginals in Court" in (1979) 4 Legal Service Bulletin 106.

Deland SM, interview, November 1993.

Stewart Brown, Mai Comock, interviews, November 1993.

"SILENCE IN COURT"

defence counsel will tell their client what has occurred on a "need to know" basis during adjournments. Further training could be provided to Aboriginal interpreters to equip them to perform this task. However, to be realistic, the technical demands involved in such exacting work, even with intensive training, would be beyond the capacity of all but a small handful of currently working Aboriginal interpreters.

One apparently viable administrative reform that could be introduced concerns the arrangements for paying for interpreters. Currently, they are paid for in a bureaucratically cumbersome process by whichever party calls them, the interpreter service operating on a so-called "user-pays" basis. Ultimately of course there is only one (taxpayer) pocket out of which these various payments are made, and the whole piecemeal procedure could be streamlined simply by funding the service provider to provide interpreters "free of charge" to all users.

All of these proposals nibble around the edges of the problem. That is a sensible strategy for a problem that is so fundamentally intractable. Nevertheless, there is one approach which would involve tackling the core issue of control over the legal system itself. In some parts of North America, native Americans administer their own criminal codes in their own summary courts. Such an approach could be comfortably incorporated into the developing models of Aboriginal self-government which have been under serious discussion within Aboriginal organisations and communities at least since 1988. Under such a system it is possible to imagine the locus of control shifting, the privileged position of fOHrial legal discourse being displaced, and Aboriginal interpreters flourishing. No doubt the indigenisation of the administration of criminal justice would bring with it a new and challenging set of problems, but it would offer perhaps the only conceivably real alternative to the existing paradigm. And without an alternative model of justice to break the silence, the prospects for Aboriginal legal interpreting are limited.

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