u4840397

School of Language Studies

Assignment cover sheet

Course code: LING2016 Course title: Language in Indigenous Australia

Lecturer: Jane Simpson Tutorial day & time: Thursday 9-11, 5-6 Tutor: Jane Simpson

Assignment: Final Essay Word count: 3289 (Excluding Footnotes and bibliography).

By submitting this assessment item you declare that:• you understand the College’ s assessment policies

http://cass.anu.edu.au/current-students/education-policies • you understand the ANU Code of Practice for Student Academic

Integrity http://policies.anu.edu.au/policies/code_of_practice_for_student_academic_integrity/ policy

• you are fully informed about methods of acknowledgement appropriate to this assessment item

• you have not copied, paraphrased or summarised, without appropriate acknowledgement, the words, ideas, scholarship or intellectual property of another person

• no part of this work has been written by any other person except where such collaboration has been authorised by the course convenor

• no part of this work has been previously presented for assessment either at the ANU or elsewhere, except where authorised by the course convenors concerned

• no part of this work falsely represents data, observation or other research activity as genuine, comprehensive and/or original, and you have not invented the data, used data gathered by other researchers without acknowledgment, or wilfully omitted data to obtain desired results. ‘

Academic misconduct can seriously jeopardise your academic career, your future, and, if you are an international student, your ability to stay in Australia to study.The University takes academic misconduct seriously and may take action under the Procedure: Code of Practice for Student Academic Integrity or the Discipline Rules 2009.

Name (please print clearly): Rebecca Higgins University ID U4840397 Phone 0421939476 Signed RH Date 12/11/2012

Turning the Light on in the Law

1

u4840397

Turning the spotlight onto the issues faced by Indigenous people in the Australian Legal System so that they cannot be ignored.

1. Approach and FocusThe linguistic conventions present in many Aboriginal languages and non-standard

varieties of English spoken by Aboriginal people are particularly at odds with the

conventions of court proceedings. Given that most speakers of Standard Australian

English (SAE) struggle to keep up with ‘legalese’1 during legal proceedings, it is not

incredible that these issues are particularly exacerbated for those who do not speak

SAE as their first language. Areas that most frequently lead to miscommunication,

identified by Eades (Freyer-Smith; 2008) are direct questioning, misinterpretation of

silence, gratuitous concurrence and difficulties with quantitative specification. These

issues obviously frequently arise in the context of court proceedings; in the police

interviews before the trial, during the giving of evidence, cross examination and in

understanding individual rights; for example the right to silence, to a support person,

to translators etc.

This essay will show how the legal culture in Australia is in such contrast to the

linguistic conventions and culture of Indigenous people so as to institutionally

discriminate against those who do not speak Standard Australian English (SAE) as

their first language, creating an impassable barrier to receiving a fair trial.

Furthermore, it will show that without some serious changes in the culture of the

profession, there is little likelihood of finding and effectively implementing measures

in the current system to reconcile the communicative differences. Finally, this essay

will evaluate those measures already suggested and consider some alternatives to

remedy the problems identified, in doing so the rules of evidence and criminal

procedure in NSW will be used (to consider each state separately is impossible for

this paper).

For the purpose of making the following more readable, Aboriginals who do not

speak Standard Australian English as their first language will be referred to as non-

SAE Aboriginals. This means any Indigenous person whose first language was not

1 The specialized vocabulary and linguistic culture of the legal profession.

2

u4840397

SAE, whether they speak a different variety of English, a creole, a traditional

language or other instead2.

2. Linguistic Conventions of the Australian Legal System

a. Introduction

Before outlining the communication issues encountered by Aboriginals who do not

speak SAE in the legal system, the linguistic conventions and attitudes of that system

must be considered. From conventions of police questioning to the interpretation of

‘story telling’ (Eades 2007) during examination-in-chief, the legal system has its own

linguistic culture (Eades 2007: p2), which, as will be shown below, is significantly

different to Aboriginal culture which leads to miscommunication and

misinterpretation of evidence.

b. Storytelling

An integral part of court proceedings is story telling and the comparison of different

stories to weigh which seem most reliable. As a consequence, the outcome of most

cases in Australia often comes down to contradictions and inconsistencies in those

stories. Eades (2007: p2) discusses ‘the fundamental contradictions between everyday

storytelling and retelling on the one hand, and the expectations and interpretations of

storytelling and retelling in court on the other’ ultimately showing that the

expectations of those involved in the legal system are of such a nature as to most

likely work against Aboriginal defendants.

The main issue with storytelling in the courts is the structured way in which evidence

must be given, while Aboriginals are more comfortable narrating stories freely and

volunteering information as it comes up. During court proceedings, the ‘story’ is

segmented into small bits spurred by questions from lawyers (Heerey 2000, Tiersma

1999) and limited by the rules of evidence. Similarly police interviews are structured

and limited by police questions. Thus the story is organised and relevant parts chosen

by the legal persons rather than the witness themselves.

2 It must be noted however, that this is a large generalisation, as the linguistic patterns and conventions of all varieties and languages other than SAE spoken by Aboriginals can obviously not be assumed to be uniform and may vary on a few, or even all of these points depending on individual cases.

3

u4840397

A good example of how this negatively impacts the quality of information gathered is

‘Daphne’s story’ (Eades 2007: p3) where an Aboriginal woman’s evidence to police

officers was so disrupted by questioning that when allowed to present her account in

narrative form, it was revealed that she had committed the act in self defence. As a

result, the charges were changed from wilful murder to manslaughter. However

unlike Daphne, in Kina’s case (Eades 2007: p4), this style of questioning hindered the

discovery of crucial factors leading to the stabbing of her husband. It was not until

allowed to tell her story freely in a television interview after the trial that Kina’s real

story was revealed. Another trial was run to remedy this large oversight.

There are however legitimate legal reasons for the structuring of stories. The rules of

evidence, for example, place great restrictions on what can be used as evidence (for

example to avoid hearsay). Furthermore witnesses could unwittingly offer information

damaging to their own case, such as their own involvement in the crime or other

behaviours bringing their credibility into question. Thus the filtering of these factors

from stories is quite necessary, it is rather the way in which this is done that poses a

major sociolinguistic and ultimately legal problem where non-SAE Aboriginals are

concerned.

c. Questioning

Not only are stories highly structured and controlled by lawyers, but often the lawyers

are more verbose in their questions than the witness in their responses (often yes/no).

This may be done for legal purposes – the witness may simply be inarticulate or less

able to frame responses articulately, a factor likely to lessen the impact of their

evidence. The practice of closed questioning allows lawyers to highly control

responses, witnesses being asked questions requiring minimal response, yes/no, to

elicit specific information. Such questions nearly always anticipate a particular

response (Eades 2007: p5; Harris 1984). While this practice may be aimed at

increasing the credibility of evidence and taking pressure off witnesses less able to

effectively communicate their story, it takes all power to negotiate points of the

evidence away from the witness, victim or defendant in question.

4

u4840397

The truthfulness of these responses will often be tested by repeated questioning with

the underlying ‘cultural assumption that information is generally sought and verified

by questions’ (Eades 2007: p14). However for those from traditional Aboriginal

backgrounds, unfamiliar with the practice of interviews, the directedness of this

approach can have more negative impacts on their responses and indeed cause

variation in their responses, creating the impression of unreliability. Furthermore it

leaves open a hoard of other linguistic factors to tamper with the integrity of the

evidence, such as gratuitous concurrence (discussed below).

d. Legalese

It is worth noting the functioning language of the legal system sometimes referred to

as ‘legalese’. There is such a law-specific body of jargon and linguistic conventions

used amongst those in the profession that most SAE speakers untrained in the area

find legal proceedings quite the challenge to understand. For those who do not have

any/great fluency in SAE itself and come from a culture even less like that of the

formal courtroom, proceedings are even more difficult to comprehend.

This issue can be resolved through a change in register; slower speech, less jargon and

less formal structures to ensure the non-SAE has understood. Potas et al (2003: 10)

commented on the ‘striking’ effectiveness of ‘colloquial language in place of

complicated terms and legal jargon’ in increasing effective communication in the

Circle Sentencing Court of NSW.

3. Linguistic and Cultural Factors

a. Introduction

To effectively discuss measures to remedy misunderstandings in proceedings it is

necessary to consider each linguistic issue individually and how it interacts with the

legal process.

i. Direct Questioning

According to Eades (1988), ‘privacy of others thoughts and feelings’ are of the

upmost respect and thus ‘indirectness is the preferred method of interaction’ both in

giving and obtaining information (Freyer-Smith 2008: 5:7). The obvious implication

5

u4840397

of this is that at all stages of the legal process, inaccurate information may be being

relied upon for evidence. However the further consequence is that where what Freyer-

Smith terms ‘the unsophisticated Aboriginal’ (2008: 5:7) misunderstands proceedings

or has questions, they may not seek or receive the information required because of

this aversion to directness.

ii. Gratuitous Concurrence

This issue is the ‘tendency of a speaker to agree with a proposition or question which

is put to them, regardless of whether they speaker truly agrees with that proposition or

question.’ (Freyer-Smith: 2008), regardless even of whether they may have

understood the proposition. Aboriginals are even more apt to concur with such

questions when put to them by someone of ostensible authority. The court room, a

particularly formal arena, along with those asking questions such as police officers in

uniform, lawyers in suits and wigs etc are intimidating at the best of times, and so

likely to elicit this phenomenon, especially where the person being questioned does

not understand the proceedings or what is being discussed in front of them, as Freyer

Smith and Eades (2008) signal that this is also the effect of resignation to the

fruitlessness of a situation.

iii. Respect for privacy

Aboriginal culture, usually with communities living in camps, is generally very public

(Hamilton 1981) and social interaction is usually based around the preservation and

strengthening of kinship ties. Thus there is little discussion of private matters, and any

conversation topics that may give rise to such topics are actively avoided. Liberman

(1982) (in Eades 1988) explored this issue considering the importance of maintaining

‘consensus’ in communities in the Western Desert through the ‘unassertiveness of

participants, avoidance of direct argumentation, a deferral of topics which will

produce disharmony’. Similarly Eades (1988; 105) draws a comparison to people in

Southeast Queensland who completely avoid expressing firm opinions, preferring to

have open discussions and gauge the general consensus first.

This avoidance of stating firm convictions openly creates issues in legal proceedings

as it may lead to witnesses appearing inconsistent, unreliable and untrustworthy.

6

u4840397

iv. Quantitative Specification

Many traditional Aboriginal languages do not formally specify matters in terms of

their number, time or distance and thus many use such concepts inaccurately or

completely avoid them (Departments of Justice et al: 2000)3. This obviously creates

difficulties in the giving of evidence and can lead to the unfair impression that

witnesses are unreliable or unable to accurately remember the events in question,

weakening the strength of their evidence.

v. Non Verbal Communication

As with any language, non-verbal factors play significant roles in communication,

however the meaning of these features are very different for non-SAE Aboriginals

(cultural factors play a large role) compared to those with SAE as their first language.

Direct eye contact, for example, for speakers of SAE, is a sign of self-assurance,

trustworthiness and respect whereas in Aboriginal cultures it may be interpreted as

disrespectful or in extreme cases, even aggressive. In the context of giving evidence

to police or in front of juries, avoidance of eye contact, which is increased in

situations with people of authority to show respect, is likely to count against a witness

to such an extent as to discount any sense of reliability connected with their statement.

Silence is an extremely significant factor in police interviews and court questioning,

and in these contexts is likely to have negative connotations. The subtext of long

silences in cross-examination or police questioning is guilt, confusion and avoidance

of questions. However for many Aboriginal persons it is ‘an important and valued part

of communication’ (Freyer-Smith: 2008, 5:5) and can indicate a desire to consider the

question fully, to formulate an accurate response or simply to ‘become comfortable’

(Freyer-Smith: 2008: 5:5) in a situation.

Lastly, a common aspect of communication between Aboriginal people is tactile

communication, however for obvious reasons, ‘uninvited touch’ (Freyer-Smith: 2008,

5:6) in situations involving police or lawyers may be interpreted as violent or hostile. 3

7

u4840397

4. Towards a Solution?This is ultimately a multifaceted issue and thus there must be solution for each part of

the problem. Firstly, there must be measures taken to rectify the problems associated

with the questioning of non-SAE Aboriginals and the eliciting of evidence both before

and during court proceedings. Secondly, the way in which the court proceedings are

run must be altered or measures taken to ensure that non-SAE defendants and even

witnesses are aware of what is taking place during the legal process. This could even

extend to interaction with defendants legal representatives, as in Kina’s Case it was

there that the problem manifested first. Lastly, the way in which evidence given by

non-SAE Aboriginals is assessed and received by legal representatives and jurors

must be addressed so that all those involved in assessing information understand the

context in which it has been given and the implications that may have on its

credibility.

As far as current measures are concerned, Diana Eades’ (various works, see

bibliography) work with Freyer-Smith for the ‘Aboriginal Benchbook’ (2008) has the

potential to have a revolutionary impact. Her suggestions include:

1. Clear, simple and slow speech (2008; 5.4.1)

2. Ordinary tone of voice/everyday manner of speech

a. i.e. avoidance of harsh tones of voice especially in courtroom as can

intimidate speakers of Aboriginal English. (2008; 5.4.2)

3. Using traditional/preferred name of the speaker (2008 5.4.3)

4. Use indirect questions

a. e.g. ‘I’m wondering whether you were at the house’ then waiting until

the person can respond in their own time. (2008; 5.4.4)

b. Or make a statement and await confirmation or denial e.g. ‘It seems as

if you were at the house’ (2008 5.4.4)

c. Or frame questions as statements ‘you were outside the house?’ (5.4.6)

5. Avoid either or questions

6. Do not correct speech, use long sentences, use figurative speech or ask

negative questions, as they are easily confusing. (2008; 5.4.8).

8

u4840397

While these are pragmatic measures particularly useful in the police interview and pre

trial consultations with lawyers, many lawyers and police officers are unaware of

them and thus unable to implement them.

Furthermore, the likelihood of eliciting inadmissible material is more likely with such

open ended questions thus presiding judges could reject this manner of questioning

depending on context. For example, Eades’ suggestion of ‘you were outside the

house?’ would only be an admissible question in cross-examination, but inadmissible

under the evidence act in evidence-in-chief as it would be classed as a leading

question. Thus some her measures (particularly those concerning indirect questions)

are more helpful outside the courtroom than during actual proceedings.

Another possibility would be to have a sociolinguist with enough knowledge of non-

SAE Aboriginal language use act as a interpreter/go between in questioning so as to

ensure effective communication takes place. However this is more a pipe dream than

reality, such experts being so scarce and Eades most likely unable to attend every

courtroom in need of her expertise. Furthermore, there is a deep seated lack of

acknowledgement in the legal system of Aboriginal English (and other Aboriginal

varieties such as creoles) as a legitimately different language to SAE (Dept. of Justice

and Attorney General, 2000), thus the likelihood of having such a quasi-interpreter

permitted in proceedings at this point in time is very low.

The solution I believe to be both most implementable in the current legal system and

most likely to effectively address the main issues in the courtroom would be a video

recording of the non-SAE defendants examination-in-chief, pursuant to section 306S

of the Criminal Procedure Act (NSW). This could be recorded before the trial, and

submitted to both parties for editing with consent before being edited by the judge to

ensure compliance with the rules of evidence. The defendant could then be cross-

examined on that pre-recorded evidence (where Eades’ measures are most likely to be

successfully implemented and permitted into evidence). Not only would this comply

with the rules of evidence but it would allow the defendant to prepare their evidence

in a less intimidating environment and with the aid (if necessary) of a support person

(available to vulnerable persons under s 306ZK Criminal Procedure Act). A video

9

u4840397

would also capture the relevant non-verbal communication and if necessary linguistic

expert evidence could be provided as to the significance of that information.

Currently the only way to have such evidence admitted in to court would be to show

the defendant belongs to the necessary ‘vulnerable class’ of persons, like children, for

whom (in most states) it is permissible to pre record and edit evidence-in-chief.

Section 13(1) of the Criminal Procedure Act (NSW) provides that a person is not

competent to give evidence, whether sworn or unsworn, about a fact if that person

does not have the capacity to:

(a) understand a question about the fact, or

(b) give an answer that can be understood to a question about the fact,

and that incapacity cannot be overcome.

Once this status has been accepted, the witness, victim or defendant may give

evidence ‘in the form of a sound and/or visual recording of an interview of the

witness by an investigating official’: s 306S of the Criminal Procedure Act (The act

henceforth).

In deciding the matter, the court will consider expert evidence (s 13(8) of the Act) on

the matter of competence and thus if a linguist were able to provide evidence that the

defendant or witness was not linguistically competent enough to engage in the

procedures involved in examination-in-chief then such a solution would be

permissible. With no precedents on this point, it is hard to hypothesis its chances at

success. It could be preferable to have the Evidence Act or the Criminal Procedure

Act of each state amended to include provisions specific to non-SAE Aboriginal

people, perhaps classing them as venerable persons, enabling this measure, perhaps

with the aid of an expert (sociolinguist or interpreter). Editing with consent of both

parties and the judge would also be necessary to ensure compliance with the rules of

evidence before trial.

Alternatively, another solution would be to allow those Aboriginal witnesses, victims

and defendants who do not speak SAE as their first language to give their

stories/evidence in a less structured way. Section 29(2) of the Evidence Act allows

witnesses to give evidence wholly or partially in narrative form, where the party

applies to the court for a direction to that affect. This would allow non-SAE

10

u4840397

defendants and witnesses to retell their story in their own words, uninterrupted by

questions from counsel. However there is general reluctance by counsel to employ

this measure (Uniform Evidence Law (ALRC Report 102)/5). Perhaps more an

awareness issue than anything else.

The essential element for progression is without doubt increased awareness. There is

still little awareness in the legal system of the differences between SAE and

Aboriginal English. While some in the judiciary receive cross-cultural training this

barely touches on the complexities of dealing with Aboriginal witnesses, victims and

defendants in the courtroom. Despite some education in the area, many continue to

fail to grasp its full significance, or are unable to recognise problems as they arise.

Moreover, there is an attitude amongst many that given the apparent ‘Englishness’ of

AE, Aboriginal witnesses, victims and defendants should have no more difficulties

than the average lay witness in court (Uniform Evidence Law (ALRC Report 102)/5).

Fiscally speaking, the cost of education seminars for legal professionals would be far

less than the cost of re-running botched trials such as in Daphne’s Case and Kina’s

Case: justice for defendants, and for the community in general.

Only once the issue is generally accepted and understood amongst the legal profession

will more applications for narrative evidence or video recording of evidence be made

under the Evidence Act, subsequently leading to more rulings in favour of the

submission sociolinguistic evidence in trials, further raising awareness of the issue

and ways to rectify it. Until then, not only are non-SAE Aboriginals involved in

criminal proceedings fumbling around in the darkness of the courtroom, but so are the

legal professionals trying to run legitimate, fair trials for them and the community.

Word Count (excluding footnotes and bibliography): 3289

BibliographyCooke Michael 2004, Caught in the Middle: Indigenous Interpreters and Customary Law. Background Paper no2. Law Reform Commission of Western Australia.

Cooke Michael, 1995, Aboriginal evidence in the Cross-Cultural Courtroom. In Eades, Diana (ed.) Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia. Sydney: University of New South Wales Press, 55-96.

11

u4840397

Cooke Michael, 1996, A different story: narrative versus ‘question and answer’ in Aboriginal evidence. Forensic Linguistics 3 (2), 273-88.

Eades, Diana (Contributor), 2000, Aboriginal English in the courts : a handbook Dept. of Justice and Attorney General.

Eades, Diana Ed., 1995, Language in evidence : issues confronting Aboriginal and multicultural Australia UNSW Press.

Eades, Diana, 1988, They don’t speak an Aboriginal language, or do they? In Keen, Ian (ed.), Being BlackL Aboriginal Cultures in Settled Australia. Canberra: Aboriginal Studies Press, 97-117.

Eades, Diana, 1992, Aboriginal English and the law : communicating with Aboriginal English speaking clients : a handbook for legal practitioners, Continuing Legal Education Department of The Queensland Law Society Incorporated.

Eades, Diana, 1993, Aboriginal English Primary English Teaching Association.

Eades, Diana, 1993, Aboriginal English. PEN 93 Distributed by ERIC Clearinghouse.

Eades, Diana, 2003, The politics of misunderstanding in the legal process: Aboriginal English in Queensland. In House, Julian, Gabriel Kasper and Steven Ross, (eds.), Misunderstanding in Spoken Discourse. London: Longman, 196-223.

Eades, Diana, 2004. Lexical struggle in court: Aboriginal Australians vs. the state. Journal of Sociolinguistics 10(2), 153-181.

Eades, Diana, 2007, Telling and Retelling your story in court: Questions, assumptions, and intercultural implications Speech given at the 25th Annual Conference on Cultures and the Law in Melbourne.

Eades, Diana, 2010, Sociolinguistics and the Legal Process, Multilingual Matters.

Finegan Edward, 2010, Review of Sociolinguistics and the Legal Process (Diana Eades) The Journal of Speech, Language and the Law.

Fryer-Smith, Stephanie, 2008, The Aboriginal Benchbook for Australian Courts, Australian Institute for Judicial Administration.

Gibbons John, 1994, Language and the Law New York : Longman.

Hamilton A, 1981, Nature and Nurture: Aboriginal Child rearing in North-Central Arnhem Land, Australian Institute of Aboriginal Studies.

Harris, Sandra, 1984, Questions as a mode of control in magistrates’ courts. International Journal of the Sociology of Language 49, 5-28.

Heerey, Peter 2000, Sotrytelling, postmodernism and the law. The Australian Law Journal 74 (10), 681-691.

Liberman, K, 1982, Some Linguistic Features of Congenial Fellowship Among the Pitjantjatjara, International Journal of the Sociology of Language 36, 35-52.

12

u4840397

Liberman, K, 1982, Intercultural Communication in Central Australia, Working Papers in Sociolinguistics No 104.

McKay G.R. Ed. And Sommer B.A. Ed, 1984, Further Applications of Linguistics to Australian Aboriginal Contexts. Occasional Papers Number 8 Distributed by ERIC Clearinghouse.

Pauwels Anne, Eades Diana, Harkins Jean, 1998, Development of sociocultural understandings through the study of languages Dept. of Education, Training and Employment.

Tiersma, Peter M. 1999, Legal Language. Chicago: University Chicago Press.

Tiersma, Peter M 2006, Communicating with Juries: How to Draft More Understandable Jury Instructions. Williamsburg, VA: National Centre for State Courts.

On the right to a fair trial, Aboriginals in the legal system and Customary Indigenous Law:Committee of Inquiry into Aboriginal Customary Law, 2003, Report on Aboriginal customary law / report of the Committee of Inquiry into Aboriginal, Northern Territory Law Reform Committee.

Cunneen Chris, Libesman Terry, 1995. Indigenous people and the law in Australia. Sydney: Butterworths.

Dietrich v The Queen (1992) 177 CLR 292.

Human Rights Law Resource Centre Ltd, 2009, The Right to a Fair Hearing and Access to Justice: Australia’s Obligations Submission to the Senate Legal and Constitutional Affairs Committee: Inquiry into Australia’s Judicial System, the Role of Judges and Access to Justice.

Merry, S.E., 1990, Getting Justice, Getting Even: Legal Consciousness among Working Class Americans. Chicago: University of Chicago Press.

United Nations International Covenant on Civil and Political Rights.

Legal Resources:

Evidence Act 1995 (NSW)

Criminal Procedure Act 1986 (NSW)

Departments of Justice, The Attorney-General and Aboriginal and Torres Strait Policy

and Development Aboriginal English in the courts Queensland Government 2000.

Judicial Commission of NSW, Local Court Benchbook, Evidence from Vulnerable

13

u4840397

Persons. Accessed on 8/11/2012 at

http://www.judcom.nsw.gov.au/publications/benchbks/local/evidence_from_vulnerabl

e_persons.html.

Judicial Commission of NSW, Criminal Trial Courts Benchbook, Evidence Given by

Alternative Means. Accessed on 8/11/2012 at

http://www.judcom.nsw.gov.au/publications/benchbks/criminal/evidence_given_by_a

lternative_means.html.

14