Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
The over-representation and discrimination experienced by Indigenous peoples within the criminal justice system is now a widely recognised though an inadequately addressed problem. However, while there is ample evidence that Aborigines and Torres Strait Islanders suffer at all stages of the system, relatively little attention has been paid to the way in which criminal court room procedures and practices operate to the detriment of many Indigenous witnesses and defendants. For example, despite the breadth of its inquiry, the Royal Commission into Aboriginal Deaths in Custody did not strictly address the way in which systemic cultural barriers, biases and stereotypes impact unfairly on Aboriginals and Torres Strait Islanders involved in the criminal trial process.
A number of recent and high profile cases in Queensland including the cases of Kelvin Condren, [1] Robyn Kina [2] and the Pinkenba case [3] have highlighted the consequences of failing to accommodate the realities of linguistic and cultural difference in the courtroom. The report by the Queensland Criminal Justice Commission (CJC) is a response to the problems that these cases have highlighted. The ambit of the report is confined to the problems Indigenous people face within the Anglo-Australian adversarial legal system. Broader issues such as the recognition of Aboriginal customary law or the adoption of a more culturally appropriate justice system are not considered.
The report explores the range of difficulties faced by Indigenous witnesses in the criminal court room, including the inadequacy of translation services and problems of misinterpretation and bias which arise because of the ignorance of many lawyers, judges, jurors and other participants in relation to the cultures and languages of Aborigines and Torres Strait islanders. The report then recommends a range of reforms designed to address these and other problems, with the overarching objective of increasing the capacity of the existing court system to deal sensitively and fairly with Aboriginal witnesses in criminal cases, The report's proposed direction to juries in cases involving Indigenous witnesses who are speakers of Aboriginal English or Torres Strait Creole is deserving of particular attention.
While the report's recommendations have been developed with specific reference to Indigenous peoples in Queensland, many of its reform proposals are likely to be of relevance throughout Australia.
The Executive Summary, List of Recommendations and the Proposed Directions to the Jury (Appendix 4) are reproduced below.
This report is concerned with the barriers that face Aboriginal people who are called to give evidence as witnesses in criminal proceedings. These barriers arise largely from the clash of Aboriginal culture and language with the culture and language which prevail in the courtroom, and reflect the failure of the criminal justice system in many cases to recognise and allow for those differences. The report then proposes ways in which barriers to effective communication may be overcome. These recommendations are aimed at ensuring that:
' courts have the best possible evidence before them on which to base decisions
' courts have the facility to interpret that evidence properly
' the experience of giving evidence in court is made no more traumatic and foreign for Aboriginal witnesses than for others
' the confidence of Aboriginal people in the court system is enhanced and the system is made more accessible to them.
This research project was triggered by public debate over the conduct of committal proceedings in the Pinkenba Case and several other prominent Queensland cases involving Aboriginal people. The lack of confidence expressed by many Aboriginal people in the criminal justice system was a particular cause for concern. It is clear that many Aboriginal people, particularly women, are reluctant to report offences, to appear as witnesses or, more generally, to access the court system.
The primary focus of the report is on cultural and language issues relating to Aboriginal people, rather than Torres Strait Islanders. This was done on the grounds that:
' The court cases involving indigenous people that have assumed the greatest prominence in the legal system have predominantly involved Aboriginal people.
' There is a considerable body of anthropological and linguistic research on the language and culture of Aboriginal people, which has enabled the CJC to speak with some confidence about these matters. By contrast, relatively little work has been carried out in relation to Islanders. Aboriginal people and Islanders are often grouped together by governments when developing policy, but there are, in fact, significant differences between the cultures.
Nevertheless, some of the recommendations, for example, about the availability and use of interpreters in court, are applicable to Torres Strait Islanders and other groups. Further, it is proposed that there be consultation with representatives of the Torres Strait Islander community to ascertain whether other recommendations contained in this report should also apply to Torres Strait Islanders.
The report does not examine more general issues concerning Aboriginal people in the criminal justice system or the particular needs of Aboriginal defendants. These matters have been the subject of several other reviews both in Queensland and nationally, whereas less work has been done on addressing the issues which arise in relation to witnesses. Although it is true that relatively few cases heard in the criminal courts involve Aboriginal witnesses, the Pinkenba Case illustrates that the handling of these matters can have a significant effect on the confidence of Aboriginal people in the criminal justice system. The very low number of contested matters is at least partly attributable to shortcomings in ways in which the system currently deals with Aboriginal witnesses.
The report is confined to examining ways in which the existing adversarial legal system could be improved. Wider issues, such as the recognition of Aboriginal customary law and the adoption of more culturally appropriate justice systems, are not canvassed.
This chapter documents various socio-cultural and linguistic issues which affect interaction between Aboriginal people and the court system and which may lead to misunderstanding. These include:
Language Issues
Most Aboriginal people in Queensland speak some form of English as their first language. The great majority speak a dialect of English known as Aboriginal English. While Aboriginal English shares most of its vocabulary with Standard English, there are crucial differences in grammar, word meaning, style, pronunciation and usage. There is a continuum of varieties of Aboriginal English, ranging from 'light' Aboriginal English, which is very similar to Standard English, to 'heavy' Aboriginal English, which may not be intelligible to Standard English speakers.
Some Aboriginal people in the northern Cape York Peninsula and most Torres Strait Islanders speak Torres Strait Creole as their first language. Although Torres Strait Creole also shares vocabulary with English, it is a language in its own right and is often not intelligible to Standard English speakers.
Some Aboriginal people in Queensland speak traditional Aboriginal languages, mostly in the far north and north-west of the State. A significant proportion of those people speak English either not well or not at all.
Many Aboriginal witnesses have difficulty in fully understanding the questions put to them in court and in expressing themselves clearly in language that the court can understand. Unfamiliar legal concepts can cause particular difficulties.
Cultural Issues
'Question-and-answer' interviews are not part of traditional Aboriginal communication styles, which emphasise more indirect forms of seeking information and dealing with conflict. Many Aboriginal witnesses give apparently contradictory answers in evidence, which tend to suggest that they have agreed with whatever the questioner has put to them.
In Aboriginal culture, silence is a common and positively valued part of conversation, but silence in response to questioning in court may be misinterpreted as indicating agreement with the question or as insolence or guilt.
Aboriginal people commonly avoid direct eye contact, which may be misinterpreted in court as deviousness or lying.
Many Aboriginal witnesses give specific information such as numbers, dates and times in qualitative rather than mathematical terms, which may lead to confusion.
Other Issues
Many Aboriginal people are extremely intimidated by the court process, some to the extent that they 'freeze' in the witness box.
There is a very high incidence of hearing impairment amongst Aboriginal people, which may cause difficulties in court.
Chapter 3 considers ways in which judicial officers, lawyers and jurors might better understand and interpret the evidence given by Aboriginal witnesses.
There was widespread agreement amongst those consulted about the importance of increasing cross-cultural awareness amongst judicial officers and lawyers. While most magistrates and judges in Queensland attended indigenous cross-cultural awareness seminars in 1995, these seminars should be seen only as the first step. Initiatives recommended in this chapter are:
' the provision of information in a resource kit for judicial officers
' support by the Queensland Government for a national judicial education program for new judges and magistrates, which should include a cross-cultural awareness component
Organisation of regional symposia for judicial officers, prosecutors, lawyers and members of local Aboriginal communities to improve understanding and liaison between Aboriginal people and those in the court system.
The adversarial system depends to a large extent on the skill of the advocates in ensuring that all relevant matters are put to the court and that witnesses' evidence may be properly interpreted and understood. Cross-cultural awareness training is particularly important for prosecutors and defence lawyers who are likely to come into contact with Aboriginal people. It is recommended that appropriate training be provided to staff of Aboriginal Legal Services, the Legal Aid Office, the Office of the Director of Public Prosecutions, police prosecutors and private practitioners who perform services on behalf of those agencies.
In some circumstances expert evidence may be called to explain aspects of Aboriginal culture and language to the court. However, there are various restrictions on the use of expert evidence which may present difficulties. It is therefore recommended that the Attorney-General request the Queensland Law Reform Commission to conduct a general review of the law of expert evidence in Queensland, having regard to the findings of this report.
A further proposal is that in appropriate cases a judge may provide jurors with specific information in court about aspects of Aboriginal culture and language which may affect witnesses' evidence, in order to assist jurors' understanding and assessment of that evidence. An example, based on a direction developed by Justice Mildren of the Northern Territory Supreme Court, is provided in Appendix 4.
It may often be necessary for lawyers to spend more time with Aboriginal clients and other Aboriginal witnesses than they might spend with most witnesses, in order to develop a relationship of trust which will enable the witnesses to be forthcoming about all relevant issues. In many cases, particularly in remote communities, this is not happening. The Queensland Government must ensure that funding is sufficient to ensure that lawyers providing services to Aboriginal communities, particularly in remote areas, have adequate preparation time.
Chapter 4 considers the process of giving evidence and the questioning of witnesses in court. The standard question-and-answer style of eliciting evidence has the danger of distorting testimony and may be particularly inappropriate for many Aboriginal witnesses. The use of 'narrative' evidence, where a witness is not tied to responding only to specific questions, is possible under present law. The use of this form of evidence should be encouraged in appropriate cases by amendment to the Evidence Act 1977 (Qld).
Leading questions (that is, those which suggest the desired answer) are widely employed in cross-examination of witnesses, although the right to use leading questions is not absolute. The presiding judicial officer in the exercise of his or her control over proceedings retains a discretion to disallow leading questions. There is evidence that many Aboriginal people have a tendency towards 'gratuitous concurrence', that is, to agree with questions put to them, particularly in an intimidating environment. To deal with this situation the court's power to restrict leading questions in cross-examination should be spelt out in the Evidence Act 1977 (Qld) and it should be stated that the factors to be taken into account by the court include the witness's use of language or cultural background.
Judicial officers have wide discretionary powers to regulate proceedings before them. In addition, sections 20 and 21 of the Evidence Act 1977 (Qld) provide that a court may disallow questions which are indecent, scandalous, offensive or intended only to insult or annoy. These powers do not appear to be exercised as frequently as they might in cases involving Aboriginal witnesses. Crown prosecutors and police prosecutors should be instructed to object to questions asked of an Aboriginal witness where the witness's cultural or linguistic background puts him or her at a disadvantage. Section 21 of the Evidence Act 1977 (Qld) should also be amended to provide that in determining whether to disallow a question, the court should have regard to the witness's cultural background.
Chapter 5 considers how understanding in the courtroom can be enhanced by making greater use of interpreters. There is currently no statutory right to an interpreter in Queensland, either for witnesses or defendants. Whether an interpreter is provided for a witness is a matter within the discretion of the court, which will assess whether failure to provide an interpreter would affect the defendant's right to a fair trial. It appears that Aboriginal interpreters are rarely called in Queensland. This may be due to several reasons: lawyers often have a suspicion of interpreters which may cause them to believe that the services of an interpreter gives a witness an unfair advantage in cross-examination; the courts have shown a traditional preference to hear evidence firsthand from the witness without an interpreter; and there are very few professionally qualified interpreters of Aboriginal languages in Australia.
It is recommended that a witness should have a statutory right to give evidence through an interpreter unless he or she can speak English sufficiently to understand and make an adequate reply to questions about a fact. The language needs of witnesses should be assessed not only by initial impressions of the witness's demeanour, but by more objective standards such as those embodied in the Australian Second Language Proficiency Ratings. The courts and legal practitioners should recognise that faithful interpretation cannot always be literal and that explanation of apparently simple concepts, such as particular legal terms, may be required. The interpreter's role should not be limited to continuous interpretation. Witnesses who speak Aboriginal English may require only occasional assistance. The cost of interpreters should be met by the State.
Wherever possible interpreters should be qualified as professional interpreters, or failing that as para-professionals. However, suitable members of the appropriate community should be allowed to act if qualified interpreters are not available. The Queensland Government should make a coordinated and concentrated effort to improve the availability of interpreter training. Prosecutors and lawyers who deal with Aboriginal people who may require interpreters in court should also undergo training in how to work with interpreters effectively.
Many people consulted for this report indicated that feelings of intimidation, isolation and disorientation are common among Aboriginal people who give evidence in our courts. Chapter 6 considers changes that might be made to the court environment to make the experience of giving evidence less alienating for Aboriginal people. The location of the courtroom in the police station in remote Aboriginal communities can be particularly intimidating. More generally, the environment of the courtroom, including the wigs and robes worn by judicial officers and barristers and the fact that there are very few Aboriginal people amongst lawyers, jurors and court staff, is often very alienating. Poor acoustics can also present problems for Aboriginal witnesses given the high incidence of hearing impairment amongst Aboriginal people.
Special measures for witnesses who are likely to suffer trauma in court or to be particularly disadvantaged in giving evidence are currently available under section 21A of the Evidence Act 1977 (Qld). Those measures include the provision of a support person for the witness in court or the exclusion of certain persons from the courtroom while the witness is giving evidence. However, it appears that those provisions are rarely used, other than for victims of sexual assault; the provisions are not used for Aboriginal witnesses on one of the available grounds, namely 'cultural differences'.
The recommendations which are made in this chapter include:
' locating remote community courts at venues other than the police station
' in appropriate cases, consideration of removal of wigs and robes in court
' establishment of a pilot scheme for Aboriginal court liaison officers to familiarise witnesses with the court environment and court processes
' increasing the number of Aboriginal court staff in 'client-contact' positions
' increasing the use of existing measures under section 21A of the Evidence Act l977 (Qld), such as the presence in court of a support person for the witness.
This chapter addresses the particular, but often overlooked, needs of Aboriginal women. These needs arise from various socio-cultural factors including the high incidence of violence against Aboriginal women, and the traditional division of 'women's business' and 'men's business' which makes it exceedingly difficult for Aboriginal women to discuss sensitive matters in a predominantly male courtroom. To date, the delivery of legal and support services has not been adequate to meet the needs of Aboriginal women, who often face community pressure not to take action against another Aboriginal person. It is also clear that many participants in the criminal legal system lack awareness of the particular issues affecting Aboriginal women and that expert evidence about Aboriginal cultural matters may not reflect women's perspectives.
Recommendations are aimed at improving awareness amongst lawyers and judicial officers of issues affecting Aboriginal women, and at ensuring that the proposed indigenous women's legal services are adequately resourced. It is also recommended that cross-cultural awareness programs include discussion of the use of support persons for Aboriginal women who are victims of violence and that funding be made available to ensure that women from remote communities are accompanied by a support person of their choice when required to give evidence at distant locations.
This chapter summarises the proposals outlined in other chapters and their implications for lawyers, judicial officers and others participants in the criminal justice system.
Some recommendations require action by the legislature to amend the Evidence Act 1977 (Qld). These recommendations are largely aimed at clarifying, rather than significantly altering, the existing law. One exception which will change the existing law is the proposed amendment which allows witnesses to give evidence through an interpreter, unless they can understand and speak English sufficiently to make an adequate reply to questions put to them.
In order to redress the significant disadvantages experienced by Aboriginal people in the court system, it is unavoidable that some additional funds will need to be expended. The proposals which are likely to be most costly relate to the provision of interpreters for witnesses. It is not possible, on the information available, to predict the resource implications, but the increase in the number of cases where interpreters are used could be quite substantial, particularly as the proposal will be applicable to witnesses from other cultural backgrounds. In addition, there will need to be more spent on training interpreters of Aboriginal languages and Aboriginal English.
A second set of proposals which may have substantial resource implications concerns the Queensland Government's responsibility to ensure that Aboriginal people have proper legal representation in matters arising under State law. The Queensland Government should examine the funding of the proposed indigenous women's legal services and of Aboriginal Legal Services, particularly in remote areas. These bodies currently receive only Commonwealth funding.
Other proposals with more modest resource implications are those relating to cross-cultural awareness training and training in working with interpreters, the establishment of a pilot Aboriginal court liaison officer scheme and of support persons for Aboriginal women witnesses from remote communities.
Most of the recommendations are directed to the legal profession, the judiciary and magistracy, prosecuting authorities, legal aid bodies and court administrators. Many of the proposals necessitate an adjustment of priorities, rather than substantial additional resources, and an acknowledgment that the legal system has been insufficiently informed about, and sensitive to, Aboriginal cultural and language issues. In particular, priority should be given to cross-cultural awareness training of lawyers and prosecutors who are likely to come into contact with Aboriginal clients or witnesses. Training of other court personnel should likewise be undertaken as soon as possible. Judicial officers also have a major part to play in ensuring that Aboriginal witnesses are encouraged to be forthcoming in court and that their evidence is not misrepresented. Participation by judicial officers in measures such as regional symposia will help to increase understanding between both cultures.
The report stresses that Aboriginal people must be involved in, and consulted about, any initiatives to make the courts more responsive to the needs of Aboriginal witnesses. Several recommendations propose the involvement of the Aboriginal Justice Advisory Committee, while other recommendations stress the need to involve local communities, for example, in the implementation of the Aboriginal court liaison officer scheme. Efforts must also be made to ensure that Aboriginal women's perspectives are sought.
It is also recommended that the Attorney-General, through the Aboriginal Justice Advisory Committee, consult with members of the Torres Strait Islander community to ascertain how, and to what extent, the recommendations contained in the report should be modified to take account of language and cultural issues specific to Torres Strait Islanders.
The CJC recommends that the Aboriginal Justice Advisory Committee, in conjunction with members of the judiciary and magistracy, develop and maintain a resource kit for judicial officers concerning the aspects of language and culture that affect the way Aboriginal people in Queensland give evidence and the way that evidence is interpreted and understood in court.
The CJC recommends that the Queensland Government support the development of the national judicial orientation program for new judges and magistrates and that such a program include indigenous cross-cultural awareness issues.
The CJC recommends that the Aboriginal Justice Advisory Committee organise regional symposia involving judicial officers, prosecutors, legal practitioners and members of local Aboriginal communities. Matters to be covered in these symposia may include local cultural traditions, availability of sentencing options in the local area and concerns about the administration of criminal justice in that area. Appropriate resources must be provided to the Committee to enable it to perform this role.
The CJC recommends that the Office of the Director of Public Prosecutions, the Legal Aid Office (Qld) and Aboriginal Legal Services ensure that any of their legal practitioners who are likely to come into contact with Aboriginal clients or witnesses undergo cross-cultural awareness training. That training should address aspects of language and culture that may affect the way in which Aboriginal people respond to questioning and give evidence. Private practitioners who are funded by those agencies to conduct cases involving Aboriginal clients or witnesses should be encouraged to attend. Attendance at such training should be a factor to be taken into account by those agencies when deciding which practitioners should be funded to provide the services. Training should be devised in consultation with the Aboriginal Justice Advisory Committee and could be run jointly by those organisations, or in conjunction with appropriate bodies such as the Queensland Law Society.
The agencies organising the cross-cultural awareness training outlined in Recommendation 3.4 should invite police prosecutors to participate. The Queensland Police Service should make arrangements to ensure that police prosecutors are able to attend.
The CJC recommends that the Attorney-General and Minister for Justice request the Queensland Law Reform Commission to conduct a general review of the law of expert evidence in Queensland, having regard to the issues identified in this report.
The CJC recommends that, in cases involving Aboriginal witnesses who are speakers of Aboriginal English or Torres Strait Creole, the proposed form of information for juries that appears as Appendix 4 to this report:
(a ) be used by judicial officers as a basis for informing juries in criminal trials where such information may be necessary for the jury to assess Aboriginal witnesses' evidence fairly: and
(b) be included in the cross-cultural awareness resource kit referred to in Recommendation 3.1 above.
The CJC recommends that once current reviews of Aboriginal Legal Services in Queensland have been finalised and the funding situation is clarified, the Queensland Government take steps to ensure that funding to Aboriginal Legal Services is sufficient to properly implement the Royal Commission into Aboriginal Deaths in Custody's Recommendation 108 (that it be recognised that lawyers need adequate time to take instructions and prepare cases, particularly in remote communities).
The CJC recommends that the Evidence Act 1977 be amended to include a provision that a witness may give evidence-in-chief wholly or partly in narrative form and that a court may direct that evidence be given in this form.
The CJC recommends that the Evidence Act 1977 be amended to include a provision that a party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. In determining whether to disallow a question, the court should be required to take into account, among other things, the extent to which the witnesses cultural background or use of language may affect his or her answers.
The CJC recommends that the Director of Public Prosecutions and the Commissioner of the Queensland Police Service instruct Crown prosecutors and police prosecutors respectively to object to questions asked of an Aboriginal witness which, because of the witness's linguistic and cultural background, are inappropriate. The basis for such objections may be either the court's discretionary power to control cross-examination or sections 20 or 21 of the Evidence Act 1977.
The CJC recommends that section 21 of the Evidence Act 1977 be amended to require the court, in deciding whether a question is indecent, scandalous, insulting, annoying or offensive under section 21(1) or 21(2), to take account of the witness's cultural background.
The CJC recommends that the Evidence Act 1977 be amended to include a provision that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
The CJC recommends that the proposed amendment entitling a witness to an interpreter include a provision that, where a court has any reason to doubt the capacity of a witness both to understand and speak Standard Australian English, proceedings should not continue until an interpreter is provided.
The CJC recommends that the Aboriginal Justice Advisory Committee, in preparing the cross-cultural resource kit for judicial officers referred to in Recommendation 3.1 and the training for lawyers referred to in Recommendation 3.4, work with suitable organisations (such as the Bureau of Ethnic Affairs and the Centre for Applied Linguistics and Languages) to prepare materials on working with interpreters in court and on assessing the proficiency of speakers of English as a second language.
The CJC recommends that the Government, through the Department of Justice, pay for the cost of interpreters for prosecution and defence witnesses, and defendants, in criminal proceedings.
The CJC recommends that, where at all possible, interpreters in legal proceedings be required to be accredited at least to NAATI Interpreter level (formerly Level 3). Where no qualified interpreter is available to assist a person who is entitled to an interpreter in court, the court or legal representatives should invite local Aboriginal community groups to nominate a suitable person to act as interpreter.
The CJC recommends that the Queensland Government increase its allocation of resources to the training of interpreters of Aboriginal languages (including Aboriginal English and Torres Strait Creole) for use in legal proceedings, and that the agency responsible for that training negotiate with Aboriginal organisations in the planning and carrying out of the training. Careful consideration should be given to concentrating the training in relevant regional centres, particularly as regards traditional languages. Training programs should include (at least on a trial basis) a condensed short course designed for people who already have bicultural competence and are bilingual, to give them particular skills as legal interpreters.
The CJC recommends that the Queensland Law Society and the Bar Association of Queensland, as part of their continuing legal education activities, consider making available for circulation to interested members material about working with interpreters. This material could be based on the Law Society of New South Wales' 'Guide to Best Practice' for lawyers and interpreters working in a legal environment.
The CJC recommends that the training workshops for lawyers about working with interpreters conducted by the Bureau of Ethnic Affairs should:
(a) particularly address ways of identifying individuals who may require the assistance of an interpreter, and
(b) so far as the workshops concern indigenous language and interpreter issues,
be devised in consultation with
the Aboriginal Justice Advisory Committee.
The CJC recommends that the Office of the Director of Public Prosecutions, the Legal Aid Office and Aboriginal Legal Services ensure that any of their legal practitioners who are likely to come into contact with Aboriginal clients attend the Bureau of Ethnic Affairs workshops on working with interpreters, or similar workshops. Private practitioners who are funded by those agencies to conduct cases involving Aboriginal witnesses should also be encouraged by those agencies to attend.
The CJC recommends that in Aboriginal communities, where at all practicable, courts sit at some suitable location determined in consultation with the community, and not at the police station.
The CJC recommends that, in considering the design of future court facilities, the Government have regard to the needs of hearing impaired persons, and the high incidence of hearing impairment among Aboriginal people.
The CJC recommends that in cases which involve Aboriginal witnesses, the judge should discuss with counsel the appropriate court dress, given the nature of the case, the location of the court and the circumstances of the witnesses.
The CJC recommends that the Department of Justice run a pilot program for Aboriginal court liaison officers in two areas with significant Aboriginal populations. The general aims of the program should be to improve the way in which Aboriginal people understand and use the justice system. The Department should negotiate other aims, the venues for the pilot, the role of the liaison officers and the selection of individual liaison officers with a working party comprising representatives of the local Aboriginal community and the Aboriginal Justice Advisory Committee.
The role of liaison officers should be to:
' liaise with prosecution and defence agencies to find out in advance the details of Aboriginal people who are due to appear in court as witnesses or defendants
' liaise with those Aboriginal people, and familiarise them with the court environment and process, by providing an explanation of the positions and roles of the various people in court
' improve Aboriginal community awareness about the structures and processes of the criminal justice system
At the conclusion of the pilot program a public report should be made on the effectiveness of the program, and recommendations should be made to the Attorney-General and Minister for Justice as to the viability of establishing such programs in other communities.
The CJC recommends that the Director of Public Prosecutions, the Legal Aid Office and the Commissioner of the Queensland Police Service instruct their officers who prepare matters for court, or appear in court, to take appropriate steps to ensure that Aboriginal witnesses are familiarised with the physical environment and the procedure of the court.
The CJC recommends that the Department of Justice expand its Aboriginal Employment Strategy to place Aboriginal court staff in client-contact positions in centres with significant Aboriginal populations, for example, at registry counters and in courtrooms.
The CJC recommends that the Department of Justice, as a matter of priority, implement cross-cultural training on indigenous issues for court staff whose duties bring them into contact with Aboriginal people. This training should be provided regularly for new staff.
'The CJC recommends that information about section 21A of the Evidence Act 1977 concerning special witnesses, and the applicability of this section to Aboriginal witnesses, be included in cross-cultural awareness training proposed in Recommendation 3.4.
The CJC recommends that the Office of the Director of Public Prosecutions distribute material to Crown prosecutors and police prosecutors about section 21A of the Evidence Act 1977 (special witnesses) and its applicability to Aboriginal witnesses. The Director of Public Prosecutions should also encourage Crown prosecutors and police prosecutors to consider the applicability of section 21A in cases involving Aboriginal witnesses.
The CJC recommends that section 21A of the Evidence Act 1977 be amended to clarify that an order under subsection (2) may be made at any time, whether before or after the witness has begun to give evidence.
The CJC recommends that Aboriginal cross-cultural awareness programs for judicial officers, prosecutors and legal practitioners should include education about gender issues, particularly in relation to violence. Aboriginal women must be fully involved in the development and presentation of training materials.
The CJC recommends that any Aboriginal advisory or consultative groups with which the courts and other legal agencies deal include representation by Aboriginal women, to ensure that their views are properly considered.
The CJC recommends that the Queensland Government examine the funding of indigenous women's legal services within twelve months of their commencement. If the funding is found to be inadequate, the Government should provide additional funding.
The CJC recommends that prosecuting and legal aid agencies ensure that lawyers conducting cases involving Aboriginal women have sufficient preparation time to allow for sensitive issues to be fully canvassed and for the particular experiences of Aboriginal women to be explored.
The CJC recommends that discussion of the use of support persons for Aboriginal women witnesses, particularly in cases of violence, should be included in the cross-cultural awareness training for prosecutors and legal practitioners proposed in Recommendation 3.4.
The CJC recommends that funding should be made available to ensure that Aboriginal women from remote communities who are witnesses in cases involving violence against them may be accompanied by a person of their choosing when required to give evidence at distant locations.
The CJC recommends that the Attorney-General, through the Aboriginal Justice Advisory Committee, consult with representatives of the Torres Strait Islander community to ascertain how, and to what extent, the recommendations contained in this report should be modified to take account of language and cultural issues specific to Torres Strait Islanders.
This appendix contains suggested directions to be given to juries in cases involving Aboriginal witnesses who are speakers of Aboriginal English or Torres Strait Creole.
The Aboriginal English version is a revision by Dr Diana Eades of the University of New England, in consultation with the Honourable Justice Mildren of the Northern Territory Supreme Court and Mr Michael Cooke of Batchelor College, Northern Territory, of a form originally suggested by Justice Mildren (1996, pp. 28-30). It has been reviewed specifically to be relevant to the situation of Aboriginal people in Queensland. Even so, as Justice Mildren noted, it will obviously require adaptation to the individual circumstances.
The Torres Strait Creole version is by Ms Helen Harper of Batchelor College, Northern Territory. It is relevant to Aboriginal people for whom Torres Strait Creole has become a first language, like those in parts of Cape York Peninsula. Where an Aboriginal person from Cape York Peninsula is involved as a witness, the Judge will need to determine whether the witness is a speaker of Torres Strait Creole or Aboriginal English before choosing the directions.
The two sets of directions (concerning Torres Strait Creole speakers and concerning Aboriginal English speakers) cover many of the same issues.
1. I understand that the Crown intends to call a number of witnesses in this case who are Aboriginal. I understand that the accused is also Aboriginal, and that the Crown intends to lead evidence of a video-recorded record of interview which the accused had with the police.
2. You are the judges of fact in this case, it is therefore your function to decide which evidence you accept, and which evidence you reject. You, and you alone, are the judges of the facts, and anything I may later say to you about the facts is not binding upon you. However, you may be assisted by what I am about to tell you, when it comes to the Aboriginal witnesses.
3. Many Aboriginal people in North Queensland, including Aboriginal people of mixed descent, do not speak English as their first language. And many, in all parts of the State, who do speak English as their first language have learnt to speak English in a manner which is different from other speakers of English in Australia: they are speakers of Aboriginal English.
4. Aboriginal English is not the same all over the State: It ranges from 'heavy' Aboriginal English to 'light' Aboriginal English. Heavy Aboriginal English is harder for non-Aboriginal people to understand fully, but even with speakers of light Aboriginal English there are some important things you should be aware of. And remember that speakers of heavy and light Aboriginal English are found all over the State, even in Brisbane and even with people you may think do not look distinctively Aboriginal.
5. It is important that you listen carefully to the context in which words are used in order to prevent misunderstanding as far as possible. Sometimes ordinary English words are used by Aboriginal English speakers differently than in Standard English. Counsel will do their best to ensure that this becomes clear to you as the evidence unfolds, but you can often realise this for yourselves if you listen carefully to the context.
6. There are a number of grammatical differences between Aboriginal English and other kinds of English. For example, the verb 'to be' may not be used in sentences, and all the verbs may be in the present tense, even though the context shows that it is the past or the future that is being talked about. You may also notice that pronouns, such as 'he', 'she' and 'you', are used differently at times. Counsel will do their best to make sure that you understand what is being said, but if you are having any difficulty, please let us know immediately through the foreman that you are unsure of what the witness has been saying and counsel will try to clarify it for you.
7. Many Aboriginal people have trouble with some of the consonants used in the English language, especially f, v and th. F and v are often replaced with p or b, so the word 'fight' might sound like 'pight' or 'bight', and so on, and this can give rise to misunderstanding. Once again, if you have any difficulty understanding, and it is not cleared up, please put your hand up, and get the foreman's attention and tell him or her what is wrong so that we can see if the matter can be remedied.
8. Aboriginal English speakers may also have different cultural values which affect the way they speak and behave. The things I will tell you about now are common with a wide range of speakers of Aboriginal English, even among many who speak light Aboriginal English. Remember that skin colour is not a reliable indicator of the way that an Aboriginal person communicates. Many Aboriginal cultural values and ways of communicating are strong even in places like Brisbane.
9. It is very common for Aboriginal people to avoid direct eye contact with those speaking to them, because it is considered to be impolite in Aboriginal societies to stare. On the other hand, in most non-Aboriginal societies people who behave like this might be regarded as shifty, suspicious or guilty. You should be very careful not to jump to conclusions about the demeanour of an Aboriginal witness on the basis of the avoidance of eye contact, as it cannot be taken as an indicator of the Aboriginal witness's truthfulness.
10. It is customary among many speakers of Aboriginal English to have long lapses of silence from time to time, even in everyday speech. You should be careful not to jump to the conclusion that a witness who is doing this is being evasive or untruthful about the matter he or she is being asked about. Many Aboriginal English speakers are not used to direct questioning in the way in which it is used in the courtroom, and they are used to having the chance to think carefully before talking about serious matters, so it may take time for them to adjust to this method of imparting information.
11. It is very common for witnesses to be asked questions in a form in which the answer to the question is suggested by the question itself. Lawyers call this type of question a 'leading question'. An example of such a question is one like this: 'You saw the red car hit the blue car, didn't you?' Many Aboriginal English speakers will answer 'yes' to this type of question, even if they do not agree with the proposition being put to them in the question, and even if they do not understand the question. The same applies if the proposition is put in a negative question which is a leading question. For example, if the question was 'You didn't see the red car hit the blue car, did you?', they will often answer 'no' in the same way. Such an answer should not always be taken to mean 'I agree with what you have just put to me'. This communication pattern in Aboriginal English has been documented by scholars, and it can sometimes cause difficulties, especially in the cross-examination of some Aboriginal witnesses. I will be doing my best to ensure that counsel do not exploit this cultural difference, and for this reason I may disallow some questions.
12. Similarly the answers 'I don't know' and 'I don't remember' do not always refer directly to the Aboriginal English speaker's knowledge or memory. They can be responses to the length of the interview, or to the length of the question, or to the difficulty which a number of Aboriginal people have in adjusting to the use of repeated questioning.
[13] You should also be aware that many Aboriginal English speakers use gestures which are often very slight and quick movements of the eyes, head or lips to indicate location or direction.
14. Some concepts, such as time and number, are understood by Aboriginal English speakers very differently from Standard English speakers. Hopefully witnesses who do not use numbers and measurements the same way you are used to using them, will not be asked questions by counsel about those sort of things. The necessary information can be elicited in a different way. However, it may be that a witness will say that it was five o'clock, for example, or that there were six other people present at the time, and if this happens you should be aware that this may not be very reliable. I would expect counsel will try to make this clearer to you with further questioning, should this kind of thing occur.
15. Many Aboriginal people suffer from hearing problems. It has been estimated that hearing loss is as high as 40 per cent in some Aboriginal communities. It may be that if a witness has a hearing difficulty, he or she may have problems understanding questions put to them. In such a situation the witness may answer inappropriately or may ask for the question to be repeated.
16. Sometimes Aboriginal people speak very softly and are hard to hear, even with a microphone. If you are having trouble hearing the evidence, please let me know at once. Usually what happens is that counsel, who is used to this, will repeat the witness's answer, and I will do my best, as will counsel for the other side, to ensure that the witness's evidence has been repeated to you accurately.
17. Aboriginal English can differ in many important ways from other kinds of English. It is not a witness's physical appearance which is relevant to the use of Aboriginal English, but the way that the witness was brought up, and the kinds of successful communication experienced by the person. I hope that this outline of some important features of Aboriginal English can help you to realise that, even if an Aboriginal person's language sounds like English, we, can't always make the same assumptions about their meaning.
Torres Strait Creole is spoken mainly by Torres Strait Islanders, but some Aboriginal people from communities in Cape York Peninsula also speak a variety of Torres Strait Creole as their first language.
1. I understand that the Crown intends to call a number of witnesses in this case who are Aboriginal. I understand that the accused is also Aboriginal, and that the Crown intends to lead evidence of a video-recorded record of interview which the accused had with the police.
You are the judges of fact in this case. It is therefore your function to decide which evidence you accept, and which evidence you reject. You, and you alone, are the judges of the facts, and anything I may later say to you about the facts is not binding upon you. However, you may be assisted by what I am about to tell you, when it comes to the Aboriginal witnesses who speak Torres Strait Creole.
3. Some Aboriginal people in Queensland, including those of mixed descent, do not speak English as their first language. Their first language may be a traditional language. Many Aboriginal people from the Northern Peninsula area of Queensland also speak a language called Torres Strait Creole. Torres Strait Creole is also sometimes called 'Broken', 'Pidgin' or 'Blackman'.
4. Torres Strait Creole is similar to English; in fact a lot of the words in Creole came from English. But an English speaker can't always understand people who speak Creole, and many Creole speakers have never learnt to speak Australian English. Not all Creole speakers speak Creole in the same way: some people speak a Creole which sounds very much like Standard English, while others speak a Creole which doesn't sound like English at all and is therefore hard for English speakers to understand. Sometimes Creole speakers know enough English to get by in everyday life, but they find it very difficult to speak English in formal situations. Remember that speakers of Torres Strait Creole live all over the State, even in Brisbane and other towns.
[5] It is important that you listen carefully to the context in which words are used in order to prevent misunderstanding as far as possible. Sometimes ordinary English words are used by Torres Strait Creole speakers differently than in Standard English. You should be aware that Creole speakers giving evidence in English may be influenced by their first language, and that therefore their intended meaning may sometimes be ambiguous. For example, in Creole 'too much' can mean the same as it does in English, but it can also mean 'a lot', depending on the context.
6. There are a number of grammatical differences between Torres Strait Creole and English and so Torres Strait Creole speakers may be influenced by Creole grammar when they speak English. For example, they may order their words differently. You may also notice that pronouns, such as 'he', 'she' and 'you', are used differently at times. Counsel will do their best to make sure that you understand what is being said, but if you are having any difficulty, please let us know immediately through the foreman that you are unsure of what the witness has been saying and counsel will try to clarify it for you.
7. Many Torres Strait Creole speakers have trouble with some of the consonants used in the English language, especially f, v and th. F and v are often replaced with p or b; so the word 'fight' might sound like 'pight' or 'bight'. and so on, and this can give rise to misunderstanding. Once again, if you have any difficulty understanding, and it is not cleared up, please put your hand up, and get the foreman's attention and tell him or her what is wrong so that we can see if the matter can be remedied.
8. Aboriginal people may also have different cultural values which affect the way they speak and behave. The things I will tell you about now are common with a wide range of Torres Strait Creole speakers, even among many who speak Standard English. Remember that many Aboriginal cultural values and ways of communicating are strong even in places like Cairns, Townsville and Brisbane. Remember too that skin colour is not a reliable indicator of the way that an Aboriginal person communicates.
9. Aboriginal people often avoid direct eye contact when people are speaking to them, partly because they may be shy, and partly because in their societies it is considered impolite to stare. On the other hand, in most non-indigenous societies people who behave like this might be regarded as shifty, suspicious or guilty. You should be very careful not to jump to conclusions about the demeanour of an Aboriginal witness on the basis of the avoidance of eye contact, as it cannot be taken as an indicator of the Aboriginal witness's truthfulness.
10. Some Torres Strait Creole speakers are comfortable speaking English, but some are not so comfortable, although they may sound like they speak English well. People who are not comfortable with speaking English may hesitate frequently, or may keep their answers to questions as short as possible. You should be careful not to jump to the conclusion that a witness who is doing this is being evasive or untruthful about the matter he or she is being asked about. Many Torres Strait Creole speakers are not used to direct questioning in the way in which it is used in the courtroom, and they are used to having the chance to think carefully before talking about serious matters, so it may take time for them to adjust to the question and answer method of imparting information.
11. It is very common for witnesses to be asked questions in a form in which the answer to the question is suggested by the question itself. Lawyers call this type of question a 'leading question'. An example of such a question is one like this: 'You saw the red car hit the blue car, didn't you?' Because English is not their first language, Torres Strait Creole speakers sometimes misunderstand or don't fully understand such questions. You should be aware that some Torres Strait Creole speakers may answer 'yes' to this type of question, even when they don't understand it, just because they want to appear to be polite or co-operative.
12. Similarly the answers 'I don't know' and 'I don't remember' do not always refer directly to the Torres Strait Creoles speaker's knowledge or memory. They can be responses to the length of the interview, or to the length of the question, or to the difficulty which a number of Aboriginal people have in adjusting to the use of repeated questioning.
13. You should also be aware that many Torres Strait Creole speakers use gestures which are often very slight and quick movements of the eyes, head or lips to indicate location or direction.
14. Some concepts, such as time and number, are understood by Torres Strait Creole speakers very differently from Standard English speakers. Hopefully. witnesses who do not use numbers and measurements the same way you are used to using them, will not be asked questions by counsel about those sort of things. The necessary information can be elicited in a different way. However, it may be that a witness will say that it was five o'clock, for example, or that there were six other people present at the time, and if this happens you should be aware that this may not be very reliable. I would expect counsel will try to make this clearer to you with further questioning, should this kind of thing occur.
15. Many Aboriginal people suffer from hearing problems. It may be that if a witness has a hearing difficulty, he or she may have problems understanding questions put to them. In such a situation the witness may answer inappropriately or may ask for the question to be repeated.
16. Sometimes, especially in formal situations, Aboriginal people speak very softly to Europeans and are hard to hear, even with a microphone. If you are having trouble hearing the evidence, please let me know at once. Usually what happens is that counsel, who is used to this, will repeat the witness's answer, and I will do my best, as will counsel for the other side, to ensure that the witness's evidence has been repeated to you accurately.
Mildren, Hon Justice D 1996, Redressing the Imbalance Against Aboriginals in the Criminal Justice System, revised version of a paper presented at the Fifth Biennial Conference of the Northern Territory Criminal Lawyers Association, Bali, 26 July 1995.
A copy of the report can be obtained from the Criminal Justice Commission, PO Box 137, Brisbane, Albert Street, Qld, 4002, Australia, or by telephone on (07) 3360 6060 or facsimile (07) 3360 6333. l
Endnotes
[1] R v. Condren (1987) 28 A Crim R 21 (CCA) and R v. Condren, ex parte Attorney-General [1991] 1 Qd R 574; 49 A Crim R 79 (CCA)
[2]. R v. R B Kina (CA 258/88; Court of Criminal Appeal Queensland, 23 November 1988, unreported) and; R v. R B Kina (CA 221/93; Court of Criminal Appeal Queensland, 29 November 1993, unreported).
[3]
Crawford v. Venardos & ors (PS 2615-2650 of 1994,
Magistrates Court Brisbane, 24 February 1995, unreported).*
The
bibliographic references referred to are limited to those that relate to the
text reproduced from the report
[Editorial note].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1996/76.html