turning the light on in the law - u4840397.weebly.com€¦ · web viewschool of language studies....
TRANSCRIPT
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