Language in court: the acceptance of linguistic evidence about Indigenous Australians in the criminal justice system.
The continuing high over-representation of indigenous people in the criminal justice system is a matter of concern for a number of linguists, and earlier work (for example, Eades 1994a) has discussed the relevance generally of linguistic and sociolinguistic factors. This article highlights some of these factors, in discussing linguistic evidence used in specific cases involving Indigenous people. I use the term `linguistic evidence' here to mean linguistic analysis presented by a linguist to a court of law as expert evidence. I use the term `linguistic analysis' to mean the analysis of language using the principles of the discipline of linguistics (unlike some who use the term much more widely to mean any analysis of language, using any method). Similarly, I use the term `linguist' to mean a person trained in the discipline of linguistics (not a person who speaks many languages).
The focus in this article on language and communication issues affecting Indigenous people in the criminal justice system should in no way negate the significance of many other issues, including racism towards Indigenous people in the community generally, and by people within the police force and the judiciary specifically (as highlighted, for example, in the National Report of the Royal Commission into Aboriginal Deaths in Custody 1991). Also, while this paper is about the use of expert evidence by linguists, it is acknowledged that psychologists, psychiatrists, anthropologists and sociologists may also present expert evidence on language issues.
The use of linguistic analysis as evidence in courts of law has been quite a recent development, termed `forensic linguistics'. A number of Australian linguists have become active in this area, and in July 1995 the second conference of the recently established International Association of Forensic Linguists was held in this country, at the University of New England. (See Eades 1994b for an overview of forensic linguistics in Australia generally.)
The use of linguistic evidence in Australian criminal courts has mainly been in one of the five following areas (of which the last two have only developed since 1993):
* speaker identification, for example in the phonetic analysis of voices of people making threatening phonecalls, or other similar `language crimes'(1) (see Bowe and Storey 1995);
* tape transcription, for example where the taperecording of an interview with police or of a `language crime' is difficult to hear and/or understand, or where there is dispute over its transcription (see Bowe and Storey 1995);
* alleged verbals, that is, where a person charged on the basis of a police record of interview claims that this record of interview was fabricated (see below). This is part of the broader category of contested authorship of texts, which includes such examples as where doubt is raised over whether a person claiming to have received a suicide note or a farewell letter may actually have written the note before murdering the deceased (see Eagleson 1994);
* comprehension, that is, where a linguist has examined the extent to which a witness or defendant may have not understood the police caution, questions in the police interview, or written legal documents (see below); and
* cross-cultural communication differences in the legal system, to be discussed below.
The use of forensic linguistics in cases involving Indigenous Australians has been almost solely in the last three of these areas, as far as it has been possible to determine.
This article reports on a number of cases, all of which have involved linguistic evidence in relation to Indigenous people. There are two distinct areas of concern (based on the last three of the five areas above):
* in cases in which an Indigenous person has been convicted and charged on the basis of a confession which has been allegedly fabricated, and
* in cases where language and cross-cultural communication differences prevent an Indigenous person from effectively participating in the interviews which are crucial to the way in which they interact, as defendants or witnesses, with the criminal justice process. (These include interviews with police, with lawyers, and in courtrooms, namely examination-in-chief and cross-examination.)
This article surveys the use of linguistic evidence and focuses on reactions of the judiciary to forensic linguistics in relation to Indigenous people in five particular cases. In two of these cases, the convictions were eventually quashed, thus securing release from prison of the two Aboriginal people, who had each been serving a life sentence. (These cases each illustrate one of the two areas of concern outlined above.)
After looking at these five cases, the article will briefly look at more general evidence of attitudes in the legal profession to the contribution which can be made by linguistics to the participation of Indigenous people in the criminal justice system. It will conclude that acceptance of linguistic evidence in court is not enough: the challenge is for linguists to educate the legal profession about language and communication issues which affect Indigenous people throughout the legal system.
Alleged verbals (fabricated confessions)
Forensic linguistic evidence has been used in two cases in which an Aboriginal man was convicted of murder on the basis of a signed `confession', which he alleged was fabricated by the police.(2) In both cases, the accused man was a speaker of Aboriginal English, and expert linguistic evidence was presented in his defence to show that the language patterns of the answers attributed to him in the `confession' were not consistent with the way that he spoke English (Eades 1995b). In both cases, the linguistic evidence was heard but then ruled as either irrelevant or inadmissible. This article focuses on judicial reactions to this evidence.
The first of these cases was that of Rupert Max Stuart in South Australia in 1959, in which TGH Strehlow gave linguistic evidence.(3) The second was the case of Kelvin Condren in Queensland in 1987, where I gave evidence in his appeal.
Following a preliminary hearing in the Ceduna Police Court in January 1959, Stuart's trial in the Supreme Court (of South Australia) in April found him guilty of the murder of a nine-year-old girl and he was sentenced to hang. The case then proceeded through every possible criminal court in Australia. Four successive appeals were unsuccessful: to the Full Court of the Supreme Court of South Australia in May, to the High Court in June, to the Executive Council of the South Australian Government in July for commutation of his death penalty, and to the Judicial Committee of the Privy Council in London later in July. Amid all the public and media pressure, the South Australian government appointed a Royal Commission which sat from August till October, concluding in December that the verdict against Stuart was wholly justified. However, in October, the South Australian Cabinet had decided to recommend to the Governor that Stuart's death sentence be commuted to life. Stuart was released from prison in the early 1970s.
Strehlow's evidence was given to the Stuart Royal Commission, although he had earlier presented a short affidavit to the Attorney-General. The Royal Commissioners did not understand Strehlow's main point that Stuart spoke a different kind of English from that in the confession, despite Strehlow's clever attempt to draw a parallel with Eliza Doolittle in the well-known play Pygmalion. Strehlow presented his evidence on Stuart's English, which he referred to as Northern Territory English(4) (now known as Aboriginal English), before there was any recognition of the systematic variation in ethnic dialects of English, such as Black English Vernacular in the US (see, for example, Labov 1972) and Aboriginal English in Australia (see, for example, Sharpe 1977).
Failing to understand Strehlow's point about the differences in the kinds of English, the commissioners rebutted the claim that Stuart did not speak `good English', although Strehlow never made such a claim. Their rebuttal of this claim was based on two kinds of evidence:
* non-expert evidence, from people such as a taxi-driver and prison warder, that Stuart spoke good English and could be understood;(5) and
* the commissioners' observations of Stuart's evidence to the Royal Commission. Eades (1995b) gives examples which show that the commissioners did not have the technical analytical (linguistic) skills needed to examine differences between two closely related dialects of English.
Further, it should be pointed out that Stuart's evidence to the Royal Commission consisted of short answers to questions, which could not form the basis of a good comparison with the `confession' which was an uninterrupted 850-word narrative. For example, at one stage in his evidence to the Royal Commission, Stuart gave the one-word answer `Yes' (or its variants `Yep' or `Yeah') to 37 consecutive questions.
As Strehlow's evidence was given before a Royal Commission, rather than a court of law, there was no question as to its legal admissibility. However, it appeared to be resolutely rejected. The commissioners, in finding the verdict against Stuart wholly justified, found that there was no need for expert linguistic evidence and disputed Strehlow's claim that Stuart spoke Northern Territory English.(6)
Although the commissioners did not accept that `the body of Stuart's confession was dictated verbatim' (Inglis 1961, 293), they found `even allowing for both an improvement in Stuart's English in gaol and a tendency on the part of transcribers to ignore differences between Stuart's speech and normal usage', that `Stuart was more nearly capable of dictating the confession than Strehlow believed' (Inglis 1961, 295).
Although the Stuart case had been famous because of its role in the abolition of the death penalty in South Australia, the role of linguistic evidence in this case is less well known. While Strehlow's affidavit and evidence to the Stuart Royal Commission provided the first description of Aboriginal English, it receives no mention or acknowledgment in any description of Aboriginal English before 1991 (see Eades 1991). Even those early researchers who began describing Aboriginal English in the 1960s were unaware of Strehlow's description of Aboriginal English (Tom Dutton, pers comm 1991). I was unaware of it until about a year after presenting evidence in Condren's case.
Like Stuart, Kelvin Condren was convicted of murder on the basis of a signed confession which he alleged was fabricated. His case took much longer than Stuart's, with a committal hearing in 1983, Supreme Court trial in 1984, appeal in the Queensland Court of Criminal Appeal (CCA) in 1987, High Court appeal in 1989, and second appeal in the Queensland CCA in 1990. This final appeal resulted in the quashing of his conviction and he was released from prison in 1990.
The main reason for ruling the linguistic evidence inadmissible in Condren's case appeared to be the conclusion by the appeal court judges that it was
unlikely that there exists a specialized field of
knowledge which qualifies an `expert' within it to attribute
`unusual' characteristics to all `aboriginals' (comprising
persons of widely varying genealogical and cultural
backgrounds) relevant to the issues which differ
significantly from the `usual' characteristics of persons
generally in the community with respect to which of course
expert evidence may not be given (Ambrose, J, p 297).
(This and all following references to the judgments in
Condren's appeal are from 1987 28 A Crim R 261.)
There are three main rules governing the presentation of expert evidence in most Australian courts (Freckelton 1987).(7) This effective rejection in the Condren judgments of the ability of linguists to describe dialectal variation appeared to have been related to one of these rules, namely the field of expertise rule (see Eades 1994b for a discussion of these rules). This rule prevents a person from giving expert evidence if they are not considered by the court to be qualified as an expert, or if their area of expertise is not considered to be scientific.
The decision that this was not a field of expertise led to the conclusion that the linguistic evidence was inadmissible opinion evidence, presumably because it contravened the common knowledge rule (which prevents the use of expert evidence on any matter which is considered by the court to be common knowledge). This appears to have been the main reason for the rejection of Strehlow's evidence in the Stuart Royal Commission.
Another concern in the judgments in Condren's case involved the relevance of the speech of a group of people to the speech of an individual. Justice Ambrose (p 297) ruled that the only issue before the jury is the characteristics of the appellant, not `characteristics commonly found within a category of persons described as Aboriginal'. And similarly, Justice Macrossan (p 267) stated: `The verbal response characteristics of a class is not a matter at issue'. Instead the issue was `only the alleged responses of the applicant'. An examination of the judgments makes it clear that the linguistic evidence wrongly assumed certain understandings about language, and it should have explained the fundamental sociolinguistic principle that an individual's speech is limited by the range of variation found within their speech community (see Labov 1988,180).
But, in fact, the bulk of my 84-page report to the court consisted of detailed comparison of the answers attributed to Condren in the `confession' with his answers in two other interviews, namely an interview carried out in prison by myself and his lawyer, and his evidence during the voir dire (a hearing during the trial in the absence of the jury).
The judgments raised other matters in relation to the inadmissibility of the linguistic evidence, which included legal issues (such as, ruling that the linguistic evidence was not fresh evidence and was thus inadmissible because it should have been taken into account at the time of the trial).
One alarming aspect involves the judgments' discourse of race, which is no longer accepted in the social sciences, and has been disparagingly termed by some scholars `the pathology of ethnicity'. For example, Justice Ambrose (p 297) referred to the `... absence of any clear evidence as to the genealogy of the appellant and to the fact that neither of his parents were full-blooded Aboriginals'. Terms such as `half-blooded', `full-blooded' and `of partly Aboriginal extraction' are used in the judgments in determining the usefulness of evidence about Aboriginal people to Condren specifically. Justice Ambrose observed Condren's mother giving evidence at the appeal and commented in his judgment that he `certainly formed the impression that she was of only partly Aboriginal extraction and indeed that part was not predominant' (p 275).
Of course, this `pathology of ethnicity' approach is quite different from the findings of the social sciences that it is socialisation and cultural factors, rather than genealogy, which are most important in accounting for behaviour, including speech behaviour. As the three judges who had heard the linguistic evidence in Condren's case ruled it as inadmissible, there appears to be still no precedent for having linguistic evidence accepted on the question of the alleged verballing of a speaker of Aboriginal English.
However, the High Court ruled (in 1989) that the evidence which had not been allowed at Condren's 1987 appeal, including the sociolinguistic evidence, was `cogent, plausible, and relevant', and it strongly recommended that Condren be allowed a new appeal. As a result of this new appeal, Condren's conviction was eventually quashed and he was released from prison in 1990, after serving seven years of a life sentence. In 1995, Condren was awarded $400,000 by the Queensland government as compensation for his wrongful imprisonment.
The future of linguistic analysis of confessions made to police
In recent years, I have been asked by defence lawyers to examine a number of alleged confessions of Aboriginal English speakers. I have found only one for which I felt that linguistic analysis was likely to support a claim of verballing (but, in the event, the lawyers decided not to proceed for other reasons). This is not to say that the others may not have been verbals, but that there were no strong linguistic grounds to support such a claim. A number of other linguists in this country have also provided expertise on the question of alleged verbals, in relation to non-Indigenous people, primarily with those of non-English speaking background (see Eades 1994b; Gibbons 1986, 1987a, 1987b, 1990, 1995; Jensen 1995).
We can expect that the use of linguistic evidence in assessing claims of fabricated confessions will be greatly reduced, because of two important recent developments which will eventually remove almost any opportunity for police to fabricate confessions.
The High Court ruled in March 1991 that uncorroborated police evidence must be accompanied by a warning to the jury of the danger of convicting people solely on the basis of their signed confessions to police (McKinney and Judge v The Queen). This High Court ruling has done much to change the nature of prosecutions. It appears that in both the Stuart case and the Condren case the `confession' was uncorroborated police evidence and, following the High Court ruling on this matter, such a prosecution as either of these would be unlikely to proceed in the future.
This ruling on uncorroborated police evidence has heightened the need for the video-recording or audio-recording of confessions, introduced in most jurisdictions in recent years, beginning with Victoria in 1989. This taping of confessions made to police should militate against perpetrations and allegations of police verballing. It seems that, eventually, it will be extremely difficult for any confession which has not been electronically recorded to be admissible in an Australian court.
But while the tape-recording of confessions should decrease one area of relevance of the forensic linguist, it opens a new area, namely the examination of the way in which questions are answered in the police interview, and specifically the extent to which the accused understands these questions and the police caution (which advises the accused of their right to remain silent, and the possibility that anything they say in the interview may later be used against them in evidence in court). Gibbons (1990) has shown the difficulty for non-English speaking background speakers in understanding the syntactic (grammatical) structure in which the police caution is expressed.
The understanding by Indigenous suspects of questions in the police interview, and specifically the caution, has been the focus of work by a number of Northern Territory linguists in the last two years, in cases involving three states and primarily with Indigenous speakers of English as a Second (or Third, Fourth ...) Language. Much of this focus has arisen from the training and use of interpreters for legal contexts, and the practical issues which arise from translating the complex language of the police caution.
In his discussion of a number of related issues, Cooke (1996) shows how an Aboriginal woman's comprehension of English was seriously questioned at her 1995 trial in Western Australia, as a result of his analysis of her recorded responses to police during the administering of the police caution. In a similar case involving a speaker of Torres Strait Creole in Cairns (in Queensland) in May 1995, Helen Harper of Batchelor College gave evidence that the accused had not properly understood the police caution or a number of the questions in the police interview. The linguistic evidence in this case was accepted and was part of the defence which succeeded in changing the charge (from `attempted murder' to `unlawful wounding') (Trezise 1996).
In 1995 and 1996, Prudy McLaughlin (Katherine Regional Aboriginal Language Centre), Denise Angelo and Carmel O'Shannessy (Batchelor College, Katherine Region) and Carolyn Coleman (Northern Territory Education Department) have prepared evidence in cases involving speakers of Aboriginal English and Kriol, in which they have examined the accused person's understanding of the language of the police caution or other aspects of the police interview.(8)
A major issue which arose in all of these instances (for example, Cooke 1996; forthcoming) concerns the way in which well-meaning attempts by investigating police officers to check the suspect's comprehension of the caution can provide an ideal situation for the `Yes' of gratuitous concurrence, discussed below. This, of course, should not be understood to indicate comprehension (see also Coldrey 1987,84-85).
Another major issue in these instances was the way in which the Aboriginal speaker of English as a Second Language used the linguistic strategy known as `scaffolding', which Cooke (1996, 275) explains as a situation `where people acquiring a second language can be seen to construct messages jointly with native speakers by building from or upon the native speaker's contribution during the course of the conversation'. Cooke (1996, 281) shows how such a strategy can disguise (to the non-linguist) the extent to which the propositions attributed to the witness are really their own, as illustrated by the following example:
Police Officer: So if he didn't get any help he
You were hoping.
Suspect: I was hoping.
In this extract from a police interview with an Aboriginal speaker of English as a Second Language, the suspect, in repeating the last part of the question, can be taken to have agreed to the whole proposition, even though she may not have understood it fully. The legal consequences of agreeing with this particular proposition are extremely serious, as Cooke shows.
It is not only the police interview which is being examined by linguists. In August 1995 in the Katherine Magistrate's Court, Prudy McLaughlin gave evidence that an Aboriginal man accused of breaching the conditions of a good behaviour bond could not have understood either the bond conditions or all of the questions which were put to him in the police interview. The linguistic evidence was accepted and the charge of breaching the bond condition was dropped. This is believed to be the first time in the Northern Territory that a successful defence has been based on expert linguistic evidence proving that a defendant could not fully understand English (Katherine Times, 23 August 1995).
Another important Northern Territory case regarding the use of expert evidence is R v Gurrawiwi in the Northern Territory Supreme Court in September 1996, in which Michael Cooke (of Batchelor College) gave evidence for the prosecution regarding the Aboriginal suspect's understanding of whether a certain utterance made by his brother during the police interview was made by this relative as interpreter, or as prisoner's friend.(9) In this police both roles, which, as Goldflam (1995, 33-36) shows, is a frequent and problematic situation.
This case is particularly significant because the linguistic evidence (which was accepted) was used by the prosecution, unlike all the above cases, in which linguistic evidence has been called in the defence of an Indigenous person. In order for linguistic evidence to `come of age' in the Australian legal system, it needs to be seen as a type of expert evidence which can be used by either `side' in a court case. It is hardly surprising, given the extremely high rate of Aboriginal arrests and imprisonments, that expert linguistic evidence has tended to be used mainly by defence. Indeed, it could be argued that the weight of the Australian legal system typically favours the prosecution in cases involving Aboriginal suspects and accused.
The significant increase in 1995-96 in the use of linguistic analysis of police interviews of Aboriginal suspects in the Northern Territory can undoubtedly be attributed in part to the education of legal professionals, and to the significant increase in the training of interpreters in Aboriginal languages (see Cooke, forthcoming). Thirty-two people were accredited in twelve Aboriginal languages as interpreters in the Northern Territory in 1996 as a result of a joint undertaking by the Commonwealth Department of the Attorney-General, the National Authority for the Accreditation of Translators and Interpreters, and Batchelor College. In September 1996, eight of the ten Northern Territory magistrates attended a cross-cultural awareness course in Katherine, presented by Batchelor College (Koori Mail, 11 September 1996). Following an election promise in 1996, the Northern Territory government established a pilot Aboriginal Languages Interpreting Service in its Office of Aboriginal Development. The increased awareness of government, judiciary and lawyers about the interpreting needs of Aboriginal suspects and witnesses has contributed significantly to the use of linguistic evidence. At the time of writing (February 1997), several cases are pending for which linguistic evidence has been prepared and is expected to be presented.
In addition to the presentation of expert linguistic evidence, linguists have also at times been involved in criminal trials in the role of interpreter for Aboriginal witnesses. Issues involving the use of interpreters, and reactions of the legal profession to interpreters for Aboriginal people, are examined in Cooke (1995a) and Goldflam (1995). Cooke (1996) is a poignant case study which highlights the vital role that interpreting can play in the delivery of justice for Indigenous accused.
Growing concern is being raised about the accuracy of transcription of the evidence of Aboriginal witnesses, primarily in the land claim process. This issue, which was first raised by Koch (1985, 1991) has been further examined by Eades (1996c), Rigsby (1995) and Walsh (1995). Rigsby has been involved in detailed checking of Aboriginal evidence given to the Lakefield and Cliff Islands National Parks land claim hearing in north Queensland in 1994, and has given evidence about some of these issues in the hearing. In the Elcho Island coronial inquest which was held in 1991 (see Cooke 1995a), Cooke gave evidence to clarify for the official transcript a barely audible section in Yolngu language of the police interview with a witness.
Cross-cultural communication differences in the legal system
Language and communication issues concerning Aboriginal people in courts, land claim hearings(10) and police interviews have been of concern for many years to some linguists (for example, Koch 1985, 1991; Nash 1979; Strehlow 1936), anthropologists (for example, Elkin 1947; Liberman 1978) and lawyers (for example, Kirby 1980; Kriewaldt 1960; Neate 1981, 1989).
The strongest legal recognition of these issues is found in the `Anunga Rules' set down by Justice Forster (with the agreement of the other judges in the court) in 1976, for the police interrogation of Aboriginal suspects in the Northern Territory. These judicial guidelines recognise some of the basic issues to do with communication and language difficulties facing Aboriginal people in police interrogations (see Goldflam 1995). Currently, some of the details of these guidelines are under review (see Cooke 1995b; Mildren 1995).
Expert linguistic evidence about communication style, rather than actual comprehension, was presented in a case involving speakers of traditional Aboriginal languages in the Elcho Island coronial inquest, referred to above. Cooke's evidence on the reluctance of Arnhem Land Aborigines to make an outright refusal to a request was admitted as evidence. The first language of the speakers in question is Djambarrpuyngu or other Yolngu languages (Cooke, pers comm 1995).
Turning from the specific focus above on the comprehension of Aboriginal witnesses or suspects to the broader issue of differences in the use of language (or communication style), we see how linguistic evidence has concentrated on cases involving speakers of Aboriginal English.
There is now a clear precedent for the admissibility of linguistic evidence about the communication style of Aboriginal English speakers in one of the highest courts in Queensland (the Court of Criminal Appeal) in the much-publicised appeal of Robyn Kina in November 1993.(11) In this case, the area of the law in which cross-cultural communication was at issue was not the courtroom or the police interview but, rather, interviews with lawyers.
Robyn Kina is an Aboriginal woman from southeast Queensland who was found guilty in 1988 of the stabbing murder of her husband. She gave no evidence in her trial, which was one of the shortest criminal trials in the state. After she had served more than three years of her life sentence, she told the story, on a national television documentary of the brutal violence she had suffered at the hands of her husband. So powerful was her story that the Attorney-General invited her to apply for a pardon. Eventually, Kina instigated an appeal, which was successful, and as a result her conviction was quashed and she was released from prison after serving five years of the life sentence.
The linguistic evidence in this appeal (which is discussed in detail in Eades 1996a) looked at Aboriginal ways of communicating, and compared the ways in which lawyers attempted to take instructions from her before her trial with the ways in which TV journalists communicated with her a few years later. The central question was why Kina's lawyers had not found out about the self-defence and provocation which were crucial to understanding why she stabbed her husband. What features of the communication between Kina and her lawyers had prevented her lawyers from finding out about aspects of her case which should have been raised in her defence at the trial? Why did she talk openly to TV journalists in 1991, but not to her lawyers in 1988, about important personal details relevant to her trial?
From the linguistic perspective,(12) the answer lay in the cultural inappropriateness of the lawyer interviews, in which there was no chance for Kina to build up a relationship essential to the disclosing of important personal information. The linguistic evidence in this appeal was about different `communicative styles' of two dialects of English: Aboriginal English and Standard English. In particular, the lawyers misunderstood the positive role of silence in Aboriginal English, mistakenly thinking it meant that Kina had nothing to say
In contrast, the style of information-seeking used by the particular TV reporters coincided with important features of Aboriginal ways of imparting information. There was time allowed to build up a relationship of trust, and Kina was allowed to tell her story in free narrative, uninterrupted by questions. (Of course, this is not the only style of TV journalism.)
The linguistic evidence in Kina's appeal was sociolinguistic evidence and, as such, much less quantifiable and scientific sounding than the evidence which had been ruled as inadmissible in the same court some six years earlier in Condren's case. Despite this, and somewhat surprisingly, the sociolinguistic evidence in Kina's case was accepted, with no objection, and no discussion about whether there exists a `specialized field of knowledge' enabling one to draw distinctions between Aboriginal and non-Aboriginal ways of using English. Nor was Kina's Aboriginality ever disputed, despite the fact that her parents were of mixed Aboriginal descent in the same way as Condren's were.
In finding that Kina's trial had involved a miscarriage of justice, the court cited `cultural, psychological and personal factors' which `presented exceptional difficulties of communication between her legal representatives and the appellant'. These factors `bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice' (President and Davies 1993, 35-36).
This case established a precedent for the acceptance of linguistic evidence in Queensland courts. Further, this particular linguistic evidence was undoubtedly one of the factors which led to a strong statement about the cultural disadvantage experienced by many Aboriginal people in the legal system being made by the Attorney-General. Speaking on a television current affairs show on the day following the decision in Kina's appeal, he said:
I think the law is going to have to find ways, and the
legal system is going to have to find ways to make
special provisions frequently for Aboriginal witnesses...
... the problem of cross-cultural communication is one
which the legal system needs to have knowledge of and
needs to be sensitive to... (`7.30 Report', 30 November
These positive developments in the application of sociolinguistics to the treatment of Aboriginal people in the criminal justice system were, undoubtedly, partly due to the impact of the Royal Commission into Aboriginal Deaths in Custody, which had held hearings all over Australia between 1987 and 1990 and which released its interim report in 1988 and its final eleven-volume report in 1991. Although the Royal Commission did not specifically address any of the issues which were crucial in Kina's case, it did much to bring to the forefront of public thinking the fact that there are complex issues involved in the treatment of Aboriginal people by the criminal justice system. Also, between Condren's appeal in 1987 and Kina's in 1993 (in which linguistic evidence was rejected and accepted, respectively, by the same court), the profile of Aboriginal people studying and practising law was significantly raised.
There are two factors specific to Queensland which seem also to be relevant:
* the widespread acceptance of and interest in a handbook for lawyers, entitled Aboriginal English and the Law, which was published by the Queensland Law Society (Eades 1992). The catalyst for the preparation of this handbook had been the judgments in Condren's case (discussed above), which highlighted the need for the dissemination of information about Aboriginal English throughout the legal profession. It is thus very encouraging to see the impact that this publication has had on some parts of the legal profession; and
* the fact that the President of the Queensland Court of Criminal Appeal for the last few years is justice Tony Fitzgerald, an eminent member of the legal profession in Australia, who for many years has taken a serious interest in the way in which the justice system affects Indigenous people, including the cultural disadvantages faced by Aboriginal people in their dealings with the law. He has used linguistic evidence as defence counsel (in Condren's case), accepted it as one of the three appeal court judges (in Kina's case), and more recently (in Aubrey's case) called for legislative reform to address the issue of `cultural disability' affecting Aboriginal people in the legal system, as we will see below. (Fitzgerald is best known in Australia for heading the inquiry into police corruption in Queensland in 1988; see Fitzgerald 1989.)
The appeal of Frederick Aubrey, which was heard by the Queensland Court of Criminal Appeal in 1994, and decided in April 1995, concerned an Aboriginal teenager who was tried as a youth in July 1994. A resident of the Cherbourg Aboriginal community in southern Queensland, Aubrey had been found guilty of manslaughter following a street altercation in which a punch from Aubrey caused a man to fall. The man later died from injuries. Aubrey appealed on two grounds, one of which related to the possibility that the victim's death had been caused by a pre-existing medical condition. (All three judges disagreed with the appellant on this ground.)
The second ground of the appeal concerned the admissibility of the police record of interview which recorded Aubrey's confession. The appellant alleged that the interviewing officers failed to comply with the directives of the Police Commissioner relating to the interviewing of Aborigines and children (mainly in failing to invite his mother to be present at the police interview). Two of the three appeal court judges concluded that the confession was admissible.
But the dissenting (third) judge, the President of the Court of Criminal Appeal, Justice Fitzgerald, agreed that the appellant's `admissions were obtained in circumstances which made it unfair to use them against him' (p 5). Fitzgerald's judgment (p 16) raised the issue of `cultural problems associated with the reliability of confessional statements made by aborigines who are interrogated by white persons in positions of authority'. In discussing this issue in the judgment, Fitzgerald indicated that it was time to move beyond the use of (linguistic) expertise in isolated cases, as this is `quite impractical'. Fitzgerald went on to say:
There is increasing acceptance of the need for greater
cultural awareness in the legal system, but problems
such as cultural disability would be better addressed
legislatively, after proper consultation and debate
directed by a body such as the Law Reform
While these developments in the recognition of sociolinguistic expertise by the judiciary give cause for optimism and encouragement to forensic linguists, there is another side to the story which was revealed by the so-called `Pinkenba' case in the Brisbane Magistrate's Court in February 1995. This was a case in which there appeared to be no acceptance of the need for cultural awareness in the legal system. The cross-examination of Aboriginal child witnesses in this case highlights the need for the legislative reform called for by Fitzgerald. The need for cultural awareness in lower courts, as shown in this case, is all the more pressing as this is where the vast majority of cases are dealt with.
The Pinkenba case was a committal hearing of six police officers who had allegedly abducted three Aboriginal boys in May 1994. The alleged abduction incident had occurred some time after midnight on 10 May 1994, when the three boys, who were then aged 12, 13 and 14, were taken by six police officers in three separate vehicles from a shopping mall in the Fortitude Valley area near Brisbane City. They were left about 14 km away, in an industrial wasteland in Pinkenba near the mouth of the Brisbane River, from where they had to find their own way back to the Valley. The boys were not charged with any offence, nor were they taken to any police station. In somewhat of a role reversal, the accused persons in this case were all police officers, and the Aboriginal participants were the victims of the alleged crime and thus were the main prosecution witnesses.
The cross-examination of these Aboriginal witnesses in court was full of badgering, haranguing and culturally inappropriate questioning. A crucial point in the defence case was the establishment by the counsel for the police that the boys knew their legal rights and that their being told to get into a police car did not amount to a deprivation of their liberty.
Eades (1995c) looks at the cross-examination in this case (in court), which is briefly summarised here:
Significant differences between Aboriginal and
non-Aboriginal ways of using English often lead to
communication difficulties. In this hearing, these
difficulties were often exacerbated by the
cross-examining style, and this made it appear that the witnesses
were untrustworthy and unreliable. A particular
concern was the high frequency of questions which
would elicit answers of gratuitous concurrence from an
Aboriginal person, that is answers of `Yes' (or `No' to a
negative question) which are not intended to signal
agreement with the proposition (see Eades 1994a). A
literal interpretation of all the `Yes' (or `Yep' or `Yeah')
answers elicited from these witnesses would lead to
the conclusion that these boys were frequently
contradicting themselves and could not be reliable witnesses.
Such a misinterpretation would in fact reveal a
complete lack of understanding of important basic
differences between Aboriginal English and Standard
The committal hearing concluded with the magistrate's finding that there was insufficient evidence for the trial to proceed, and he reportedly concluded that the boys `had no regard for members of the community, their property or the justice system'.
It would seem that this is a case needing sociolinguistic evidence about Aboriginal ways of using English, particularly in the legal interview. And in fact the prosecutor, who had called the boys as witnesses, asked me on the second day of the hearing to prepare a report (in the form of a statement to be tendered to the court) on the linguistic and cultural issues in the cross-examination. This report was prepared after all the tapes and transcripts had been studied, and I arrived on Day 4 of the hearing, as requested, to present the statement and appear as an expert witness. However, the prosecutor's decision to use this sociolinguistic expertise was overruled by the Director of Public Prosecutions. Thus, the magistrate was not informed about the important details of the use of Aboriginal English in interviews, which were crucial to the accurate interpretation of the boys' answers to the questions.
The way in which the requested sociolinguistic evidence was deliberately ignored gives cause for considerable discouragement and concern. Another cause for concern in this case comes from the information that the two counsel for the police had with them at the bar table a copy of the handbook, Aboriginal English and the Law, written to assist lawyers in more effective communication with Aboriginal people (Eades 1992, referred to above). It is alarming to realise that this tool can also be used to ensure less effective communication with Aboriginal people in the legal system. This situation highlights the urgency of Fitzgerald's call for legislative attention to the issue of the cultural disadvantage of Aboriginal people in the legal system.
In response to the public outcry over the Pinkenba case, the Criminal justice Commission conducted a research project into `Aboriginal Witnesses', addressing the issue of `problems in the way Queensland's criminal courts deal with the evidence of Aboriginal witnesses ... in particular ... any cultural or linguistic factors which affect Aboriginal English speakers as witnesses'. The report of this project (CJC 1996), which drew considerably on the work of linguists, provided a thorough review of language and communication issues affecting Aboriginal witnesses, including issues involved in the use of interpreters. Thirty-eight recommendations were made, ranging from cross-cultural awareness training for judiciary, lawyers and police to witnesses' rights to an interpreter, to the trialing of an Aboriginal Court Liaison Officer scheme. A number of the recommendations were that the Queensland Evidence Act be amended in various ways, such as: to include provisions for evidence-in-chief to be given wholly or partly in narrative form, and for a witness's cultural background or use of language to be taken into account in determining the disallowing of a leading question.
Beyond specific cases
The focus of this article has been the growing use of linguistic evidence in cases involving Indigenous people in the criminal justice system, as well as on judicial reactions to forensic linguistics in specific cases. Individual cases can have considerable impact on the legal system in terms of the establishment of precedents, as well as in the way in which legal practitioners approach certain issues in later contexts. However, the Pinkenba case reinforces the concern that public and legal education is just as important as individual cases, if not more so, in the application of linguistic expertise to the participation of Indigenous people in the criminal justice system.
Justice Fitzgerald's speech at the graduation ceremony at Queensland University of Technology in May 1995 indicates the extent of the need for legal education in relation to Indigenous participation in the law:
[Aboriginal and Torres Strait Islander] encounters with
the law are common, either as victims or offenders. The
law takes little account of their special difficulties or
needs, or their cultural differences. Belatedly, the first
tentative steps are being taken towards judicial
involvement in cultural sensitivity programs, but ignorance of
indigenous cultures is profound.
No doubt the cases discussed in this article provided some of the catalyst for the Queensland Aboriginal Justice Advisory Committee to follow up recommendations of the Royal Commission into Aboriginal Deaths in Custody by developing these `first tentative steps' of cross-cultural training for the judiciary in that state (see Pringle and Bennett 1995). We can expect similar developments throughout the rest of the country, in view of a number of factors, including the encouragement and facilitation of such judicial education by the Australian Institute of judicial Administration, the recommendations of the state Aboriginal Justice Advisory Committees (for example Evans 1994), as well as the Prime Minister's announcement in May 1995 of funding for judicial education in all states on culture and gender issues. It is not clear to what extent these judicial education programs, which are usually `cultural awareness' programs, address the linguistic issues involved in interaction between Indigenous people and the legal system, such as those raised here.
Among the most significant advances in judicial education taken so far have been those of the Family Court, as part of its multi-dimensional Aboriginal and Torres Strait Islander initiatives, described by the court's Chief Justice (Nicholson 1995). In March 1996, thirty-one Family Court judges and staff participated in cross-cultural awareness training run by Batchelor College and the Institute of Aboriginal Development. And in November 1995, the Full Court of the Family Court -- that is, its three most senior judges -- `accepted an invitation to visit Batchelor College to participate in one of the first programs designed to train accredited Aboriginal interpreters' (Nicholson 1995, 15-16).
The cross-cultural awareness training course for Northern Territory magistrates in September 1996 has been discussed above, and in New South Wales several Aboriginal communities have hosted court staff in attempts to educate legal professionals about Aboriginal community life (Muldoon 1996).
There is growing evidence that not just the judiciary, but the legal profession more widely, is beginning to acknowledge the contribution that linguistics can make to the more equitable participation of Indigenous people in the justice system. Some of this evidence has been discussed above,(13) including the funding by the Queensland Law Society of the preparation, publication and dissemination of the handbook for lawyers, Aboriginal English and the Law (Eades 1992), and the research project and resulting report of the Queensland Criminal Justice Commission on Aboriginal witnesses (CJC 1996). Other important developments include:
* the 1996 establishment in the Northern Territory of a committee to pilot the provision of tape-recorded translations into local Aboriginal languages of three aspects of the information conveyed to a suspect at the beginning of a police interview (the caution, rights to both an interpreter and a prisoner's friend, as well as an explanation of their roles, and the suspect's right to inform someone of their whereabouts). This committee, which is led by the Northern Territory Attorney-General's department, includes linguists, magistrates, representatives from Legal Aid, Aboriginal Legal Aid, the Police Department, the Department of the Public Prosecutor and the Office of Aboriginal Development (Cooke, pers comm 1997);
* the publication of articles about linguistic issues concerning communication with Aboriginal witnesses and the role of linguistic expert evidence in the journals of at least two state lawyer organisations (Proctor in Queensland and Law Society Journal in New South Wales);
* workshops on cross-cultural communication in law organised by the Legal Aid Office of Brisbane and Cairns for its staff, as a direct response to the judgments in Kina's case. (Brisbane Legal Aid Office incorporates the office of the Public Defender which had represented Kina so unsuccessfully at her trial.) These Brisbane workshops took place in the same city and the same month as the dismissal by a senior Queen's Counsel of sociolinguistic issues in the cross-examination of the Aboriginal children in the Pinkenba case, as `fancy sociolinguistic nonsense' (Courier Mail, 28 February 1995); and
* requests from a number of offices of the Public Defender and the Director of Public Prosecution in New South Wales for workshops dealing with communicating with Aboriginal English-speaking people in the legal system, and the attendance at these workshops by a wide range of legal practitioners.
This article has discussed judicial reactions to several cases in which linguistic evidence had been prepared in relation to an Indigenous person or persons. Although there has recently been some recognition of the role of linguistic and sociolinguistic expertise in court as well as in the wider legal context, there is a long way to go.
Two major issues arise from the cases in which linguistic evidence has been presented concerning Indigenous people. Firstly, evidence concerning Indigenous people who do not speak English as their first language highlights the need for the provision of interpreters, as well as the education of those involved in the criminal justice system in effectively working with interpreters (see also Cooke 1995a, 1995b, 1996; Goldflam 1995).
Secondly, a number of the cases discussed here highlight the need for a much greater understanding of language, culture and communication issues which relate specifically to Aboriginal English speakers in the legal system. Attention is going to have to be focused on the issue of appropriate legislative reform, as well as the question of the viability of interpreters or cross-cultural advisors for speakers of Aboriginal English (see Eades 1996b; Nash 1979).
There are signs that governments and the legal system itself are beginning to turn their attention more seriously to the communication disadvantages which Aboriginal and Torres Strait Islander people suffer in the legal system as a result of language and cultural differences. It is not enough to gain acceptance of linguistic evidence in court. The challenge for linguists is to provide a greater awareness and understanding of issues concerning language in society, as well as the role that linguistic expertise can play throughout the legal system.
This article is based on a talk entitled `Linguistic Evidence and Australian Aborigines: How Far Have We Come?' which was presented to the second conference of the International Association of Forensic Linguists in July 1995. I am grateful to three anonymous reviewers and to the following people for their comments and criticisms: Michael Cooke, Cliff Goddard, MeeWun Lee and Jeff Siegel. However, I take full responsibility for the contents.
(1.) `Language crimes' refers to those crimes which essentially involve the use of language, such as threats to kill, or bribery (see Shuy 1993).
(2.) This section relies heavily on Eades (1995b). For more details on linguistic evidence in the Condren case, see Eades (1988; 1993).
(3.) Information about Strehlow's evidence in Stuart's case is drawn from two published accounts of the case: Inglis (1961) and Dixon (1987).
(4.) In his earlier affidavit to the Attorney-General, Strehlow had referred to Stuart's English as `pidgin English'. But his evidence to the Royal Commission used the more linguistically accurate and non-stigmatised label `Northern Territory English' (see Eades 1995b, 154, 162-63).
(5.) In fact, this non-expert evidence about Stuart's English was contradictory, and the witnesses were unable to agree on whether or not `Stuart spoke English quite well'.
(6.) It is beyond the scope of this article to assess the extent to which the political climate at the time affected the judgment of the Royal Commission.
(7.) These rules have changed considerably in federal and New South Wales courts, making it easier for expert evidence to be admitted, since the enactment in 1995 of the new Federal Evidence Act and New South Wales Evidence Act. These new Evidence Acts have abolished the ultimate issue and common knowledge rules, and the field of expertise rule has been changed to allow evidence based on a person's `specialised knowledge based on the person's training, study or experience'. But as most criminal trials are held in state courts, the three rules still apply in most criminal trials (that is, in all states except New South Wales).
(8.) As this article goes to press, Carmel O'Shannessy is awaiting the outcome of a case in the Supreme Court of the Northern Territory in January 1997 in which her evidence was admitted in the voir dire.
(9.) In this case, the language over which there was a question of the witness's or suspect's comprehension was Djambarrpuyngu, while in the other cases in this section it was English (or Aboriginal English), and/or Kriol.
(10.) Much linguistic expertise has been used as evidence in land claims in the Northern Territory, as the establishment of rights over land is inherently tied to questions of language affiliation (for example, Simpson 1994; Walsh 1995).
(11.) In an earlier case in the Supreme Court in Brisbane in 1986, linguistic evidence about the Aboriginal English interpretation of questions in a police interview had been ruled as inadmissible, apparently on the basis of the `common knowledge rule' discussed above.
(12.) Expert evidence was also given by a psychiatrist on the issue of repressed memory and by a social worker on the `battered woman syndrome'.
(13.) The writer welcomes additions to this list.
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|Publication:||Australian Aboriginal Studies|
|Date:||Mar 22, 1997|
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