3 Language and Communication

The appearance and behaviour of an Indigenous person, especially in a hostile legal environment, is likely to be different to that of a non-Indigenous person.¹¹⁷ It is, therefore, crucial that cultural assumptions about what ‘trustworthy’ behaviour looks like do not prejudice anyone’s assessment of the trustworthiness or credibility of a First Nations person (see Munkara v Santos NA Barossa Pty Ltd (No 3)).¹¹⁸ This is of paramount importance, given that research shows that demeanour is an unreliable indicator of veracity,¹¹⁹ notwithstanding that it is actively assessed within the courtroom.

Silence plays an important and productive role in social interactions in many Indigenous cultures. The use of silence in communication is a sign of thoughtfulness and indicates that an individual is thinking deeply about the subject matter.¹²⁰

Silence does not signify that an individual does not know what to say or does not have an answer to a particular question. Rather, silence may mean that an individual does not have authority to speak on a particular subject in the presence of a particular person.¹²¹

Avoiding eye contact is generally a sign of respect in many Aboriginal and Torres Strait Islander societies. Conversely, maintaining direct eye contact with another person, especially an older person, may be interpreted as a sign of disrespect, rudeness or hostility.¹²²

Signs and gestures are a significant and common aspect of communication for many First Nations peoples across Australia. Specific signs may be used to indicate relatives or other people — for example:

While it is unlikely that legal practitioners would need to recognise these specific signs, other more discrete signs may be used in legal proceedings and may be central to what an Indigenous person is saying.¹²⁴ For example, a person’s eyes, head or lips may be moved in a particular way to indicate direction of motion, or the location of a person or event being discussed.¹²⁵

Physical touch may be used as a way of initiating conversation or in place of conversation. However, uninvited physical contact by a non-Indigenous person may be interpreted as being aggressive.¹²⁶

Determining the need for an interpreter can be a difficult task in respect of any linguistically diverse person, especially in circumstances where that person speaks some level of English. Gray et al observe:

Accordingly, that a trial judge has the ultimate discretion to allow an interpreter in proceedings where, in practice, they have a limited capacity to form a view of the need for such assistance on their own — and indeed often rely on submissions from counsel on this point — can be problematic.²⁰⁹ Having regard to the particularly diverse nature of Indigenous languages discussed at 3.1 Features of Indigenous Languages across Australia, and the prominence of Indigenous languages that are variations of English in some way, the court’s assessment of the need for an interpreter in proceedings involving Aboriginal and Torres Strait Islander peoples can be especially difficult.

The difficulty of this assessment can be aggravated by the added pressures experienced by individuals interacting with a foreign legal system, as well as the hostile nature of the courtroom itself. Kirby P (as his Honour then was) noted in Adamopoulos v Olympic Airways SA:

For Indigenous peoples interacting with the legal system in Australia, these stresses may be exacerbated by pervading colonial and neo-colonial concerns — whereby First Nations peoples may be predisposed to fear and distrust the law and its agents.

Notwithstanding that awareness of the problems associated with cross-linguistic and cross-cultural interaction within the judicial process has improved over time,²¹¹ the standard of English language proficiency required for an Indigenous participant to receive an interpreter in criminal proceedings remains quite ambiguous.²¹² Historically, courts have tended to overestimate the level of English proficiency of Indigenous people in court and have therefore been reluctant to allow interpreters for Aboriginal and Torres Strait Islander people who speak some level of English.²¹³ Recent case law indicates that this still occurs.

In Murray v Feast,²¹⁴ the Supreme Court of Western Australia found that the primary magistrate’s direction to the interpreter to stop interpreting portions of the accused’s evidence contributed to a miscarriage of justice. The accused was a Walmajarri man who gave evidence that he speaks mainly Walmajarri as well as Mardok, Manjaderra and ‘mixed languages’.²¹⁵ The accused gave evidence with the assistance of an interpreter; however, the magistrate instructed the interpreter not to interpret a few particular sentences which, although they appeared to him to be spoken in English, were in fact spoken in Aboriginal English and Kriol, notwithstanding that the interpreter and counsel for the accused both re-affirmed this to the magistrate.

The following extract of a discussion between the accused, his interpreter, counsel and the magistrate demonstrates how easily a misevaluation of a person’s level of English proficiency can occur, and the far-reaching implications it can have. Solomon J ruled that the magistrate’s conduct contributed to an ‘express denial of the linguistic distinctiveness of the accused’²¹⁶ and ‘embodied an unacceptable and fundamental departure from the required standard of a fair trial’.²¹⁷

Judicial attitudes pertaining to the role of interpreters and their importance in the legal system have progressed over time. The act of interpreting used to be viewed as a literal and mechanical function whereby interpreters acted merely as a conduit — substituting words from one language with equivalent words from another language.²²⁰ Courts at various levels of authority have expressed misgivings over the role of interpreters in court. For example, in Gaio v The Queen, Kitto J stated that the role of the interpreter was ‘not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance’.²²¹

Over time, however, there has been greater acknowledgement of the fact that literal, word-for-word translations can create nonsensical interpretations, and that interpreters, therefore, need to convey the meaning and intent behind words. From the perspective of the court, literal interpretations can directly impact on the fulfilment of judicial officers’ duties. Chief Justice French comments:

However, in the interpretation of Indigenous languages, this is an exceedingly difficult task. This is because the conceptual foundations of the Australian legal system are deeply foreign to Indigenous cultures:

Interpreting Indigenous languages is also challenging for a host of other reasons. Indigenous communities where traditional languages are still spoken are typically small, remote and confined to a particular geographical area. Therefore, it can be practically difficult to find a competent interpreter for individuals speaking traditional languages.²²⁴ This task can be even more complicated in regions like the Northern Territory’s Top End, where there is a high concentration of predominantly non-English speaking Aboriginal people. Goldflam explains:

Given the interconnected nature of many Indigenous language groups, it may also be difficult to identify an appropriate interpreter who is not compromised by their relationship to the person needing interpretive assistance in their ability to provide accurate, impartial and confidential interpretation in accordance with the AUSIT Code of Ethics.²²⁶ These challenges may also be exacerbated by cultural factors which may prohibit individuals from speaking about particular topics in the presence of certain people. For example:

The Northern Territory, South Australia and New South Wales are the only jurisdictions in Australia which have government interpreting agencies responsible for the recruitment, training and provision of court interpreters, as well as a government agency dedicated to Aboriginal interpreting.²²⁸

A sentencing circle usually brings participants (offenders) together with community elders and a judicial officer.²³⁸ It is part of the court process and results in convictions and criminal records for offenders. In a sentencing circle, the facts of the case are presented to all parties; then, after a period of discussion, a sentencing plan is developed which the judge then uses to sentence the offender.²³⁹ Importantly, judges retain a discretion as to whether a sentencing circle is appropriate in the circumstances, and whether to follow the sentencing circle’s recommendations.²⁴⁰

Circle sentencing is premised on the notion that, because a criminal offence represents a breach of the relationship between the offender and the community, and because the stability of the community depends on healing these breaches, the community so affected plays a critical role in providing solutions.²⁴¹

Circle sentencing helps to:

Indigenous courts have existed in every jurisdiction in Australia except Tasmania.²⁴³ Whereas circle sentencing proceedings are usually conducted in a culturally significant venue, and do not conform to formal courtroom seating arrangements, Indigenous court proceedings are typically conducted in a mainstream Local or Magistrate’s Court.²⁴⁴ Generally, Indigenous courts do not apply Indigenous customary laws; however, they involve relevant communities in proceedings.²⁴⁵

However, similar to circle sentencing, Indigenous court proceedings involve an Aboriginal Elder or justice officer who sits with the magistrate on the Bench and advises them about the offender who is being sentenced, and about cultural and community factors which may be relevant to sentencing.²⁴⁶ The magistrate may ask questions of the offender, the victim if present and members of the family and community in assisting with sentencing options.²⁴⁷ The offender may also have relatives present with them.²⁴⁸

The Criminal Justice Commission identified a raft of issues facing Aboriginal women specifically which may make the process of giving evidence especially difficult for some female witnesses.²⁶³ These include:

In its 2016 report, The Path to Justice: Aboriginal and Torres Strait Islander Women’s Experience of the Courts, the Judicial Council on Cultural Diversity reaffirmed that many Indigenous women face barriers to accessing justice. The Council found, among other things:

The Council also recommended particular actions which courts can take to improve access to justice:

Lacey (a pseudonym) v Attorney-General (NSW)²⁶⁷ demonstrates the kind of approach a court is entitled to take in accommodating the provision of evidence from female witnesses in a culturally appropriate manner. In that case, a 16-year-old Aboriginal girl who was stripsearched by New South Wales Police sought to exclude men from viewing the footage of the strip search which displayed the applicant’s chest and buttocks. This is because showing sensitive material of this nature is ‘women’s business’ which, if conducted in the presence of men, would likely result in severe, longstanding cultural shame and distress.²⁶⁸ The Court of Appeal held that a local court has the power to make an order that charges be heard by a female magistrate,²⁶⁹ and to prohibit men from viewing sensitive evidence of females for cultural or gender reasons.²⁷⁰

In addition to the general cultural barriers to effective communication which Aboriginal and Torres Strait Islander people may experience when giving evidence, Indigenous children may have the added difficulty of having limited cognitive and intellectual development, as well as command of language/communication generally.

For example, in The Queen v Wad,²⁷¹ the complainant (though not Indigenous) was a child from a linguistically diverse background. The Court held that her limited command of English made her evidence ‘imprecise and apt to mislead’.²⁷²

The Pinkenba Case²⁷³ is a glaring example of how communication difficulties facing young people may lead to severe injustices if unchecked. In this case, three Aboriginal boys gave evidence as prosecution witnesses in the committal hearing of six police officers who were charged with deprivation of the boys’ liberty. During cross-examination, the witnesses were subjected to pressured and prolonged questioning in a manner antithetical to Indigenous ways of speaking.²⁷⁴ The witnesses also displayed various documented cultural practices which were either prohibited by the judge or misinterpreted.²⁷⁵

The difficulty for young Indigenous people in giving evidence may be heightened by factors such as neglect and family abuse or violence.²⁷⁶ For this reason, in proceedings involving sexual offences, there are significant complexities involved in taking the evidence of child witnesses who speak an Indigenous language through an interpreter. Witness intermediaries play an important role in mitigating these difficulties in some states and territories; however, it is critical that intermediaries receive cultural competency training on how to appropriately assist Aboriginal and Torres Strait Islander witnesses specifically (see 3.9.7 Special/Vulnerable Witnesses and Witness Intermediary Schemes).

A court may appoint an ‘intermediary’ for a witness who is deemed to have ‘difficulty communicating’.²⁸⁴ Although the use of intermediaries is currently limited to criminal proceedings for child sexual offences (see 3.9.7 Special/Vulnerable Witnesses and Witness Intermediary Schemes),²⁸⁵ it is conceivable that an intermediary may nevertheless be granted in proceedings for other offences if it is demonstrated that the use of an intermediary would assist to overcome communication barriers.²⁸⁶

The role of a witness intermediary is:

For a witness who is deemed to require or may otherwise benefit from the use of an intermediary, a court may give directions allowing the witness to give evidence in a way that the court considers appropriate for the fair and efficient conduct of the proceedings.²⁸⁸ Specifically, directions may be given in relation to the manner and duration of questioning the witness,²⁸⁹ as well as any questions that may or may not be put to the witness.²⁹⁰

For a witness with ‘complex communication needs’,²⁹¹ a court may order that a witness be assisted in giving evidence in order to help them communicate more effectively with the court during proceedings.²⁹² The particular type of order may be specified by the court.²⁹³

Courts have an obligation under s 41 of the Evidence Act 1995 (Cth) to disallow an ‘improper’ question, or direct a witness to avoid answering it.³⁰² They may otherwise intervene in cross-examination if a question constitutes ‘an interference with the proper administration of justice’ (Allchin v The Queen).³⁰³ A question may be improper if it is:

In disallowing a question on the basis that it is improper, a court must take account of relevant characteristics of the witness, which may include their ‘ethnic and cultural background’ and their ‘language background and skills’.³⁰⁵

In the Northern Territory and Victoria, the improper question provisions are different to that contained in the Commonwealth Act.³⁰⁶

Courts also have the power to disallow leading questions under s 42 of the Evidence Act 1995 (Cth). The common law position reflects this:

Courts have an obligation under s 42(3) to disallow a leading question or to direct a witness not to answer it they are satisfied that the information counsel is seeking to adduce would be more effectively ascertained without the use of leading questions.³⁰⁸

Separate to this obligation, courts have a discretion under ss 42(1) and (2) to disallow a leading question.³⁰⁹ In exercising this discretion, courts may have regard to the extent to which:

Together, these provisions give courts considerable scope to disallow questions that appear to elicit certain cultural aspects of communication which may be misinterpreted (see 3.4 Cultural Barriers to Understanding). In particular, they allow courts to respond to, and appropriately minimise, the implications of instances of gratuitous concurrence or suggestibility which are more likely to manifest in response to leading questions. Specifically, s 42(2)(d) of the Evidence Act 1995 (Cth) suggests that leading questions should be disallowed where there is a material risk that the witness is unusually susceptible to suggestive questioning so that the testimony of the witness is likely to be unreliable (compare Stack v Western Australia which reflects the common law position).³¹¹

However, case law suggests that courts do not readily restrict the method of cross-examination.³¹² Justice Dean Mildren suggests that courts should make more use of this power to prevent leading questions whenever it appears that the witness is likely not to be protected from suggestibility.³¹³

Under s 4AJ of the Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT), an intermediary may be appointed for any witness with a communication difficulty. The role of the intermediary is to provide reports about the witness’s communication needs where necessary;³⁵⁰ to aid the communication and understanding of the witness at the hearing, and specifically during questioning;³⁵¹ and to otherwise assist the court and lawyers to communicate with the witness.³⁵² A ‘ground rules hearing’ must be held if an intermediary is appointed for a witness;³⁵³ however, a court may conduct a ground rules hearing at any time if satisfied that it is in the interests of justice.³⁵⁴ At a ground rules hearing, the court may make directions about, among other things, the manner in which a witness may be questioned, how long a witness may be questioned, and the types of questions that may or may not be asked of the witness.³⁵⁵

Under s 294M of the Criminal Procedure Act 1986 (NSW), a court must appoint a witness intermediary for a witness who is aged 16 years or below, and may appoint an intermediary for a witness who is more than 16 if the court is satisfied that the witness has difficulty communicating.³⁵⁶ The role of the intermediary is to communicate to the court whether the witness can understand questions put to them, as well as to inform the court and the person asking the questions the best way to ask the questions of the witness in order to enhance their understanding.³⁵⁷ If appointed, a witness intermediary may be asked to provide the court with a written report about the communication needs of the witness.³⁵⁸

Under the Evidence Act 1939 (NT), a ‘vulnerable witness’ may include a child, someone who has a cognitive impairment or intellectual disability, an alleged victim of a sexual offence or complainant in a domestic violence offence proceeding, or someone who the court otherwise considers to be vulnerable.³⁵⁹ In determining whether a witness may be ‘vulnerable’, the court may have regard to, among other factors, any characteristic of the witness including their ethnic and cultural background, language background and skills, and level of understanding.³⁶⁰

While there is no intermediary scheme in place, there are a raft of protections available for vulnerable witnesses under the Northern Territory legislation. For example, a vulnerable witness may be entitled to give evidence outside the courtroom using an audiovisual link³⁶¹ or, if they do give evidence in the courtroom, the court may be closed while the witness gives evidence.³⁶² They witness may also be entitled to have an emotional support person accompany them.³⁶³ For a vulnerable witness in cases of sexual or serious violence offences, the court may hold a special sitting for the witness and have a recording of their examination admitted into evidence.³⁶⁴ Further special measures are available for child witnesses.³⁶⁵

Under s 21A of the Evidence Act 1977 (Qld), a court may consider a person’s cultural background as a relevant matter which is likely to disadvantage a witness.³⁶⁶ Among other things, a court may order that certain people be excluded from the courtroom, that a witness be allowed a support person, and that the witness be able to give evidence in another room or via a videotape recording.³⁶⁷

Under s 21AZL(1)(c) of the Evidence Act 1977 (Qld), a court may appoint an ‘intermediary’ for a witness who is deemed to have ‘difficulty communicating’.³⁶⁸ The role of a witness intermediary is to communicate or explain to the witness questions put to the witness, to the extent necessary to enable the witness to understand the questions, and communicate or explain to a person asking questions of the witness the answers given by the witness in reply, to the extent necessary to enable the person to understand the answers.³⁶⁹ Although the use of intermediaries is currently limited to criminal proceedings for child sexual offences,³⁷⁰ it is conceivable that an intermediary may nevertheless be granted in proceedings for other offences if it is demonstrated that the use of an intermediary would assist to overcome communication barriers.³⁷¹

For a witness who is deemed to require or may otherwise benefit from the use of an intermediary, a court may give directions allowing the witness to give evidence in a way that it considers appropriate for the fair and efficient conduct of the proceedings.³⁷² Specifically, directions may be given in relation to the manner and duration of questioning the witness,³⁷³ as well as any questions that may or may not be put to the witness.³⁷⁴

Courts in South Australia can make special arrangements to protect vulnerable witnesses when giving evidence in criminal proceedings.³⁷⁵ Among other arrangements, a court might order that evidence be given through closed-circuit television or an audiovisual recording, excluding the defendant from the place where the evidence is taken, and allowing a support person to accompany the witness.³⁷⁶ Similar arrangements may be made for other witnesses to protect them from embarrassment, distress, intimidation from the atmosphere of the courtroom, or for any other ‘proper reason’.³⁷⁷

Furthermore, under s 14A(1) of the Evidence Act 1929 (SA), a court may order that a witness with ‘complex communication needs’³⁷⁸ be assisted in giving evidence in order to help them communicate more effectively with the court during proceedings.³⁷⁹ The particular type of ‘communication assistance’ that a court may order can vary.³⁸⁰ However, only a qualified ‘communication partner’ that is approved by the court may provide communication assistance.³⁸¹

Pursuant to s 7F of the Evidence (Children and Special Witnesses) Act 2001 (Tas), a witness will be taken to have a ‘communication need’ if the quality or clarity of evidence given by them may be significantly diminished by their ability to understand, process or express information.³⁸² A communication need exists irrespective of whether it is temporary, permanent or reoccurring, how severe it is, or how it has been caused.³⁸³ A court may order that a witness intermediary be used in a ‘specified proceeding’ (relating to sexual offences and homicide) if the court is satisfied that it will assist the proceeding,³⁸⁴ or if it is otherwise in the interests of justice.³⁸⁵ A ‘ground rules hearing’ must be held if an intermediary is appointed for a witness.³⁸⁶ At a ground rules hearing, the court may make any direction which it considers appropriate, including the manner in which a witness may be questioned, how long a witness may be questioned, and the types of questions that may or may not be asked of the witness.³⁸⁷

Under s 389F of the Criminal Procedure Act 2009 (Vic), a court may appoint a witness intermediary for a witness if they are under the age of 18 years or have a cognitive impairment.³⁸⁸ In proceedings where a witness intermediary has been appointed, the court is required to conduct a ‘ground rules hearing’.³⁸⁹ At a ground rules hearing, the court considers the communication, support and other needs of the witness, and decides how the proceeding is to be conducted to fairly and effectively meet those needs.³⁹⁰

Under the Evidence Act 1906 (WA), an individual may be declared a special witness if they are likely to suffer severe emotional turmoil or be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily by reason of cultural background.³⁹¹ A special witness may give evidence with the assistance of a support person or communicator,³⁹² or at a special videotaped hearing.³⁹³ Section 100A also allows individuals to give unsworn evidence where the court is satisfied that the person does not understand the nature of the oath or affirmation, or the obligations imposed by it.³⁹⁴ Child witnesses may be afforded additional support and have a communicator appointed for them who may be requested to explain to the child questions put to them, and explain to the court the evidence given by the child.³⁹⁵

Moreover, courts may conduct a ‘ground rules hearing’ to discuss and address difficulties that may be experienced in the taking of evidence in child sexual abuse prosecutions. This may include the questioning of prosecution witnesses with specific communication needs, and the rules and procedures to be followed to facilitate the taking of evidence.³⁹⁶ A ground rules hearing will generally be ordered where a ‘special witness’ requires a communicator in accordance with s 106R(4) of the Evidence Act 1906 (WA), where the witness is a child aged six years or under, or where a ‘substantial need’ is demonstrated.³⁹⁷

Language and communication — Aboriginal child witness — Credibility and reliability — Inconsistencies in evidence — Gratuitous concurrence — Jury direction about sociolinguistic factors — Mildren direction — Whether miscarriage of justice.

This case provides guidance on the appropriateness of jury directions in respect of an Aboriginal child witness. It elaborates on the ways that trial judges may instruct juries on how to assess the credibility and reliability of a particular witness, especially in circumstances where it is important that a jury disregard any unconscious assumptions when assessing a witness’s levels of understanding, educational background and appropriateness of response in the context of interviews and cross-examination.

A 39-year-old male was convicted of inducing a 12-year-old Aboriginal girl to perform sex acts on him in the context of providing cannabis to her and other young females.

The appellant was convicted of one count of sexual penetration of a child under 13 and one count of indecent dealing. Both offences allegedly occurred simultaneously as part of a single incident. He was convicted after a trial at the District Court in Broome before a judge and a jury.

While summing up during the trial, the trial judge told the jury that they should take into account possible cultural differences between Aboriginal children, such as the complainant and other witnesses and children. The trial judge also suggested that some of these differences may account for what might otherwise seem to be inconsistencies in the evidence given by these individuals.⁴⁰⁶

The appellant appealed to the Supreme Court of Western Australia on the grounds that this summing-up was unbalanced and/or unfair, that the trial judge erred in questions of both law and fact, and that there was a miscarriage of justice as a result. This included that the judge:

The Court unanimously dismissed the appeal, finding:

Jury Directions and Guidance:

Hall J (Buss JA and Murphy JA agreeing) at [53]–[55]:

At [69]:

Stack v Western Australia [2004] WASCA 300, [117], [136]; R v Knight [2010] QCA 372, [283]

Language and communication — Barriers to effective communication for Indigenous witnesses — Gratuitous concurrence — Admissibility of expert evidence relating to communication difficulties.

This case concerned a claim for compensation over the tourist town of Yulara near Uluru under s 61(1) of the Native Title Act 1993 (Cth) (‘NTA’). The evidence given by some Aboriginal witnesses in support of the claim exhibits some of the difficulties related to cross-cultural communication which may emerge during proceedings, as well as the capacity for these difficulties to impair the ‘quality’ of the evidence received by a court.

Five members of a ‘compensation claim group’ sought a determination of compensation pursuant to s 61(1) of the NTA.⁴¹¹ The group claimed to have held native title rights and interests over a 104 square kilometre area in the south of the Northern Territory constituted as the town of Yulara (the ‘application area’).⁴¹² Certain ‘compensation acts’ took place in the application area prior to 1979 which the applicants argued effected the extinguishment of their native title rights on March 1994 when the Validation (Native Title) Act 1994 (NT) was passed.⁴¹³ These acts included grants of freehold and leasehold estates over parts of the application area and the construction of public works on the area.⁴¹⁴ The applicants sought a determination of compensation for the extinguishment of their rights and interests in native title.

This was the first time a compensation claim had come before the Federal Court of Australia and was intended to be a test case for the calculation of compensation.⁴¹⁵

Sackville J dismissed the compensation application without having to address the issue of compensation, as he found that the applicants had failed to surmount the initial ‘threshold issue’. The applicants failed to establish that the group had any native title rights and interests over the application area at the time the compensation acts were done.⁴¹⁶ This finding was made for two reasons:

This case is an example of the difficulty which some Aboriginal and Torres Strait Islander witnesses face in being understood by the court while giving evidence, and the approaches that courts have taken to account for these difficulties.

In support of its first finding, the Court held that ‘the evidence of virtually none of the senior Aboriginal witnesses supports the distinction between “conditions” and “additional factors” underpinning the applicants’ pleaded case’.⁴²⁰ Sackville J recognised that particular witnesses faced ‘barriers to effective communication’ while giving evidence,⁴²¹ and for this reason he expressly acknowledged the need to allow for ‘some leeway in interpreting the Indigenous evidence’.⁴²² He stated:

Notwithstanding his appreciation of these issues, Sackville J determined that the evidence provided by some of the witnesses was so inconsistent that it was incompatible and not even ‘broadly matched’⁴²⁴ with the applicants’ case:

Gratuitous concurrence was a specific barrier to communication which emerged in the evidence of one witness and which the applicants argued constituted grounds for disregarding the evidence on the basis that it was tainted by misunderstanding.⁴²⁶ However, the Court made its own evaluative judgment on whether the witness exhibited gratuitous concurrence and the extent to which it impacted the evidence, and, on this basis, rejected the argument that the evidence should be disregarded.⁴²⁷

In a separate judgment (a 2004 ruling on evidence by Sackville J),⁴²⁸ the Court considered the admissibility of expert evidence relating to the difficulties of language and communication experienced by Aboriginal people when talking about traditional laws and customs.⁴²⁹ In that judgment, Sackville J acknowledged that

Under this reasoning, the Court admitted into evidence ‘general observations’ made by the expert about language and communication difficulties likely to be experienced by Aboriginal witnesses.⁴³¹ However, Sackville J held that comments made by the expert in relation to particular passages of evidence at the hearing were inadmissible because they would interfere with the evaluation of specific evidence which is ‘quintessentially’ the task of the court.⁴³² He also noted that the probative value of the evidence was substantially outweighed by the risk that its admission would result in an undue waste of time.⁴³³

At [292]:

At [296]:

At [407]:

Drill obh of Purnululu Native Title Claim Group v Western Australia [2020] FCA 1510, [150] (consideration of gratuitous concurrence); Murray v Feast [2023] WASC 273 (admissibility of expert evidence relating to communication issues)

Language and communication — Gratuitous concurrence during cross-examination — Inconsistencies in evidence — Use of interpreter.

This case provides an example of how courts deal with gratuitous concurrence as a cultural barrier to communication when it arises during cross-examination in court. It also illustrates the compounded difficulties faced by some First Nations women giving evidence in circumstances where they have experienced abuse or other forms of trauma.

The accused was charged with aggravated assault under the Criminal Code (NT) and breaching a domestic violence order under the Domestic and Family Violence Act 2007 (NT). The victim was an Aboriginal woman from Maningrida who was the appellant’s wife at the time.

On 3 July 2017, the appellant was found guilty and convicted in the Local Court of one count of aggravated assault occasioning harm and one count of breaching a domestic violence order. The appellant appealed his conviction on the basis that the findings of guilt were unsafe and unsatisfactory on all of the evidence, and that the Local Court erred in finding there was no reasonable doubt concerning the question of identification.⁴³⁴

The victim gave evidence at the trial⁴³⁵ and, while being cross-examined, gave an account which appeared to contradict the evidence which she had previously given.⁴³⁶ This discrepancy was brought about by instances of gratuitous concurrence: the tendency of some individuals to answer affirmatively to a leading question irrespective of whether they agree with the proposition being put to them.⁴³⁷ In addition to this, at various points throughout the trial the victim stated that she wanted to go home and drop the charges — which are not unusual traits of someone who has experienced domestic or interpersonal violence.⁴³⁸

On appeal, the main issue the Court faced was whether, in these circumstances, the inconsistencies went to the essential features of the victim’s account of the offences.⁴³⁹

The Supreme Court of the Northern Territory dismissed the appeal on the basis that the inconsistencies in the victim’s evidence were explicable in a manner that did not provide a basis for them to reflect adversely on the victim’s credit.⁴⁴⁰ Grant CJ held that the transcript demonstrates gratuitous concurrence on behalf of the victim during cross-examination.⁴⁴¹ Notwithstanding that this resulted in the victim leading material that was partly inconsistent, Grant CJ held that it did not necessarily follow that there was a reasonable doubt about the victim’s evidence concerning the essential features of the offending.⁴⁴²

Grant CJ at [49]–[51]:

New significant environmental impact or risk — Damage to intangible cultural heritage — Evidence — Communication and instructions between lawyer and client — Miscommunication.

This case illustrates the importance of clear and effective lawyer–client communication. It also exhibits the inherent difficulty faced by Indigenous witnesses in getting courts to receive oral histories and stories (which have been passed down through generations) in a language and form which is accepted.

The respondent, Santos, had undertaken a project for the extraction and export of gas from the Bonaparte Basin in the Timor Sea. It was authorised under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) to construct a 262 km gas export pipeline.

The applicants are Aboriginal people from the Tiwi Islands. They alleged that there is a risk that the construction of the pipeline, and its existence on the sea bed, would significantly impact their cultural heritage.

On 2 November 2023, the Federal Court granted an interim injunction restraining the respondent from undertaking works for the construction of a gas export pipeline in the Timor Sea until 13 November 2023.⁴⁴³ On 13 November 2023, the Federal Court extended this restraint to 15 January 2024 until judgment on the originating application was passed.⁴⁴⁴

The applicants sought both a declaration that the respondent must submit a revised environmental plan and a permanent injunction. The principal issue was whether the applicants had established that there was a significant new environmental impact on the basis that the pipeline would cause damage to their intangible cultural heritage: that is, that the pipeline would separate the Jikilaruwu, Munupi and Malawu peoples from Mother Ampiji — an ancestral or spiritual being that lives in the Ancient Lake — and that this would damage their spiritual connection with the sea Country.⁴⁴⁵

Whether the applicants could establish this depended in part on evidence from a ‘cultural mapping’ exercise conducted by an expert witness and lawyers from the Environmental Defenders Office (‘EDO’). This reflected a ‘reinterpretation’ of traditional cultural beliefs ‘through a Western scientific lens’.⁴⁴⁶

The Federal Court held that evidence from the cultural mapping exercise lacked integrity, and it gave little to no weight to the evidence because of an instance of miscommunication between the EDO lawyer and one of the Tiwi Islander people who had participated in it. Charlesworth J expressed misgivings over particular video evidence from the cultural mapping exercise which illustrates the miscommunication:

The Court held that the miscommunication ‘supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this Court’,⁴⁴⁹ and that this had undermined the Court’s confidence in the reliability of the evidence later given by the Tiwi Islanders.⁴⁵⁰

The Court held that there was no risk of environmental impact of the kind asserted by the applicants. The evidence did not establish an obligation on behalf of the respondent to submit a revised environmental plan. The originating application was dismissed and the injunction on the construction of the pipeline was discharged.

The effect of the miscommunication was that the Tiwi Islanders who participated in the proceedings were not heard. They were not afforded an appropriate opportunity to give evidence that might otherwise have been valuable to their application if it was conveyed to the court clearly and in a way which could be understood, perhaps through the use of an interpreter.

Notably, this lapse of communication occurred despite Charlesworth J’s considered treatment of language and communication issues earlier in the judgment.⁴⁵¹

At [256]–[257]:

At [1169]–[1170]:

Language and communication — Difficulties giving evidence — Failed lawyer/client communication — Admissibility of expert sociolinguistic evidence — Miscarriage of justice.

In this case, the appellant’s conviction was overturned because the Court at first instance failed to identify and take account of complex cultural factors which prevented her from providing evidence in her defence. R v Kina exemplifies the importance of effectively communicating with and taking instructions from Indigenous clients. It also speaks to the utility of expert sociolinguistic evidence in helping to correct the miscarriage of justice.

The appellant, Robyn Kina, is an Aboriginal woman who had experienced a life characterised by sustained trauma, sexual abuse and hardship.⁴⁵² Specifically, Kina was subjected to repeated and unrelenting physical and sexual violence at the hands of David Black.⁴⁵³ On 20 January 1988, Black punched the appellant in the face and stomach and threatened to sexually assault her 14-year-old niece. Following this and the history of abuse which she had suffered, the appellant stabbed Black who died shortly after. Following her trial, which lasted less than a day, Kina was convicted of the murder of Black on 5 September 1988. The trial judge ruled that there was insufficient evidence to justify leaving provocation for the consideration of the jury.

Importantly, throughout the legal process, the appellant was represented by a revolving door of public service lawyers, due to the difficulty lawyers had in taking instructions from her.⁴⁵⁴ None of the lawyers representing the appellant had received any training or instructions concerning how to communicate with Aboriginal clients, and one of the lawyers gave evidence that the appellant was ‘extremely reticent in her communication with me’. At the trial, Ms Kina pleaded not guilty and decided not to give or call any evidence, on advice from her lawyers.⁴⁵⁵

The decision of the trial judge was upheld on appeal in the Queensland Court of Criminal Appeal because there was no evidentiary basis on which a conclusion could be drawn as to the existence of provocation.

On 24 May 1993, a petition for pardon was delivered to the Governor of Queensland on behalf of the appellant. Following this, the Attorney-General referred the case to the Court of Appeal of the Supreme Court of Queensland to determine whether there was a miscarriage of justice in the appellant’s trial, and why the appellant chose not to give evidence about self-defence and provocation.

The appellant lodged three grounds of appeal:

The Court of Appeal found that the appellant’s trial involved a miscarriage of justice.⁴⁵⁷ The Court held that numerous complex factors went unchecked which significantly impaired communication between the appellant and her legal representatives. These factors included her Aboriginality, the trauma of sustained abuse she had experienced, as well as her shame around the nature of the events and her relationship with Black.⁴⁵⁸ The Court held that these factors

In making this finding, the Court accepted and referred to expert sociolinguistic evidence of Diana Eades which analysed Aboriginal ways of communicating. Specifically, it compared the ways in which lawyers received instructions from the applicant before her trial with the ways in which TV journalists communicated with her a few years later. The Court referred to Eades’s evidence that the appellant’s ‘limited bicultural competence’ meant that she ‘would have been unlikely to reveal sensitive or significant information unless a person communicated with her in the Aboriginal way, which does not involve direct questions’.⁴⁶⁰ Further, the appellant had accepted her lawyers’ advice to not give evidence because her ‘Aboriginal way of dealing … would guide her not to oppose her lawyers’.⁴⁶¹

At 39:

At 39–40:

Language and communication — Aboriginal children — Cultural barriers to communication — Giving evidence.

This case reflects the compounded difficulties which may be faced by Indigenous children in giving evidence in court. Extracts from the hearing demonstrate a distinct lack of awareness and appreciation of cultural factors which were likely impacting the way the witnesses were communicating. The result of this was that the witnesses were unable to effectively provide evidence and, ultimately, they were not heard — an outcome which Eades believes occasioned ‘an obscene travesty of justice’.⁴⁶² As such, this case demonstrates the importance of recognising and accounting for these difficulties when they arise during proceedings.

The case is unreported and the transcript of proceedings unable to be located. Accordingly, this case note draws on Diana Eades’s article which analyses the case based on her experience as an expert sociolinguist involved in the proceedings,⁴⁶³ as well as the Supreme Court of Queensland’s judicial review of the magistrate’s decision.

On 10 May 1994, three Aboriginal boys aged 12, 13 and 14 were abducted by six police officers. The boys were taken by the officers in three separate vehicles from a shopping mall in Fortitude Valley, Brisbane and driven to an industrial wasteland in Pinkenba, 14 km away, where they were left to find their way back to the city. The boys were not charged with any offence or taken to a police station. The police officers were charged with the deprivation of their liberty.

At the committal hearing at the Brisbane Magistrate’s Court in February 1995, the boys gave evidence as prosecution witnesses. Eades was asked by the Director of Public Prosecutions to analyse the boys’ evidence in the hearing, draft a statement, and appear as an expert witness. Though in the end she was not called to give evidence, and her statement was not used, Eades identified several problems with the boys’ evidence which demonstrated a misinterpretation of, and disregard for, certain cultural aspects of the way the witnesses spoke in court.

Eades observed that, during cross-examination, the witnesses were subjected to pressured and prolonged questioning in a manner that was antithetical to Indigenous ways of speaking. The witnesses also displayed various documented cultural practices (see 3.4 Cultural Barriers to Understanding) which were either prohibited by the judge or misinterpreted.

For example, the witnesses exhibited gratuitous concurrence in response to several questions put to them, many of which contained complex grammatical structures which would confuse many adult witnesses, let alone vulnerable children. Eades also observed that the witnesses used silence after being asked certain questions, regarding which defence counsel commented, ‘We have to take your silence as “no”, don’t we?’ and ‘I’m suggesting to you that you don’t want the Court to know the little criminal you are’.⁴⁶⁴ It was also noted that the witnesses avoided maintaining direct eye-contact with counsel while being cross-examined — a recognised cultural practice of many Aboriginal communities in Australia. Notwithstanding this, counsel for the respondents repeatedly insisted that one of the witnesses look at him, and suggested that the boy was avoiding eye contact to hide the ‘lies written all over [his] face’.⁴⁶⁵

The committal hearing occurred at the Brisbane Magistrate’s Court on 24 February 1995. The applicants then applied to the Supreme Court of Queensland for a judicial review of the decision on 8 September 1995 and 14 February 1996.

The magistrate held that the witnesses’ evidence suggested that they knew they did not have to enter the police vehicles, and that they did so willingly. The magistrate declined to commit the matter to the Supreme Court for trial as he believed there was insufficient evidence to put the respondents on trial. The respondents were discharged. The magistrate’s decision was affirmed by the Supreme Court of Queensland upon judicial review.⁴⁶⁶

Extract from the cross-examination of one of the witnesses during the committal hearing:

Purcell v Venardos (No 2) [1997] 1 Qd R 317 (judicial review), Ambrose J at 322–3:

Language and communication — Lawyer/client communication — Receiving effective instructions — Understanding legal advice and proceedings — Miscarriage of justice.

This case demonstrates how a lapse in cross-cultural communication can lead to a miscarriage of justice. It underscores the importance for legal practitioners to ensure effective communication with First Nations clients whose first language is not English, or who may otherwise face barriers to communicating in English. This includes making sure they receive effective instructions, and ensuring that the client understands the legal process, the advice they are receiving and the options available to them.

The case also emphasises the importance of assessing the need for an interpreter at the beginning of proceedings, during initial client interviews, and ensuring that a competent interpreter is subsequently provided. It also speaks to the utility of adopting strategies to undertake more effective interviews with Aboriginal and Torres Strait Islander clients which are trauma informed and therapeutic (see 3.6 Effective Communication in General Legal Settings).

On 4 July 2014, Mr Gene Gibson, a Pintupi man with limited English proficiency and significant cognitive impairments, was convicted, on his plea of guilty, of one count of unlawful killing under s 280 of the Criminal Code (WA). On the date of the appellant’s trial, his legal representative, Mr Brunello, had shown the appellant a pre-prepared document titled ‘Instructions of Gene Gibson’ and told him to sign it. Separately, Mr Brunello had given the appellant advice to the effect that he must plead guilty because the police had extensive evidence against him, and that he would get a shorter sentence if he did so.

On 20 June 2016, the appellant appealed to the Court of Appeal of the Supreme Court of Western Australia on the basis that a miscarriage of justice occurred in his trial.

The Court of Appeal held that a miscarriage of justice had occurred because the integrity of the appellant’s guilty plea was impugned by the real risk that the plea was not attributable to a genuine consciousness of guilt. In the view of the Court, there was a likelihood that the appellant did not adequately understand the legal process, the State’s case against him, the advice that his legal advisors gave him about his plea, or the options that were available to him at the time he entered his plea.⁴⁶⁸

This lack of understanding was caused, in part, by the following factors:

Collectively, these factors contributed to the miscarriage of justice, and the Western Australian Court of Appeal ordered that the conviction be set aside.

Buss P, Mazza and Beech JJA at [182]:

At [188]:

At [196]–[197]:

Putti v Simpson (1975) 6 ALR 47

New significant environmental impact or risk — Damage to intangible cultural heritage — Evidence — Communication and instructions between lawyer and client — Miscommunication.

This case illustrates the importance of clear and effective lawyer–client communication. It also exhibits the inherent difficulty faced by Indigenous witnesses in getting courts to receive oral histories and stories (which have been passed down through generations) in a language and form which is accepted.

The respondent, Santos, had undertaken a project for the extraction and export of gas from the Bonaparte Basin in the Timor Sea. It was authorised under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) to construct a 262 km gas export pipeline.

The applicants are Aboriginal people from the Tiwi Islands. They alleged that there is a risk that the construction of the pipeline, and its existence on the sea bed, would significantly impact their cultural heritage.

On 2 November 2023, the Federal Court granted an interim injunction restraining the respondent from undertaking works for the construction of a gas export pipeline in the Timor Sea until 13 November 2023.⁴⁷⁴ On 13 November 2023, the Federal Court extended this restraint to 15 January 2024 until judgment on the originating application was passed.⁴⁷⁵

The applicants sought both a declaration that the respondent must submit a revised environmental plan and a permanent injunction. The principal issue was whether the applicants had established that there was a significant new environmental impact on the basis that the pipeline would cause damage to their intangible cultural heritage: that is, that the pipeline would separate the Jikilaruwu, Munupi and Malawu peoples from Mother Ampiji — an ancestral or spiritual being that lives in the Ancient Lake — and that this would damage their spiritual connection with the sea Country.⁴⁷⁶

Whether the applicants could establish this depended in part on evidence from a ‘cultural mapping’ exercise conducted by an expert witness and lawyers from the Environmental Defenders Office (‘EDO’). This reflected a ‘reinterpretation’ of traditional cultural beliefs ‘through a Western scientific lens’.⁴⁷⁷

The Federal Court held that evidence from the cultural mapping exercise lacked integrity, and it gave little to no weight to the evidence because of an instance of miscommunication between the EDO lawyer and one of the Tiwi Islander people who had participated in it. Charlesworth J expressed misgivings over particular video evidence from the cultural mapping exercise which illustrates the miscommunication:

The Court held that the miscommunication ‘supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this Court’,⁴⁸⁰ and that this had undermined the Court’s confidence in the reliability of the evidence later given by the Tiwi Islanders.⁴⁸¹

The Court held that there was no risk of environmental impact of the kind asserted by the applicants. The evidence did not establish an obligation on behalf of the respondent to submit a revised environmental plan. The originating application was dismissed and the injunction on the construction of the pipeline was discharged.

The effect of the miscommunication was that the Tiwi Islanders who participated in the proceedings were not heard. They were not afforded an appropriate opportunity to give evidence that might otherwise have been valuable to their application if it was conveyed to the court clearly and in a way which could be understood, perhaps through the use of an interpreter.

Notably, this lapse of communication occurred despite Charlesworth J’s considered treatment of language and communication issues earlier in the judgment.⁴⁸²

At [256]–[257]:

At [1169]–[1170]:

Language and communication — Duties and functions of legal practitioners — Understanding client instructions — Individuals from culturally or linguistically diverse backgrounds.

This case demonstrates how a failure to obtain appropriate instructions and understand the needs of a client may impair a legal practitioner’s ability to dutifully represent them and fulfil their own ethical obligations. Principal among these is to represent their client’s best interests and provide clear and timely advice.

On 17 February 1975, the appellant, an Aboriginal man from Bamyili in the Northern Territory, pleaded guilty in the Katherine Court of Summary Jurisdiction to two counts of unlawful assault accompanied by aggravating circumstances under s 131(c) of the Justices Ordinance 1928–1974.⁴⁸³ The circumstances of aggravation were that it was an unlawful assault upon a female. The first offence arose from an incident on 7 February 1975 where the appellant struck his wife with a sickle inflicting a severe laceration. The second offence arose from an incident on 15 February 1975 where the appellant struck his wife several times with a pointed stick.⁴⁸⁴

During the trial, counsel for the appellant suggested that an adjournment for sentence be granted to obtain a welfare report for the appellant. The trial magistrate stated that he although he wanted the appellant to undertake a psychiatric examination, this was not possible due to restrictions on resources.⁴⁸⁵ The magistrate nevertheless requested that counsel provide him with more information about the appellant which might support a mitigation of his sentence, given that the appellant exhibited ‘somewhat bizarre behaviour’ following each assault and in the record of interview.⁴⁸⁶ However, counsel for the appellant demonstrated a very limited understanding of the appellant’s background and general circumstance:

The magistrate sentenced the appellant to 18 months’ imprisonment for each charge with a nine-month non-parole period.⁴⁸⁸

An appeal was made to the Supreme Court of the Northern Territory against the severity of the sentences. The two grounds of appeal were that:

Muirhead J allowed the appeal. He held that the sentences imposed by the magistrate should be set aside and the matter remitted to a court of summary jurisdiction to allow relevant matters to be heard before an appropriate sentence and penalties are imposed.⁴⁹⁰

In respect of the first ground, Muirhead J held that although the magistrate did not need to obtain a pre-sentence report, ‘the interests of justice would have been better served’ had the magistrate adjourned the matter so that thorough submissions could be made on the appellant’s behalf.⁴⁹¹

However, the ‘basic ground’ upon which Muirhead J allowed the appeal was that the legal representation the appellant received was inadequate.⁴⁹² Despite the magistrate being ‘very well aware of the difficulties under which he was sentencing this man’, he ‘did not have at his disposal that information which … was essential’.⁴⁹³ This was due in large part to the failure of counsel to obtain appropriate instructions from the appellant. Indeed, Muirhead J expressed severe misgivings about the presentation of the appellant’s case and the ‘half-baked’ instructions which he received,⁴⁹⁴ stating that counsel was

In granting the appeal, Muirhead J explained how critical it is for legal practitioners to understand their client’s instructions, especially if their client is from a culturally and/or linguistically diverse background:

Muirhead J at 50:

At 51:

Gibson v Western Australia (2017) 51 WAR 199

Language and communication — Indigenous suspects — Police questioning — Guidelines to ensure understanding.

This case established formative guidelines which regulate the conduct of police officers during the questioning of Aboriginal suspects and dictate what is required in terms of fairness.

In the trial of two Aboriginal people, Forster J rejected the tender of typewritten records of interview between the accused and the investigating police officers.⁴⁹⁷

In addition to the extempore reasons which Forster J of the Supreme Court of the Northern Territory delivered in the trial, he believed it was important for the court to articulate general guidelines for the conduct of police officers while interrogating Aboriginal suspects.⁴⁹⁸

Forster J explained that, for many Aboriginal people, the English language is conceptually and linguistically foreign, and he identified several cultural barriers to communication which some Aboriginal people face, including gratuitous concurrence and deference to authority.

He established the following rules which aim to address these factors, and generally ‘remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police’:⁴⁹⁹

Forster J at [415]:

At [416]:

Language and communication — Difficulties giving evidence — Failed lawyer/client communication — Admissibility of expert sociolinguistic evidence — Miscarriage of justice.

In this case, the appellant’s conviction was overturned because the Court at first instance failed to identify and take account of complex cultural factors which prevented her from providing evidence in her defence. R v Kina exemplifies the importance of effectively communicating with and taking instructions from Indigenous clients. It also speaks to the utility of expert sociolinguistic evidence in helping to correct the miscarriage of justice.

The appellant, Robyn Kina, is an Aboriginal woman who had experienced a life characterised by sustained trauma, sexual abuse and hardship.⁵⁰¹ Specifically, Kina was subjected to repeated and unrelenting physical and sexual violence at the hands of David Black.⁵⁰² On 20 January 1988, Black punched the appellant in the face and stomach and threatened to sexually assault her 14-year-old niece. Following this and the history of abuse which she had suffered, the appellant stabbed Black who died shortly after. Following her trial, which lasted less than a day, Kina was convicted of the murder of Black on 5 September 1988. The trial judge ruled that there was insufficient evidence to justify leaving provocation for the consideration of the jury.

Importantly, throughout the legal process, the appellant was represented by a revolving door of public service lawyers, due to the difficulty lawyers had in taking instructions from her.⁵⁰³ None of the lawyers representing the appellant had received any training or instructions concerning how to communicate with Aboriginal clients, and one of the lawyers gave evidence that the appellant was ‘extremely reticent in her communication with me’. At the trial, Ms Kina pleaded not guilty and decided not to give or call any evidence, on advice from her lawyers.⁵⁰⁴

The decision of the trial judge was upheld on appeal in the Queensland Court of Criminal Appeal because there was no evidentiary basis on which a conclusion could be drawn as to the existence of provocation.

On 24 May 1993, a petition for pardon was delivered to the Governor of Queensland on behalf of the appellant. Following this, the Attorney-General referred the case to the Court of Appeal of the Supreme Court of Queensland to determine whether there was a miscarriage of justice in the appellant’s trial, and why the appellant chose not to give evidence about self-defence and provocation.

The appellant lodged three grounds of appeal:

The Court of Appeal found that the appellant’s trial involved a miscarriage of justice.⁵⁰⁶ The Court held that numerous complex factors went unchecked which significantly impaired communication between the appellant and her legal representatives. These factors included her Aboriginality, the trauma of sustained abuse she had experienced, as well as her shame around the nature of the events and her relationship with Black.⁵⁰⁷ The Court held that these factors

In making this finding, the Court accepted and referred to expert sociolinguistic evidence of Diana Eades which analysed Aboriginal ways of communicating. Specifically, it compared the ways in which lawyers received instructions from the applicant before her trial with the ways in which TV journalists communicated with her a few years later. The Court referred to Eades’s evidence that the appellant’s ‘limited bicultural competence’ meant that she ‘would have been unlikely to reveal sensitive or significant information unless a person communicated with her in the Aboriginal way, which does not involve direct questions’.⁵⁰⁹ Further, the appellant had accepted her lawyers’ advice to not give evidence because her ‘Aboriginal way of dealing … would guide her not to oppose her lawyers’.⁵¹⁰

At 39:

At 39–40:

Language and communication — Deaf defendant — Requirement that a defendant understand and follow the proceedings and communicate with legal representatives — Right to a fair trial — Provision of an interpreter.

This case is significant because the High Court acknowledged that hearing and understanding proceedings, as well as the provision of an interpreter where one is required, are indispensable to the common law right to a fair trial. This is especially important considering the prevalence of hearing loss within First Nations communities.

The appellant, Roland Ebatarinja, is an Aboriginal man who is deaf and unable to communicate except by using his hands to ask for simple needs.⁵¹¹ He was charged with three indictable offences, including murder.

The committal proceedings against the appellant were to be heard in the Juvenile Court of the Northern Territory. However, because the appellant was unable to comprehend the charges, understand the proceedings or communicate with his lawyers, the magistrate stated a special case to the Supreme Court of the Northern Territory asking, among other things, whether a stay of proceedings should be ordered.⁵¹² At this time, the Director of Public Prosecutions filed an ex officio indictment in the Supreme Court charging the appellant with murder.⁵¹³

The appellant sought an order from the Supreme Court to prohibit the further hearing of the committal proceedings. Mildren J dismissed the application, but made an order staying the ex officio indictment until the conclusion of committal proceedings.⁵¹⁴ The Court of Appeal of the Northern Territory also dismissed the appellant’s appeal and agreed in substance with the conclusions of Mildren J.⁵¹⁵ It is from that decision that the following issue came to the High Court by special leave: whether committal proceedings against the appellant should be prohibited from proceeding further on the ground that the appellant does not understand the charge against him and is unable to communicate with his legal representatives.

The High Court held that ss 106 and 110 of the Justices Act 1979 (NT) mandate that a defendant be capable of understanding charges and evidence being put against them as a condition precedent to being committed for trial.⁵¹⁶ It is insufficient that the evidence is given merely in the physical presence or hearing of the defendant.⁵¹⁷ The High Court held that, accordingly, the magistrate had no authority to commit the appellant for trial and no power to take evidence that was not taken ‘in the presence or hearing of the defendant’ in line with s 106 of the Justices Act.⁵¹⁸ The appeal was allowed, and an order was made prohibiting the further hearing of committal proceedings against the appellant.⁵¹⁹

Separately, though no less importantly, the High Court affirmed that in circumstances where a defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial.⁵²⁰

Gaudron, McHugh, Gummow, Hayne and Callinan JJ at [26]:

At [27]:

This case affirmed and applied R v Mungaribi⁵²¹ in which it was held that ss 106, 110 and 111 of the Justices Act are mandatory provisions and the failure to comply with them renders a committal for trial a nullity.

Appellant gave evidence in his own defence — Appellant speaks Walmajarri and Kriol — Magistrate made comments to interpreter and counsel that interpretation was not necessary — Linguistic and cultural autonomy in court proceedings — Miscarriage of justice.

This case exhibits the ease by which a person’s level of English proficiency can be misevaluated or overestimated, and the far-reaching impact which this can have on the right to a fair trial. It also affirms the important function of interpreters for speakers of Aboriginal English. Moreover, it addresses the admissibility of sociolinguistic evidence as expert evidence.

The appellant, Mr Murray, was convicted of one charge of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA) and was sentenced to 10 months’ imprisonment by the magistrate in December 2021.⁵²² The accused is a Walmajarri man, who gave evidence that he speaks mainly Walmajarri as well as Mardok, Manjaderra and ‘mixed languages’.⁵²³

Having been convicted and sentenced in the Magistrate’s Court, the appellant appealed to the Supreme Court of Western Australia. The three grounds of appeal pertain to the way the magistrate dealt with language and sociolinguistic difficulties during the appellant’s examination-in-chief. The grounds of appeal were:

Expert evidence was adduced by the appellants in support of each of the three grounds of appeal.⁵²⁵ This evidence comprised a report (‘the Bowen Report’) prepared by a trained lawyer and linguist which contended, among other things, that the magistrate’s rejection of parts of Mr Murray’s evidence resulted ‘partly from misunderstandings of language, and from the complexity of the way evidence was received in this trial’.⁵²⁶ The Bowen Report included a ‘linguistically informed’ transcript of Mr Murray’s evidence which was drafted by a team of native speakers and professional interpreters,⁵²⁷ and evidence related to general problems associated with cross-cultural communication, particularly in the context of Kriol and Aboriginal English.⁵²⁸

Solomon J held that the magistrate’s direction to the interpreter to stop interpreting portions of the accused’s evidence contributed to a miscarriage of justice.⁵²⁹

The accused gave evidence with the assistance of an interpreter. However, the magistrate instructed the interpreter not to interpret a few particular sentences which, although they appeared to the magistrate to be spoken in English, were in fact spoken in Aboriginal English and Kriol, notwithstanding that the interpreter and counsel for the accused both re-affirmed this to the magistrate. This is illustrated in the following extract.

Solomon J held that the magistrate’s conduct contributed to an ‘express denial of the linguistic distinctiveness of the accused’⁵³² and constituted an ‘unacceptable and fundamental departure from the required standard of a fair trial’.⁵³³ Grounds 2 and 3 were therefore successful and the appeal was upheld.⁵³⁴

In respect of the expert evidence, four of the five sections of the Bowen Report were deemed admissible. Solomon J recognised, in respect of the admissibility of sociolinguistic evidence generally:

However, Solomon J held that the primary section of the Bowen Report, section 5, was inadmissible. This section contained Mr Bowen’s analysis of what he perceived to be the magistrate’s misunderstandings of Mr Murray’s evidence. This involved a very detailed analysis of Mr Murray’s evidence which cited specific examples of what he considered to be the magistrate’s incorrect assessment of that evidence.⁵³⁶

This section was held to be inadmissible because it constituted ‘post-facto’ expert evidence which usurped the magistrate’s role as the arbiter of fact. That is, the evidence ‘trespasses on the exclusive domain of the court in the evaluation of the whole of the evidence including the evidence of Mr Murray’.⁵³⁷

At [97]:

At [174]:

At [178]:

At [181]:

Jango v Northern Territory (No 4) [2004] FCA 1539, [40]

Language and communication — Comprehension of obligations — Reasonable excuse — Interpreter not provided in discussions with police — Anunga Rules.

This case demonstrates how important it is that individuals subject to reporting requirements understand the nature of the obligations imposed upon them. It also emphasises the need for police officers to ensure effective communication with First Nations participants who do not speak English as a first language, and the importance of appropriately assessing the need for an interpreter.

The defendant, an Indigenous man from Maningrida whose first language was not English, was charged after failing to report to police after being released from custody contrary to s 48 of the Child Protection (Offender Reporting and Registration) Act 2004 (NT).⁵³⁸ The defendant was notified by police of his reporting requirements seven and a half months before being released from custody, and he was not afforded an interpreter in discussions about his reporting requirements despite requiring one.⁵³⁹

The charge was dismissed on the basis that the defendant had a ‘reasonable excuse’ for failing to comply with the reporting requirements. Blokland CM (as her Honour then was) determined that it was ‘probable that the Defendant’s English competency affected his ability to understand or comply with the obligations’.⁵⁴⁰ She emphasised:

Blokland CM emphasised that police officers need to be alive to the possibility that an Indigenous person from a remote community might not understand everything conveyed to them in English, even when they might appear to, and especially in circumstances where only minimal evidence of their conversation is given.⁵⁴² She acknowledged that, although adherence to the Anunga Rules is not always necessary to ensure that an individual understands their reporting obligations,⁵⁴³ there are still underlying issues requiring greater care when interacting with Indigenous people in the criminal justice system.⁵⁴⁴ However, such care was not adequately exercised in this case and communication was compromised as a result.

Blokland CM at [10]:

Appellant gave evidence in his own defence — Appellant speaks Walmajarri and Kriol — Magistrate made comments to interpreter and counsel that interpretation was not necessary — Linguistic and cultural autonomy in court proceedings — Miscarriage of justice.

This case exhibits the ease by which a person’s level of English proficiency can be misevaluated or overestimated, and the far-reaching impact which this can have on the right to a fair trial. It also affirms the important function of interpreters for speakers of Aboriginal English. Moreover, it addresses the admissibility of sociolinguistic evidence as expert evidence.

The appellant, Mr Murray, was convicted of one charge of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA) and was sentenced to 10 months’ imprisonment by the magistrate in December 2021.⁵⁴⁵ The accused is a Walmajarri man, who gave evidence that he speaks mainly Walmajarri as well as Mardok, Manjaderra and ‘mixed languages’.⁵⁴⁶

Having been convicted and sentenced in the Magistrate’s Court, the appellant appealed to the Supreme Court of Western Australia. The three grounds of appeal pertain to the way the magistrate dealt with language and sociolinguistic difficulties during the appellant’s examination-in-chief. The grounds of appeal were:

Expert evidence was adduced by the appellants in support of each of the three grounds of appeal.⁵⁴⁸ This evidence comprised a report (‘the Bowen Report’) prepared by a trained lawyer and linguist which contended, among other things, that the magistrate’s rejection of parts of Mr Murray’s evidence resulted ‘partly from misunderstandings of language, and from the complexity of the way evidence was received in this trial’.⁵⁴⁹ The Bowen Report included a ‘linguistically informed’ transcript of Mr Murray’s evidence which was drafted by a team of native speakers and professional interpreters,⁵⁵⁰ and evidence related to general problems associated with cross-cultural communication, particularly in the context of Kriol and Aboriginal English.⁵⁵¹

Solomon J held that the magistrate’s direction to the interpreter to stop interpreting portions of the accused’s evidence contributed to a miscarriage of justice.⁵⁵²

The accused gave evidence with the assistance of an interpreter. However, the magistrate instructed the interpreter not to interpret a few particular sentences which, although they appeared to the magistrate to be spoken in English, were in fact spoken in Aboriginal English and Kriol, notwithstanding that the interpreter and counsel for the accused both re-affirmed this to the magistrate. This is illustrated in the following extract.

Solomon J held that the magistrate’s conduct contributed to an ‘express denial of the linguistic distinctiveness of the accused’⁵⁵⁵ and constituted an ‘unacceptable and fundamental departure from the required standard of a fair trial’.⁵⁵⁶ Grounds 2 and 3 were therefore successful and the appeal was upheld.⁵⁵⁷

In respect of the expert evidence, four of the five sections of the Bowen Report were deemed admissible. Solomon J recognised, in respect of the admissibility of sociolinguistic evidence generally:

However, Solomon J held that the primary section of the Bowen Report, section 5, was inadmissible. This section contained Mr Bowen’s analysis of what he perceived to be the magistrate’s misunderstandings of Mr Murray’s evidence. This involved a very detailed analysis of Mr Murray’s evidence which cited specific examples of what he considered to be the magistrate’s incorrect assessment of that evidence.⁵⁵⁹

This section was held to be inadmissible because it constituted ‘post-facto’ expert evidence which usurped the magistrate’s role as the arbiter of fact. That is, the evidence ‘trespasses on the exclusive domain of the court in the evaluation of the whole of the evidence including the evidence of Mr Murray’.⁵⁶⁰

At [97]:

At [174]:

At [178]:

At [181]:

Jango v Northern Territory (No 4) [2004] FCA 1539, [40]

Language and communication — Cultural barriers to effective communication — Confession — Fresh evidence — Admissibility of expert sociolinguistic evidence.

This case reflects key issues raised in this chapter. Here, a lack of awareness of cultural factors affecting communication contributed to the wrongful imprisonment of a young Aboriginal man for seven years. The case underscores just how indispensable it is for professionals working within the criminal justice system to understand Indigenous ways of communicating. It also demonstrates how courts have historically treated expert sociolinguistic evidence.

Kelvin Condren, an Aboriginal man who lived in Townsville and Mt Isa, was on 15 August 1984 convicted of the murder of his de facto wife, Patricia Carlton. The deceased was attacked near the Mt Isa Hotel, and the appellant was arrested on the same night for drunkenness and taken into custody. Soon after, when questioned by police, the appellant admitted that he had hit the deceased with an iron picket — signing a transcript of a police record interview (‘PRI’) which was purported to assert his guilt.

Condren appealed against the conviction in March 1987. The appellant sought to adduce ‘fresh evidence’ which included the confession of another person to the crime, as well as the evidence of two witnesses that they had seen the deceased alive at the time the appellant was in police custody. Further, the appellant relied upon expert sociolinguistic evidence relating to the habits of speech and expression of the appellant as well as Aboriginal peoples generally. This evidence asserted that the personality and/or habits of expression of the appellant made it unlikely that he used the language which he was alleged to have during his PRI, and which supported the appellant’s claim that he was ‘verballed’ in his interview. However, the appeal was unsuccessful and was dismissed by the Queensland Court of Criminal Appeal.⁵⁶¹

In 1988 the appellant petitioned the Governor of Queensland for a pardon, which was also unsuccessful, and the Attorney-General declared that he would not refer the case back to the Court of Criminal Appeal. However, on an application for special leave to appeal, the High Court expressed concern at the Court of Criminal Appeal’s rejection of the fresh evidence, and recommended that the case be remitted to the Court of Criminal Appeal to account for the fresh evidence which it deemed ‘cogent, plausible and relevant’. In April 1990, the Queensland Court of Criminal Appeal heard the second appeal.

In the first appeal, the Court held that the expert sociolinguistic evidence of Diana Eades was inadmissible on the basis that it usurped the role of the jury.⁵⁶² Macrossan J said that not only was Dr Eades’s evidence relating to the general linguistic characteristics of Aboriginal peoples inadmissible, so too was her evidence about the linguistic characteristics of Condren specifically. Macrossan J considered that the observations and tests which formed the basis of her evidence were insufficient as they did not demonstrate that they were, among other things, capable of being ‘applied with predictable confidence to all individuals’.⁵⁶³ In respect of the general linguistic evidence, Ambrose J (with whom McPherson J agreed) concurred that Eades’s evidence was inadmissible because it was ‘irrelevant to the only issue before the jury — the characteristics of the appellant’.⁵⁶⁴ However, Ambrose J differed from Macrossan J in that he concluded that the observations and tests conducted by Eades were admissible in principle, but were to be afforded little weight once the inadmissible aspects were excluded.⁵⁶⁵

In the second appeal,⁵⁶⁶ the Court found that Condren’s purported ‘confession’ was falsified, unanimously setting aside his conviction and ordering a retrial. The Court held that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh and other available cogent evidence been before it, and that the conviction was consequently unsafe.⁵⁶⁷ Importantly, even the limited expert evidence which the Court in the earlier appeal considered admissible (though of little weight) provided a sufficient rationale from which a jury or court could see the confession as ‘not bearing its face value’. Notably, following the Court’s judgment, the Attorney-General declined to run a retrial,⁵⁶⁸ and Condren was finally released after nearly seven years in prison.

Macrossan J in R v Condren (1987) 28 A Crim R 261 at 267–8:

Ambrose J at 297:

Thomas J in R v Condren; Ex parte A-G (Qld) (1990) 49 A Crim R 79 at 91:

At 94:

Murray v Feast [2023] WASC 273; Stack v Western Australia [2004] WASCA 300

Language and communication — Accommodating cultural differences — Prohibition of leading questions in cross-examination of Aboriginal witness — Jury direction as to assessment of credibility of Aboriginal witnesses — Miscarriage of justice.

This case raises significant issues regarding the accommodation of cultural differences in court proceedings. It reflects the common law position on the ability of courts to prohibit the use of leading questions in cross-examination, and cautions against the application of generalised principles regarding the examination of Aboriginal witnesses.

The applicant, Vernon Neville Stack, was convicted of manslaughter and unlawful wounding in the Supreme Court of Western Australia on 16 December 2003. The applicant sought an extension of time to appeal against this decision. Because he instituted his application late, leave to appeal would only be granted by the Court on the basis that a refusal to do so would leave a manifest miscarriage of justice unaddressed.⁵⁶⁹

Four of the grounds of appeal concerned a ruling made by the trial judge. The ruling was to the effect that counsel for the applicant was not permitted to ask leading questions of an 18-year-old witness during cross-examination. This ruling was made on the basis that the witness appeared to be exhibiting susceptibility to cultural norms as well as gratuitous concurrence (the tendency to answer affirmatively to questions out of politeness).⁵⁷⁰ The applicant argued that, by making this ruling, the trial judge erred in law or in the exercise of his discretion to make rulings governing the conduct of the trial. Stack argued that this denied him his right to cross-examine the prosecution witness and thereby denied him his right to a fair trial and facilitated a miscarriage of justice.⁵⁷¹

A separate ground of appeal concerned directions which the trial judge made to the jury regarding the jury’s assessment of the credibility of Aboriginal witnesses.⁵⁷² This direction included general observations about the communication styles of some Aboriginal witnesses including, for instance, the way in which some witnesses might respond to leading questions in accordance with certain cultural norms.⁵⁷³

In the four grounds of appeal concerning leading questions, the Western Australian Court of Appeal held that the trial judge had erred in prohibiting their use in the cross-examination of the witness.⁵⁷⁴ The Court declined to uphold the ground of appeal relating to the trial judge’s direction to the jury. It did not accept that the jury would have, as a consequence of the direction, regarded as suspect any answers given to leading questions in cross-examination.⁵⁷⁵

While Steyer J acknowledged the ‘significant role’ which sociolinguistic factors may have in evidence given by Aboriginal witnesses in some cases, and the possibility that it may be appropriate in particular cases to regulate the form which cross-examination takes in order to take account of cultural differences,⁵⁷⁶ he plainly denied their relevance to the circumstances of this case.⁵⁷⁷ Moreover, he expressed concern over any ‘generalised assumptions’ being made about the applicability of cultural and sociolinguistic factors to all Aboriginal witnesses.⁵⁷⁸

The Court held that it could not be satisfied that no substantial miscarriage of justice resulted from the trial judge’s ruling or that the jury would have necessarily reached the same verdict had the trial judge’s error not occurred.⁵⁷⁹ Accordingly, the applicant was granted an extension of time, his conviction was quashed and a retrial was ordered.⁵⁸⁰

At [117]:

At [136] regarding the trial judge’s direction to the jury:

R v Anunga (1976) 11 ALR 412; R v Condren (1987) 28 A Crim R 261; Hall v Police [1999] SASC 197; Murray v Feast [2023] WASC 273

Intercultural communication — Admissibility of expert sociolinguistic evidence — Specific parts of oral evidence of particular witnesses.

This case emphasises how courts assess the admissibility of expert sociolinguistic evidence relating to the credibility of First Nations witnesses where there are potential intercultural communication issues.

Cameron ‘Mulrunji’ Doomadgee was killed in police custody on 19 November 2004 in circumstances of alleged police misconduct. There was a subsequent meaningful failure to investigate his death, and protests which were met by a heavy-handed and militarised police response on Palm Island. Lex Patrick Wotton, Agnes Wotton and Cecilia Anne Wotton brought a representative complaint against the State of Queensland and its Commissioner of the Police Service under the Racial Discrimination Act 1975 (Cth). It was found that Queensland Police Service did not impartially and independently investigate Mulrunji’s death, failed to defuse tensions or communicate with the community, and facilitated a disproportionate and excessive policing response as a show of force against locals who had protested the police misconduct.

In this specific hearing, the Queensland Police Service sought to adduce further expert evidence from sociolinguist Dr Diana Eades under s 108C of the Evidence Act 1995 (Cth) in relation to four appellant witnesses. Eades had previously prepared a report describing issues of language and culture that may arise when interviewing or taking evidence from some Aboriginal people. Examples cited include gratuitous concurrence, the use of silence or pauses in the way that some Aboriginal people respond to questions, the different responses provided to requests for specific information and the different linguistic structure of Aboriginal English.

The application sought to allow Eades to review the transcript of evidence of the four witnesses and indicate where she believed there were issues of intercultural communication, as well as to express her opinion about specific parts of the witnesses’ evidence orally.

The application was refused and leave was not granted under s 108C of the Evidence Act 1995 (Cth). Mortimer J affirmed the sentiment of Sackville J in Jango v Northern Territory (No 4)⁵⁸¹ that expert sociolinguistic evidence must not extend to the evaluation of specific evidence of a witness. Though this was the main impediment to the acceptance of the evidence, Mortimer J articulated six discrete reasons why the application ought to be declined:

Notably, Mortimer J did depart slightly from Sackville J’s approach in Jango v Northern Territory (No 4) in that her Honour acknowledged:

At [8]–[9] discussing Jango v Northern Territory (No 4) [2004] FCA 1539:

Jango v Northern Territory (No 4) [2004] FCA 1539, [36]–[42]; Murray v Feast [2023] WASC 273, [126]–[131]

Section 2: First Nations people — 2.1, 2.2, 2.3

Section 3: People from culturally and linguistically diverse backgrounds — 3.2, 3.3

Chapter 2: Aspects of Traditional Aboriginal Australia

Chapter 3: Aspects of Contemporary Aboriginal Australia

Chapter 4: Aboriginal People in Western Australia

Chapter 5: Language and Communication

Chapter 6: Pre-Trial Matters

Chapter 7: Criminal Proceedings

Chapter 2: Ethnic, religious, spiritual and linguistic diversity

Chapter 8: Aboriginal and Torres Strait Islander culture, family and kinship

Chapter 6: Effective communication in court proceedings

Chapter 9: Aboriginal and Torres Strait Islander language and communication

Chapter 10: Aboriginal and Torres Strait Islander people and the criminal justice system

Diana Eades’s book Aboriginal Ways of Using English is a collection of several publications reflecting more than 30 years of experience as a sociolinguist and expert of Aboriginal English. Part 1 of the book analyses the intricacies of Aboriginal ways of using English generally. It identifies common features of Aboriginal English and outlines, for example, ways in which some Aboriginal societies seek and give information and understand and explain time and future events. Part 1 also explains how Aboriginal culture has informed certain aspects of communication. Part 2 focuses on the use of Aboriginal English in the legal system. Specifically, it analyses how the ways of communicating outlined in Part 1 may affect the participation of some Aboriginal people in the criminal justice system, and specifically, their ability to communicate effectively in legal proceedings. Aboriginal Ways of Using English is a valuable resource for legal practitioners, providing simple and accessible explanations of sociolinguistic features of Aboriginal English which may help practitioners communicate more effectively with Aboriginal people at different stages of the legal process. The book also provides practical examples of how these features manifest in legal proceedings, which may be useful for practitioners to apply or use as a comparator in similar legal scenarios, as well as strategies and guidance about how communication difficulties might be overcome.

This handbook is an accessible and highly practical resource designed specifically to help legal practitioners improve cross-cultural communication with Aboriginal clients and witnesses, and help bridge what Eades identifies as the ‘gulf of cultural understanding’ between the legal system and Aboriginal participants.⁵⁸⁵ It provides discrete communication techniques and strategies which practitioners can adopt to effectively elicit instructions and evidence from Aboriginal people who speak Aboriginal English. Though the handbook was designed for practitioners working with speakers of Aboriginal English in Queensland, most of the information and guidance provided remains applicable and valuable to practitioners working with speakers of other Aboriginal English varieties in other states and territories across Australia.

Bina explores the resilience and recovery of First Nations languages in Australia. It analyses the destructive impact which colonisation and its linguistic genocide has had on Indigenous languages, but, more importantly, it showcases their strength and diversity in spite of these forces. The book discusses how First Nations languages are presently being revived and reaffirms the importance of their resurgence to the health and wellbeing of First Nations peoples in Australia and the continuity of culture. The insight which Bina offers into First Nations languages is extensive and can be applied across many disciplines. Not only does it educate and inspire laypeople, activists, educators, researchers and artists about the beauty of Indigenous languages, it also informs policymakers, health care providers and environmentalists about their vitality and the capacity of First Nations languages to contribute positively to many aspects of contemporary Australian society. For legal practitioners, Bina provides an opportunity to learn about the ongoing history of First Nations languages in Australia, as well as a platform from which practitioners might better understand and contextualise the language background of their clients or other Indigenous participants in the legal system.

In this chapter, Eualayai/Gamillaroi Distinguished Professor Larissa Behrendt AO advocates for the integration of Indigenous storytelling in the Australian legal system. Professor Behrendt explains that for many Indigenous peoples, storytelling is ‘our most instinctive and human form of communication, of teaching, of persuasion, of validation, of healing, of transformation’.⁵⁸⁶ It is also an important and transformative tool of decolonization which should be applied within the colonial Australian legal system. Storytelling has a very important role in environments like the legal system and other dominant colonial institutions that have been historically alienating for Indigenous peoples, and which privilege the written word and legal precedent over oral tradition. In this way, the assertion of Indigenous perspectives within the legal system through storytelling is an effective means of reasserting Indigenous voice, perspective, experience and sovereignty. Using an example from the Bowraville murders case, Professor Behrendt demonstrates the value of this methodology for legal practitioners — whereby, in that case, the use of Indigenous knowledges directly supported the pursuit of justice.

Dr Cooke’s paper identifies the main issues affecting the interpretation of Indigenous languages in legal settings. It underscores the importance of ensuring that Aboriginal participants are able to understand proceedings and are themselves understood, and that their evidence is afforded the weight it deserves. Cooke contends that this is especially important for Aboriginal participants who speak some level of English, where there is a material risk that their capacity to be fairly interviewed in English may be overestimated. In addition to providing a brief background of Aboriginal languages in Australia, the paper focuses on interpreting issues within the evidentiary discourse — using specific examples and extracts from cases to demonstrate, among other things, how easily miscommunication can occur without a competent interpreter, as well as other misconceptions about legal interpreting. It also offers practical guidance to legal practitioners about how to appropriately assess the need for interpreting assistance.

This article discusses the main language, cultural and interpreting difficulties facing Aboriginal people in the criminal justice system, and strategies which may be used by judges and legal practitioners to minimise the negative effects which those difficulties may have on the attainment of justice in criminal proceedings. Importantly, Justice Mildren proposes two ways that trial judges can assist a jury’s evaluation of evidence given by an Aboriginal person in court. The first is by providing suitable directions to the jury — drawing on the example provided in the article’s appendix (now known as Mildren directions) — about certain characteristics of Aboriginal English and the way that some Aboriginal English speakers communicate. The second is by exercising greater control over the trial process generally and disallowing forms of questioning (including leading questions, ‘either or’ questions, and questions seeking quantifiable specification) which may invoke certain cultural barriers to effective communication and thus be unfair. Mildren suggests that these strategies are not radical but rather ‘logical extensions of existing principles’ which ought to be appropriately utilised by judges to redress the imbalance faced by some Aboriginal participants in the criminal justice system.⁵⁸⁷

Goldflam’s article examines the key issues underlying the interpretation of Aboriginal languages in the Central Australian criminal justice system. It highlights several linguistic, cultural and practical barriers which contribute to the marginalisation of Aboriginal legal interpreters. The most fundamental issue is that the terminology, culture and theoretical underpinnings of the Australian legal system which are imposed upon Aboriginal communities are entirely foreign and, therefore, almost impossible to accurately express in traditional Aboriginal languages. Critically, Goldflam argues that the failure of the legal system to appropriately accommodate Aboriginal languages in legal proceedings through the provision of interpreters has contributed to the continued victimisation and silencing of Aboriginal language speakers. Specifically, he suggests that language is utilised strategically (and maliciously) by the criminal justice system as the ‘primary manipulative tool’ through which it places a ‘cone of silence’ over Aboriginal people who are forced to participate in the legal system.⁵⁸⁸

Volume 2 [11.12.29]–[11.12.33] (the centrality of language to Aboriginal identity and the importance of language revival):

Recommendation 96:

The National Indigenous Languages Report is a collaboration between the Department of Infrastructure, Transport, Regional Development and Communications, the Australian Institute of Aboriginal and Torres Strait Islander Studies (‘AIATSIS’), and the Australian National University. The report strengthens the evidence base regarding the use, importance and state of Aboriginal and Torres Strait Islander languages. The report provides guidance on practical ways to use its findings to inform policy, program development and service delivery for Aboriginal and Torres Strait Islander peoples.

Drawing on established cultural factors which may affect an Aboriginal person’s evidence, Beckett and Graham refer judicial officers and legal practitioners to specific tools and mechanisms provided under the Evidence Act 1995 (NSW) which may help them to overcome these factors and allow them to more effectively call evidence from Aboriginal clients and witnesses. It also provides valuable insight into how courts have interpreted these provisions in practice. Critically, Beckett and Graham explain that appropriate use of these tools may not only result in a witness or accused person being able to tell their story and be heard in court, but, from the perspective of judicial officers and practitioners, may also provide for more effective, higher quality evidence. Though this paper focuses on the Evidence Act 1995 (NSW), most of the guidance remains valuable for lawyers and judicial officers practising in those jurisdictions across Australia that have adopted the national uniform evidence law (see 3.15.1 Domestic Legislation: 3.1 Features of Indigenous Languages across Australia).

The Plain English Legal Dictionary is an invaluable, highly practical resource for judicial officers, legal professionals (including lawyers, police and corrections officers) and interpreters working in the criminal justice system and other legal settings with individuals who do not speak English as a first language. The dictionary defines over 300 commonly used criminal law terms in plain English. Each definition aims to match as closely as possible the lexicon (vocabulary), syntax (grammar) and discourse (genre and logic) of Aboriginal languages — making the process of interpreting them into Aboriginal languages easier. The legal dictionary allows legal professionals and interpreters to explain complex legal terms to Aboriginal language speakers in a way that they will understand, thereby enabling individuals to communicate more accurately in return at each stage of the legal process. The dictionary was designed to have a broad application across the Northern Territory — having been tested with various languages from the Top End and Desert regions. While it is, nonetheless, a useful tool for practitioners in other states and territories across Australia, it is important for practitioners to be aware that the diversity of Indigenous languages means that some definitions may work for some languages but not for others.

The second edition of Indigenous Protocols for Lawyers offers lawyers practical guidance about improving communication with Indigenous clients whose first language is not English. It establishes six protocols which lawyers should observe prior to, and after taking instructions. These include assessing the need for an interpreter and subsequently engaging a registered interpreter, appropriately explaining your role to the client and the nature of the legal process, using ‘plain English’, as well as assessing any other potential barriers to understanding. These protocols apply equally to civil and criminal jurisdictions. They also offer supplementary information about specific cultural factors which practitioners may face in practice and tips about how to appropriately respond to these to ensure they receive quality instructions and are able to provide quality advice. Adherence to these protocols will help practitioners provide higher quality, more well-developed advice to Indigenous clients, and ultimately enhance the delivery of justice. It will also help practitioners appropriately satisfy their fundamental ethical obligations and meet established international law standards. These protocols are useful for practitioners across Australia; however, similar guidelines have been published specifically for practitioners in other states and territories.⁵⁸⁹

Former High Court Chief Justice, the Hon Robert French AC, in his address to the Language and the Law Conference hosted by the Northern Territory Supreme Court, speaks to the challenges of achieving equal justice in cross-linguistic and cross-cultural interactions within the judicial process for Indigenous and migrant peoples. French discusses the complexities of facilitating effective communication, with a focus on the importance of access to interpreter and translator functions to ameliorate these challenges. French also discusses the inherent limitations of interpreter and translator functions for culturally and linguistically diverse peoples, and the importance of the judge, lawyers, court officials and interpreters understanding these limitations in practice. French also speaks to the responsibility of judges, court officials and ancillary service providers, lawyers, regulators, prosecuting authorities and law enforcement agencies to understand their ongoing role in shaping legal procedures and practice to be more responsive to cultural and social difference in order to facilitate effective engagement with the justice system.

The Hon Justice Helen Wood, a member of the Judicial Council on Diversity and Inclusion, identifies barriers to justice that people from culturally and linguistically diverse backgrounds experience in their interactions with the legal system. Her paper identifies practical ways that judicial officers can uphold their duty to ensure a fair trial and address barriers to justice for culturally and linguistically diverse accused peoples and witnesses in criminal trials. Key themes explored in the paper are the importance of jury directions, modification of those directions to allow for cultural differences and to avoid prejudgment and stereotypes, the essential role of counsel in identifying potential unfairness, the importance of cultural awareness, and the need for culturally inclusive approaches in fact finding. The scope of the paper is criminal trials and it was commissioned by the Judicial Council of New South Wales; however, the themes and principles discussed can have broader application and relevance across all jurisdictions in addressing barriers to justice for culturally and linguistically diverse peoples engaging with the Australian legal system.

The Judicial Council on Cultural Diversity has developed the Recommended National Standards for Working with Interpreters in Courts and Tribunals to establish recommended standards and optimal practices in the Australian legal system. The Standards are a comprehensive tool outlining best practice and procedure for courts and tribunals, judicial officers, the legal profession and interpreters, when an interpreter is required during a proceeding. These Standards have been implemented either in whole or partially as practice and procedure rules, interpreter protocols and professional development courses and events in nearly every jurisdiction in Australia.