Eades, Diana --- "Cross Examination of Aboriginal Children - The Pinkenba Case" [1995] AboriginalLawB 46; (1995) 3(75) Aboriginal Law Bulletin 11

• Cross Examination Of Aboriginal Children The Pinkenba Case
• Gratuitous Concurrence
• Role Of Silence
• Eye-Contact

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Cross Examination of Aboriginal Children
The Pinkenba Case

by Diana Eades

In the Brisbane Magistrate's Court in February this year, three Aboriginal boys gave evidence as prosecution witnesses in the committal hearing of six police officers charged with deprivation of liberty. The Criminal Justice Commission had conducted an exhaustive investigation into the matter, recommending the officers face criminal charges.

The committal hearing concluded with the magistrate's finding that there was insufficient evidence for the matter to go to trial. He reportedly concluded that the boys ‘had no regard for members of the community, their property or the justice system’.[1]

The alleged abduction incident had occurred some time after midnight on 10 May 1994, when the three boys, who were then aged 12,13 and 14, were taken by six police officers in three separate vehicles from a shopping mall in the Fortitude Valley area near Brisbane City. They were left about 14 kilometres away in an industrial wasteland in Pinkenba near the mouth of the Brisbane River, from where they had to find their own way back to the Valley. The boys were not charged with any offence, nor were they taken to any police station. A crucial point in the case was the establishment by counsel for the police that the boys knew their legal rights, and thus that their being told to get into a police car did not amount to a deprivation of their liberty.

In the committal hearing the three boys gave evidence over almost three days. As a sociolinguistic researcher with considerable interest in Aboriginal English in court, I attended the second day of the hearing (Tuesday 21 February 1995) and was surprised by the way in which the cross-examination of the witnesses was proceeding. Significant differences between Aboriginal and non-Aboriginal ways of using English often lead to communications difficulties. In this hearing, these difficulties were often exacerbated by the cross-examining style of counsel for the police officers.[2]

During the morning adjournment, I was introduced to the prosecutor (the boys' counsel in this case), who asked me to assist by studying all of the boys' evidence in this hearing, and writing a report in the form of a statement. He also asked me to be ready to appear as an expert witness two days later (on Thursday 23 February). My report, which analysed cultural and linguistic issues involved in the cross-examination of the boys, was completed and left for the prosecutor at 7am on 23 February. When I arrived at the court that afternoon, I was informed that the Director of Public Prosecutions had decided that I should not be called as an expert witness, and that my statement was not to be used. Thus, in coming to his conclusions about the reliability and credibility of these Aboriginal witnesses, the magistrate was not informed about the serious cultural and linguistic issues which needed to be appreciated in order to accurately understand the boys' answers to many of the questions put in cross-examination.

The rest of this article briefly summarises these cultural and linguistic issues.

Although the boys had grown up in southern Queensland, and at least one of them had spent considerable time in Brisbane, they were clearly using Aboriginal ways of communicating which involve significant cultural differences from mainstream English. In technical terms, the boys are speakers of 'light' Aboriginal English. (Aboriginal English is recognised as a distinct dialect.[3])

Like other Aboriginal people who do not have the bicultural skills necessary to participate successfully in interviews, the boys were culturally disadvantaged by the pressured and prolonged question - answer sessions. Repeated direct questions, especially in a situation where silence is not allowed as part of the answer, are not an effective means of eliciting information from many Aboriginal people.

Gratuitous concurrence

The most important issue in this case concerns the frequently-used cross-examining strategies which created the ideal situation for answers of 'gratuitous concurrence'. This is the tendency to say 'Yes' to any question (or 'No' to a negative question) regardless of whether or not the person agrees with the question, or even understands it. It is a characteristic Aboriginal strategy for dealing with interviews, particularly in situations of serious power imbalance. The literature on gratuitous concurrence[4] suggests that to subject Aboriginal speakers to a series of Yes-No questions, particularly in an intimidating situation, is to invite contradictory answers, regardless of the subject matter.

The cross-examination by counsel for the police officers in this hearing was full of gratuitous concurrence, and just one example here will give an idea of the extent and seriousness of it in this case:[5]

And you knew when you spoke to these six police in the Valley that you didn't have to go anywhere with them if you didn't want to, didn't you? -No.
You knew that, Mr ..., I'd suggest to you, please do not lie. You brew that you didn't lave to go anywhere if you didn't want you [sic], didn't you? Didn't you. Didn't you, Mr ...? -Yep.
Why did you just lie to tire. Why did you just say 'no', Mr ... You want me to suggest a reason to you, Mr ... The reason was this, that you wanted this Court.to believe that you thought that you had to go with the police, isn't that so? -Yep.
And you lied to the Court, trying to - you lied to the Court trying to put one over the Court, didn't you? -No.
That was your reason, Mr ..., wasn't it? Wasn't it? Wasn't it, Mr ...? -Yep.
Yes. Because you wanted the Court to think that you didn't know that you could tell these police you weren't going anywhere with them. That was the reason, wasn't it? Wasn't it? -Yes.

(The last question has a complex grammatical structure with four embedded clauses which would confuse many witnesses, not only children who speak Aboriginal English.)

A literal interpretation of all the 'Yes' (or 'Yep' or 'Yeah') answers elicited from these witnesses would lead to the conclusion that these boys were frequently contradicting themselves and could not be reliable witnesses. But such an interpretation reveals a lack of understanding of basic linguistic differences between Aboriginal English and Standard English. It would be absurd to conclude this case on the basis of a literal interpretation of answers given by the boys, although this appears to be exactly what happened.

Role of silence

A second issue in this case concerns the use of other cross-examination techniques which multiplied the possibility of gratuitous concurrence occurring. The likelihood of gratuitous concurrence answers increases as the questioner raises their voice, a tactic of verbal intimidation frequently employed by one of the two counsel for the police officers throughout the cross-examinations of the three boys. The likelihood of gratuitous concurrence was also increased when the cross-examining counsel urged compliance with propositions in ways which, at times, amounted to badgering the witness. For example:

Well, why did you lie to me and tell me you'd just stolen a pair of jeans front a shop? I'd suggest the reason to you, because you don't want everyone to know the little criminal that you are, do you? That's the reason, isn't it? Isn't it? Isn't it? Your silence probably answers it, but I'll have an answer from you. That's the reason, isn't it?

BENCH:... I'm asking you to answer the question. Ask the question again please Mr...
I'm suggesting to you that you don't want the Court to know the little criminal you are. Isn't that right? -Yes.

This example also illustrates another serious misinterpretation of a widespread Aboriginal communication pattern, namely the use of silence as a positive and normal part of conversation. In Aboriginal English silence is an acceptable way to begin an answer to a question. The misinterpretation of this use of silence by the Aboriginal witnesses in this case is highlighted by this comment from one of the counsel during cross-examination: 'We have to take your silence as "no", don't we?'. No objection was raised to this clear misinterpretation of the Aboriginal use of silence.

Eye-contact

A third issue concerns the obvious mis-interpretation of the boys' use of the cultural practice of avoiding eye-contact with the person asking them questions. In many Aboriginal societies throughout Australia, children learn that it is rude and disrespectful to make direct eye-contact with an older person with whom they are speaking. But this cultural practice was clearly misinterpreted by at least one of the cross-examining counsel for the police officers, who repeatedly insisted that one of the witnesses should look at him when answering questions. When this counsel suggested that the boy's refusal to look at him was because he was thinking that 'we'll see lies written all over your face', the court seemed totally unaware of the cultural issues involved, and again no objection was raised.

Much was made in the cross-examination of the boys and the media reporting of the case that the boys were street-wise, with references to their criminal records, their habits of spending time in the city and the Valley, and their frequenting pin-ball parlours. But 'street-wise' is not the same thing as 'interview-wise'. It was clear that the boys did not have the cross-cultural and linguistic skills necessary to handle the interview techniques of the two crossexamining police counsel, who at times appeared to be badgering and haranguing these witnesses. And further, this apparent badgering and haranguing was allowed to go virtually unchallenged by the boys' counsel (the prosecutor) and the magistrate.

The blatant misinterpretation of clearly documented differences between Aboriginal ways of using English and the cross-examination strategies used in this case was very disturbing. The fact that these differences were ignored, despite the availability of a report addressing these very issues, was even more disturbing. The fact that the decision not to proceed to a Supreme Court trial was taken in such circumstances led me to conclude that proceedings in the Magistrate's Court in February amounted to 'an obscene travesty of justice'.[6]

But the matter is not closed. Legal representatives for the three boys (the Aboriginal and Torres Strait Island Corporation (QEA) for Legal Services) lodged a Supreme Court Judicial Review challenging the magistrate's decision not to commit for trial. The boys have been granted standing to bring the action and the matter is expected to come up for hearing in August. If this is successful, it is expected that the matter will be committed for trial, and the boys will again be called upon to give evidence. It is to be hoped that this trial will take into account the cultural and linguistic disadvantages faced by Aboriginal children in the courtroom in both the way that evidence is taken from them, and the way in which it is interpreted.

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[1] The Australian, 28 February 1995, p9.

[2] It is possible that these differences were not unknown to the cross-examining counsel for the police officers. I was informed that these two counsel had with them a copy of my handbook written to assist lawyers in understanding cultural and linguistic differences between Aboriginal and non Aboriginal people in Queensland. (Eades, D., Aboriginal English and the Law, Queensland Law Society, 3992.)

[3] See, for example, Romaine, S. (ed), Language in Australia, Cambridge University Press, Cambridge, United Kingdom, 1991.

[4] See Liberman, K., 'Understanding Aborigines in Australian Courts of Law', Hunan Organization 40, No. 3, Fall 1981, p247; Fades (op cip pp54-7. For further references, see Eades, D., 'A case of communicative clash: Aboriginal English and the legal system' in Gibbons, I. (ed), Language and the Law, Longman, London, United Kingdom, 1994, p234.

[5] Source of cross-examination materials in all instances is the transcript of the hearing.

[6]. The Australian, 28 February 1995, p9.