Tresize, Patricia --- "Use of Language and the Anunga Rules: R v Jean Denise Izumi" [1996] AboriginalLawB 20; (1996) 3(80) Aboriginal Law Bulletin 17

• Use Of Language And The Anunga Rules: R V Jean Denise Izumi
• Anunga Rules
• Use Of Language

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Use of Language and the Anunga Rules:

R v Jean Denise Izumi

R v Jean Denise Izumi

Supreme Court

Cullinane J

Unreported, 22 May 1995

Casenote by Patricia Tresize

Mrs Jean Izumi was living in Injinoo, an Aboriginal community on the tip of Cape York Peninsula, when she was charged with the attempted murder of Mr Waba Youelu as a result of an incident occurring on 21 October 1994. This incident occurred at Umagico, another Aboriginal community on the tip of Cape York Peninsula.

Mrs Izumi was granted bail for this charge. On 17 December 1994, Mrs Izumi was charged with a second attempt to kill Mr Youelu. This time the incident occurred at Injinoo. Mrs Izumi was refused bail when charged with this second offence.

Until 21 October 1994, Mrs Izumi had never been charged with any offence by the police. She was born on 27 March 1963, and had lived most of her life in the Torres Strait Islands. She had been raised in foster care by relatives, principally on Badu Island.

There was no dispute that Mrs Izumi had injured Mr Youelu on the two occasions which had resulted in her being charged. The area of dispute was in relation to her intent at the time she caused injuries to Mr Youelu.

The only evidence against Mrs Izumi as to her intent on either occasion was that of a conversation with Sergeant Trevor Crawford at Bamaga Police Station on 22 October 1994. Bamaga is another Aboriginal community on the tip of Cape York Peninsula, and is the only community in that area which has a Queensland Police Station.

In relation to the second incident which led to the second charge, Mrs Izumi declined to be interviewed. It was not in dispute that the Record of Interview of 22 October 1994 between Mrs Izumi and Sergeant Crawford records the following exchange as having taken place:

SERGEANT CRAWFORD: Can you tell us what you were thinking about, why you picked up the knife, what were you going to do with it, what did you want to do with it?
MRS IZUMI: I just wanted to stab him.

C: Canyon tell us whereabouts you cut him with the knife?
I: The chest.

C: About near his heart area?
I: Somewhere around there.

C: Do you agree that by stabbing someone in the chest with a knife that there is a possibility that stabbing with a knife could cause some serious injury or even death?
I: Yeah.

C: Can you tell us, what I want to ask you is that did, at the time you were just walking up with the knife in your hand to cut him with it, can you tell us what you wanted to do to him?
I:I wanted to kill him with that thing.

The matters came before the Circuit Court at Cairns on 22 May 1995 with His Honour, Justice Kerry Cullinane, presiding.

There was initially legal argument about whether the indictment, which encompassed both incidents, should be proceeded upon, or whether there should be separate trials for each incident.

A voir dire was then conducted in relation to the admissibility or otherwise of the conversation with Sergeant Crawford and the Record of Interview conversation.

The conversation and Record of Interview were challenged on two grounds:

1. These did not conform with the Anunga Rules as articulated in R v Anunga (1976)11 ALR 412;

2. That as English was not her first language, there might be some ambiguity in the words used by Mrs Izumi.

Anunga Rules

When Mrs Izumi was taken to the police station, she was asked if she wanted someone to be at the police station, and she nominated a person. The police were unable to locate this person, and asked some other people if they were prepared to be present during the interview. Those other persons refused.

As a consequence, the police asked a community police woman, Constable Pascoe, to be present at the interview for the assistance of Mrs Izumi. Constable Pascoe was dressed in her uniform.

Cullinane J in determining the question before him included in his reasons:

'I heard evidence from Constable Pascoe that she regarded herself as being there to assist in communicating between the accused and the police, and that she played that role, however, I do not think it in any way appropriate to describe her as being there, as a person to whom the accused was entitled to look for support or by whom she would feel supported.

'She was on the evidence at the time wearing a police uniform. She did not know the accused prior to this time and after. The police officers here did ask the accused whether she had a friend who ... she would like to have present during the interrogation. As things eventuated, unfortunately that was not able to be achieved and the interrogation continued without such a person being present and indeed it would appear that the police may have inaccurately stated why that person was not present'.

Use of language

Ms Helen Harper is a linguist who has been studying language shift in Injinoo as preparation for a Doctoral Thesis in Anthropological Linguistics. She has made a number of trips to Injinoo and has lived there for periods of months on a number of occasions. As part of her study, she learned to speak Torres Strait Creole, and has spent many years studying the relative use of traditional languages, Creole and English in the Injinoo community. Ms Harper provided a report to the Court concerning the Record of Interview, upon which she was examined. Ms Harper stated that:

• Mrs Izumi s English throughout the interview was non-Standard, reflecting interference from Creole. 'Interference' as used in linguistics refers to the phenomenon of speech which deviates from native speaker norms because the speaker is influenced by words or structures from his or her first language;
• Specifically, there was possible linguistic interference from Creole in the use of the word 'kill'. In Creole the word 'kill' is ambiguous, and can be used to mean kill in the English sense, or in the weaker sense of to hurt or maim. It is possible to specify the stronger sense comparable to English use by saying 'kill dead';
• In her opinion, Mrs Izumi was struggling to understand the language used by the police;
• There are strong cultural reasons for a woman such as Mrs Izumi not to talk about intimate matters to white men in positions of authority, because this would be a matter of shame.

As Cullinane J stated, Ms Harper's evidence was by and large unchallenged by the Crown.

In his decision, Cullinane J made the following statements:

'She [Ms Harper] says that the word "kill" is used by native Torres Strait Creole speakers in ... an ambiguous sense, that is it may be used in an English sense, or it may be used in a weaker sense to hurt or maim; and that if this word was used in a conversation in which she participated by such a person in circumstances where it was not wholly ambiguous, she would find it necessary to ask further questions to establish the precise meaning afforded to that word by the speaker'

;and

'Similarly the police officer concerned did take some steps to establish that the accused fully understood the nature of the warning that had been given and the rights that she had. Unfortunately he was not able to establish that she did so understand the position. In all, the circumstances surrounding the questioning of the accused, both before and after the taped interview began, give rise to concern on a number of grounds that I have already referred to'

; and

'I make it clear that no criticism of police involved is intended. The police officers found themselves in a difficult position and did, as I have indicated, take some steps to ensure that the accused was not disadvantaged and had the benefit of the presence of someone who might be described as the prisoner's friend, and also took steps to establish that the accused understood what the warning entailed'.

Cullinane J concluded that the proper course was to exercise his discretion in favour of the accused, and to exclude the conversation and Record of Interview held at Bamaga Police Station on 22 October 1994.

The Crown then presented a new indictment to the Court, charging Mrs Izumi with two counts of unlawful wounding. She pleaded guilty to those two counts. A nolle prosequi was then entered into the original indictment. At a later date, in the Supreme Court in Townsville, Mrs Izumi was sentenced to a term of imprisonment of two years and nine months on the second count of unlawful wounding, and sentence of six months wholly suspended on the first count of unlawful wounding. It was recommended that she be eligible for parole after serving nine months, and that her period in custody prior to being sentenced be regarded as part of her sentence.