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On 10 May 1994, three teenage Aboriginal boys were taken by six police officers from a shopping mall in Brisbane, and were driven out to an old industrial area fourteen kilometres away, where they were left to fend for themselves. They had neither been charged with any offence, nor questioned in relation to any offence. According to the police, the boys were aware that they were not legally required to accompany the police under these circumstances, and so had entered the police vehicles of their own accord. After investigating the matter, the Queensland Criminal Justice Commission (`the CJC') was sufficiently concerned to make a recommendation to the Queensland Attorney-General that the police officers involved face criminal charges. The six police officers were subsequently charged with the unlawful deprivation of the liberty of the boys.
In February 1995, the Brisbane magistrate presiding over the committal proceedings in what had by now become known as the Pinkenba case[1] held that there was insufficient evidence for the matter to be tried. His decision was primarily based on the conclusion that the boys had not established that their conveyance in the police vehicles had occurred against their will. Following extensive public debate and media coverage of the committal proceedings, the boys appealed to the Queensland Supreme Court, arguing that the magistrate had erred in law in not committing the police officers to trial. The appeal, heard in February 1996, was not successful.[2]
The Pinkenba litigation, the public concerns raised by it, and instances of injustice arising in several other cases involving Aboriginal witnesses,[3] prompted the CJC to conduct research into the problems encountered by Aboriginal witnesses in Queensland criminal courts. The report of the CJC, entitled Aboriginal Witnesses in Queensland's Criminal Courts (`the Report'), was published in June 1996.
The Report provides a comprehensive, yet concise and accessible account of the problems faced by Aboriginal witnesses. Its A4 large-print format, non-technical language and logical structure give the Report a `user-friendly' feel and should appeal to a wide range of interest groups. The Report consists of an Executive Summary and Recommendations, followed by an Introduction and six substantive chapters: `Aboriginal People as Witnesses' (Chapter 2); `Better Understanding' (Chapter 3); `Giving Evidence' (Chapter 4); `Interpreters' (Chapter 5); `The Court Environment' (Chapter 6); and `Aboriginal Women' (Chapter 7), each of which will be considered briefly below. The CJC appears to have consulted widely in preparing this Report, and the extensive Bibliography reflects the availability of material on the issues covered by the Report. While the Report itself does not break new ground in the area, it does represent a useful integration of much of the available research. The overall conclusion, that language and cultural barriers militate against Aboriginal witnesses in a way that often results in injustice, is unlikely to surprise many readers.
In Chapter 2, a number of general observations are made of some o the difficulties confronting Aboriginal witnesses, including the intimidating atmosphere of courts, the unfamiliar and confusing adversarial style of criminal proceedings, and the confrontational style of questioning.[4] In relation to language difficulties, the CJC notes that most Aborigines in Queensland speak some form of English as their first language, but that a majority speak Aboriginal English, which can vary greatly from very `light' (relatively fluent English), to `heavy' (broken) Aboriginal English. Further noted is the frequent use of qualitative and relational terms in place of specific numeric information regarding times, dates, quantities and distances.[5] A consequence of these factors is that often, Aboriginal witnesses do not (or not well) understand questions put to them, and have difficulty making themselves understood when responding.
Aboriginal cultural responses to confrontation and stress, including loss of linguistic acuity, avoidance of eye contact, and apparent contradiction in their responses to questions, are also often misinterpreted by lawyers and others as lying, covering up the truth, or obstreperousness. A related problem is gratuitous concurrence, where the person will agree with a suggestion in order to appear cooperative and agreeable, or in order to remove themselves as quickly as possible from a stressful situation.[6] Chapter 3 sets out some strategies to address the problems highlighted above, including greater promotion of cross-cultural awareness, particularly among lawyers and judicial officers, but also for court staff, police and corrections officers.[7]
As the CJC notes, several relatively extensive cross-cultural seminars for judges, magistrates and lawyers have been held in Queensland recently, and these have met with mixed reactions. Some seminar participants felt that presentations were too general, and could benefit from a sharper focus on specific cultural issues; others regarded the seminars as disappointing, complaining that too much time was taken up by presenters criticising white treatment of Aborigines, that there was too much focus on problems and not enough on solutions. On the other hand, Aboriginal groups felt that judges could not learn about Aboriginal culture by attending `hotel' seminars, but needed to spend time in Aboriginal communities, observing the conditions faced and listening to community members.[8]
It is understandable that Aboriginal people will take the rarely-available opportunity to express their grievances to white Australians, particularly those with powerful influences over the lives of so many of their people. However, while the time for `proclaiming' may not be passed, the time for mutual problem-solving arrived four years ago with the release of the Report of the Royal Commission Into Aboriginal Deaths in Custody. In order to effect `real' change, Aboriginal people need to do more than air their grievances, and those working within the criminal justice system need to do more than `accept' and `tolerate' differences, particularly where these lead to injustice. All concerned need to channel their energies into developing solutions.
The CJC proposes refining future seminars to meet these criticisms, and advocates several further initiatives, including the development of written and audio-visual material for judges and magistrates, the promotion of community contact and the organisation of regional symposia to address specific regional issues.[9] Cultural awareness programs and continuing legal education are also proposed for both lawyers and police, and the need for `plain' English to be spoken in courts is stressed.[10]
While any cultural awareness training is to be commended, it is not clear how these proposals, which form the basis for Recommendations 3.1 to 3.5, would positively impact on the giving of evidence by Aboriginal witnesses in criminal proceedings. What is necessary is an examination of the appropriateness of the adversarial and formal nature of these proceedings in terms of eliciting cogent and coherent testimony from Aboriginal witnesses. With respect to the CJC, improving cultural awareness will not effect the kinds of procedural changes that are necessary in ensuring that culturally disadvantaged witnesses receive the justice that is their due.
From this perspective, Recommendations 3.6 (calling for a review of the law of expert testimony by the Queensland Law Reform Commission) and 3.7 (proposing that proforma directions/information be given by judges to juries) may have greater potential. Allowing expert testimony on language and cultural issues, and providing juries with information about cultural responses to confrontation, stress and repeated questioning, could do much to ameliorate the perceived adverse effects criminal court procedures have on the performance of many Aboriginal witnesses, at least in terms of the jury's understanding of those effects.
The same is true of the remaining issues covered in this chapter. Lawyers need to have sufficient preparation time in order to adequately represent any client, but in relation to Aboriginal witnesses, where communication may be more difficult, where silence is a culturally significant element of inter-personal communication, where sensitive or proscribed issues may need to be addressed, or where there is a prior history of abuse (an issue addressed in detail in Chapter 7), more time than usual may be needed in consultation between lawyer and client.
The procedural issues detailed in Chapter 4 provide scope for future reform of the rules of evidence that militate against Aboriginal witnesses being able to give relatively clear and unambiguous testimony. The CJC argues that as the question-and-answer style of eliciting evidence is often unfamiliar and confusing for Aboriginal witnesses, evidence law should be amended to allow for the giving of evidence in narrative form, consistent with Aboriginal cultural and linguistic practices (Recommendation 4.1). The giving of evidence in narrative form is permitted in New South Wales, but only where the court so directs.[11] The CJC favours adopting a similar position, but it may be of more benefit to Aboriginal witnesses if they were able, as a matter of course, to give evidence in narrative form, rather than relying on the court exercising its discretion. This may ameliorate differences in the degree to which different judges and lawyers are cognisant of cultural issues.
I disagree strongly, however, with the CJC in its assessment of appropriate reform in the area of leading Aboriginal witnesses in cross examination. Recommendation 4.2 (page 53) calls for amendment of the Evidence Act 1977 (Qld) to allow leading questions to be put to Aboriginal witnesses during cross examination, with some control in the form of judicial intervention.[12] The Pinkenba case clearly demonstrates the degree to which Aboriginal witnesses are but putty in the hands of a seasoned lawyer, although arguably, matters in that case were compounded by the youth of the witnesses. The suggested cross examination set out on page 52 of the Report, where counsel is trying to elicit confessional evidence from an Aboriginal witness, would almost certainly lead to self-incrimination as a result of the combined effects of suggestibility, confusion and gratuitous concurrence, and is worth reproducing here in order to demonstrate this. (The witness's responses are, I believe, the most likely in the context.)
COUNSEL: I need to know who hit Fred with that nulla nulla the first time? WITNESS: That was Matthew. COUNSEL: I'm thinking maybe it wasn't Matthew who hit Fred that first time, hey? WITNESS: Yes (which probably means `Yes, it was Matthew', but which would probably be construed as meaning `Yes, you are right'). COUNSEL: Who hit Fred that first time? WITNESS: The witness here is likely to respond by remaining silent, which is a cultural response meaning the matter is being considered, but which is often taken to indicate obfuscation or lying.[13] COUNSEL: I think maybe someone else hit Fred that first time, eh? I need to know who hit Fred that first time? WITNESS: Again, likely to be met with a shrug, avoidance of eye contact and silence, all indicating a high degree of confusion and embarrassment at being persistently challenged and disbelieved.[14] COUNSEL: I think maybe you hit Fred that first time is a true story, hey? WITNESS: Yes (again, probably meaning `Yes, what I have told you is a true story', but ultimately, in this scenario, amounting to a confession).
The great danger I see in allowing leading questions of this nature in cross examination of Aboriginal witnesses is the reluctance of the presiding judicial officer to intervene in the adversarial process, even if they do see that the witness is being bullied into submission, or is being unfairly discredited, or may unfairly incriminate himself or herself. Until such time as judicial officers and lawyers become more sensitive to cultural issues, merely instructing lawyers to object to inappropriate questioning (Recommendation 4.3 of the Report) will not protect Aboriginal witnesses from the unfairness caused by cultural responses to the adversarial system.
Consistent with the encouragement of the giving of evidence in narrative form is the use of interpreters, the subject of Chapter 5. As the CJC point out, there is no right at common law to an interpreter, even in a criminal trial, it being a matter for the trial judge to determine whether, in the interests of justice, an interpreter is necessary.[15] The CJC received many unfavourable comments on the use of interpreters, some of which provide interesting insights into the manner in which Aboriginal witnesses are regarded by some legal professionals:
'... the interposition of an interpreter serves to weaken or neutralise some of the standard tactical weapons in the cross examiner's armoury ... Aboriginal witnesses are generally far more compliant and malleable when they take the stand alone ... the interpreter, particularly if he or she is articulate and confident, can pose an obstacle to a lawyer, who will, through tactical means, seek to have it removed, broken down, passed over or got around'.[16] '... [e]xperience shows that the tribunal of fact can make a better assessment of a witness if there is no interpreter transposed between it and the witness'.[17] ` ... the intervention of an interpreter tends to render it more difficult to ascertain the truth.'[1]8
The CJC notes that `... [s]uch attitudes ... rest on the proposition that "even badly spoken and ill understood English makes for more effective communication than proper and competent interpretation from one language to another" ',[19] going on to argue that `[t]he apparent similarities between Standard ... and Aboriginal English ... have no doubt led some professionals into believing that the risk of misunderstanding is minimal.'[20]
The general reluctance to utilise interpreters in the criminal justice system is, the CJC finds, compounded by a shortage of suitably skilled, available interpreters (particularly in outlying communities), and by a lack of funding to redress that shortage. They recommend the adoption of legislative provisions similar to those available in New South Wales (s30 of the Evidence Act 1995), reversing the common law presumption against the right to an interpreter, and discuss the funding and jurisdictional implications of such a proposition.[21] As with other measures, I agree that legislation is the preferred method for implementing reform. In respect of Aboriginal witnesses, the availability of competent interpreters needs substantial improvement, and funding for this is not likely to be made available unless the right to an interpreter exists as a matter of course, and not merely as a matter of judicial discretion, and unless negative attitudes of some legal professionals are reversed.
Pomp and circumstance
The degree to which the superiority of the pomp and circumstance of the white legal system in producing justice is entrenched in much western legal thinking is brought out in Chapter 6. Here, lawyers proudly regaled the CJC with stories of how witnesses, especially Aboriginal witnesses, could be intimidated into telling the truth by the formalities, ceremony and confrontation of the criminal trial. The logic used is staggeringly perverse though; it is equally, if not more, feasible that witnesses are so intimidated that they change their evidence simply to take the pressure off themselves and to have the experience over with.
The CJC makes a range of recommendations here, including improving courtroom acoustics to alleviate hearing problems suffered by Aboriginal and other witnesses;[22] establishing a pilot program for Aboriginal Court Liaison Officers to liaise with both prosecution and legal aid officers, and with members of Aboriginal communities, to ensure that Aborigines appearing in court are first familiarised with the court environment and legal procedures;[23] and increasing numbers of Aboriginal court workers in client contact positions.[24] All these reforms have the potential to alleviate some of the alienation and fear associated with a court appearance. Nevertheless, as argued above, unless some rules of evidence are amended to reflect cultural realities, and unless attitudes of some legal professionals to the superiority of the adversarial system of `justice' are modified to take account of cultural and linguistic exigencies, Aboriginal witnesses will continue to receive poor `white' justice in many cases. It is on these matters that serious reform needs to be focussed.
The final substantive chapter of the Report focuses on issues peculiar to Aboriginal women as witnesses. The CJC find that many Aboriginal women are reluctant to proceed against another Aboriginal, particularly where there is a likelihood of incarceration of the offender. Further, many Aboriginal women suffer frequent physical and sexual abuse at the hands of spouses and other male relatives, and are often too fearful of reprisals to bring criminal proceedings. Other difficulties for Aboriginal women as witnesses include cultural taboos relating to women's knowledge; the special sensitivity of Aboriginal women in discussing details of a private and personal nature (something that is difficult enough for confident, competent non-Aboriginal women); and the fact that support is rarely available for women in a male-dominated criminal justice system, which is exacerbated in the case of Aboriginal women. Recommendations made by the CJC in relation to Aboriginal women are relatively tame, involving more cross-cultural training for legal professionals and judicial officers; improved counselling and support services; and more preparation time for lawyers.[25]
In all, the CJC has produced a comprehensive, informative and accessible report, highlighting the significant problems faced by Aboriginal witnesses in criminal proceedings, and developing sensible recommendations that, if implemented, would produce much-needed and long overdue reform of the criminal justice system in this area. Minor criticisms are that in making a large number of recommendations (thirty-eight in all, from a one hundred-odd page report), some may adopt the attitude that there is just too much to fix. It may have been beneficial to prioritise the recommendations so that areas in crucial need of substantial reform (such as rules of evidence relating to the use of expert witnesses, leading questions and the right to an interpreter), are at least highlighted as requiring urgent attention.
Finally, considering that the inquiry resulting in this Report was largely a response to the failed Pinkenba litigation, which more than likely did fail partly as a result of the age of the complainants (aged between thirteen and fifteen years at the time), it is interesting that the issue of children's evidence is not raised at all by the CJC. The Aboriginality of witnesses is virtually the sole focus of the inquiry and the Report, although the special difficulties faced by Aboriginal women are addressed. It is a considerable oversight that the special problems relating to children as witnesses were not also given some discrete attention.
[2] Crawford v Vernados & Ors, Apn 190 of 1995, Queensland Supreme Court Ambrose J, 14 February 1996, unreported, the Report, page 2.
[3] R v Condren (1987) 28 A Crim R 261 (CCA); R v Condren, ex parte Attorney-General [1991] 1 Qd R 574; R v R B Kina CA258/88, Qld CCA, 23 November 1988, unreported; R v R B Kina, CA221/93, Qld CA, 29 November 1993, unreported; R v A, CA294/94, Qld CA, 28 April 1995, unreported. The Report, page 2.
[4] The Report, page 13.
[5] The Report, pp 16-17.
[6] The Report, pp 21-22.
[7] The Report, page 31.
[8] The Report, pp 32-33.
[9] The Report, pp 35-36.
[10] The Report, pp 38-40.
[11] Evidence Act 1995 (NSW), s29.
[12] The CJC favour the court being able to disallow a question if in its opinion the witness is particularly suggestible or otherwise affected in the giving of evidence by cultural or language factors. Refer the Report, page 53.
[13] See any of the references to the work of Professor Diane Eades listed in the Report (pp 114-15), particularly her monograph Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia, UNSW Press, Sydney, 1995.
[14] Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia, UNSW Press, Sydney, 1995.
[15] Dairy Farmers Co-Operative Milk Co Ltd v Acquilina [1963] HCA 59; (1963) 109 CLR 458, the Report, page 61.
[16] A lawyer's view, the Report, page 62 (my emphasis).
[17] A judge's view, the Report, pp 62-63.
[18] A judge's view, page 63 of the Report.
[19] The Report, page 63, citing the Commonwealth Attorney-General's Department, Access to Interpreters in the Legal System: Report, AGPS, Canberra, 1991, pp 46-47.
[20] The Report, page 63.
[21] Recommendations 5.1 and 5.2, the Report, pp 65-66.
[22] Recommendation 6.2, the Report, pp 80-81.
[23] Recommendations 6.4 and 6.5, the Report, pp 82-86.
[24] Recommendation 6.6, the Report, pp 86-87.
[25] Recommendation 6.6, the Report, pp 86-87.
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