Australian HumanRights Centre (AHRC)WORKING PAPER 2004/2 |
 |
Aborigines and Courtroom Communication:
Problems and Solutions
Adam Alter
Table of Contents
| Introduction |
| I. Communication Problems facing Aborigines in the Courtroom Setting … |
| i. The Pseudo-Intelligibility Trap … |
| ii. Speakers of Different Languages Experience Different Realities |
| iii. Disparate Communication Norms and Miscommunication |
| iv. Non-Verbal Miscommunication |
| v. Under-Utilisation and Scarcity of Interpreters |
| II. Ameliorating Communication Problems Facing Aborigines in the Courtroom Setting |
| i. Narrative as Evidence |
| ii. Written Evidence versus Oral Evidence |
| iii. Video Transcripts versus Written Transcripts |
| iv. Improving the Relevant Legal Provisions |
| v. Educating the Profession … |
| vi. The Koori Court … |
| III. Conclusion … |
| References … |
| Primary Resources |
| Secondary Resources … |
Aborigines and Courtroom Communication: Problems and Solutions
Prior to the arrival of the First Fleet, Australian Aborigines
lived under a variety of customary legal systems. [1]
Their laws were conveyed orally from one generation to the next,
in languages such as Tiwi, Pitjantjatjara and Gugada. [2] The English colonisers who
arrived in 1788 deemed
I. Communication Problems facing Aborigines in the Courtroom Setting
Cross-cultural miscommunication occurs in many different forms. At the simplest level, linguistic terms and usage differ between cultural groups. [7] For example, Harkins [8] considered a simple question, asked by an Aboriginal child: ‘You got fire?’ To a non-Aboriginal Australian, this request may be incomprehensible. However, the semantic scope of the term fire is considerably broader in Aboriginal English, encompassing matches, firewood, firesticks and even an electric heater. [9] Thus, Harkins concluded that the child was requesting a match.
At a deeper level, paralinguistic and nonverbal cues, such as silence, gestures and eye contact, have different pragmatic implications depending on cultural norms. [10] Thus, whereas non-Aboriginal Australians consider eye contact to be a sign of polite attentiveness, Aborigines tend to avoid a direct gaze, which may be misconstrued as a gesture of rudeness or aggression. [11]
Additionally, at a more abstract level, people within different cultures differ in their comprehension of particular concepts. [12] Whereas Westerners explain natural events in terms of the scientific notion of causality, determined by the physical properties of matter, Aborigines believe that creation evolves propitiously as long as they perform certain rituals. When people abandon these rituals, creation is stunted. Thus, when native cats approached extinction, Aputula men blamed their decelerated reproductive patterns on the cessation of certain rituals intended to foster reproduction. [13] These issues will now be discussed in turn.
i. The Pseudo-Intelligibility Trap
Although the majority of Australian Aborigines speak Aboriginal English, [14] a dialect of English, there are significant differences between Aboriginal and Standard English. [15] Such differences frequently result in miscommunication between Aborigines and non-Aborigines. Although the similarity between the two dialects creates the illusion of communication, speakers of Standard English often assume they understand Aboriginal English discourse, when in fact they do not. [16] For this reason, somewhat paradoxically, miscommunication is more problematic between speakers of slightly different dialects than between speakers of two entirely different languages. [17] Thus, although a monolingual Standard English speaker cannot communicate with a monolingual French speaker, there is no risk that each will perceive the illusion of communication. Conversely, monolingual Aboriginal and Standard English speakers frequently engage in apparently intelligible conversations without conveying the intended message. Harkins [18] has labelled this phenomenon the pseudo-intelligibility trap. In certain circumstances Aboriginal English speakers use two words, with quite different meanings according to Standard English, interchangeably. For example, to non-Aboriginal speakers, the terms gonna and gotta are informal contractions of going to and have got to, respectively. The former conveys information related to future intention, whereas the latter conveys a modal sense of obligation or necessity. [19] In a series of linguistic studies, Sharpe [20] and Kaldor and Malcolm [21] noted that Aboriginal speakers use gotta interchangeably with gonna. Aboriginal speakers may therefore ask non-Aboriginal speakers for a favour, such as ‘You gotta help me?’ with the intention of being polite, when in fact the term gonna would be interpreted as less imperative and more polite.
The pseudo-intelligibility trap also has serious implications for courtroom testimony by Aboriginal witnesses. Australian courts, most notably the High Court of Australia, tend to eschew the use of interpreters where the witness appears to be able to convey his or her message with even limited competence. In an application for special leave to appeal to the High Court, [22] an applicant for refugee status discovered that he could not communicate with his interpreter, who spoke a different dialect of the same language. The following exchange resulted:
Callinan J: You seem to understand a fair amount of English. You speak English very well.
Applicant: My English is no good, so I told the Court, I do not understand, so I need help.
Callinan J: But you understood what I said to you then. You can understand what I am saying to you, can you not?
Applicant: Yes.
Although the applicant indicated that he preferred to have an interpreter, the Court decided that an interpreter was unnecessary. Not surprisingly, the applicant later struggled to follow the proceedings:
Applicant: I am not understanding.
Interpreter: He is telling [sic] that "I am not understanding".
McHugh J: They made some other findings. The Tribunal found that the attacks on you in 1987 and 1995 were not because of your political opinions.
Applicant: I am not understanding anything.
The application continued and special leave to appeal was refused. Regardless of the correctness of the decision, or whether Callinan J believed he understood the applicant, the applicant would probably have understood the proceedings and conveyed his viewpoint more effectively had an interpreter been available. Thus, based on the fact that Callinan J equated the applicant’s understanding of a simple, colloquial sentence with formal legal language, the applicant was forced to conduct the rest of the case without the aid of an interpreter. Although the applicant in this case was not Aboriginal, many Aborigines face similar obstacles when testifying in court. Just as an interpreter would have been sought immediately for the applicant had he not understood any English, Aborigines who speak Aboriginal English may be dissuaded from relying on interpreters given that their speech is superficially intelligible to non-Aboriginal audiences. [23]
ii. Speakers of Different Languages Experience Different Realities
Given that misunderstanding arises from inconsistent lexical
interpretations, might the ability to identify such inconsistencies ameliorate
miscommunication? Psychological evidence suggests that such discrepancies
shape cognition at a deeper level than mere semantic interpretation. The
linguistic relativity theory, developed by Sapir and Whorf, [24] suggests that different languages
or dialects are not merely alternative vehicles for describing the same reality,
but that people who speak different languages actually perceive the world
quite differently. [25] Whorf, formerly a fire insurance
inspector in the
There is considerable support for this theory as it applies to Aboriginal English. [28] Speakers of Aboriginal English tend to restrict themselves to reasoning in first degree abstraction, whereby hypothetical propositions retain some link with known and real concepts. Conversely, Standard English facilitates abstract cognitions in the second degree, so that the link to reality is absent. [29] To illustrate this principle, Bain [30] asked the following two questions of Aboriginal participants:
Question 1. If you had a great deal of money, what would you do with it?
Question 2. Would you buy a house or a car?
Respondents appeared to resist giving purely hypothetical answers, such that people who had never handled large sums of money were unable to answer the first question until prompted by the second question. Similarly, the solitary woman who responded positively to the idea of buying a car was the only woman who had previously owned a car. The few respondents who had never handled money, lived in a house, or owned a car, listed neither a house nor a vehicle as priorities, even after prompting. Instead, they evinced an intention to buy greater quantities of commodities to which they were accustomed, such as soap, shoes, socks and food.
Many questions asked of witnesses or defendants in a courtroom are similarly hypothetical, and are thus likely to attract confused or ill-considered responses. For example, when determining whether a defendant accused of a crime intended to commit the crime—an essential element in establishing a defendant’s guilt—prosecuting counsel may ask the defendant a range of hypothetical or abstract questions designed to elicit the his or her mental state at the time of the incident. The nature of the defendant’s response may determine the nature of the judge’s directions to the jury.
iii. Disparate Communication Norms and Miscommunication
Although people within different cultures and milieus become accustomed to asking questions in a particular way, norms of questioning vary across cultures and settings. [31] Whereas non-Aboriginal people consider direct questioning to be the most efficient way of obtaining detailed personal information, Aboriginal people tend to volunteer self-relevant information before asking others for similar information. Jourard [32] termed this the principle of self-disclosure, whereby people are more likely to elicit self-relevant information after having disclosed similarly personal information beforehand. Although the self-disclosure principle applies to all cultures to some extent, Aboriginal Australians appear to engage in a more formal version of reciprocal self-disclosure than non-Aboriginal Australians.
Additionally, the direct manner in which lawyers tend to ask questions is considered rude and is thus culturally foreign to many Aboriginal people. [33] Direct questions are only acceptable in Aboriginal society when the questioner is seeking to elicit orientation information, as demonstrated by the common opening question: ‘Where you been?’ [34] According to Aboriginal mores, a more polite method of extracting information from another person is to indirectly allude to the topic of interest rather than asking explicit direct questions. [35] Direct questions in this form are particularly common during cross examination, during which barristers regularly attempt to pressure or coax witnesses to divulge self-implicating information. [36]
Far from eliciting truthful, accurate responses, direct questions often educe blind confirmatory responses. Liberman has termed this phenomenon ‘gratuitous concurrence’, [37] whereby Aboriginal people tend to counteract the forensic penchant for directness by ‘agreeing with whatever it is that Anglo-Australians want’ in order to placate the interrogator. [38] Thus, far from indicating agreement, ‘yes’ often means ‘I think that if I say ‘yes’ you will see that I am obliging and socially amenable and you will think well of me and things will work out between us’. [39]
One of the starkest examples of gratuitous concurrence in the courtroom occurred during a case in which three Aboriginal youths aged 12, 13 and 14 claimed that their liberty had been deprived by six Brisbane police officers. [40] The youths alleged that they had been taken by six police officers in three separate vehicles from a shopping mall, were ‘terrorised’ [41] and then left at 4am in an industrial estate in Pinkenba from where they had to find their way home. Diana Eades, a pre-eminent expert in Aboriginal English in the legal context, suggested that the cross examination during the hearing was ‘full of gratuitous concurrence’. [42] For example, the following exchange took place between counsel for the police officers and one of the youths, Mr X:
Counsel: 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?
Mr X: No.
Counsel: You knew that, Mr X, I’d suggest to you, please do not lie. You knew that you didn’t have to go anywhere if you didn’t want to, didn’t you? Didn’t you, Mr X?
Mr X: Yep.
Counsel: Why did you just lie to me? Why did you just say ‘no’, Mr X. 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?
Mr X: Yep.
The conversation continued in this vein for some time. A literal interpretation of all the ‘yep’ answers would lead to the conclusion that the boys were frequently contradicting themselves and could not be reliable witnesses. However, such an interpretation reveals a lack of understanding of the fundamental differences between Aboriginal and Standard English, rather than an intention to deceive the court, as artfully suggested by counsel for the police.
Gratuitous concurrence is only one of numerous features of Aboriginal communication that result in accusations of deception and truth evasion. Aboriginal witnesses are often criticised for giving responses that lack specificity. In relation to counting, most Aboriginal languages and forms of Aboriginal English only have specific words for the numbers ‘one’, ‘two’ and a few additional words for ‘several’ and ‘many’. [43] When asked to quantify a particular variable, many Aboriginal witnesses instead list each entity within the list. Thus, when asked how many people were at a gathering, Aboriginal people, much to the ire of counsel cross-examining, frequently list the name of each person present. [44] Similarly, when asked to specify a time, Aboriginal people typically respond by saying ‘not long before dark’ or ‘just after sunrise’. [45]
iv. Non-Verbal Miscommunication
In addition to verbal differences between Aboriginal and non-Aboriginal communication, there are significant non-verbal differences that result in miscommunication. Primarily, extended periods of silence are an expected norm of Aboriginal communication, indicating that the responder is taking a moment to reflect before answering. [46] Silence is therefore interpreted as a sign that subsequent responses are more considered and accurate. Conversely, non-Aboriginal Australians interpret extended periods of silence as a sign of guilt or ignorance. Silence is particularly salient during cross-examination, when barristers tend to verbally intimidate witnesses by raising their voices. In the Pinkenba case, [47] counsel for the police officers put to one of the youths that ‘we have to take your silence as a “no”, don’t we?’ [48] Perhaps even more distressing is the fact that counsel for the youths failed to object to this patent misinterpretation of the Aboriginal use of silence.
Avoidance of eye contact, which frequently accompanies silence, is a sign of deference and respect among Aboriginal people. On the other hand, non-Aboriginal society regards avoidance of eye contact as a sign of dishonesty. [49] During the Pinkenba case, cross-examining counsel for the police officers suggested that one of the youths refused to look at him because he was thinking that ‘we’ll see the lies written all over your face’. [50] Again, no objection was raised.
v. Under-Utilisation and Scarcity of Interpreters
The previous sections of this paper demonstrate that researchers have identified numerous differences between Aboriginal and non-Aboriginal communication. One might therefore assume that adequately trained courtroom interpreters should be able to minimise this disparity. However, there are several obstacles to this solution.
Given that judges decide whether the court will benefit from an interpreter, [51] the Australian legal system presupposes that judges have the capability to determine when the defendant requires an interpreter. Judges are not trained in linguistics and therefore do not have an informed basis on which to make such a decision. Aboriginal English is spoken on a continuum from ‘heavy’, which is obviously different from Standard English, to ‘light’, which is less obviously, yet nonetheless significantly, different from Standard English. [52] Speakers of a light form of the dialect are therefore commonly mistaken for having a greater understanding of Standard English than they in fact have. Judges are often loathe to allow individuals to use an interpreter, as evidenced in the earlier transcript from the High Court special leave for appeal application of Rahman. [53] This may be a manifestation of the general belief that using an interpreter will somehow unfairly aid the defendant. [54] In evidence of the tendency to avoid using interpreters, a spokesman for the only Australian Aboriginal Interpreter Service, based in Alice Springs, noted that the service only gets ‘about five or six calls a year’. [55]
Even when the judge determines that an interpreter should be used, there are obstacles that prevent the Aboriginal witness from benefitting. The evidence suggests that there are few, if any, adequately trained Aboriginal English interpreters. [56] In order to be qualified as an interpreter, a person must be accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). NAATI recognises five levels of accreditation, the third of which—interpreter level—is regarded as the minimum standard for courtroom practitioners. [57] Few people reach interpreter status without having first studied the second language at the Masters level. The problem is compounded by the ostensible similarities between Standard English and Aboriginal English, which mean that Aboriginal English does not lend itself to formal interpretation. Interpreters predominantly deal with cross-cultural interpretation, rather than purely linguistic translation. NAATI has historically refused to accredit languages which require interpretation beyond purely objective translation. Thus, at a Regional Advisory Committee meeting on legal interpreting in 1996, NAATI refused to set up accreditation for Aboriginal English. [58]
To this point, a broad range of issues have been identified as preventing Aborigines from receiving a fair trial. The following section of this paper proposes solutions to those problems that appear to be soluble and recognises those that appear to be insoluble.
II. Ameliorating Communication Problems Facing Aborigines
in the Courtroom Setting
i. Narrative as Evidence
Traditionally, oral courtroom evidence is elicited in the form of successive questions and answers. One alternative to this procedure is to have the witness present his or her examination in chief in the form of a story with minimal interruptions. [59] Given that opposing counsel has the opportunity to cross-examine the witness, this form of evidence does not unfairly disadvantage the other parties to the case. There are significant benefits flowing from narrative evidence and many of the problems present during primary testimony by Aboriginal witnesses are significantly minimised. For instance, narrative evidence eliminates gratuitous concurrence and the cross-cultural problems stemming from direct questioning styles.
Michael Cooke, an expert witness and forensic linguist, has discussed the benefits of the narrative approach to evidence, referring to the example of an Aboriginal woman who was tried for the wilful murder of her boyfriend. [60] A speaker of heavy Aboriginal English, she frequently misunderstood what was said to her, made pronunciation errors and did not have the communicative skills required to cope with a formal interview. Furthermore, the police interview transcript demonstrated evidence of gratuitous concurrence, which enabled the police to present her as a brutal killer. Fortunately, in court she was able to explain herself, presenting evidence in a narrative manner. The court heard that she had been raped, bashed, stabbed, bitten, shot at and scalded with boiling water during the relationship. The narrative allowed a fuller picture to emerge than would have occurred had the witness been restricted to a range of questions, which would have been simplified to accommodate her limited grasp of Standard English. Although narrative testimony also contains irrelevant information, the benefits of allowing the witness to fully elucidate his or her perspective, exceeds the costs of more lengthy testimony presentations.
The Waitangi Tribunal in
Thus, the narrative form of evidence presentation has been successful in a number of situations mentioned above and is a viable method for eliciting evidence from Aboriginal witnesses with a limited ability to communicate under the traditional question-answer method.
ii. Written Evidence versus Oral Evidence
There is an ongoing debate within the legal profession about the relative merits of written versus oral evidence. [62] Three Australian High Court Justices have described as ‘impermissible’ the premise that written evidence is inherently more accurate or reliable than oral testimony, even when presented by Aboriginal witnesses. [63] However, one benefit of written evidence over oral evidence is that the cross-cultural disparities between attitudes to eye-contact and silence are eliminated. More generally, oral evidence improves the problem of paralinguistic and non-verbal misinterpretation. Given that people often rely on paralinguistic and non-verbal cues more heavily than linguistic cues when forming judgments about others, [64] this would significantly alter the way that jurors and judges appraise witnesses. Arguably, purely oral evidence would prevent members of one culture from making misjudgements about members of another culture by interpreting their non-verbal behaviour from a foreign, culturally biased perspective.
More simply, however, given that testimonial evidence is designed to ascertain a witness’ faithful interpretation of a set of events, clearly communicated written evidence is inherently preferable to oral evidence plagued by misunderstanding and misrepresentation. Some experts have argued that this allows the witness to ‘get away with’ making inaccurate or artful statements, [65] but preserving opposing counsel’s right to cross-examine the witness allows the opposing party ample opportunity to expose inconsistencies and untruths. Despite the benefits of written evidence in this context, it is excessively optimistic to predict that written evidence will take the place of oral evidence in the near future. One solution to the problem of misinterpretation of oral testimony by Aboriginal witnesses is to make video, rather than written, transcripts compulsory in all trials involving Aboriginal witnesses.
iii. Video Transcripts versus Written Transcripts
There are numerous examples of inaccurate or incomplete written transcripts of Aboriginal witness testimony. For example, in an Aboriginal Land Tribunal hearing, the following official transcript was published and then corrected by Professor Rigsby, counsel assisting the Tribunal:
Original transcript:
Examiner: Are you claiming Bagarrugu?
Witness: No, because I am branded with murder – with murdering Lakefield.
Corrected transcript:
Examiner: Are you claiming Bagarrmugu?
Witness: No, because I blanta – I’m belong to Rirmerr and Lakefield.
The benefits of video transcripts are that they capture non-verbal cues, paralinguistic cues and punctuation, none of which are apparent when reading written transcripts. [66] Where there is inconsistency, disagreement or confusion over evidence presented, experts can be retained to perform a post-hoc analysis of the contentious extracts of the transcript. This is not possible when auditing written transcript and only limited corrections can be made when listening to audio transcripts. Given that many Aboriginal people indicate length, age and other concepts using their hands and arms, it is important that appeal courts and trial reviewers have access to visual as well as auditory transcripts. Many of the problems that arise under the guise of the so-called pseudo-intelligibility trap [67] may be solved by allowing experts to audit such video transcripts.
iv. Improving the Relevant Legal Provisions
Numerous legal judgments, government enquiries and codes have affected the way Aboriginal people are treated in the legal system. However, few of these initiatives have made a significant difference to Aborigines who speak Aboriginal English. The most significant legal ruling is the Northern Territory Supreme Court case of Anunga. [68] In his judgment, Justice Forster acknowledged that there were different varieties of spoken English language including Aboriginal English. As a result, Justice Forster listed nine guidelines, known as the Anunga Rules, designed to protect Aborigines when being interviewed by police. Most significantly, the Anunga Rules draw attention to the concept of gratuitous concurrence, the Aboriginal right to silence and other cross-cultural differences between Aboriginal and non-Aboriginal Australian communication styles. Unfortunately, the rules are merely guidelines and are not legally binding. Furthermore, they are only applicable to the Northern Territory and are not recognised in other jurisdictions. [69] Nevertheless, the Anunga Rules are a positive step in accommodating Aboriginal communication styles within a Western legal system.
The positive effects of the Anunga Rules could be augmented by enshrining the general tenets of the Rules in a legally binding medium. For example, there exists specific legislation dealing with the forensic treatment of other vulnerable groups in the courtroom setting. [70] Such legislation could address the major issues already identified in this paper, such as: warning the jury of the possibility of inaccurate evidence on the basis of gratuitous concurrence; warning the jury that silence and eye contact have different implications within Aboriginal culture; and the need to have an expert present during all cases in an amicus capacity, to inform the judge of any subtle misinterpretations that may adversely affect the Aboriginal witness.
Similarly, Article 14 of the International Covenant on
Civil and Political Rights (ICCPR), which
Provision 1. All persons shall be equal before the courts and tribunals.
Provision 3. In the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in full equality:
…
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Again, although these provisions are encouraging, they are silent as to whether or not the fluency of the speaker influences the decision of whether or not an interpreter should be used. A preferable alternative would be to have a comprehensive set of legally enforceable guidelines addressing the major impediments to cross-cultural communication.
v. Educating the Profession
At present in New South Wales, there are eleven core law courses that must be taught as part of an undergraduate law degree. [71] Although lecturers may choose to raise some of the issues affecting Aborigines during these subjects, they are not compelled to do so. Given that Aborigines are ten times more likely, per capita, than non-Aborigines to appear as defendants in criminal trials, [72] law students and practitioners need to be educated on Aboriginal cross-cultural communication issues. Further, Aboriginal communication issues should be a compulsory component of undergraduate education and continuing legal education for criminal law practitioners and others who are likely to come into contact with Aborigines.
At present, there are a number of widely used texts that discuss Aboriginal English and the law. [73] In particular, Dr Diana Eades’ ‘Aboriginal English and the Law’ is suitable for use by both practitioners and students, and would effectively complement lectures on Aboriginal communication. The text considers the major differences between Aboriginal and non-Aboriginal English, from superficial word usage to syntactic and pragmatic disparities.
Although professional bodies may enforce compulsory undergraduate and continuing educational programs, it is more difficult to extensively educate jury members. [74] However, a set of guidelines could be prepared for jury members in cases involving Aborigines, listing some of the major differences between Aboriginal and non-Aboriginal communication. In addition, as judges become aware of the issues, jury directions on cross-cultural communication issues should improve significantly. Perhaps speakers of Aboriginal English could also be educated about some of the legal jargon they are likely to encounter, and about how some of their behaviour, such as eye contact and use of silence, are likely to be interpreted. [75]
vi. The Koori Court
Perhaps the most encouraging recent development in accommodating
Aborigines within the common law legal system is the introduction of Aboriginal
courts throughout
The Koori Court in North East Victoria was established under the auspices of the Magistrates’ Court (Koori Court) Act 2002 (Vic) as a separate division of the Magistrates’ Court. The court has jurisdiction to deal with a range of offences in a manner designed to accommodate Aboriginal defendants. The stated objectives of the court are to ‘redress the over-representation of Aboriginal people in the criminal justice system; to reduce rates of re-offending amongst Aboriginal people; to decrease rates of non-appearance at court which has the effect of reducing bail opportunities; and, to have positive impact upon the lives of those who appear before the court’. [78]
Aboriginal Courts employ elders or respected persons within the Aboriginal community to take a position on the bench and to assist the magistrate during the hearing process. Given the Aboriginal emphasis on relationships as a source of authority, these elders are significantly more influential than magistrates and other standard court personnel. Defendants are invariably reminded that they have not only broken the common law, but have also offended the ‘Aboriginal people whose country this is’. [79] The introduction of the Court has resulted in a significant reduction in non-attendance. [80] The positive effect of the court is best summed up by Dr Kate Auty, the Court’s chief magistrate: [81]
What is impressive about the court at this early stage is that many Aboriginal people have found their voice in it. We wait and take time, we invite rather than compel engagement, we back-track and re-enter dialogue from other places. We are listening to what we are told…Neither of the magistrates who sit in our court have [sic] formed the impression that a defendant has regarded the process as soft or humorous. On occasion a defendant who commenced the hearing in an off-hand fashion concluded it close to tears.
This description suggests that the Koori Court is a paradigmatic example of how Provision 1 of Article 14 of the ICCPR—that ‘all people should be equal before the courts and tribunals’—can be applied to Aborigines. The concurrent use of magistrates and elders eliminates the risk of cross-cultural misinterpretation, while preserving the paramount role of the Australian common law. The success of the Koori Court demonstrates that the most powerful method of breaching the divide between Aboriginal and non-Aboriginal cultures may be to implement additional Aboriginal courts and broaden the scope of cases which they are authorised to hear. [82]
III. Conclusion
This paper has identified numerous issues which have affected the ability of Aborigines to communicate in the courtroom setting, followed by a range of solutions to these problems. Admittedly, not all problems are soluble in the foreseeable future. For example, with a dwindling population and poor access to postgraduate education, it is difficult to significantly improve the capability of Standard-Aboriginal English interpreters. The situation is further hindered by the general tendency of the courts to avoid using interpreters whenever possible and the difficulty of identifying which Aboriginal defendants require an interpreter.
However, there is much that can be done to improve the situation. The introduction of Aboriginal Courts within the Magistrates’ Courts system in Victoria, Queensland and South Australia has been successful, not only on an idiographic level, but also in improving the general attitude of Aboriginal people towards the legal system. [83] In addition, providing Aboriginal people with more suitable methods of presenting evidence eliminates some of the sources of cross-cultural miscommunication. Video transcripts also enable experts and appeal court judges to identify and correct any interpretational errors. Furthermore, the legislature has the capacity to enforce provisions that, until now, have attained the promising although impotent status of non-binding guidelines. Aboriginal miscommunication is thus a significant, yet largely soluble, forensic problem that can be addressed from myriad perspectives.
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