7.1 Many Aboriginal people experience difficulties in communicating effectively, both as witnesses in the courtroom and as defendants in the sentencing process. Some of the difficulties experienced by Aboriginal people in being understood accurately in court are shared with other minority groups in the community. However, other difficulties originate in distinctive features of Aboriginal language and culture.
COMMUNICATION DIFFICULTIES
7.2 In the most recent census, 94% of the Indigenous population of New South Wales reported speaking English at home. Less than 1% (837 people) reported speaking an Australian Indigenous language. Of those 837 people, 652 also reported speaking English very well, and six not at all.1
7.3 However, Dr D Eades, a leading linguistic authority in this area, believes that the great majority of Aboriginal speakers in Australia who reportedly speak English, in fact speak Aboriginal English, which is the name given to varieties of English spoken by Aboriginal people across Australia:2
Most Aboriginal people speak some kind of English in their dealings with the law. For most, it is a dialect of English known as Aboriginal English, (hereafter referred to as AE). … There are a number of varieties of AE, or more accurately, there is a continuum of AE dialects, ranging from those close to Standard English at one end (…“light” AE), to those close to the Aboriginal Kriol3 language at the other (…“heavy” AE). Speakers of heavy AE usually live in more remote areas, and often also speak a traditional Aboriginal language. Speakers of light AE usually live in less remote areas, and often speak AE as their first language. It is believed that most Aboriginal people in New South Wales speak a light form of AE, although there is virtually no detailed research in this state to date.4
7.4 Similar to Scottish English or American English, Aboriginal English is generally understandable to Standard English speakers.5 Eades believes heavier varieties of Aboriginal English are spoken in the north-west and west of New South Wales.6 Aboriginal English can be distinguished from Standard English in each area of language: sounds or accent, grammar, vocabulary, meaning, use and style.7 However, in the legal setting, Eades believes that the areas of meaning, use and style create the greatest communication difficulties for Aboriginal English speakers.8
7.5 The following are generally identified as areas where communication difficulties may occur between Aboriginal and non-Aboriginal people in a courtroom setting:
- The courtroom surroundings, in particular its unusual language, procedure, protocol and layout, can confuse and intimidate many people, especially those not from white, Anglo-Saxon backgrounds.
- Differences in pronunciation, grammar and vocabulary exist between Aboriginal English and Standard English. These differences are exacerbated by the courtroom setting where the language used is often very technical and much of the verbal communication between parties in the courtroom is governed by specific legal rules.
- Aboriginal society values the use of silence in conversation more than in non-Aboriginal society, which can lead to misunderstanding in court when assessing the reliability or credibility of an Aboriginal witness. Silence can be incorrectly seen as guilt, ignorance or evidence of a communication breakdown.9
- Aboriginal kinship ties are more complex than those of non-Aboriginal society and can influence the giving of evidence in court by an Aboriginal witness, including whether or not he or she is comfortable speaking on certain issues in court.
- Aboriginal people tend to avoid sustained eye contact, which can be misinterpreted as defiance or dishonesty in court.
- A long recognised communication problem in court for Aboriginal people is the tendency of Aboriginal witnesses to agree gratuitously with whatever the questioner has put to him or her. This occurs in particular where many “yes-no” questions are being asked by someone in a position of authority.10
- Aboriginal people frequently do not use numbers or other quantitative means of describing events, such as the days of the week, dates or time. Consequently, in seeking answers to specific “how”, “where”, or “when” type questions in court, Aboriginal witnesses are frequently seen as vague.11
- Aboriginal culture places a high value on intellectual property, which means that access to certain knowledge is restricted, as is the right to reveal it. This includes, for example, certain matters which cannot be discussed in male-female company. This can significantly impact on the ability of Aboriginal witnesses to give evidence in court.
- Some form of hearing loss is very common among Aboriginal people, usually caused by chronic middle ear infections in childhood. The interaction of such hearing loss with the socio-linguistic differences outlined above can greatly compound communication difficulties in court.
OVERCOMING COMMUNICATION DIFFICULTIES
7.6 The Commission considers that language and communication difficulties for Aboriginal English speakers within the criminal justice system may be ameliorated by:
- increasing awareness of Aboriginal culture within the judicial and executive arms of the criminal justice system; and
- employing linguistic and cultural experts in the sentencing regime.
Increasing awareness of Aboriginal cultural issues
7.7 As previously mentioned, differences in language and communication styles between Aboriginal English speakers and Standard English speakers can give rise to injustice to Aboriginal people in the criminal justice system.
7.8 The Royal Commission into Aboriginal Deaths in Custody (the “RCIADIC”) highlighted the widespread ignorance of Aboriginal culture within the judicial system.12 It recommended that judicial officers, and those working in the court and in the probation and parole services, participate in training and development programs explaining contemporary Aboriginal society, customs and traditions.13 These programs should emphasise the historical and social factors contributing to the disadvantaged position of many Aboriginal people. The RCIADIC also recommended that cross-cultural understanding could be further improved through direct consultation between those working in the judicial system and members of Aboriginal communities and organisations.14
Aboriginal cultural training programs
7.9 As a response to the recommendations of the RCIADIC, the legal system in Australia has increasingly recognised and accepted the importance of actively encouraging an awareness of Aboriginal culture among judicial officers, lawyers, police and others working in the criminal justice system.15 The Australian Institute of Judicial Administration (“AIJA”) has a Cultural Awareness Committee, comprising judicial and Indigenous community representatives, aimed at developing and implementing cross-cultural awareness programs for the judiciary in Australia. For example, judicial officers in New South Wales have in recent years participated in a series of visits to Aboriginal communities in New South Wales through programs organised by the Judicial Commission and the AIJA.16 Several legal forums now include programs on Aboriginal cultural awareness,17 including those organised by the New South Wales Attorney General’s Department (the “AG’s Department”) which take judicial officers and court staff to Aboriginal communities in the State.
7.10 Within the AG’s Department, courses have been conducted to improve the understanding of court staff in regional centres of issues affecting Aboriginal and Torres Strait Islander communities and to improve the ability of court staff to communicate effectively with members of these communities. The AG’s Department has also arranged similar courses for its senior executives.
7.11 However, while there has been a comparative increase in the number of Aboriginal cultural training programs offered by government agencies, these training programs are often characterised by a lack of dedicated resources and varying standards of quality. Furthermore, few specifically developed training programs exist to meet the needs of court staff, especially in the higher courts.18 The Aboriginal Justice Advisory Council (“AJAC”) has recently called for the New South Wales government to develop standards around the development, implementation and evaluation of cross-cultural training programs.19
7.12 The New South Wales Department of Corrective Services has also recognised the need for cross-cultural awareness among staff. The Action Plan for the Management of Indigenous Offenders 1996-1998 includes the objectives of increasing the representation of Indigenous staff and raising staff awareness of Indigenous cultural issues.20
Aboriginal Court Liaison Officers
7.13 The RCIADIC also recommended that governments take more positive steps to recruit and train Aboriginal people as court staff and interpreters in locations where significant numbers of Aboriginal people appear before the courts.21
7.14 There are presently22 four full-time Aboriginal Court Liaison Officers (“ACLOs”) in New South Wales regional courts23 and another four full-time positions on which recruitment action has commenced.24 The role of ACLOs is to provide regular support to Aboriginal people attending local courts, including information on court processes, explaining the effect and consequences of any orders made, and directing people to appropriate services. ACLOs liaise with Aboriginal legal services to ensure Aboriginal people attending court have legal representation. ACLOs also provide education to the local Aboriginal community on the legal system and assist the court in understanding Aboriginal culture and local Aboriginal issues which may affect those appearing before it.
7.15 However, AJAC has recently observed that while there has been a notable increase in Aboriginal people employed in New South Wales courts, there remain areas with significant numbers of Aboriginal people appearing at local courts where no Aboriginal staff are present. In addition, few Aboriginal people are employed in the higher courts of New South Wales.25
Conclusion
7.16 Although most Aboriginal people in New South Wales do not live traditionally,26 there are still significant cultural differences from Anglo-Saxon Australian culture, such as the importance of community and kinship groups, the concept of time, and the nature of continuing cultural obligations associated with the land.27 Without specific knowledge of these characteristics, many decision-makers within the criminal justice system would remain unaware of the broader factors which may have relevance to the offence or the sentencing conditions.
7.17 The Commission welcomes initiatives by the criminal justice system in New South Wales to promote a greater awareness and understanding of Aboriginal customs and language differences affecting communication within the criminal justice system. Such educational programs should target those involved in making, communicating, and implementing decisions on the sentencing of Aboriginal offenders. These include judicial officers, members of the Parole Board and Serious Offenders Review Council, probation and parole officers, court staff and legal practitioners. The cultural programs should remain a constant feature of the working lives of such people.
7.18 The Commission encourages the development and expansion of Aboriginal cultural awareness programs and wider consultation with Aboriginal communities in New South Wales on the broader social issues flowing from the sentencing of Aboriginal people. It supports such practical initiatives as the ACLOs program. The Commission also encourages the introduction of a readily accessible resource guide for legal practitioners, court staff, and probation and parole officers, outlining significant cultural and linguistic differences between Aboriginal people and the wider community in New South Wales.
Employing linguistic and cultural experts
Background
7.19 Although there are very few Aboriginal people in New South Wales who speak a “traditional” language as their first language,28 the great majority of Aboriginal people speak a variety of Aboriginal English.29 It has been suggested that witnesses who speak Aboriginal English may sometimes require the assistance of an interpreter.30
7.20 The RCIADIC noted that:
There is a popular misconception that if Aboriginal people appear to understand conversational English they do not need interpreters. The tension engendered by court proceedings, the style and formality of language used by lawyers often means that much of what occurs is foreign to the defendant.31
7.21 The RCIADIC recommended that a court must be satisfied that an Aboriginal defendant appearing before it can effectively communicate in English, including fully understanding proceedings in the English language. If not, a competent interpreter must be provided without cost to that person.32
Legislation
7.22 The Evidence Act 1995 (NSW) allows an interpreter for a witness,33 unless the witness can speak English well enough to proceed without an interpreter.34 In criminal proceedings, where a judicial officer requests an interpreter, the interpreter is provided at no cost to the defendant.
7.23 The Evidence Act 1995 (NSW) applies in relation to all proceedings in a New South Wales court35 and to other persons or bodies required to apply the laws of evidence.36 However, if such a proceeding relates to sentencing, the Act applies only if the court directs that the law of evidence applies in the proceeding or directs that it applies only to specified matters in the proceeding.37
7.24 Under the common law, which applies to evidence in a proceeding, except as covered by the Evidence Act 1995 (NSW),38 a witness is not entitled as of right to give evidence through an interpreter. The court has the discretion to allow an interpreter for a witness,39 based on the court’s duty to ensure a fair trial in criminal matters,40 including giving evidence competently. It could be argued that in most cases, the Evidence Act 1995 (NSW) does not significantly alter the former position applying to the use of interpreters under the common law.41
7.25 The Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW) provides, so far as it is practicable, for a person to act as an appropriate interpreter or cultural representative for an inmate “who may be disadvantaged by linguistic or cultural factors”.42 An interpreter may be used when the inmate is being interviewed by a Case Management or Program Review Committee, or the Serious Offenders Review Council, when assessing the inmate for the purposes of security classification and placement, and developmental programs.
Role of an interpreter
7.26 Debate exists about the role of an interpreter in court. Specifically, is an interpreter merely a “conduit” through which words are substituted from one language into another or has an interpreter the broader role of a “communication facilitator”, that is, also conveying the cultural context and perspective?43
7.27 Eades believes that the type of assistance required for Aboriginal English speakers is not so much in the narrower role of interpreter as translator, but rather, in the role of a cross-cultural adviser to the court on both language and cultural differences relevant to any misinterpretation of the evidence.44 As mentioned earlier, the RCIADIC observed:
There is a popular misconception that if Aboriginal people appear to understand conversational English they do not need interpreters.45
7.28 It could be argued that unless the Aboriginal witness in court is as fluent in English as the average non-Aboriginal person of English-speaking background, an interpreter must be present to ensure complete and mutual understanding.46 Where cultural information is required in court, for example, on particular types of non-verbal communication, an interpreter could be brought in as an expert witness.47
7.29 Sentencing decisions are not necessarily understood by Aboriginal offenders. There is a need for greater explanation of sentences which are handed down.48 Failure of the offender to understand the terms of a sentence may lead to a breach of that sentence and further imprisonment. As noted at paragraph 7.14, one of the roles and responsibilities of ACLOs is to ensure that Aboriginal people appearing at court understand the effect and consequences of any orders made by the court.
7.30 When sentencing an Aboriginal offender or setting out conditions for parole, judicial officers, members of the Parole Board, members of the Serious Offenders Review Council, probation and parole officers and legal representatives should ensure that the offender understands the specific conditions of the sentence or parole, and the consequences of a breach.
7.31 The Commission considers that when the Parole Board or Serious Offenders Review Council is assessing an Aboriginal offender’s potential for parole and setting conditions, an Aboriginal person should be a member of the Board or Council to advise and assist with any cultural or language difficulties in communication.49
Conclusion
7.32 In the New South Wales criminal justice system, communication difficulties occur between Aboriginal English and Standard English speakers, rather than between speakers of Standard English and a traditional Aboriginal language. In this area there appears to be little call for interpreters as translators in New South Wales.50
7.33 However, the Commission recognises that communication differences between Aboriginal English and Standard English speakers, both in language and style, may give rise to miscarriages of justice.51 In this situation there is a need for someone to function in a formally recognised and readily accessible role as communication facilitator between speakers of Aboriginal English and the court to prevent communication problems which can arise between Aboriginal English and Standard English speakers.
7.34 AJAC recently observed that, despite the frequent and ongoing communication problems which occur in court between Aboriginal English and Standard English speakers, there are no accredited Aboriginal interpreters in New South Wales, nor is there a system of formal accreditation or training of Aboriginal interpreters.52
7.35 The Commission believes that a communication facilitator fluent in English and familiar with court processes should be present for an Aboriginal offender or witness who is disadvantaged by cultural or linguistic factors in a proceeding relating to sentencing, whether the sentencing court or Parole Board.
7.36 The role of a communication facilitator would assist the court by explaining differences in communication styles between Aboriginal and non-Aboriginal people as they impact on the particular proceedings. The Commission does not wish to confine the role of communication facilitator through an inflexible definition of that role. It should, however, be formally recognised, properly funded, and permanently accessible to any Aboriginal person who requires it. Many communication difficulties could be overcome by such a flexible role. For example, a communication facilitator could explain the proceedings of the court to the defendant or witness. The communication facilitator could assist an Aboriginal witness to understand a question by explaining or clarifying it in a manner more easily understood by him or her. A communication facilitator could use his or her discretion as to which expressions to interpret, and intercede only when requested by any participant in the courtroom, or when he or she identifies a potential misunderstanding.53 A communication facilitator could relate the defendant’s or witness’s statements to the court in Standard English or explain conditions attached to a sentence, including bail or home detention conditions.
7.37 The Commission notes that a similar initiative to that encouraged above is currently being developed by the Queensland Department of Justice and Attorney-General. Under this proposal, a communication facilitator would be used in Queensland courts where an Aboriginal English speaker is a witness or a defendant and requires the services of a facilitator. The Aboriginal English initiative is designed to assist the court in communicating with Aboriginal English speakers. A discussion paper was developed in June 1999, resulting in a two part initiative:
- the publication of the Aboriginal English in the Courts: a Handbook54 (“Handbook”), to serve as a guide for communication; and
- the identification and training of suitable people as communication facilitators.
7.38 The Handbook has been published as the first stage of the initiative. It is based on the work of Dr D Eades. The Handbook incorporated the comments of and received agreement from the Aboriginal and Torres Strait Islander Studies Unit of the University of Queensland, the Aboriginal Legal Service, the Queensland Bar Association, the judiciary, Legal Aid Queensland, Office of the Director of Public Prosecutions, Queensland Law Society, Aboriginal communities and other relevant groups.
7.39 The second stage of the initiative will involve providing communication facilitators in Queensland courts. Although not interpreters as such, facilitators will be bi-lingual in Aboriginal English and Australian Standard English, and have undertaken a tertiary course in court procedure, legal terminology and the responsibilities of an interpreter. The facilitator would be funded by the Department of Justice and Attorney-General, Legal Aid or other such bodies, similar to the way interpreters are presently funded. The facilitator’s role will be to assist counsel in the courtroom to identify communication difficulties that arise during court proceedings, and advise them on how they can use the information in the Handbook to resolve communication problems.
7.40 The Commission recognises that the roles and responsibilities of ACLOs in New South Wales include the provision of support to Aboriginal people who are attending court, including assistance with any Aboriginal English translation requirements. However, the broad and demanding current role of ACLOs would not appear to extend to the specialised skills and formally recognised role within court proceedings of a communication facilitator as advocated by the Commission. The Commission sees considerable merit in the approach being undertaken in Queensland and encourages consideration of the formal appointment and training of communication facilitators, in addition to the wider, multi-faceted function presently provided by ACLOs to the court and local community.
7.41 The Commission further believes that, wherever possible, the court should exercise its discretion and allow Aboriginal witnesses to give evidence in narrative form.55
LEGAL REPRESENTATION
7.42 Specialist legal aid services in New South Wales provide legal advice and representation to people of Aboriginal descent. Aboriginal and Torres Strait Islander legal services (“ATSILS”) are now provided through six legal services with 26 predominantly regional offices in New South Wales.56 ATSILS are funded federally by the Aboriginal and Torres Strait Islander Commission (“ATSIC”) and are services provided by Indigenous people for Indigenous people. These services include not only solicitors, but field officers who act as a bridge between clients and the solicitors working in ATSILS. Field officers offer practical assistance and support to Aboriginal people, particularly in rural and remote locations. Field officers liaise between solicitors and clients: for example, translating, explaining the customs and protocols of the local Aboriginal community, assisting with legal forms and documents, explaining court operations and decisions to clients, and providing transportation to court for clients who live in remote locations.57 The vast majority of legal advice and representation by ATSILS involves legal representation in criminal matters, such as bail applications, adjournments and guilty pleas.
7.43 Other legal aid providers, such as the Legal Aid Commission (NSW),58 local community legal centres, and pro bono services provided by the legal profession, are also available to Aboriginal and Torres Strait Islander people. However, most Aboriginal people use ATSILS.59 Many Indigenous people live in rural areas and frequently the only accessible legal aid service in the area is an ATSILS.60
7.44 The Public Defenders Office in New South Wales has dedicated an Acting Public Defender for ATSILS clients,61 although other Public Defenders also appear for Indigenous clients. Most appearance work is in regional District Courts.
Conclusion
7.45 The Commission believes that good quality, free legal representation must be available to Aboriginal offenders sentenced for criminal offences. The Commission recognises that if, for example, a guilty plea is made, competent legal representation is crucial because the circumstances of the offence should be well-presented to the sentencing judge in his or her determination of the appropriate sentence. The Commission considers there is much value in an independent and regionalised legal service for Aboriginal people provided by Aboriginal people, both for its acceptability and accessibility to Aboriginal people and the specialised nature of the legal services provided. However, the Commission recognises that the quality of any legal service and representation greatly depends on the level of financial support. This is particularly so where clients come from remote and impoverished communities. It supports the RCIADIC recommendations62 in giving preference to Aboriginal organisations in the delivery of services, including legal services, to Aboriginal people and the regional location of lawyers and field officers:
firstly, because of the accumulated disadvantage which this report indicates; secondly, because a very substantial number of Aboriginal people live in remote areas; thirdly, because they have a different cultural background; fourthly, they are just coming out of a period of having no rights and no say in their affairs; and fifthly, they have continuously been responding to agendas determined by others. To insist upon mainstreaming in service provision in these circumstances is both more costly in the long term and is thoroughly undesirable … it is quite clear that on those matters which are closest to specialist Aboriginal interest, such as legal rights … Aboriginal people as a whole greatly prefer their own organizations and services. This is very understandable given the treatment and relationship which Aboriginal people have had from departments in the past. Separate organizations in these areas are very close to Aboriginal conceptions of equality and self-determination …63
FOOTNOTES
1. Australian Bureau of Statistics, 1996 Census of Population and Housing: Aboriginal and Torres Strait Islander People, New South Wales and Jervis Bay Territory (ABS Catalogue No 2034.1, 1998) at 53 and 57.
2. ABS 1996 Census of Population and Housing at 53 and 60. However, as discussed further, the exact numbers of Aboriginal English speakers are unavailable.
3. D Eades, Aboriginal English and the Law: Communicating with Aboriginal English Speaking Clients: A Handbook for Legal Practitioners (Queensland Law Society, Continuing Legal Education Department, 1992) at 23: “Kriol is spoken widely throughout northern Australia, especially in the Barkly Tableland of the Northern Territory. Kriol is not a dialect of English; it is a distinctive language. People who speak Kriol and do not also speak a variety of Aboriginal English, need interpreters in order to communicate effectively with speakers of Standard English”.
4. D Eades, “Aboriginal English in Court” (1994) 1(4) The Judicial Review 367 at 367-368.
5. D Eades, “Aboriginal English on Trial: The Case for Stuart and Condren” in D Eades (ed), Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia (UNSW Press, Sydney, 1995) at 148. See also J M Arthur, Aboriginal English: A Cultural Study (Oxford University Press, Melbourne, 1996) at 2.
6. D Eades, Letter to the Executive Director of the New South Wales Law Reform Commission (3 October 1997) at 1.
7. Eades (1992) at 25. H McRae, G Nettheim, L Beacroft and L McNamara, Indigenous Legal Issues: Commentary and Materials (2nd edition, LBC Information Services, Sydney, 1997) at 373 notes that Australian courts have gradually started to accept that expert evidence on Indigenous language patterns, including the nature of “Aboriginal English”, may be relevant in deciding the admissibility of statements made by Indigenous accused.
8. Eades (1992) at 25.
9. Eades (1992) at 46.
10. Eades (1992) at 51-53.
11. Eades (1992) at 48-50.
12. Australia, Royal Commission into Aboriginal Deaths in Custody, National Report (AGPS, Canberra, 1991) vol 3 at 71-80.
13. RCIADIC Report Recommendation 96, vol 3 at 79.
14. RCIADIC Report Recommendations 96 and 97, vol 3 at 79.
15. For example, The Australian Institute of Judicial Administration, Cross Cultural Awareness for the Judiciary: Final Report to the Australian Institute of Judicial Administration (Melbourne, 1996).
16. New South Wales Government Report, Implementation of Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (January 1998-December 1998) at 58.
17. In particular, the Local Courts Annual Conference and the annual National Judicial Orientation Program: New South Wales Government Responses 1988 Report at 58.
18. New South Wales, Aboriginal Justice Advisory Council, Review of the NSW Government Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (September 2000) (“AJAC Implementation Review”) at 22.
19. AJAC Implementation Review at 20.
20. New South Wales, Department of Corrective Services, Action Plan for the Management of Indigenous Offenders 1996-1998 (November 1996). The Department has recently introduced a temporary position, to be made permanent, of Manager Classification, Indigenous Programs. The position encompasses a broad role, but a principal part of this role is to give advice and recommendations on the classification and suitable placement of Indigenous inmates.
21. RCIADIC Report Recommendation 100, vol 3 at 80.
22. As at August 2000.
23. Being Penrith, Nowra, Lismore and Dubbo Local Courts.
24. Being Taree, Moree and Bourke/Brewarrina Local Courts, and Campbelltown Children’s Court.
25. AJAC Review of New South Wales Government Implementation at 22.
26. New South Wales, Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (1996) at 110.
27. See Chapter 3 for a discussion of the relevance of Aboriginal customary law in New South Wales.
28. ABS 1996 Census of Population and Housing at 53 and 57.
29. See D Eades, “Aboriginal English in Court” (1994) 1(4) The Judicial Review 367.
30. Queensland, Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts (1996) at 75. The Crimes Act 1914 (Cth) includes certain provisions to be followed on the detention and questioning of Aboriginal persons and Torres Strait Islanders arrested for Commonwealth offences: s 23(H). In an investigation where the person under arrest cannot communicate orally in the English language with “reasonable fluency”, because of inadequate knowledge of the English language or a physical disability, an interpreter must be present during questioning or investigation: s 23(N). The Act requires an up-to-date list of interpreters (specifying their languages of competency) for Aboriginal persons and Torres Strait Islanders who are under arrest and under investigation and who cannot communicate orally in the English language with “reasonable fluency”, because of inadequate knowledge of the English language or a physical disability: s 23J(3) and (4).
31. RCIADIC Report, vol 3 at 77.
32. RCIADIC Report Recommendation 99, vol 3 at 79.
33. Section 30: “Witness” includes a defendant in a criminal proceeding: Evidence Act 1995 (NSW) Dictionary, Pt 2 cl 7.
34. A witness may give evidence in court through an interpreter “unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact”: Evidence Act 1995 (NSW) s 30.
35. Evidence Act 1995 (NSW) s 4.
36. See Evidence Act 1995 (NSW) Dictionary, Pt 1 for the meaning of “court” and “NSW court”.
37. Evidence Act 1995 (NSW) s 4(2). In certain circumstances the court must make a direction: Evidence Act 1995 (NSW) s 4(3), (4).
38. Evidence Act 1995 (NSW) s 9.
39. Dairy Farmers Co-Operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464.
40. See Dietrich v The Queen (1992) 177 CLR 292 at 299-300.
41. See A V Ritchie, Ritchie’s Supreme Court Procedure New South Wales (New edition, Butterworths, Sydney, 1984) Volume 1 at [3250.2] (Service 131).
42. Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW) Pt 2 Div 2 cl 20(1).
43. See K Laster and V Taylor, “Technocratic Multiculturalism: Lawyers ‘Use’ Interpreters” (1994) 12(1) Law in Context 76; AIJA Final Report on Cross Cultural Awareness for the Judiciary at 20-22.
44. D Eades, “Interpreting Aboriginal English in the legal system” paper presented at the Proper True Talk National Forum (Alice Springs, October 1995) in Report of Proper True Talk National Forum: Towards a National Strategy for Interpreting in Aboriginal and Torres Strait Islander Languages (Commonwealth Attorney-General’s Department, 1996) at 66-67.
45. RCIADIC Report, vol 3 at 77.
46. This is based on the Anunga Rules for the conduct of police interrogations of Aboriginal criminal suspects in the Northern Territory as first expressed by Forster J in R v Anunga (1976) 11 ALR 412 at 414.
47. The Evidence Act 1995 (NSW) s 79 provides for the admission of expert opinion in court.
48. C Cunneen and D McDonald, Keeping Aboriginal and Torres Strait Islander People Out of Custody: An Evaluation of the Implementation of the Recommendations of the Royal Commission in Aboriginal Deaths in Custody (Office of Public Affairs, ATSIC, Canberra, 1997) at 129. This was particularly noted in relation to suspended sentences. For example, any breach of a suspended sentence may activate the original sentence for a relatively minor second offence.
49. The Commission notes that the New South Wales Parole Board has an two Aboriginal community members as at August 2000.
50. New South Wales Government Report, Implementation of Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (1995-1996) vol 2 at 200: However, there are courtroom communication problems arising because of cultural differences between Aboriginal witnesses and non-Aboriginal legal practitioners.
51. The Queensland Criminal Justice Commission Report at 63 concurs: “The apparent similarities between Standard English on one hand and Aboriginal English (or even Torres Strait Creole) on the other have no doubt led some professionals into believing that the risk of misunderstanding is minimal. However, that risk is real, and the consequences may be serious”. D Eades, “Interpreting Aboriginal English in the legal system” paper presented at the Proper True Talk National Forum (Alice Springs, October 1995) in Report of Proper True Talk National Forum: Towards a National Strategy for Interpreting in Aboriginal and Torres Strait Islander Languages (Commonwealth Attorney-General’s Department, 1996) at 57-58, considers that the interpreting needs of Aboriginal English speakers do not have the same overwhelming urgency as in situations where the Aboriginal and non-Aboriginal parties involved have no shared language. Nevertheless, Eades believes that the natural justice of Aboriginal English speakers is denied because of the kinds of misunderstandings which occur between many speakers of Aboriginal English and many non-Aborigines involved in the legal system.
52. AJAC Review of New South Wales Government Implementation at 22.
53. D Nash, “Aborigines in Court: Foreigners in their own land” (1979) 4 Legal Service Bulletin 106 at 107.
54. Queensland, Department of Justice and Attorney-General and Department of Aboriginal and Torres Strait Islander Policy and Development, Aboriginal English in the Courts: a Handbook (2000).
55. A witness may give evidence wholly or partly in narrative form, subject to the leave of the court, rather than, for example, using the traditional question and answer method of giving information to the court: Evidence Act 1995 (NSW) s 29(2).
56. As at August 2000.
57. Field officers also enter specialist courses to enhance their skills in the area of law: for example, court procedure.
58. New South Wales Government Responses 1988 Report at 52 notes that the: “Legal Aid Commission provides legal aid in criminal indictable and local court criminal matters to all eligible persons, including Aboriginal and Torres Strait Islander persons, subject to a means test. Legal aid is also available for criminal appeals subject to means and merit tests. The Commission addresses the issue of incarceration pending trial by providing aid for bail applications. Aid for first appearance bail applications in the Local Court is not subject to a means test”.
59. See Australian Institute of Criminology and Australian Bureau of Statistics, Occasional Paper: Law and Justice Issues, Indigenous Australians (ABS Catalogue No 4189.0, 1994) at 19: 67% of Indigenous people in Australia needing legal services in the twelve months prior to interview used ATSILS.
60. See Australian Institute of Criminology and ABS Paper at 19: 42.4% of Indigenous people in Australia surveyed were more than 50 kilometres from the nearest legal services.
61. As at August 2000.
62. RCIADIC Report Recommendation 192, vol 4 at 28-29 and Recommendation 107, vol 3 at 91.
63. RCIADIC Report, vol 4 at 24-25.
