Cruel clashing of culture in the courtroom Calls for legal system to recognise barriersTownsville Bulletin5 March 2005by John AndersenIT CAN be cruel to watch.
A silver-tongued barrister with decades of education under his belt going after an Aboriginal witness on the stand.
Putting the education differences aside, the cultural divide still gives the barrister a significant advantage.
It's February 28, Australia, in the year 2005, and illiterate and semi-literate Aboriginal witnesses who appeared at the Palm Island death in custody coronial inquiry were questioned by barristers using language the witnesses had no hope of following.
The barristers, for what it was worth, may just as well have been speaking Swahili.
It is a fact obviously not lost on legal practitioners that language can be used to confuse and destruct Aboriginal witnesses who do not speak English as it is conventionally spoken.
A barrister who wants to discredit an uneducated and perhaps alcoholic Aborigine witness can prod him or her though a maze of words until the witness is lost, confused and ultimately, profoundly discredited. It can be cruel to watch.
Civil Liberties Council president Terry O'Gorman, Aboriginal and Torres Strait Islander Community Legal Service principal legal officer Kevin Rose -- who is also counsel appearing at the inquiry -- and Aboriginal activist Murrandoo Yanner say changes have to be made to make the system fairer for Aboriginal witnesses.
Mr Yanner argues that questions about specific times of the day, about space and distance in metres and the use of words like "approximate" and "statement" have no place in the world of people who do not measure distance in feet or metres, who do not have a concept of time in the white man's sense and who, in a lot of cases, have had at best only a rudimentary education. Most never wear a watch.
Coupled with this is the likelihood that some of the witnesses will be alcoholics, some of whom will be suffering from Korsakoff's Syndrome. The tell-tale jerky work of the Korsakoff sufferer was evident in the Palm Island courtroom on Monday.
The syndrome is caused by thiamine or vitamin B deficiency brought about by acute alcoholism and poor nutritional intake. Sufferers survive essentially on the calories contained in alcohol, ingesting only minimal calories from the major food groups. Memory loss and confusion are dominant symptoms of the Korsakoff sufferer.
Townsville clinical and forensic psychologist Robert Walkley said evidence given by anyone suffering from Korsakoff Syndrome would be unreliable.
"They can not be relied upon as witnesses," he said.
Mr Walkley used the term "confabulation" to describe how Korsakoff sufferers fill in the gaps of their memory when recalling past events.
"Your reliability as a witness is shot. You make things up. You're not lying per se. You believe you are dredging up a memory, but you are making it up," Mr Walkley said. "Lying is a cognitive process to deliberately distort the facts.
"The Korsakoff sufferer is connecting the lines in an unreliable and haphazard way that they believe to be true."
Mr Yanner likens barristers who know they can confuse, confound and ultimately discredit Aboriginal witnesses with cunning questions as bullies.
"They are university-educated, intellectual bullies going against a bloke who hasn't gone past grade five," he said.
He argues that the 1987 Royal Commission into Aboriginal Deaths in Custody recommended a number of changes to the way Aboriginal witnesses were represented in court.
"But nothing's happened," he said.
Mr O'Gorman said it was imperative a system of fair play for Aboriginal witnesses be put in place before the new coronial inquiry begins.
"In other areas of criminal law Parliament has legislated special measures for the questioning of children, particularly in areas of sexual offences, and for special witnesses who are intellectually impaired," he said.
Mr O'Gorman said there was overwhelming documentary evidence that many Aboriginal witnesses do not understand the questions they are asked in court.
"The existing legislation should be examined to see if Aboriginal witnesses should be questioned under special witness provisions of the Queensland Evidence Act."
He said if this could not be done the Government should change the legislation to ensure that Aborigines and others with similar needs were questioned in a culturally and linguistically appropriate manner.
Mr O'Gorman said if the legislation was not changed, an application should be made to the new coronial inquiry requesting that Aboriginal witnesses be questioned in line with the recommendations laid down in the 1987 Royal Commission.
Mr O'Gorman said lawyers who wanted to discredit an illiterate Aboriginal witness could achieve that end with little difficulty.
"The Parliament has seen fit to change the law on child advocates because children were being deliberately confused (by barristers)," he said.
Mr O'Gorman said the next step would be to introduce a similar system for Aboriginal witnesses.
Mr Rose said that before the new inquiry starts protocols should be put in place.
Both Mr Rose and Mr Yanner recommend having support people sit with Aboriginal witnesses, providing them with companionship and helping them understand what they were being asked.
He said interpreters should be present to turn difficult questions into Palm Island creole, or a language the witness could grasp.
ends
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