546. Special Problems for Aborigines. Despite these rules and safeguards, some Aborigines experience particular difficulties in understanding their legal rights, in particular the right to remain silent and not to incriminate oneself. These problems can arise in all parts of Australia, but are perhaps most acute in relation to ‘fringe-dwelling’ and traditionally-oriented Aborigines, for a number of reasons.
Language. Difficulties of communication and comprehension are very real for many Aborigines, especially those with little or no understanding of English. For a great many traditionally-oriented Aborigines, English is a second or third language. This can lead to significant problems when they come into contact with the criminal justice system. This is not simply a matter of translating words. There is the additional complication of having to explain legal concepts such as the caution (ie the right to remain silent) to a person to whom such ideas may be completely foreign. One result of these difficulties is that few Aborigines exercise the right to remain silent, or understand their legal rights other than in a very limited way. Justice Forster (as he then was) in R v Anunga commented on the linguistic and conceptual problems faced by traditional Aborigines when being interrogated by the police. His comments were based ‘partly upon my own knowledge and observation and partly by evidence … heard in numerous cases’. These problems have been mentioned to the Commission on a number of occasions. It is worth repeating the words, quoted in the Commission’s Report on Criminal Investigation (1975), of Mr Yami Lester, Director of the Institute for Aboriginal Development in Alice Springs, who has had extensive experience as an interpreter of the Pitjantjatjara language in the courts:
Aboriginal people are severely limited in their understanding of English. Court language is very hard to understand, and most of the people don’t understand the charges against them. Sometimes it is hard even for the interpreter to understand, or to put in the Aboriginal language. The same problem applies in the police station. This lack of understanding of what is going on leads to considerable fear. Aboriginal languages are very different from English. It makes it very hard for the people to understand the English. They use the negative differently. If they are asked ‘Did you or did you not do that’ they will say ‘Yes’ meaning ‘Yes, I did not do it’. The people have no understanding of connecting or qualifying words like ‘if’, ‘but’, ‘because’, ‘or’. In our languages these are part of another word, or they don’t exist. We have no word for ‘because’. The same with words like ‘in’, ‘at’, ‘on’, ‘by’, ‘with’, ‘over’, ‘under’ and so on. For these there is one ending that goes on other words. Most of the people when they speak English leave out these words. When they hear them they don’t understand their meaning. We have a different idea of time, and people just don’t understand when they are asked ‘how long were you there?’ ‘Was it about one hour?’ ‘Was it ten minutes’. The same applies to number. The Aboriginal people have a different idea of number, they don’t understand 20, or 50, or 100, or 1000. They are confused about place. If asked ‘Did you go into his house?’ they will say ‘yes’. It may have been only in the driveway, or inside the fence, but that means ‘in the house’ to them.
Some words used by Aborigines have developed a different meaning:
I think it is fairly common knowledge among those who deal regularly with Aborigines that the word ‘kill’ or any equivalent word — although ‘kill is the most common one is used in a variety of senses. It does not have the narrow meaning that it has in English. A phrase ‘kill him finished’ or ‘kill him proper dead’ is a way of saying that someone is killed in the English sense, but ‘kill him little bit’ or some other phrase means inflicting an injury that is less than death causing, and in fact it may be only a slight injury.
There may also be considerable difficulty with the legal meaning of a plea of ‘guilty’ or ‘not guilty’. Other language-related difficulties arise. Many Aborigines speak non-standard English so that the way in which questions are asked, especially direct questions, may often lead to misunderstanding and incorrect answers being given. Kinship terms such as ‘father’, ‘mother’, ‘sister’ can often have a much wider meaning than is usual in English.
Deference to Authority. A further difficulty is Aboriginal deference to authority, which can lead to a propensity to give answers thought to be expected rather than to state what actually occurred. This is a result both of Aboriginal courtesy and custom , but also of the long history of many Aborigines living and working in subservient situations. As Justice Forster pointed out in R v Anunga:
[M]ost Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?
An Aboriginal suspect may also experience shame for things done which are the subject of the police interrogation, and may be placed in a vulnerable position as a result.
Concepts of Time and Distance. Different concepts of time and distance may also lead to misunderstandings when a police officer is attempting to determine precise details:
If a person is asked how long ago did something happen he will say: ‘Five days ago’ when he could mean five weeks or five months, or: ‘How far were you standing from the police car?’ ‘Eight yards’. He could mean 80 yards. That is a defect of the system in that whereas European people and lawyers like everything measured and put in logical sequence, to a person who has never thought with reference to those criteria it is just a meaningless question: ‘How long ago did something happen?’ ‘I know it happened a while ago. I don’t know how long ago’, but when that sort of vague expression is conveyed to the tribunal it makes it look as if the person does not know what he is talking about.
Health Problems. The severe health problems suffered by many Aborigines have been well documented. These problems can often lead to behavioural patterns which could place an Aboriginal person at a distinct disadvantage in an interview or interrogation:
Chronic ear infection has resulted in a large number of Aborigines being made partly deaf. An interrogation might well proceed with the Aborigine hearing only part of the words addressed to him. Having lived with the disability the greater part of his life and having learned to supplement auditory signals with other signals such as the movement of lips and gestures, the disability may be masked and the interrogator may remain unaware of it. If signs of it do not appear they may be misinterpreted as surliness, or worse still, the hesitations and the silences of guilt.
Alcoholism and alcohol-related diseases are also factors to be considered during interrogation. Many Aboriginal offences are alcohol related and the interrogation of Aborigines while under the influence of alcohol may lead to real difficulties of comprehension.
Customary Law Inhibitions. In some cases there may be inhibitions arising directly from customary law. For example the suspect may be unwilling to disclose secret matters, or matters which are ‘someone else’s business’. There may be an avoidance relationship with a translator or someone else involved in the interrogation.
Treatment by the Police. It has also been suggested that Aborigines are often treated differently by the police. Poor Aboriginal-police relations in some areas, and the disproportionate representation of Aborigines in the criminal justice system, are probably both symptoms and continuing causes of difficulty. As the Lucas Report noted:
All these factors suggest that special problems do exist for many Aborigines involved in police investigations.
547. Previous Proposals for Change. Many recommendations to safeguard the rights of Aborigines in police interrogation have been made by State and Commonwealth government inquiries and by judges in cases involving Aborigines. It is significant that all of these have recommended, subject to various qualifications, that an Aborigine should only be interrogated by the police in the presence of a ‘prisoner’s friend’. There have also been recommendations that whenever an Aborigine is arrested for an offence the local Aboriginal Legal Service should be notified. The principal recommendations in relation to police interrogation of Aborigines are set out below:
ALRC 2, Criminal Investigation (1975). The Report recommended that:
― Aboriginals and Torres Strait Islanders, when under restraint or in a pre-custodial questioning situation for serious offences, or any offences against the person or property, should be entitled to the presence during any questioning or other investigative procedures of a ‘prisoner’s friend’, ie a lawyer, welfare officer, relative or other person, Aboriginal or not, who is able to interpret if necessary, and who is chosen by the person in custody of his own volition, either directly or from a list of appropriate persons supplied.
― Where an Aboriginal or Torres Strait Islander is in custody for an offence, police should be required to notify forthwith the appropriate Aboriginal Legal Service of that fact, unless the prisoner objects to such notification.
― The onus of proving that an Aboriginal waived his right to the presence of a prisoner’s friend, or objected to the notification of an Aboriginal Legal Service, should rest upon the police.
Australian Government Commission of Inquiry into Poverty (1975). The Report recommended that:
If ‘unsophisticated’ Aboriginals of a tribal or semi-tribal background continue to be subject to the orthodox criminal law they should not be interrogated without a ‘prisoner’s friend’ being present wherever possible. The ‘prisoner’s friend’ should be a person with whom the prisoner can identify, such as a Field Officer of an Aboriginal Legal Service. The duties of a ‘prisoner’s friend’ and interpreter should not be performed by the same person.
Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland (April, 1977). The Lucas Report set out guidelines applicable to the police when interrogating a person, especially a person under a disability. Most Aborigines and Torres Strait Islanders were to be regarded as persons under a disability, not because of pigmentation of skin, but rather ‘educational and language disadvantages, cultural differences and, in some cases, an excessive deference to authority or physical disability’. The guidelines stated:
In the case of less sophisticated Aborigines and Islanders, unless it is impracticable so to do, interrogation should only be conducted when there is also present a person who is not a police officer in whom the suspect will have confidence.
The Report also recommended that all police interrogations should be tape-recorded, preferably with a video tape recorder.
House of Representatives Standing Committee on Aboriginal Affairs, Aboriginal Legal Aid (1980). The Committee recommended that:
the Government urge those States which have not implemented notification systems to introduce police procedures which require the presence of a ‘prisoner’s friend’ or Aboriginal legal service representative following the arrest of Aboriginals by police for all offences except drunkenness and during interrogation and any other investigative procedures.
Aborigines and Islanders (Admissibility of Confessions) Bill 1981 (Cth). On a number of occasions Senator Neville Bonner introduced a private member’s bill, the most recent version of which was the Aborigines and Islanders (Admissibility of Confessions) Bill 1981 (Cth). The Bill incorporated many of the safeguards recommended by this Commission in its Report on Criminal Investigation. Clause 9 required an Aboriginal legal aid organisation to be notified whenever an Aborigine or Islander was in custody for a serious offence. Clause 10 specified the need for a prisoner’s friend to be present whenever an Aborigine or Islander was interrogated by the police. The Bill was never debated, although some of its provisions were incorporated in the Criminal Investigation Bill 1981 (Cth).
Anti-Discrimination Board (NSW), A Study of Street Offences by Aborigines (1982). The focus for this study was the Offences in Public Places Act 1979 (NSW) and its effect on Aborigines in 10 ‘Aboriginal towns’. The Report made a number of recommendations on ways to improve Aboriginal/police relations, including the need for a notification system:
The Commissioner of Police direct all officers in charge of police stations and special squads that when an Aboriginal person is detained for questioning or is arrested that the closest Aboriginal legal service should be notified, unless the Aboriginal person requests that some other notification be given.
ALRC 26, Evidence (Interim) (1985). This Commission’s interim Report on Evidence noted the difficulties experienced by Aborigines and others with police interrogation, and the differences in the law and practice throughout Australia. However its concern was with proposals of general application, and it recommended various procedural safeguards before a confession obtained by ‘official questioning’ would be admitted in criminal cases. These safeguards, which are part of a comprehensive code of evidence law, include:
548. Criminal Investigation Bill 1981 (Cth). The Criminal Investigation Bill 1981 (Cth), based in large part on this Commission’s Report on Criminal Investigation, sought to specify the rights and duties of the Australian Federal Police when investigating offences against laws of the Commonwealth or of the Australian Capital Territory. It was first introduced into the Federal Parliament in 1977 and circulated for public comment. A redrafted Bill was introduced in 1981 and again circulated for comment. The 1981 Bill contained a number of provisions regulating the powers and duties of police officers when interviewing suspects: these set out the Judges Rules in legislative form, with some modifications. The general requirement that a police officer inform a person of his rights was contained in cl 19( 2):
Where an interview of a person in connection with an offence is being conducted … the Police Officer shall not:
(a) ask him any questions … unless a Police Officer has, at or since the commencement of the interview, cautioned the person, or caused the person to be cautioned, in a language in which the person is reasonably fluent, that he is not obliged to answer any questions, or to do anything asked of him, that anything said by him may be used in evidence and that he may at any time, consult a lawyer or communicate with a relative or friend if he wishes to do so.
After a person had been charged with an offence more stringent requirements were imposed. A police officer must give a caution in the following manner (cl 20):
(a) by handing to him a document, in accordance with the prescribed form and written in a language in which the person is reasonably fluent, informing him to the following effect:
(i) that he is not obliged to answer any questions, or to do anything, asked of him by a Police Officer and that anything said by him may be used in evidence;
(ii) that he may communicate with a lawyer, and have, as provided by this Act, the assistance of a lawyer while he is being questioned; and
(iii) that he may, as provided by this Act, communicate with a relative or friend; and
(b) by reading a copy of the document, or causing a copy of the document to be read, to him in the language in which it is written, unless it is impracticable for the document to be read to him.
The Bill imposed special safeguards with respect to persons not fluent in English. A person in custody unable to communicate orally with reasonable fluency in English must not be asked any questions by a police officer unless:
in a language in which both the police officer and suspect are reasonably fluent or by other means of communication;
an interpreter is present; or
it is necessary to avoid danger of death, serious injury or serious damage to property (cl 28).
In addition, cl 26 set out the duties of an investigating officer who believes on reasonable grounds that the person in custody is an Aborigine or Torres Strait Islander. The police officer is required:
to notify a specified legal aid organisation (ie one for Aborigines and Torres Strait Islanders) that a person is in custody, unless the person objects to this being done (cl 26(1), (2)):
if the person is suspected of committing a serious offence or an offence against the person or property, not to interview the person unless a prisoner’s friend (eg relative, lawyer, representative of a legal aid organization) is present (unless this rig ht is expressly and voluntarily waived). A prisoner’s friend is not required if the police officer reasonably believes that tile suspect is not at a disadvantage having regard to the suspect’s level of education and understanding (cl 26(3), (4), (9)).
Clauses 31 and 32 of the Bill set out the rules for admissibility of confessional evidence and cl 69 provided for the exclusion of evidence illegally obtained. To be admissible a confession must have been made voluntarily and not as a result of:
(a) the use of physical violence, or a threat of physical violence, to any person; or
(b) the making of a promise, threat or other inducement (not being physical violence or a threat of physical violence) likely to cause the person to make a confession that is untrue (cl 31(2)).
Evidence obtained in contravention of a provision of the Bill is not to be admitted as evidence unless:
in the opinion of the court, admission of the evidence would substantially benefit the public interest in the administration of criminal justice without unduly prejudicing the rights and freedoms of any person (cl 69(1)).