23. General Issues of Evidence and Procedure

574. Scope of this Chapter. In addition to the common problem of testing the admissibility of Aboriginal confessional evidence, discussed in Chapter 22, a variety of other problems of evidence and procedure (in particular, of criminal procedure) have arisen in Australia in cases involving Aborigines. The problems fall into two classes: first, the problem of proving Aboriginal customary laws and traditions, and of taking evidence on these questions from traditionally oriented Aborigines themselves; secondly, a range of miscellaneous problems of evidence and procedure faced by the courts in dealing with Aborigines. The former group of questions will be dealt with in Chapters 24-26; the latter in this Chapter. The latter group of problems needs to be addressed as part of the attempt to ensure procedural fairness and equality in the application of the law to traditionally oriented Aborigines.[424] They include the following:

• the comprehensibility, and suitability, of committal proceedings in some cases (para 575-578);
• issues of fitness to plead (para 579-585);
• Aborigines and juries (para 586-595);
• the provision of interpreters (para 596-600);
• unsworn statements (para 601-605);
• dying declarations (para 606-611);
• compellability of traditionally married Aboriginal spouses (para 612); and
• issues of identification evidence (para 613).

These issues cover a wide range, although some are more in the nature of historical problems with only residual effects today (eg dying declarations), while others continue to present real difficulties (eg the provision of interpreters). Important changes have occurred in the last 15 years in the access of Aborigines to legal services — in particular the provision of more adequate legal aid in criminal cases. A review of this range of questions is nonetheless essential, whether or not specific recommendations can usefully be made in the light of these changed circumstances.