Silence in Court

Teresa Ashforth

Abstract

This thesis examines some of the means by which the discursive processes of White law can be said to disadvantage Aboriginal people in particular. It sees the legal system itself, by virtue of the hegemonic practice and rhetorical operations routinely engaged in by its various representatives, as being responsible for such an outcome. It suggests that a problem arises not only because of the difference between White and Aboriginal world views and ideology but also because of the privileging of the written over the spoken word in the regular chain of discourse in which Aboriginal people accused of breaking the law become involved. By tracing this chain of discourse, and by deconstructing some of the texts of the crucial discursive sites along the way, it endeavours to show that theirs is a disadvantage of such a special sort as to be in no small measure responsible for their over-representation in the Australian Criminal Justice System.

Chapter One - Saying and Doing - gives an overview of some of the specific ways in which the formation of assumptions by Whites about Aboriginal people and by Aboriginal people about Whites has determined the tenor of their interaction. By drawing on some well-established theories of communication and discourse analysis it endeavours to specify some of the potential risks attendant upon such interaction, both in a legal as well as in a discursive sense.

Chapter Two - Aspects of Evidence - explores some of the practical disadvantages experienced by Aboriginal people in relation to the evidence presented against them in court. It also attempts to assess some of the many attempts made by White legal authorities to counteract such disadvantages.

Chapter Three - Police Perspectives and Practice - goes into more specific detail regarding the background to negative police attitudes towards Aboriginal people and the extent to which the modification of such attitudes is or is not being adequately addressed in the context of contemporary police education.

Chapter Four - Positions and Positioning of Aboriginal People - examines some of the 'White ways' of speaking to and about Aboriginal people and notes some Aboriginal responses to, and perceptions of, such ways of speaking. It also scrutinises the way in which Aboriginal offences against White law can be not only stimulated by but also constructed by White discourse.

Chapter Five - Lawyers and Aboriginal people - looks at the situation facing lawyers in the context of their work with Aboriginal people. Again drawing on discourse theory, it endeavours, by analyses of two particular cases, to highlight some of the possible pitfalls, as well as the potential for success, in such work.

Chapter Six - Writing the Text - explores the genesis of, and examines in detail, a representative sample of the crucially-decisive written texts presented in court. It also records some ongoing and increasingly insistent complaints by Aboriginal people regarding their negative subjection to 'legal discourse'. It finally concludes by setting into perspective, and suggesting alternatives to, some of the questionable practices which constitute the problem.

Acknowledgements

So many people have provided so much support, assistance and encouragement over so many years in the writing of this thesis that it would be virtually impossibe for me either to mention all their names or to thank them adequately. I shall try, by mentioning some at least, to acknowledge to a small degree what I recognise as a considerable debt.

First and foremost it has been my privilege to have been given the freedom of the homes and confidences of the Aboriginal fringe-dwellers of the Swan Valley and their extended families. I would like to mention in particular the assistance, encouragement and support of Robert Bropho through whom I came to know and appreciate so many of his family members and his extensive kin, particularly his mother Isobel - 'Granny' Bropho. To have become known, and to be introduced to strangers as Granny's 'friend', was both an honour for me and a guarantee of my bona fides as an acceptable and unremarkable Wadjila woman in their midst.

Sadly, amongst the far too many premature Aboriginal deaths which have occurred in that particular community over the period of the writing of this thesis, there have been no fewer than three of Granny's adult sons and one of her daughters - a reflection, if a further one were needed, on the intolerably greater mortality rate amongst the under-privileged in a land of comparative prosperity. There are also other Aboriginal people whose words I shall be quoting in the following pages, who are no longer with us. To all of their memories I would wish to pay a deep respect.

I consider it to have been greatly to my advantage during the long journey towards the completion of the thesis to have been employed as tutor in the School of Humanities at Murdoch University. To name here one of the brilliant academics who staff that school would be to do the others a disservice since I have been both challenged and intellectually enriched by each and every one in some way or another. My association with the many gifted students who have enlivened my own tutorials and learned along with me has also been invaluable in very many ways.

I am indebted to the W.A. Police Department and to many individual police officers who have treated my enquiries with courtesy and tact and given me what help they could. I have also had considerable help from many lawyers. I would mention in particular, Peter Michaelidis, Jim Sutherland and Basil Edwards and the Principal Legal Officer of the A.L.S. in Perth, lawyer Greg McIntyre. Val Kerruish of the Faculty of Law at U.W.A. kindly commented on the chapter on Evidence and Robert Bonson, Aboriginal Executive Officer of the A.L.S. was always friendly and helpful. I am also indebted to Ivan Jarran and Vic Hunter for some valuable insights into Aboriginal thoughts and feelings and to my friend Margaret Jeffrey whose unswerving and unselfish dedication to the cause of Aboriginal advancement has been a constant inspiration.

Dr. Alex Main, then of the University of Strathclyde in Scotland, and now at Murdoch, gave generously of his time and very useful materials when I visited him in Glasgow, as did Dr. Gordon of the Home Office in London.

To my supervisor, Professor Bob Hodge I offer my humblest thanks for having stayed the long course with me. He has both rescued me from many rhetorical excesses and helped me to impose at least some small degree of order on the infinitely more chaotic material he has had to read than is presently submitted. If the thesis turns out to have merit much is due to him.

I thank my own large family and many friends for their kindly tolerance and moral support and I salute Jan Bide who so cheerfully came to my rescue on the dreaded word processor at the eleventh hour.

Preface

This thesis started life as an exploration of some of the ways in which Aboriginal people can be discriminated against in our society in their dealings with the Criminal Justice System. While looking at the question from a White perspective, I have endeavoured also, as much as it has been possible for me to do so, to hear and to tell at least something of what Aboriginal people themselves have to say in the matter.

The work on which the thesis is based involved, firstly, readings in many inter-related disciplines, and secondly, and most importantly, participant observation in the lives of those Aboriginal people most likely to be directly affected by this phenomenon. To this end, and over time, I too became familiar with an urban landscape better known to most Aboriginal people than it is to Whites - a landscape marked out by police stations, hospitals, lockups, prisons and detention centres, Community Welfare and State Housing Commission waiting rooms, deserted railway stations late at night, as well as by camp-fires and pension-day park gatherings.

Much of the oral material on which I have based my observations I tape-recorded on a micro-cassette tape-recorder which although not concealed was comparatively unobtrusive. The copies of written texts were given to me either by lawyers or by the Aboriginal people concerned. From a very extensive collection of such material (which I have retained in reasonable order although not catalogued) I made a small representative selection which I felt could usefully illustrate some of the points I have tried to make. I have included the latter in the Appendix. The tape-recordings are referred to by the abbreviation (TR) in the body of the text.

I am aware that some Aboriginal people are sensitive to the forms of address used in their regard by Whites. Aboriginal academic Eve Fesl of Monash University is particularly passionate in her denunciation of those who use the term 'Aboriginal' as a noun and prefers the term 'Koori' or 'Aborigine'. I am reluctant however either to make definitive suggestions in this matter or to adopt any particular mode as the correct mode of address. Amongst the Aboriginal people I know in Western Australia some refer to themselves and each other as 'Aboriginals', sometimes as 'blackfellas', sometimes as 'Aborigines', sometimes as 'Aboriginal people' and, perhaps most popularly in Western Australia, as Nyungars - the original tribal name for the Aboriginal people of the South West. When and if it does become a political issue I shall be happy to be guided by them in their decision but in the meantime it does not seem to be as pressing an issue for them as are many others.

Of the 89 interviews which I tape-recorded during the course of my fieldwork 40 were with Aboriginal people; 17 were with police; 5 were with magistrates; 13 were with lawyers; 12 were between lawyers and their Aboriginal clients and 2 were between police and Aboriginal people. Only a small number of these (8 in all) were outside Western Australia.

While aspects of the following study could be said to have relevance to the situation in other Australian states, and I shall at times draw some comparisons, its prime focus and central area of concern has been on the Aborigines, or Nyungars, of Western Australia, particularly the urban or fringe-dwellers.

My concern is lest it should be thought that by concentrating on the negative aspects of Aboriginal life I am placing too little emphasis on the positive side, or taking no account of the many Aboriginal people who have succeeded in becoming bi-cultural and are as comfortable and successful in White society as anyone else without losing their Aboriginal identity. This is not my intention. The situation as it stands however is that far too many are still being denied this choice through no fault of their own.

I have made use of the following occasional abbreviations in the body of the text where this has seemed convenient or appropriate:

A.L.S.	Aboriginal Legal Service
CALM Campaign Against Legal Malpractice
IR Interim Report of the Royal Commission into Aboriginal Deaths in Custody
LRC Laverton Royal Commission
LR Lucas Report
NT Northern Territory
TB Training Booklet
TR Tape Recording
WA Western Australia
VALS Victorian Aboriginal Legal Service


New: 25 July, 1996 | Now: 27 April, 2015