The Problem with Questions
Two Case Studies
Aboriginal Legal Service
Where the sociality of linguistic practice is concealed or fixed in some apparently natural order we have distorted communication. For here speech seems to be labour, determined by the forces of production, rather than interaction or communicative behaviour concerned to assert and dispute possible worlds. Silverman and Torode, The Material Word (343)
The institutional site occupied by the legal profession represents at one level a platform of mediation between condemnation and reprieve for the individual accused of breaking the law. Inevitably however the discursive subjectivity of the person invoking such mediation places him or her in a position of vulnerability which may well be disguised by the seemingly natural order' of the linguistic practices involved. For cultural as well as sociological reasons such vulnerability is intensified when the lawyer's client is an Aboriginal person. And while it may be true that some lawyers are sensitive to such vulnerability and take it into account in their relations with Aboriginal people the fact remains that they themselves in their professional capacity have been discursively produced in such a manner as to make it unlikely that undistorted communication can readily occur between them and their clients. And yet, over and above the immediate responsibility for representing and defending the Aboriginal client in an individual case, lawyers, perhaps more than they realise, are also in a position where they represent White discourse in an intercultural context. By and large, it would seem that in so doing they tend to evidence what Silverman and Torode (1980:6-18) refer to as the mastery' of one discourse by another - a mastery which is of the essence of the strategic' aspect of communication. In the typical play of discourses between lawyer and Aboriginal client the function of unrestricted or valid communication would seem to play a far more limited, or even non-existent, role than might be assumed from, for example, the natural' conversational mode of the interview situation.
And while there are times where even here the mastery assumes a more overt or even blatant form which becomes obvious to, and resented by, the client, in perhaps the majority of cases the process is less obvious. Obvious or not however, such mastery renders questionable the many natural' ways in which domination is achieved in practice. Nor can it so simply be reduced to a question of the end justifying the means when what is at stake is the question of whether the client will be found guilty and go down' to a term of imprisonment, or be successfully defended and reprieved. At stake also is the larger issue of justice and equality as between one race and another and the ways in which such administration of justice is perceived by those most often in conflict with it.
And since the crux of the matter is not so much the smooth running of the business' of the courts as the true and correct administration of justice it is worth examining in some detail the legal implications of the discursive problems which can arise in the necessary preamble to the administration of that justice. In other words, although it is a central tenet of the legal profession that an accused person should be adequately represented it is arguable whether sufficient consideration is given to the scope for a mistrial which can arise when there are discursive inadequacies or irregularities in the communication which takes place as a basis for that trial. That the complexities of these problems can be said to be largely systemic rather than necessarily the result of any individual malice on the part of lawyers themselves is all the more serious. Matters such as enabling the client to understand fully the legal implications of the charge against him or her, and exploring fully the collection and presentation of appropriate evidence, for example, are matters which crucially depend on the conduct of a valid dialogic interaction between lawyer and client. Whatever it is therefore in legal systemic practice which forms an impediment to this interaction deserves critical scrutiny and whatever facilitates it deserves serious consideration.
The lawyer's unique position as a disinterested and objective observer and actor in the very human drama in which he or she is involved makes him or her at once powerful but also, to a certain extent, vulnerable too. The relationship with the client is a special one demanding both trust and confidence. On the other hand a relationship with the police is important for the lawyer too as is the maintenance of that relationship in an equable state. And whereas lawyers in their capacity as helpers may not so perceive themselves, they, together with other Whites who see themselves, or indeed are seen by Aboriginal people, as helpers, are positioned as the other'. Aboriginal people still feel themselves to be the object of their gaze'. Because of this the impression is sometimes formed in the minds of the lawyers' Aboriginal clients that they are at the mercy of two separate but somehow connected figures of White authority who at times may seem in collusion against them - the lawyer and the policeman.
One way in which such an impression or fear can be formed is a direct result of what Eric Willmot in his 1986 Boyer lectures (1987:23-31) called the Dragon principle' (after Tolkien's dragon in The Lord of the Rings that guarded a secret treasure which belonged to others). European culture, according to Willmot, has created its own dragons, which preside over the secrets of knowledge and power: European and European-derived cultures devised and developed a particular kind of institutionalisation which Willmot traces back to its distant originator the mathematician Pythagorus who is said to have hidden the mathematical discovery of the square root of two from the world because it defied their belief in the rationality of numbers. This belief was a central doctrine of Pythagorus's religious brotherhood. All human societies institutionalise culture to some extent according to Willmot but none so completely as the European:
Even in their two thousand year long dreamtime they were learning something new and equally important as science or economics - the secret of how to optimise the power of culture. This secret was the process of institutionalisation. Religion, politics, recreation, education, all became institutions during this period. This was achieved by the inadvertant application of systems.
Willmot defines system' as "a process or procedure which, if brought into action, is capable of independently bringing about a predetermined or specific outcome". There is a sense in which the Criminal Justice System could indeed be said to fit this description in the minds of its many Aboriginal subjects at least. The slightest indication to them therefore that their lawyer is not acting on their behalf and according to their instructions', but conducting independent negotiations with the police, to which they are not privy, compounds their sense of frustration and alienation. This seems to be the case irrespective of whether the outcome is favourable to them or not because they feel it as an usurpation of their freedom of choice as well as an application of the Dragon Principle'. Since, as mentioned earlier, the value attached to information by many Aboriginal people is a specific one, its withholding in serious circumstances becomes all the more significant.
And when in their wisdom lawyers advise their clients to plead guilty', in some cases, and taking everything into account, this may well be the best or only sensible course of action. The way in which such decision making is shared with an Aboriginal client is important however. In some cases the accused feels justified in pleading Not guilty' and is asking a lawyer to help him prove his innocence. Sometimes on such an occasion the Dragon principle' is activated and the accused is, if not actually advised to plead guilty - at least made to feel that the chances of success are minimal and not given the encouragement and support to choose the former plea. He or she is then very likely to falter in his or her resolve in the belief that the lawyer is in possession of a special fore-knowledge, which sees the case already as a lost cause.
Another way in which lawyers and police can be ranked together as authority figures is the very manner in which they conduct their interviews. Their interviews with Aboriginal people have some obvious as well as some not so obvious common characteristics. One of these is the prominence given to the gleaning and recording of the personal details of the client or suspect or witness. This is invariably the first task attended to by both lawyer and police officer - by the police officer because it is a routine aspect of the interview, by the lawyer in the case of the Aboriginal client because the latter is rarely if ever in a position to pay and therefore application forms for legal aid must be satisfactorily filled in by the former if s/he is to be reimbursed for his or her services. For the Aboriginal person however, questions regarding financial standing, marital status, education, employment history, permanent abode, dependent relatives, are by no means as straightforward and easy to answer as they might be, say, for a White middle-class' or White working-class' client. Because for the Aboriginal person they are questions with ambiguous cultural connotations he or she sometimes finds them difficult to answer straightforwardly and in consequence can feel even more vulnerable to a sometimes uncomprehending, even if it is not unsympathetic, White gaze'. When asked for their observations, White lawyers frequently admit that there can be a considerable communication gap between themselves and their Aboriginal clients. Some of their comments tend to justify the conclusions drawn above. One noted (TR:1986):
Generally, I suppose, the general observation I make is that sometimes there is this reticence to ... relate things like ... if the police threaten you you know. Whether its because ... it's associated with some kind of different belief in authority from White people I don't know. Let's say, if a police officer threatened a White person, then straight away - you know - straight away, without prompting even, they will say. Some don't but generally they do. Whereas it's the other way with Aborigines. It's as though they expect it. So they don't think it's unusual. Whereas a White person knows that it is wrong. Yes - that's true. That's one general observation. One other, I suppose, is that you've just got to ... build up a bit more; you've got to ask more questions to get things ... to lead the stage you know. ... There are no easy direct answers straight off. I think you've just got to lead and there's a lot of things you've got to put to them. Well sometimes as far as - maybe they don't understand. I'm not sure what the reason is. You've got to be more patient. I think that whether they expect things to happen from the police or whether they accept it even though its - we know it's wrong. You get from Whites "Police beat me up" you see. But never from Aborigines. It doesn't come out like that. You've gotta get it out of them. But the problem is that if you take one statement - there is all this, more than with Whites, there's this change. So you don't know which is the right statement: Is that correct there? Is the second one correct? or is it because they cannot remember?' I know that in court if you're examining an Aboriginal witness you must sometimes take longer to get things out. Another thing (that arises with Aboriginal witnesses or clients) is the question Why do I have to say it again?'.
Yet none of this satisfactorily answers the question as to whether some Aboriginal people necessarily wish - even if the framing and structuring of the discourse makes this possible - to interact dialogically and in valid communication with a White lawyer. Such a possibility of resistance cannot be discounted. In a comment to Eades (1985:99) by a White lawyer with the Aboriginal and Torres Strait Islander Legal Service this would seem to be substantiated. The lawyer said that a lot of his problems and his clients' failures stemmed "from Aborigines' misunderstanding of, or refusal to comply with, the questioning processes inherent in the legal system". This touches, I would suggest, on a crucial and irreducible aspect of communication between Aboriginal people and representatives of White law. It could indeed be argued that it is another very good reason to support in every way their efforts for greater self-determination in that questioning process.
Lawyers willing to work for Aboriginal people are, on the whole, acutely aware of the difficulties involved. Some of the very best of them indeed, having devoted time and service to this work, become discouraged because of the many frustrations they encounter and leave to work in other areas to avoid professional burn out'. One lawyer in particular to whom I spoke who worked for many years in the Aboriginal Legal Service and is now a magistrate had this to say regarding the Aboriginal people most likely to have dealings with the law: (TR:1985)
They have all the disadvantages of being poor and they have got superimposed on those disadvantages the problems of being Aboriginal and poor - in other words the attitudes of our society exacerbates their poverty and then superimposed upon that again is the whole gamut of their social problems including alcohol and the extended family dependency which in turn exacerbates their poverty ... . Their attitudes towards the law and the procedures of the law are characteristic. It's often a defeatist sort of attitude. This certainly comes up very regularly - this defeatist resigned attitude, the assumption that once they are in the courts they've got to take their punishment. Now you don't see that amongst the Whites; you see quite the opposite amongst a lot of Europeans: Italians, Greeks, Yugoslavs, who want to fight, guilty or not they still want to fight. You know the subservience to the authority is just so obvious amongst Aborigines that if you wanted to be irresponsible either as a recorder or as a counsellor it is very easy to be so. You could talk them pretty well into any noose if you wanted to. Now that's not all of them but it's a large majority of them. Their records reflect that. Some of the longest records I've ever seen have been Aborigines' records. Some of them have gone on for five or six pages - often heavy offences, and obviously the reasons for that are social, with alcohol quite a big factor. When I say social I mean first of all the frequency with which they come under the notice of the police. They (the police) just look for them and pick them up - so they are more at risk of being stopped on an initial enquiry by the police - probably park-drinking type situations and the odd brawl; drunk on the street; sitting in a doorway drinking out of a flagon of wine; that sort of thing. So that's one of the reasons for their big records - that they come under the notice of the police. And of course once you come under the notice of the police questions are asked; people are searched; confrontations occur with the police themselves and you get very quickly a proliferation. What might start off to be an enquiry as to whether a bloke is drunk or not ends up being fisticuffs with the police; resisting arrest; hindering; abusive language; disorderly conduct - you get half a dozen charges just like that - no trouble at all. That's one factor. The other factor is the frequency with which they just plead guilty - to anything. They don't want to go through all the hassle of speaking to a lawyer again and again and again about the same incident. Their families frequently encourage them to plead guilty and get it out of the way. What one is driven to doing of course is almost to forcing them to defend themselves. You shouldn't have to do that. You never ever get a situation, or I haven't seen one, where they come in and vigorously want you to defend something They don't seem to have this concept. They are prepared to take punishment simply because they have been charged, in many cases. Resignation: resigned to the fact you've got to get a fine, you've got to go to prison - quite reminiscent of some of the things you see in Dickens actually - there's still, to me anyway, that feeling of hopelessness amongst them of the very poor and socially-disadvantaged people.
Referring to the police interrogations and the subsequent texts, this particular lawyer observed
I think you have to comprehend not only what they say to the police but the way in which that is used in the police case. Investigation should be extended beyond the mere substance of what is said and how it is said and what it means. You've got to remember that the police questions are loaded with a particular aim in mind and the whole purpose of the statement is to achieve a result for the police and the police will ask questions which are loaded to achieve that result. The unrepresented interrogatee often gets led into a situation where really he is saying what they want him to say without any force at all. It's just good salesmanship. And even the Record of Interview is supposed to be a verbatim account but it's often not. It's very difficult for your client, if he's frightened of the police especially, or even in any way slow intellectually or something like that, to remember exactly what was said anyway. You read out the stuff and ask did you say that?' - No, I don't know - I think I did - I dunno - I can't say I didn't say it - can't say I did.
Whereas the law may well pursue absolute answers by means of discursive strategies, and to all extents and purposes with the closing of each particular case purport to have found them, it is well to consider that such answers, far from being absolute, are by their very nature extremely problematical. It goes without saying however that the nature, purpose and function of any challenge to such assumed legitimacy is in itself problematical also since there is as yet no method which can do any more than, at best, raise alternative possibilities. The question of those alternative possibilities is however an important one. While it may be not only difficult but perhaps impossible to establish or to "know" exactly what happened in any particular case there are ways by which in weighing one discourse against another it is possible to establish something as being much closer or nearer to the truth than the misrepresentation which can occur by others.
There is perhaps nothing at all remarkable in the fact that the staple discursive form used by lawyers in interviews with their Aboriginal clients is that of the question and the answer. Indeed, as noted by Goffman (1981:5) "whenever persons talk there are very likely to be questions and answers" - and he describes them as perhaps the canonical' example of the minimal dialogic unit categorised by Harvey Sacks as the adjacency pair'. While noting the mutual dependency of the question and answer pair Goffman nevertheless emphasises the greater dependency of the answerer
... questioners are oriented to what lies ahead, and depend on what is to come; answerers are oriented to what has just been said, and look backward, not forward. ... although a question anticipates an answer, is designed to receive it, seems dependent on doing so, an answer seems even more dependent, making less sense alone than does the utterance that called it forth. Whatever answers do, they must do this with something already begun.
The constraining influence of the question-answer format is, says Goffman (1981:16) independent of what is being talked about. The significance of all this for lawyer/Aboriginal interaction lies in the fact that such typically White' discursive forms are not necessarily the discursive forms customarily employed by Aboriginal people in their relations with each other, so that, in addition to the obvious disadvantage or dependency of the answerer in any such exchange, Aboriginal people may have, in addition, to contend with the fact that they are involved in an exercise where their normal rules of conversational etiquette seem either flouted or irrelevant and they are forced into an alien set of conversational rules or practices.
As noted by Eades (1985:93) "the ethnography of speaking takes speakers (warm-blooded humans) as its starting point, rather than the abstract entity language. It looks at who says what to whom, where, when, how, why etc.". It looks, in other words, at what language does rather than what language is, at language too as a collaborative dialectical act rather than an independent individual product. In Eades's study she highlights the fact that whereas the interrogative method of eliciting information is common to and perfectly acceptable in middle-class White Australian society (that section to which lawyers, almost invariably, belong), in South-East Queensland Aboriginal Society there are culturally-bound constraints which render such a verbal strategy inappropriate. Eades traces these constraints to traditional Aboriginal society and claims, as do Aboriginal people elsewhere, that there is a direct continuity of Aboriginal culture and types of relationships reaching into and through the lives of contemporary Aboriginal people. What Eades has to say of South-East Queensland Aboriginal people is pertinent also to South-Western Australian Aboriginal people, and in no way excludes urban dwellers or urban fringedwellers - white-collar' workers and welfare recipients alike. For not only do they continue to belong to a human network of obligation and reciprocity which has always been central to their culture but their ways of talking also continue to bear the traces of the constraints involved in the right conduct of these relationships. This then affects their whole discursive formation. And this formation is different from the discursive formation of white middle-class lawyers. One key difference resides in the fact that in Aboriginal society status is not fixed: As noted by Eades - Power derives not from hierarchy and position but from continuing rounds of negotiation. It is kin ties which bind people together and which ensure constant reciprocity in relationships. Verbal strategies are not needed to fulfil this function. Questions of course as well as having the function of elicitation of information function also as commands in that, as Eades points out, their syntactic structure is formally incomplete and demands a response. People therefore who are sensitive to the notion of question as command would hesitate to compel such interaction as the question-and-answer structuring of conversation would of necessity entail.
Basil Sansom in his book The Camp at Wallaby Cross gives illuminating examples of the exchange value of the word' and of the participatory nature of information gathering in Aboriginal society. And, as noted by Eades (1985:99) for Aboriginal people "the strategy of direct questioning is frequently inappropriate for eliciting information". More that that, as she points out, all knowledge is considered an inalienable part of relationships between people and has no value of its own separate from these relationships.
It is to the credit of some lawyers, as it is to some policemen and women, that they are responsive to and endeavour to respect such aspects of intercultural communication. Not all can or do so however. And there are times indeed when even representatives of the Aboriginal Legal Service can seem as culpable in this regard as are some private practitioners (who, perhaps, might on the grounds of unfamiliarity be more readily excused).
Eades notes (1985:99) that it is a well-documented fact that Aboriginal school-children do not participate in activities involving questioning. Sadly too this has frequently been misunderstood by their White teachers who incorrectly interpret it as laziness or verbal deficiency. In addition, Eades's findings indicate that in Aboriginal society there are significant constraints on who can have legitimate access to certain information. Eades points out that the person requiring information in that society is obliged to wait for the knowledgeable person to give the information in his own time (if indeed he gives it at all) ... in contrast to middle-class white society, where the person requiring information generally has the right to question another who in turn is seen to be under some obligation to comply. The difference in fact seems to be between what is considered to be a right' and what is perceived as a privilege.
Quite clearly, given the varying degrees to which many Aboriginal people can be said to have adapted to and mastered the practices of White discourse, it would be both presumptuous and patronising to assume that any universally applicable criteria or guidelines for conversation between Aboriginal people and non-Aboriginal people could or should be laid down. Nevertheless, in the many cases in which distorted communication does occur it is important to consider whether aspects of the foregoing may be part of the difficulty at least.
What seems to emerge overall is that in Aboriginal society information exchange is more person-oriented' than it is in White middle-class society and this at least should be taken into account. When it is not taken into account the result may well justify Michael Dodson's assertion in relation to police/Aboriginal relations that "the core of the problem is total disrespect and lack of understanding one community has for the other". And even when the Aboriginal people concerned have learned to enter into the White discursive field with seeming ease and have learned to employ its relevant strategies, the dialogical principle if properly applied would surely demand that they not be expected (as a result of unconsidered ethnocentrism) to make all the concessions required to achieve undistorted communication.
In an attempt to illustrate some of the ways in which distorted communication can come about between lawyers and their Aboriginal clients I h0ve chosen two particular cases from among others and subjected them to close analysis. I hope by this means to have shown how intersecting discourses can facilitate the construction of what would seem to be credible and legally acceptable versions of the events in the world with which each is concerned. I hope to have shown also however how such versions can be characterised by an incoherence and poverty of information involving markers of non-valid communication which renders them quite incapable of incorporating the centrally crucial Aboriginal view of reality they purport to represent, and which they need if they are to be effective in the pursuit of truth and justice.
The data upon which I have drawn for the studies include not only personal observations based on protracted association and discussion with the Aboriginal people involved in the cases but also some of the relevant texts produced by lawyers and police which together comprise the Chain of Discourse in which the Aboriginal clients became involved in their dealings with representatives of White law.
The first case, concerning Aboriginal RW, may not, perhaps, be precisely typical of lawyer/Aboriginal client interviews in general. Firstly, it takes place in a prison where the Client RW is serving a three-month sentence for a motor vehicle offence while awaiting trial on the more serious charge he now faces of assault causing bodily harm'; secondly, it is somewhat unusual in that the lawyer is blind and employs an assistant both to help in questioning his client and also to take notes of the proceedings. Nevertheless it does demonstrate the discursive practice of positioning an Aboriginal client in such a manner as to secure co-operation and compliance in his or her inscription into the framework of legal discourse in a manner not necessarily always to his or her advantage. As such, it differs little if at all from other exercises in the same genre so that, if it may be in some ways an exception from a norm' when looking for regularities, it fittingly I think nevertheless, and sufficiently, proves' the rule.
This interview (Appendix A [1-i]) is particularly interesting in how it demonstrates the way in which forms of ideological resistance can be suppressed in the interests of the smooth functioning of the practices and concerns of the legal formation. The voice of that institution can be heard clearly to speak in the words of the interviewer/s. Equally clearly does the positioning of the client, and his instruction as to how to behave in the particular situation, emerge from the overall structure and semantic direction of the encounter. We are left in little doubt as to who ultimately wields the power in the interview itself, but, and more importantly, it is also clear that the ongoing signification assigned to the exchanges which take place is very largely, if not completely, the prerogative of the interviewer. Little account is taken of anything the client has to say which is not factually' relevant to the line of questioning chosen and adhered to by his questioner/s. What he may feel or believe to be true seems to be of secondary importance.
By the client's account he was one of a group which had been entertained at a city flat by a White man who was looking for company. Late in an evening of drinking an argument broke out and the white man was injured in the ensuing fracas. He called the police. RW had not inflicted any injuries but claimed that one of his cousins, a deaf mute, had in fact been responsible for wounding the man in question. He felt very strongly that he had been wrongfully arrested and used as a scapegoat:
See they (his cousins) never got chucked in ... I got chucked in because I was the second eldest there and he - well - the police - who's gonna take a deaf'n dumb bloke'n chuck im in jail?
Now, already having spent two months in prison on remand awaiting trial, RW was understandably anxious that when his trial came up the next month he would have effective legal representation. He had been visited by a White representative of the Aboriginal Legal Service but did not feel satisfied that he was getting the help he needed or that he had been permitted to make himself understood (TR:1983)
What I wanted is just to write it out properly with a decent lawyer - not just that Field Officer they give me the other day. ... Him an a young girl came with him. She was a white girl - he was white bloke - moustache - hair-cut'n he was one them blokes ye know - you be talkin'n he write down things. ... That's not things what I wanted you know - not the right sort of bloke I wanted. ... See - I want a lawyer to get down my statement an fight this one ye know - not my record but the charge ... I don't want a bloke standin' there tellin' my record to the magistrate when he knows it - you might say like they got a couple a boys in the ALS 'n well one o'them is runnin' me down in it ye know - that's my way o'thinkin - like they was judgin' you on your past record an' not the charges. They never got no statement from the girls see an' that's over two months ago ... That Field Officer comes here an' I said Oh well - listen mate' I said - ye know - don't write any more ye know' I said. I don't want things written down on me' I said. I want to know see'. They had this paper see an' I wanted that paper so I know what's going on ... It's like they had all the papers an' yet they couldn't get a statement off all them other blokes what I want. ... I wasn't gettin' a go by the sound of things ye know but I know in my own mind. I know how to beat this charge - but the only thing - sometimes - well most of the time well - the magistrate - he'll go for the police see - instead of the bloke who's arrested. ... I've been on a charge like this before but I did it then see an' I pleaded guilty'n got it over an' done with. But now I just come in with this one an' I say I'm not going to take the blame for another bloke's doin' ye know. All what I need is sorta like him to write it out in my way of thinkin' of a statement. But what I don't like is a second-grade Field Officer comin' here ye know. Might say better off talkin' to 'em myself. I want to tell 'em I got my rights. I'm the bloke what's facin' jail not him see. He's sorta like - well like one o' the screws - I'm the boss you listen' ye know, you do what you're told'. He's axin what's birthday?' - all this, where ye livin?' - all that. Put it down on paper - Yeah - he reckon that I should have a blood test. An' I just said to him Don't write any more' ye know. He couldn't care less. He's gettin the money. I'll be gettin' the jail sentence. That's the way I think anyhow. He didn't listen. All I want is fifty/fifty for me ye know. I don't like being made a monkey out of anyway. See he's one o' them blokes think like Oh - here's just a Nyungar got drunk ye know'. An' all he says to me - Why you get up tight?' Ye gotta get up tight.
All RW wanted, as he said, was fifty/fifty' - an equal opportunity both to say what he had to say and a right of access to the written word which was both representing his information and treating him as its object. His account of the interview he had had with the visiting legal representative expressed in his terms both his awareness of its invalidity and his resistance to those constraints of domination which he felt so keenly. His plea for a fifty/fifty' exchange evokes the Habermasian concept of a pragmatic structure of communication which is free from constraint only when for all participants there is a symmetrical distribution of chances to assume dialogue roles.
RW's plaint of I don't want things written down on me. I want to know' reflects his sense of the inequality of a discursive situation where the relation between his desire for open and unrestricted discourse and the constraint and control of the institution (personified by the visiting legal representative) was asymmetrical and unbalanced to a degree which he found both distorted and distressful. And Foucault's notion of that agonistic' relationship in the communicative encounter comes also into play, where he would see that what defines a relationship of power is that it is a mode of action which acts on the actions of others - a relationship which is at the same time reciprocal incitation and struggle'. The Field Officer may well have seen the interview as a task to be performed as a means to an end. He would have been employing conventional professional methods - rationality functioning to arrive at an objective' to achieve that end. Yet the human flesh and blood situation in which that end was sought embodied the important threshhold test' of good communication and demanded something more than in the event he was able or prepared to give.
Quite apart from those particular specifics of distorted communication, the very fact of RW's Aboriginality weakened further, in his eyes, his chances of success: "See, he's one o' them blokes think like Oh here's just a Nyungar got drunk ye know". For his instinctive feeling that he was being racially labelled, whether it was true in fact or false in this particular instance, effectively worked as a further block to good communication between him and his interviewer.
RW's knowledge regarding the facts of the case, which he felt, from his many previous experiences in law courts, to be sufficient to acquit him of the charge, became for him at once potentially a valuable defence and at the same time a painful burden. He felt it to be a defence: "I know in my own mind. I know how to beat this charge ... might say better off talkin' to 'em myself". However he was conscious of his vulnerability in court in front of a judge who was, he felt, more likely to listen to the police than to listen to him: "sometimes - well most of the time well - the magistrate - he'll go for the police see - instead of the bloke who's arrested". When therefore he found that the person he needed as mediator with a judge or magistrate who might not hear him properly seemed to him in turn equally incapable or unwilling to listen, his frustration was compounded.
The analysis and elaboration of such instances of power relations and the agonism' between power relations and the intransitivity of freedom' is, according to Foucault, nothing less than a permanent political task inherent in all social existence. A seemingly innocuous question to an Aboriginal male in prison as to his permanent place of abode is for him quite frequently problematic. Where he was living before going to prison and the person or people with whom he was living are not always likely to have been permanent, nor can he always predict with absolute certainty where he will be living when he comes out, or with whom. This transient nature of his lifestyle is likely to be in distinct contrast to that of a White questioner, and not always understood by the latter. It is likely to be better understood by Aboriginal Field Officers who are familiar with that way of life and accept it as a viable option. They too are in a better position both to communicate with black clients and also to trace, by means of an unfailingly efficient information network, potential witnesses on their behalf. Because, as will be discussed later, Aboriginal Field Officers have tended in recent years to be more heavily involved in administrative and legal work than in fieldwork, their original function as mediators and facilitators has been attentuated and the expectations of their clients in this regard are frequently frustrated. This gives rise to the sort of resentment expressed by RW.
As a result of his dissatisfaction regarding the ALS, RW asked me if I could engage the services of a private practitioner who had represented him some years before. I arranged this and the latter, on my request and with RW's permission, recorded their interview which later took place in the prison. Ralph himself co-operated fully in this interview. It could perhaps be suggested that this co-operation may have been due partly to the fact that on this occasion he had assumed some control over the situation - (a) in having what he considered a proper' lawyer, and (b) in having the particular lawyer of his own choice. The transcript of their interview however does not reflect what could be described either as true dialogue or as undistorted communication. Nor could it be rated as having passed the threshhold test' of good communication any more than could the one on which he reported earlier. The end result in any case proved unsatisfactory for RW. For, in spite of the fact that the jury took a considerable time to reach their verdict, the case ultimately went against him and he was sentenced to six months in prison for an offence for which he continues to deny responsibility.
The crux of the case centred around a clear sense of a competing narrative (based on a question of mistaken identity) to the one put forward by the police prosecution (consisting of an alleged statement by RW incriminating himself, which was typed by the police but which he refused to sign and which he said was untrue). What RW had hoped for was that by his explaining to the new lawyer what had actually taken place, and by the latter's finding and taking evidence from other witnesses who had been present at the scene of the offence, his innocence could be satisfactorily established in court. The legal issues involved were, clearly, bound up with discourse, both that of the lawyer and that of RW himself. For, in addition to the understanding of each other necessary to be reached for an act of valid communication to take place, it would also have been necessary for the lawyer to use RW's discourse as a means of locating those witnesses whose testimony would assist him in establishing the latter's innocence. The nature of the discursive process which, in the event, took place however succeeded not only in suppressing both the alternative to the police narrative which RW endeavoured to present but also the information regarding the possible whereabouts, or avenues of enquiry regarding, the key witnesses concerned.
Of some important significance also, with regard to the lawyer's discourse as opposed to that of his client, is that while the latter is struggling to foreground the to him, salient and important points in his narrative regarding the identity of the real offender in the case (505-557) the former continues to focus on the White-oriented administrative details such as getting in touch through written correspondence with the witnesses - (501) "... we can write to him and get him to come and see us ..."; (607) "We'll get in touch with him". In this way, what might have emerged through RW's account as a clearer picture of the events and motivations surrounding the offence was superseded either by interruptions or by attention to minutiae such as when in (490) the lawyer interjects with "Oh - all right - now - one thing I was going to ask you - what does KB beer mean?" RW was neither encouraged nor permitted to return to this narrative for the remainder of the interview (491-630).
In contrast, RW's own attention to the content of his interviewer's utterances was concentrated and unbroken. And yet, when, quite correctly, he cautioned, in an attempt to offset the lawyer's obvious but misplaced confidence in the White-oriented mode of official written communication with Aboriginal people, that "t'other way", i.e. the Aboriginal way by word of mouth through the Aboriginal Legal Service network, was quicker (497) there was no question of any weight being attached to his pronouncement: "...No - look - we've got to find these people ... we've got to do this ourselves" (498,499). The fact remained that, despite a quite lengthy interview - 630 utterances in all - the lawyer was still not furnished with the material necessary for him to see that there might be a reasonable chance of discursively constructing a more favourable version of the case which might have established sufficient proof of RW's innocence.
The question at issue was not one of the likelihood, given his lengthy police record, that RW might conceivably have been guilty of an offence such as he was being accused of on this occasion, but rather that, on his own insistence, while he was quite sanguine about punishment on those occasions when he had felt himself to be guilty, on this particular occasion he believed things to be quite different and he was prepared to do everything in his power to show that they were: "... I've been on a charge like this before but I did it then see an' I pleaded guilty'n got it over an' done with. But now ... I say I'm not going to take the blame for another bloke's doin' ye know. ... I want to tell 'em I got my rights".
The lawyer's questions regarding those previous convictions of his however, while presumably technically necessary in the completion of the form of application for legal aid, carried with them also implications concerning the positioning of the client as subject in the interaction. The large number of "modalities" employed by RW in his attempt to parry or to answer these questions demonstrated a vulnerability on his part to this avenue of questioning. Despite occasional signs of lessening, this vulnerability remained as a constant throughout most of the questioning process, particularly in the very crucial section regarding the cause of the violence and injury and the identity of the main offender (394-487).
Apart from this and the many interruptions and switches of topic experienced by RW in this section the controlling presence of the police statement also played its part in suppressing his narrative:
(458)A Well - TG - does he come into this thing at all - he doesn't come in here does he ... .
(459)Lawyer He was one of the people there.
(460)RW It's in my statement there (Here RW is referring to the transcript of a tape-recorded conversation with myself on our first meeting and where he spoke about the incident. A reads this text aloud - 223 onwards)
(461)A It's in your statement.
(463)Lawyer He was one of the people there.
(464)RW See - he -
(465)A (Interrupting) - Yes, but it's not in the police statement.
(466)RW No - because -
(467)A (Interrupting) - It's not in the police statement.
(468)RW (Endeavouring to continue his 466 utterance) - that they're sorta like ye know - they tryin' to like - they want me to ...
(469)A (Interrupting but at least here responsive to what RW is wanting to say) - You think it's a - you think it's a false identity, you think that. Did TG hit him - kick him?
(470)RW (Still in the process of completing his explanation of why he thought mention of GT was not in the police statement) ... Cos
(471)A (Now, briefly, prepared to develop examination of RW's proposition) - Did he - did you see him do that - (But, without allowing space for RW's reply to a question of considerable import, continues) - and where's GT's address?
The fact that the content of the police statement can exert such an influence on the gathering of information from a client is significant in itself and demonstrates the considerable intertextual and institutional power a written text can have outside its original frame of reference.
And while for a brief period it began to seem possible that efforts were to be made to include an exploration of the part played by the one person deemed to be the central figure in his narrative as far as RW was concerned, these were set aside and subsequently ignored once the complication of the former's physical handicaps were introduced.
(488)A But you couldn't talk to him 'cause he's deaf and dumb.
(489)Lawyer Unless you had an interpreter or used sign language.
Suddenly then the same considerations seemed to apply in the case of the lawyer representing him as had applied, according to RW with the police earlier. For, as he had put it then "I got chucked in because I was the second eldest there and he - well - the police- who's gonna take a deaf'n dumb bloke'n chuck im in jail".
Whether or not it was through oversight or in recognition of the difficulties involved in communicating with a deaf and dumb person, the fact remained that no further mention was made of GT and he was not included either as a suspect or as a witness in this case. Because Aboriginal people start out with the disadvantage of having the lowest possible status in our society, even before they incur the additional opprobrium of being considered as lawbreakers, their powerlessness as interviewees with representatives of the law is obviously compounded.
RW could not be dismissed as docile or submissive in the presence of authority figures per se however. His familiarity with the workings of White law had been developed and fine tuned over a virtual lifetime of frequent involvement with the effects of his having one way or another broken it. His Criminal Record', between 13.3.'63 when he was nine years old and 12.10.'82 when he was thirty-four, included 59 convictions, most of them to do with offences against property, and most having earned for him relatively short terms of imprisonment. His knowledge of, and familiarity with, the law strengthened his belief that such an extensive record would not go in his favour in court and for this reason he was anxious that it not be taken into consideration at his trial. His words made this clear (225):
I know what's my record but I want a lawyer to get down my statement an' fight this one ye know - not my record but the charges. I don't want a bloke standin' there tellin' the record to the magistrate when he knows it. The fact also that RW had succeeded in securing for himself the lawyer of his choice and had dismissed the ALS lawyer routinely available for his assistance showed that he was prepared to do everything in his power to advance his plea of innocence. Amongst his objections to the ALS lawyer were (a) that the statement' he had constructed on the basis of RW's answers to questions was, in the words of the latter, (TR:1983) "only straightforward" - leaving out what he, RW, was really trying to say: "sorta straightforward, easy ye know" "... some of it is facts and some not"; "I told that bloke right'n say to 'im see - he's lawyer - I'm just listenin' - You listen'"; "That's like he - he was putting words in my mouth ye know. I don't like blokes like that"; (b) that the ALS lawyer had not succeeded in locating any one of the other five or six Aboriginal people who were present on the occasion of the alleged assault of the white man and who could testify to RW's non-involvement; (c) that, generally speaking, he was concerned that legal representatives in the ALS, because of their familiarity with his previous bad record, did not respect him sufficiently to represent him satisfactorily: "They got a couple of boys in the ALS and well one o' them anyway is runnin' me down in it ye know. That's my way of thinking".
The private lawyer he had chosen (on his sister's advice) had represented him unsuccessfully six years earlier on an earlier charge and he had on that occasion served a prison sentence for assault. This previous failure did not deter him from choosing the same lawyer now however because, as he pointed out, on the previous occasion he had been guilty and so the outcome had been predictable. This time however he saw the potential for a favourable outcome since, as he claimed, he was not one of the people who had attacked the complainant.
His determination and fighting spirit however were no proof against the ineluctable patterning of the legal mode by which he came to be spoken. In the event, the case went against him and he was sentenced to six months' imprisonment. One might well ask the question as to whether, had it been possible, he might indeed have been better off handling the case himself. There is certainly no denying that it is not an easy task for a White lawyer, relying on the written mode, to track down witnesses from amongst the naturally-mobile population of Aboriginal people. Quite frequently the final identification of name and address is inapplicable here. Letters languish in long-forgotten letterboxes or are not collected from post office box numbers and are returned to the sender; telephones in the homes of the Aboriginal people most likely to get into trouble with the law are the exception rather than the rule.
Paradoxically however, there is no parallel in the White population to the fast and efficient network of contact and information to which all Aboriginal people automatically have access. Information, for example, regarding identity and location of witnesses, which to a White middle-class lawyer would appear to be far too vague and confusing as to be useful, could, in Aboriginal discourse be quite sufficient to enable these same witnesses to be easily and effectively traced. RW could indeed himself, had he been commissioned to do so, have assisted in finding the people required to witness on his behalf. So too, he felt, could the resources of the Aboriginal Legal Service have been employed had they been available to him on the terms which he thought useful and appropriate. The question has to be asked however as to whether the ALS is sufficiently well oriented always towards Aboriginal culture in some of these more mundane yet crucial functions of its raison d'etre. As observed by RW "... They got the people there to go out - say like just a couple a mile - Nollamara - not that far away - then again they see the girls walkin' in town there - goin' past the legal aid. They couldn't even say Nyungars - See'. All of 'em knows that I'm on this charge. That's a Field Officer's job".
During the course of the interview e.g. utterances (2), (4), (50), (54), (66), (359), (361), (364), (368), (370), (371), (374), (376), (378), (380), (398), (400), (403) it was clear that RW had given his case a considerable amount of constructive thought, both with regard to the necessity of having the required number of witnesses who could, he hoped, testify to his innocence, and with regard to inconsistencies and omissions which he clearly perceived to be weaknesses in the prosecution's case against him. His positioning however in the recorded interview with the lawyer and his assistant effectively discounted, neutralised or rendered ineffective much of this material. Precedence was given (a) to the questions to be answered which would enable the form of application for legal aid to be satisfactorily completed and accepted; (b) to the questions to be answered which would facilitate a reasonable presentation in an orderly court.
RW's reasons for dismissing the ALS lawyer showed that he was aware of and resented such previous positioning by the latter. As he put it (TR:1983) - "He's sort of like - like well like one o' the screws ' I'm the boss - you listen' ye know - you do what you're told' - ... He's axin' what's birthday'n all this' - where ye live'n all that. Put it down on paper ... An' I said to him Don't write any more' ye know. He couldn't care less ... he's gettin' the money'n I'll be gettin' the jail sentence ... That's the way I think anyhow". Clearly too, in the earlier interview, RW did manage to assume some control, if only to the extent of resisting the particular line of questioning of his interviewer; refusing to co-operate with him; and, ultimately, declining the aid offered by the ALS in that particular instance. He dismissively referred to his earlier questioner as "a second-grade Field Officer" (TR:1983) "might say - better off talkin' to 'em myself".
While the White middle-class' private lawyer now employed to conduct his case met with very much less resistance on his part (not only did he submit to the same sort of questioning and writing down things' to which he had previously objected so vigorously with regard to his biographical details, but he also accepted insistent questioning regarding the record of his previous convictions) nevertheless he makes what attempts he can to assert some degree of control. He outlines his position, establishing himself as a person with rights which are being denied (544): No bloke like bein' messed around"; "an' I told 'em I don't like bein' messed around'; ... I was like in a corner - tight corner"; "... well it's about six months now since we got charged on it I think an' when I axed for my record to check through on the thing - I dunno where I am". (This attempt meets with failure however, for the following utterance (545) makes no reference to any of the points he raised but rather, by referring to the other charge for which he was serving a sentence, positions him as subject and prisoner whose function in the speech event in progress can be controlled and directed in whichever way his interlocuters may choose: who is the subject in other words, of strategic, and not the participant in valid, communication.)
The strategy RW himself endeavours to employ in his attempts to subvert the dominance to which he is subjected is an oblique one of intertextuality. For example, he refers both to the spoken texts in which he previously participated (a) with the lawyer from the ALS (4), (166), (356), 541), (544)); (b) at the police station with the police after his arrest (370), (400), (403), (405), (409); and to the written textual products of these two separate interactions. In each case he presents himself as being in control - (a) by refusing to co-operate with someone who was placing him in a listening' position to do as he was told and have words put in his mouth' instead of taking down his statement; (b) by suggesting to the police that he would not sign a statement which had been put down in that way' (370); (c) that he was not susceptible to threatening behaviour - even from the police (405); (d) that he considered himself to be no different' in terms of equality from the police officer who was interviewing him (407); (e) that he viewed himself as not being naive in such matters - "That's what I ... smart bloke - there it is" - (an utterance accompanied by a decisive and audible snap of his fingers) (409).
The tyranny of the legal discourse inexorably pursued by his interlocuters however left no space for the textual incorporation of his interventions. The latter went unremarked and seemingly unnoticed. Even the extract from the written transcript of a conversation which I personally recorded with RW, prior to assisting him in securing the services of the lawyer in question, (and which was read out during the course of the interview as part of the documentation' possessed by the lawyer referring specifically to the self-same spoken texts) did no more than evoke further factual' comments and questions regarding identities and addresses, and, significantly, a correction' directed at RW to the effect that he had mistakenly referred to the lawyer as Robert', thus reducing the former to the (-knowledge/-power) position: "Incidentally, Mr. X's name is John' - John" (233).
Any attempt to raise the question of RW's own feelings and stance in the matter (as for example in utterance 166) "... when they asked for my record - they had from the Legal Aid you know - so then - I jus' told them Git out - ye know'n'" seemingly went unnoticed as his questioner pursued the required facts' regarding the record without pausing to take account of the expressive' information being offered or troubling to explain the reason as to why the record was of such significance that it could not be ignored.
RW's subsequent attempts (Utterances 174, 177 or 187) to fend off or stall the unwelcome question (173) - "Can't you tell me how many, how many previous convictions?" by "No - I don't - not at the moment ..." were quite forcibly confronted (175) - "Well you can in a way in a sense that you know which I don't whether you've had one or two convictions - twenty or thirty - one or two hundred ... I mean you've got some idea about how many".
RW answered (177) "Oh - I've got a fair bit on my record but I'm sayin' I don't know how many", and (187) "That's what I said I dunno - you could say twenty or thirty or anything". The lawyer dismissed the replies as inadequate and proceeded with "Well I could say five hundred - we could say five hundred and seven but you're the one who knows - we don't - so - you've got to try and help us here" (188), effectively mystifying the power relationship by conflating (-knowledge -power) in "You're the one who knows - we don't" with command and status "you've got to help us here". RW's compliant "Oh well - ... either twenty or fifteen or ... fifteen or twenty - might be more ye know" (189,191), was subsequently appropriated to the extent of the quite arbitrary decision to adopt the figure of twenty' convictions (192) "All right ... twenty convictions ..." as being "sufficient" in terms of the application for legal aid.
The lawyers' (193) "We'll get it eventually" and (194) "if we get legal aid for this" constituted a single exchange in the nature of an aside' (regarding the record), initiated by lawyer No.1 and completed by his assistant, who then, without a noticeable break proceeded to address RW with (194) "... I want you to sign this you see - ... and if we get legal aid for this we'll get your record - we'll know what it is". This constitutes a further affirmation of the otherness' of RW, both in terms of the institution which already possesses his record' and in terms of the lawyers' own identification with that institution as a source of knowledge and information to which, by virtue of their standing, they, and not he, have privileged access.
The lawyer seemed not to be aware that the modalities by which Ralph signalled his anxiety in regard to the whole question of his previous record were, in the words of Kress and Hodge (1979:127) an indication of "considerable fear on the speaker's part and vulnerability rather than intellectual uncertainty". There is a sense, say Kress and Hodge, in which a speaker translates uncertainty about the status in the power situation into uncertainty about the status of his utterances. In RW's case, his use of modalisers would seem, at least partly, to have been prompted by his struggle to resist his labelling as a criminal. This labelling was precisely what RW had suggested as having been done by the ALS Field Officer, an exercise to which Ralph had taken exception in no uncertain terms, seeing in it a system, recognisably the law itself, as a source of prejudice: (166) "... when they asked for my record ... I jus' told them - git out' ...". He clearly saw it as necessary to make a distinction between his record' and the present charge: "See - I want a lawyer to get down my statement and fight this one ye know - not my record but the charge ... I don't want a bloke standin' there tellin' my record to the magistrate when he know it ... like they was judgin' you on your past record an' not the charges ... ". Nevertheless, and inexorably, the higher power, represented by the form of the interview itself, ensured his co-option in the very labelling which he both feared and distrusted (153). "... previous convictions, we've got to put that down - how many convictions have you had?"
The mechanics of RW's changing his lawyer from the employee of the ALS, who had already seen him and was in possession of his file, to the private lawyer who was now interviewing him, involved the question of remuneration and who was to be responsible for this. The private lawyer needed to be assured that the Legal Aid Commission would be prepared to pay his fees if he accepted the case, since RW was not in a position to do so. This explains, if it does not necessarily excuse, the fact that 214 utterances of an interview which comprised 631 utterances in all were solely and exclusively devoted to the task of ensuring that this matter was satisfactorily attended to. The fact that it was so however contributed in no small measure to the power structuring and subject positioning of the ensuing exchanges: a power structuring and positioning which can be seen as arising as much from the system itself as it does from the discourse employed by the representative of that system.
It can be seen in the opening sequence that whatever advantage of power' as client employing' a lawyer to act for him RW might indeed in exchanges 1 to 4 appear to have was swiftly eroded: (The opening move (1) "If it's alright with you - we don't mind" - referring to the tape-recording of the interview which the lawyer had agreed to do on my behalf) seemed as though the interviewee was to be allowed a position of comparative equality: his permission was being requested. RW's reply, still keeping control of his affairs by making sure that information he had given me for the lawyer had been passed on (3) "Yeh yeh - Ah - the other thing was - she was going to give you a tape'n said that Mr. X was goin' ..." was cut short, heralding a fairly rapid tightening of command and control: "We've got lots of ... yeh I know ... we've got lots of documentation - we've got lots of stuff from Mrs. A - that we've had a look at" - a control effected both by the indication of the prior possession of the information referred to by RW (+ knowledge), and by the distancing mystification implicit in the professional use of the word documentation' to describe that information. From the outset therefore what can best be described as a systemic rather than an individual or accidental positioning and manipulation of the subject is firmly in place.
Endeavouring to hold his own nevertheless, RW continued with "An' the other thing was a - to let Lennie Colbung know in the Legal Aid (ALS). They come the other day'n I told 'em I don't want 'em ye know". In (5) however legal control has been assumed: "... What we do is we get you to fill in a Legal Aid form application ... We simply tell them that you don't like the bloke there. I've lined that up with the Legal Aid Commission, and then you'll be on Legal Aid instead of the ALS one". The emphatic "we get you to ..."; "I've lined that up"; "you'll be on Legal Aid"; successfully effect a closure' of RW's language and, at one and the same time, the "you'll be on Legal Aid", paradigmatically evoking as it does the being on' Welfare etc., all so much a part of the experience of the disadvantaged and marginal' members of our society, symbolically reduces the status of the client' to one of dependency or mendicancy. This is taken up and further reinforced in (202) and (204): "... if you'd got money and had a solicitor ...".
Utterance (8), semantically framed as an interrogative - as though requesting permission - worked as command. "Can I ask you a few questions so I can get this done - what's your date of birth?" leaves no space for a reply to the first part but proceeds with the questioning. The qualifier' "so I can get this done" effectively blocks any further communication RW might wish to make at this point by selecting and foregrounding the primary task at hand and proceeding with the strategy best suited to that particular purpose. The successful positioning of the client as subject has been accomplished at the start and little throughout the fairly lengthy questioning which followed did anything to counteract this asymmetry.
The lawyer's summary, outlined in (523), (525), (531), (537) and (539) is some evidence of the suppression of that in the spoken text of the interview which did not directly connect with the principal stated intention of the exercise as it is outlined by the lawyer in (606): Well what we will do, apart from sending our thing to Legal Aid, is to try and get in touch with as many of these people as we can and get them to come in and see us - because - you can give evidence which says: Look - I didn't hit him - I didn't touch him'. `That's fine but there were six other people there including the fellow that was hit and if we can get any of those six to come and give evidence ...".
Effectively, it could be said that the whole exercise involving lawyer and client functioned very much in terms of the theory, explored by Kress and Hodge, and Henriques et al, among others, that signification does not merely represent an outside reality' but, as noted by Henriques et al (1984:98), "meaning is produced at the same time as subjects are fabricated and positioned in social relations". Significations according to the latter "are produced and lived in everyday practices and social relations and ... subjects are constituted and located as part of these same practices". The positioning and location' of RW vis-a-vis his interlocuters in the interview under discussion made possible for the latter in large measure the construction of the resultant signification - a signification which while it fitted the requirements of their particular legal practice did little to serve the rights or interests of a client whose participation in the exercise nevertheless was a necessary constituent.
A reading of the transcript of the interview also reveals how, in the intersection of strategic communication with valid communication, the former, when the strategic communicator is (+power), subsumes and overcomes the latter with very little difficulty.
There are, of course, many and various ways by which such strategic supremacy can be achieved and maintained, among them the very simple and obvious strategy of not allowing the participant of unequal status to complete his utterances. RW was permitted 256 utterances out of a total of 630, as against 374 by his interviewer/s; of these 256 utterances 65 were yes/no' questions which had the effect, noted by Kress and Fowler (1979:74) of effecting control with closure of the interviewee's language. In addition to this, no fewer than 50 (2, 56, 68, 107, 111, 115, 125, 144, 166, 180, 189, 212, 234, 277, 265, 269, 275, 292, 304, 319, 321, 352, 354, 372, 386, 392, 400, 419, 421, 423, 427, 429, 437, 447, 449, 457, 464, 466, 468, 470, 493, 506, 508, 510, 518, 541, 560, 579, 589, 601) were cut short, interrupted, or completed for him by his interviewer/s.
Michael Toolan (1988:248-260), in exploring the locally-managed semiotics of dialogue in the light of Halliday's model of systemic functional linguistics, notes how, at its simplest, "interruption can be performed to hasten disclosure or to block it". Interruptions and completions, Toolan says, in terms of the systemic picture of textual structure, involve the supplanting of at least part of what was to have been the New element of the first speaker's turn by whatever the second speaker assumes, or decides to make, the New element of the clause:
What is new in the clause (and will contain the Focus) is what the speaker treats as non-recoverable; ... so there is always considerable risk, ... of unintentionally failing to attend to that part of the message that your interlocuter particularly wanted you to.
The significance of this in terms, firstly, of the process of constructing the oral text of the interview, and, secondly, in recording its signification in the written mode, can hardly be overestimated, either in the case of lawyer/Aboriginal client interview or police/Aboriginal interrogation. For, as Toolan makes clear, and as has frequently been suggested to have been the case by the all too numerous victims of such a practice:
Ideationally ... the clause, in its configuration of a process and associated participants and circumstances, contains a representation of the real world, of what is going on', in any described situation; these interruptions accordingly give rise to suspect, if not defective ideational statements: ones where certain participants or circumstances may fail to get encoded, and possibly extraneous ones appear in their place.
Expressed more simply, if no less succinctly, by RW as "puttin' words in my mouth", the practice, (despite the ever-increasing expressions of disquiet by both law reformers and Aboriginal victims themselves, and despite periodic attempts by the Law Reform Commission and individual lawyers and police officers to find some way of preventing it) unfortunately continues, in the main it would appear, unabated.
This may well be because ignorance regarding rules of discourse, cultural forms and items of common knowledge within the Aboriginal culture generally is endemic to the Australian middle classes'. In order to rectify such a lack it is of course first necessary to acknowledge it. It is precisely because so few lawyers do acknowledge this lack that all too few, considering the pressing need for their services amongst the Aboriginal population and the increasing numbers of their prospective clients, take pains to rectify it.
It need not be argued that such power of the written (in the form of the police statement or of the lawyer's notes or proof of evidence') over the spoken (in the form of the lawyer/Aboriginal or police/Aboriginal interview) necessarily connotes any sinister plot on the part of the police or connivance on the part of the lawyer. Rather is it the nature of the comparative relationship of speech and writing in themselves which is in question and the manner of their appropriation and utilisation during the course of the inscription of an Aboriginal person into the fabric of the legal system. For, although contemporary explorations of the differences between speech and writing are by no means definitive or conclusive, one of the things that can be said is that, as noted by Akinnaso (1982:105) "studies of the syntactico-semantic difference between spoken and written language attest to the non-congruence of speech and writing in medium-related' and message-related' dimensions". There is said to be no danger as long as a written format is used to represent purely written discourse, but once an attempt is made to translate oral communication to the written, meaning as well as form is transmuted.
Put another way, the reliance on a single modality for the communication of intent in writing, as opposed to the multiple modalities of speech, confers on the written what Kay and Olson (cited Okinnaso 1977:112) refer to as "language autonomy". Olson argues that written language becomes "more able to stand as an unambiguous or autonomous representation of meaning".
As observed by Akinnaso (1977:112):
While writing is uni-modal, speech is multi-modal, making use of linguistic, prosodic, kinesic and contextual cues in the signalling of meaning. Consequently, spoken language not only expresses propositional, emotional, contextual and culturally specific messages, but also signals illocutionary force. Written language, on the other hand, expresses mainly propositional messages, being minimally dependent on a common frame of reference between sender and receiver of messages, in addition to lacking necessary non-propositional signalling devices.
The implications of such an autonomy are far reaching in any situation where oral discourse is transformed into "official" written discourse. In the case of Aboriginal people in their encounters with White law, I would argue, it can all too frequently be seen to disadvantage them disproportionately. A common feature of the police/suspect or witness and the lawyer/client interview is that the interviewers in both these cases are in control both of speech and writing, against the relative powerlessness of the interviewee on both counts, but particularly over the manner in which the transformation of the spoken text into the written version of that text is effected. The practice of taking notes or constructing statements' can, in and of itself, be an inhibiting factor in communication. For if the interviewer's attention is divided between communicating with his interviewee and the act of writing it is likely that no matter how skilfully or unobtrusively this act of typing or writing is performed it changes the nature of the exchange from that of dialogue to an exercise in composition and mastery. In the light of the rising tide of black protest in Australia at present, born of the perception that white justice is profoundly weighted against black people, this aspect of their perception would certainly seem to be as worthy of scrutiny as the many other considerations currently under review.
The second and final interview (Appendix A [1 ii]) between the lawyer and RW took place in the former's office less than an hour before the case was due to commence in court. RW had, in the ensuing three months between the first interview and this one, completed his sentence for the previous offence and had been released on bail from having been remanded in custody on the present charge. In all this time his lawyer had neither succeeded in locating and seeing RW himself again nor had he been successful in tracing potential witnesses. He gives no indication however that such an unsatisfactory outcome might in any sense have been avoided had he heeded RW's advice re efficient tracing' of witnesses in the previous interview (Utterance 497).
The lawyer's opening (1) "Hello, we thought we'd lost you" in itself at once reifies' RW as a kind of necessary prop in the impending courtroom drama and at the same time not so subtly accuses him of not being in the right place at the right time; (2) "Been sending you letters all over the place, telling you to come and see me" reinforces this with the implication that either RW had not been where he should have been to receive the letters, or, in the event of his having received them, of not having done what those letters told' him to do; (5) "An' ah been writing to MP ..."; (7) "An' the other fellow called W - is his name D is it?"; (9) "Who were with the group asking them to come an' see me - they never have".
The lawyer's representation of the correct procedures of a White-oriented communication system is articulated here in a form to which his addressee is prohibited from replying not only because of his positioning as (-knowledge) but also because in any case such procedures are, as was discussed above, outside the realm of his customary social semiotic. In addition, he now has the added burden of somehow being accused', with his group, of being personally responsible for any possible inadequacy in the defence: (11) "And a - so we only got two things - one is you and the other is my - a - to try an' keep Constable X's evidence out ...".
This also extends the reification process (two things) as a further form of exclusion of the subject RW as either a thinking, acting, agent in his own case or as an equal intersubjective participant in the current interaction between himself and the lawyer.
The lawyer may well genuinely be trying, by means of a conversation with his client, to clarify for himself the necessary information which is crucial to the case he is preparing. It can be argued however that unless he and his client listen to and understand each other he is unlikely to succeed. It can be argued also that such an understanding in the present instance, no less than in any other situation where the co-participants seek to reach understanding, is unlikely to succeed in reaching any consensus' in the sense in which Habermas understands it unless there is what the latter refers to as a symmetrical relationship of "pure intersubjectivity" between those taking part in such an attempt. As cited by Silverman and Torode (1980:341):
Pure intersubjectivity is determined by a symmetrical relation between I and You (We and You), I and He (We and They). An unlimited interchangeability of dialogue roles demands that no side be privileged in the performance of these roles: pure intersubjectivity exists only when there is complete symmetry in the distribution of assertion and disputation, revelation and hiding, prescription and following, among the partners of communication.
The radical nature of such a prescription, demanding as it does nothing less than a total surrender by the participants, even if only temporarily, of the impedimenta generated either by power, privilege, or institution on the one hand, or fear, mistrust or fatalism on the other, might seem to militate against both its practicability or its chances of success. Fear of failure to be able to fulfil these conditions in their entirety however is no reason to abandon them. For if even a partial success is achieved through upholding them this is infinitely preferable to what must inevitably be a negative result if they are ignored.
And if we hold with the proposal by Habermas that the conditions for ideal discourse are connected with conditions for an ideal form of life we are inevitably confronted with the question as to what justification there is for giving priority to institutional expediency over traditional and accepted ideas of freedom and justice. Can truth' be analysed independently of freedom' and justice'? We seem to be saying that it can if we persist in concealing the sociality of linguistic practice in the apparently natural order of such expediency. And yet this very ideal form of life is, ostensibly, what all our vaunted notions of democracy' consistently invoke and towards which we constantly pretend to strive. There is nothing illogical therefore in exploring the implications of such a communicative ideal in practical terms.
Because of the earlier links in the chain of discourse in which RW is involved and which, predictably and inevitably, ultimately tends to his disadvantage, the present somewhat brief (63 utterances) interaction is intertextually informed and additionally constrained by a pre-determined agenda' which significantly affects any free interchange of ideas or information. This invisible intertextual agenda is a composite of three fairly clearly-defined constructed language events: (a) the interview between RW and the police officers; (b) the resultant written statement typed by one police officer and corroborated by his colleague, purporting to be by RW but unsigned by him. This latter document is due to be produced in court as evidence and both RW and the lawyer have copies; (c) a statement made to the police by the plaintiff. References to all three are made in the course of this interview. For example:
(11)"... and the other is ... to try and keep Constable X's evidence out";
(21)"... well you didn't tell us ... what colour a things you had on the man that got beaten up he said you were wearing jeans - or slacks - jeans or pants - jeans or trousers well ...";
(35)"Well ... ye told Constable X that you did";
(43)"The policeman says that you told him you did ... see I keep asking you I keep saying did you tell Constable X the policeman that you hit him - that you hit the chap and you say I didn't hit him' that's not what I'm asking you see - I'm asking did you tell him that you did";
(44)"No I didn't tell 'im".
RW's (18) "... I forgot to read over that statement and what I put in it ..." seems to represent an attempt by him, even at this late stage, to assume an investigative control on his own behalf. It was correctly decoded by the lawyer as a wish to see the statement when he said (19) "Do you want to?" RW's reply of "yes" (20) seems to have gone completely unnoticed and was disregarded however as the lawyer proceeded with (21) - quite a lengthy question regarding RW's clothing on the occasion of the alleged offence and the words of the plaintiff. RW's utterance/request (18) regarding his statement' continued to be overlooked as the lawyer, now employing a peculiarly adversarial form of speech, addressed the former with (23) "Ah - it's just possible we could break him on a question of identification". This, however, did not have the effect either of mystifying or silencing RW who responded appropriately regarding identification by (24) - "Yeh I wasn't wearin' jeans ...".
In (25) the lawyer, for the first time, seems to confirm RW's competing narrative - "An' what you're saying now (with a raised intonation on now) is that you didn't hit him". The lawyer continues (27) "An' you didn't kick him", to which RW responds "No" (28). "Or bite him" (29). "No ...". RW's (32) is particularly significant since it re-affirms his principal justification for endeavouring to defend himself - "No ... if I hit 'im I would'a I'd got to - I would'a plead guilty in the first place".
While such an affirmation might well carry weight quite apart from the ethnic origins of its utterer, it has, it would appear, a special validity in Aboriginal discourse. For as claimed by a Field Officer with the Western Australian Aboriginal Legal Service (TR:1988) - an experienced interviewer and himself an Aboriginal person - "If an Aboriginal person tells you he hasn't done it - you can be 99% sure he's telling you the truth - First maybe not - like a frightened child, sometimes, he could tell you something outlandish - but if he sticks to saying he didn't do it you can be 99% sure you can believe him. And if he has done it well then you can hardly stop him from pleading guilty and usually he has admitted to the police he has done it by the time you get to see him in the lock-up". Ignorance of such a significant aspect of Aboriginal culture on the part of his legal representative can of course give rise to misunderstanding.
The lawyer's response of "Mmm" in (33) clearly did not sound as though he was convinced because RW in (34) repeated his assertion - "I never hit him ..." and would have proceeded "An' a ..." had he not again been interrupted and his narrative undermined by yet another intertextual reference (35) "Well ye told Constable X that ye did". Again in (36) RW, firstly, insists that he did not hit the plaintiff, and, secondly, attempts to reply to the lawyer's query regarding his alleged admission to the police, recorded in the statement: "no, I didn't, I never I never never hit 'im see ... ye know they ... they said to me that ... a ..." was interrupted by the lawyer's (37,39) "But did you tell Constable X that you hit 'im ...". Finally in (44) RW answers the question regarding telling' the policeman "No I didn't tell 'im". This incorporation, by naming, of Constable X into the lawyer's discourse may or may not have signalled a form of solidarity with the former. It certainly had the effect of putting RW on the defensive against another kind of knowledge which could well be identified with the "Dragon Principle" referred to earlier.
Next, the lawyer poses the crucial question (45) "Who did ... who did hit him?" and RW (46) names in a manner suggesting a descending order of culpability the people he had observed attacking the plaintiff. The lawyer's response to this of (45) "Yeh - How much had you had to drink?" could hardly be said to acknowledge the information he had just been offered other than in such a way as would connote a certain lack of confidence in the integrity of its utterer - a lack of confidence which was made even more explicit in (53) "I don't believe you - nobody can drink - no man can drink six bottles o' beer in an evening" is in response to RW's reply "Oh 'bout six bottle o' beer an' a bottle o' wine" to the lawyer's question. The latter's utterance illustrates not only a lack of respect for his client and his words but also a lack of understanding of that aspect of Aboriginal culture with its emphasis on sharing which RW in his (54) "Yeh but we was in company see" so succinctly describes. Nor did the lawyer deem it necessary to apologise for having doubted the words of his client other than with (53) "Is that it - well OK so between ... you.".
Finally, in (61) and (62) the interview finishes on a firm note of control. In (59) "I mean we can't choose the jury in one sense because they're picked out of a hat but we'll object to them if we don't like them ..." and (63) "See we might not put you in the witness box ... OK. We're in Court 58".
There is no suggestion here of consultation with the accused. He is not told whether he personally might have the right to object to any member of the jury, nor is he told upon what, if any, legitimate grounds he might make such an objection. His positioning as subject has been constant throughout the interview.
There is also in this second interview a preponderance of statements by the lawyer which appear rather to substantiate the prosecution's narrative than they do to support the competing narrative of the accused. All in all there are more statements' than questions amongst the latter's utterances - nineteen out of a total of thirty-one. This in itself bespeaks a certain foregone-ness' of the aspects of the case discussed and does not augur well for the chances of the accused despite the best intentions of his legal representative. It represents more an attempt to tie together what might be considered loose ends' in the lawyer's narrative, and to effect a certain closure' in his presentation, than it represents an openness to hear and understand what his client might still have to say which could in some way help to tilt the scales of justice' in his favour.
Two very obvious questions have to be considered: (a) whether the lawyer hears and understands his client, and (b) whether the client hears and understands both his lawyer and the exact nature and implications of the charge or charges laid against him. There is enough evidence, I would suggest, in the instance under review to show that while the client does listen to his lawyer there are instances where he may well not be fully clear as to the significance of some of the things that are said in the many utterances involved in the discourse. There are two instances where he makes this quite explicit: the one in Interview One when he refers to a sheet of paper he has been handed to read regarding conditions surrounding the granting of legal aid - (212) "Yeh - I have trouble - some of the words ye know on this"; the other in Interview Two when he refers to a copy of his own so-called statement to the police which he wishes to re-read to refresh his memory on what it is he is alleged to have admitted. In the first instance he is clearly given to understand that such a request for clarification on his part is viewed as nothing more than an unnecessary interruption if not an unwarranted presumption, and one to be ignored: (213) "Now, I'm going to tell you something Mr. W. - we're running short of time now - it kept us up to about - oh - half-an-hour trying to get in here". There is here a measurement of time as a somewhat scarce and precious commodity in the outside' terms of those who have spent' half-an-hour of it in trying to get in' and who can now only spare fifteen or ten minutes of it in conducting the long-awaited interview. RW's measurement and assessment of time on the other hand could, without too much difficulty, be gauged to be of an entirely different order. Thus, not only is his plea for clarification dismissed but there is in the dismissal an implicit suggestion that his concept of time', of which he in contrast to his interviewers has an abundance, is somehow deficient.
In the second instance - Interview Two (18) RW refers to his alleged statement' "... I forgot to read over that statement an' what I put in it". His lawyer asks (19) "D'you want to?" Nevertheless, the fact that RW clearly answers "Yes" is totally ignored as the lawyer continues with his questions regarding clothes and the request is neither acceded to nor referred to again.
On the evening before his trial - the evening before the above interview - RW telephoned me from Canning Vale Remand Centre. He said that he had heard' (an illustration of the efficiency of Aboriginal communication which even imprisonment has little power to impair) that Dolores was in residence at the Nyandi girls' detention centre and asked if I could possibly arrange for her to be present at his trial the following day to give witness on his behalf. I immediately rang his lawyer and asked him to arrange this which he was able to do. In the court Dolores corroborated what RW had said. During her questioning by the prosecutor however, she was more than once subjected to a repetition of the same question and on the last occasion paused perceptibly before giving her answer. Given that the judge in his address to the jury urged them that when considering the evidence they should:
remember that from that evidence you have to adduce the facts and that you will have observed all the witnesses and listened to them and noted their demeanour - from that, you will gather some impression of how their story goes over with you, remembering that you do not have to accept all of what a person says or reject all of what they say
it would not be unreasonable to suppose that such a hesitation on his girlfriend's part might well indicate a lack of veracity in what she was affirming and that it might have presented itself as such to the jury. The following extract from a recorded conversation I subsequently had with Dolores at the detention centre explains it somewhat differently however (TR:198):
D And then I was really mad'n like I started pullin' my finger rings off'n puttin' em back on - I didn't know what to say - 'n when he - when he said "Oh" - when he said "Oh - did 'e hit the chap - did 'e hit the chap" - I felt - I felt like sayin' "No he --- he" I felt like swearin'.
TA Was that when you paused?
D Hey - Yeh.
TA Why did you feel like swearing?
D Oh it made me really angry 'cos he keep on sayin' it'n sayin' it 'cos I'd never seen him hit the bloke - 'cos I was standin' at the door ye know an' I said "Come on". He walked right around an' he never hit him.
TA No - I don't think he did.
D No - I mean he he'd never hit no-one in front of me - except for Coco - big Coco ... and - he won't never never hit anybody. If 'twas to cover me - yeh he will ye know.
In this instance the probable mis-reading by the jury of the length of the Aboriginal girl's pause - her silence' as a cue signalling consent' to the proposition by the prosecuting lawyer - may well have strengthened the case of the prosecution against the defendant. Certainly her subdued and timid demeanour in the courtroom betrayed nothing at all of the anger and frustration at not being believed which she was later able and prepared to express outside.
At the eleventh hour also on the morning of the trial, and too late to be interviewed by the lawyer at any length beforehand, another key witness was located, again through the Aboriginal information network, at one of the prison farms where he was serving a sentence for an unrelated offence. He was hastily transported to the court and faced with an unexpected, and unprepared for, barrage of questions relating to the offence for which RW was on trial. In addition to corroborating the evidence given by RW and by Dolores that RW had not taken part in the attack he readily admitted that he himself had been the principal assailant. The line of questioning followed in court by the Police Prosecutor and the witness's replies were, as recorded in the following extract from the Court transcript, significant:
When the person from the flat came back you got into a fight with him did you not? Yes. You punched him - Yes. When you punched him he went down did he not - Yes. When you kicked him RW came over and joined in too did he not? - No. When you and the man from the flat were having a fight it was not just the two of you was it - No. Let us go through this very carefully. You are certain RW was there - He was there, but he didn't, he never. He was there. You told us at first that he was not even there, but now you are certain he was there? Yes, he was there but he - you know, he never touched no one. You told us when you were asked by my friend that you did not kick him, but now you tell us that you did kick him? - But he - Yes. There are two things that you have got wrong the first time, but you have them right now - Yes. Just think about this very carefully: When you hit the man from the flat and he went down, it was not only you who then hit him, was it - No. RW came and joined in, did he not - He never hit no one. RW joined in did he not - No. He kicked him - No. The others joined in, did they not? - There was only us two joined in. RW was one of those was he not? - No. Who was it then? - It was David - and one other.
It can be seen that the line of questioning relates closely to the narrative contained in the police's own statements and to the statement alleged to have been made by RW himself but unsigned.
Case B looks closely at two interviews relating to the same case. The case concerns the alleged assault and wounding of one cousin JM by another LN in an incident involving a young Aboriginal woman DP at that time in a de facto relationship with LN but who has had a previous relationship with JM. The incident arose during a drinking session when JM discovered DP's relationship with LN, the knowledge of which had previously been kept from him. The first interview, (Appendix A [1 iii]) between an ALS lawyer and the young woman DP takes place at the offices of the ALS. The second takes place at the office of a private lawyer to whom LN was advised by his father to take his case as a result of their dissatisfaction with the ALS's handling of the case. The style of the interview with the second lawyer contrasts with that of the first and succeeds better. Whether the fact that this particular lawyer was not, ethnically, a White' lawyer assisted him in establishing a better rapport with his Aboriginal client, than his predecessor who was, is not an aspect of the case which I have taken into consideration in the analysis but it is of interest nevertheless when cultural aspects of communication are taken into account.
Quite apart from the embedded cultural constraints on information exchange explored by scholars such as Eades and Sansom among others, there is an additional inhibiting factor peculiarly experienced by some Aboriginal people in their relationships with Whites. It is their consciousness of, and wish to escape, the to them ever-present White gaze'. It is for this reason that their young people attending the Children's Court tend to shelter in doorways when they can or wait outside until they are called. The experience of being in a waiting room full of White people can frequently become too much for them to bear. It is for this reason also that the most comfortable hospital bed when they are ill, surrounded by no matter how kindly and attentive a medical staff, is a place for Aboriginal people to escape from as soon as they have the strength to sign themselves out' or be collected by friend or family. Even visiting a relative in hospital can be a threatening experience for them and is usually done in groups.
This shrinking from, and avoidance of, the White gaze has its discursive counterpart also in an avoidance of questioning by Whites, in particular in relation to personal matters.
In the following case, where a young man was relying on his de facto wife to be a witness to his innocence in a serious case where he was accused of inflicting grievous bodily harm' for which he was likely to receive a prison sentence, her inability to overcome her reluctance to do so was making him desperate. He spoke of this at a time when he felt worried, angered and frustrated by a reluctance on her part to speak freely and sufficiently to the ALS lawyer who was at that time to defend him. And at the same time he suggested the reasons why she behaved as she did.
LN had rescued DP from a drunken attack upon her by a man with whom she had formerly lived. In doing so he injured the former. The man was his cousin, and, for that reason, according to LN did not wish to press charges against him. But the police had been involved through the hospital casualty department and subsequently arrested the man to secure a statement from him regarding the incident. This led to the charge. LN was now relying on DP to tell the full story which he felt was in his favour and should get him acquitted. But whereas DP had earlier been capable of describing the incident in detail to a friend in a quiet talk', her performance in the ALS's lawyer's office did not seem as if it was going to be any help to the accused since it was reluctantly given and, according to him, inaccurate and incomplete.
The following extracts from a talk I had with LN on leaving the lawyer's office illustrate this (TR:1984):
She knows a lot but she's not willing to talk ... Well she said she was only crying low - That's not the truth anyways - Because when I heard her she was screaming. When I walked back in he had her by the throat and he was bashing her and everything and I told him to leave her alone an' he wouldn't - so well the nearest thing I had to do was - try and get him off and the only thing I had in my hand was the machete - so I used that to get him off. I hit him with the back and sides of it ... I just wanted to get him off - I didn't want to kill him because I grew up with the man. He's my cousin. I like people to speak the truth an' everything - which I told her to. She's told M about it and everything. ... That fright is going to get me jail ... It all depends on her ... She's the main one in the case.
DP's fright' was referred to later in the conversation in another way:
She remembers everything but she just says she's cundam shame - She's gotta get over that shame. ... Yes - She's one o' them - ye know - Nyungar shy'.
Fright', shame', Nyungar shy', of the White gaze, conflate, most frequently, though not exclusively, in many Aboriginal women when they are faced with the necessity of speaking to White figures of authority - whatever the source of that authority.
Perhaps partly as a result of the unsatisfactory interview, LN received a letter from the ALS lawyer when his case was due to be heard, suggesting (a) that since his de facto had not substantially verified his story it was not worth calling her as a witness; (b) that if he wished to plead Not guilty' to write and let the lawyer know as soon as possible; and (c) informing him that if he did decide to plead Not guilty' he was likely to be in court for two days.
While it might be argued that such a letter was no more than a routine factual and businesslike communication and quite acceptable in the genre of legal discourse, its reading by LN and his father was an angry one. As his father expressed it (TR:1984):
It's a letter to scare a person like L ... but he's already told him this ... up at Midland (when LN first appeared on the charge and, pleading Not guilty', had his case remanded) ... an' he's even tellin' L again after that case ye know - what he's sayin' in a sense is "what's the use of pleading Not guilty'" ... Now he's being the dictator of this boy's right. Now him being a lawyer shouldn't talk like that and it makes ye know Aboriginal people think What is this system that they got set up there. It's a system that's got money fed into it from the government to allow it to go to a certain extent to a certain level and get up and put a false front up in the court and speak to a certain extent or to a certain level an' then keep quiet an' make it look to the public in general that Oh - the blacks they got all - they've got legal service representing them'. But they - they still making the decisions.
Not only did the lawyer, on LN's first appearance, appear to him and his father to be discouraging him from persevering in a plea of Not guilty' but the police also according to him were urging him against adopting such a course of action. In his words: "The police- they wanted me to plead guilty at Midland Court and get it over with. Oh' they said Oh we'll get you a light sentence'. I said No, I want a judge and jury'".
The first point made by the lawyer merely confirmed what LN already knew. In fact some time had now elapsed since the interview in question had taken place and LN no longer knew where DP was. She had disappeared suddenly and completely following the interview at the ALS and did not even return to the campsite to collect her clothes and belongings. (As it was described by LN to the private practitioner who subsequently acted for him - "She jus' left me when we went seein' the ALS lawyer that day - she jus' never been back".)
The second point, the request/instruction to LN that he should write to the lawyer as soon as possible if he wished to plead Not guilty', did not take into account the possible obstacles in the way of LN's performing such a seemingly simple task. Firstly, he may not have had easy access to writing materials; secondly, even if he had, he may well have been daunted at the prospect of replying correctly to such a formal letter. Thirdly, it called for a decision on his part which now had been made somewhat more difficult for him.
The third point, that he was likely to be in court for two days, was one most likely to strike fear and apprehension into his heart. Aboriginal dread of the court is well established and unquestioned. In fact very many pleas of guilty' are known to be born of the wish to get it over with' as quickly as possible and avoid waiting for further court appearances. Even the prospect of a prison sentence is not in itself sufficient to displace this most common of phenomena. In LN's own words - "I don't like this long waiting - just get the court over and done with. ... Just get that offa me. If I get found guilty well that's it - if I get found not guilty well that's it. I just want to get if off - get it over and done with. They keep on remanding me and remanding me. I know I was in the right. I know that much".
It goes without saying that to read a transcript of a verbal interview is to gain partial access only to an event in the world, aspects of which will always remain veiled to participants and observers alike. Quite apart from the subtleties of meaning reflected in intonation and which elude the most exacting of notations, there are also aspects of kinesics (the communication that takes place through gestures and movements).
So that when it is noted regarding DP's posture during the interview that she was turned away from the lawyer and looked out through the window, this may be read' differently and incorrectly by someone who does not know her from the way it would be read by an intimate such as LN or one of her own kin. A White observer might well see it as casual or lacking in either interest or a wish to assist. It may, on the other hand, have been one of the indications to LN that she was cundam'.
Szasz (1984:133-34) notes that, increasingly, the difference between discursive and non-discursive languages is more widely held to be a matter of "degree rather than kind". Hence, he says non-discursive languages' and their non-discursive referents' have the function of transmitting a feeling state from one person to another. The referent inside a communicant therefore he says "cannot be completely severed from the experiencing person's relationship to the world about him. This is because, he says, "affects are at once private - inner referents', and public - indices of relationships between ego and object(s), self and others. Affects are ... the primary link between inner, private experiences - and outer, publicly verifiable, occurrences".
There is a danger however in an over-emphasis on the reading or interpretation of such iconic' body signs, for such readings can be both subjective and idiosyncratic. The limitation of such body signs is, says Szasz that they present a picture which standing alone has but a limited cognitive content. This is not to say however that they are either unimportant or insignificant. It is yet another reason to look dubiously at the so-called "whole truth" which purports eventually to be the substance of court proceedings which could initially have been based on any such frangible foundations.
The transcript of the interview between the lawyer and DP (Appendix A [1 iii]) is incomplete inasmuch as the opening section (where the lawyer fills in the biographical details) was not recorded on that occasion. However there are observations which can be made regarding some aspects of the section which was recorded and transcribed.
The interpretation of meaning depends in part on rules dictating social relationships. Whether these social relationships be of a private nature shared by a small number of people where meaning can depend on non-verbal cues and implicit norms or whether they are of a public nature where the relationships are on a larger scale such as are anchored in institutions, there will still be recognisable constraints in each. So that it is reasonable to suggest that LN's interpretation of the meaning of DP's answers or lack of answers was as a result of their special relationship and their shared definitions. And when he got up and left the room in frustration during what he saw as an unsatisfactory interview, DP may well have interpreted the full meaning of this action more accurately than either lawyer or analyst might.
The double constraints of syntax and usage apply both in the public or institutional and in the private sphere. The rules, norms and constraints of the one sphere however are not necessarily compatible with those of the other. When that other sphere incorporates such special features as are evidenced in the social system to which Aboriginal people belong then the gap becomes wider and harder to bridge. Some of these features are seen in the lawyer/DP interview to inhibit the establishment or flow of valid communication. For example, what for an outsider might well have passed unnoticed was DP's predicament in having to assess the possible consequences of total openness and frankness on her part to a legal representative regarding the apportioning of blame as between two cousins. She herself would have been well aware of the sorts of family and kin feuds to which such co-operation on her part might well have given rise in the future. LN himself voiced these kinds of concerns to me in his own regard when he said (TR:1984) "An' after this is all over - he's still going to be watching - watching for me. This is not ended. You think it's ended in court, but it ain't. It's not ended in court. I've got to watch myself. ... He'd just remember what I did to him ... Judging that don't do either ... It'll go on for years". Aboriginal women are ever sensitive to the social ramifications of their actions and those of their menfolk and such considerations impose their own specific constraints on what they can say in certain circumstances. The weight of such a responsibility could well be quite overpowering. It could be argued indeed that in such circumstances effective mediation, such as would be acceptable to the Aboriginal person involved, is crucially necessary.
Because Aboriginal people's experiences of the White judicial system have so frequently been to their disadvantage, they could perhaps be forgiven for adopting the attitude which they sometimes do, and which DP may well have done on this occasion, of not really having a great deal of confidence in the favourable outcome of any efforts to help them in this field. The lawyer's act of writing notes in the interview with DP created gaps of many seconds between her answers and his following question in some of the exchanges. Such pauses can be seen or felt as a display of power by the person assuming the right to the next move but deferring that move by extending the pause beyond the time the other participant might reasonably expect. So that while silences and pauses have their own place in the rhythm of Aboriginal conversation, they assume a significance of an entirely different order in the context of the police/Aboriginal or lawyer/Aboriginal interview.
Taking utterance No.1 - the lawyer's Boundary Marker' - "Righto D" - signals the opening of the discussion regarding the assault on the latter's person, LN's coming to her defence, and the resultant injury caused to his cousin. The lawyer next invites/requests her to give her version of those events from her own recollection of the evening in question - "Well perhaps if you could just tell me what happened from the time that you can remember that evening when J came into the hut where you were".
It could be argued that the logical place for DP's turn' was here and that the next move' should have been hers. The lawyer, in his professional capacity as helper had not only made a reasonable request, he also, or so it seemed, was sharing the structuring of the dialogue with his interlocutor and giving her a fair opportunity to direct its course. We do not know however how DP might have proceeded because there was no pause or space in the utterance for her to reply. The opportunity for her to comply with the invitation/request was conflated with the next part of the one unbroken utterance - "First of all whose hut was it D?". She now had little option but to reply to that most recent question which was then reinforced by repetition in three when her reply was inaudible to her questioner - "H'm - whose hut?". The tone/rhythm of the interview was thus swiftly anchored in the typical question/answer sequence which is so characteristic of and accepted as the natural' order in so many such encounters.
Nor is there really sufficient evidence from the transcript to be able to say with certainty that DP was not willing or able to describe in her own way of talking what took place. For example, when in eleven it seemed as though she was being given a second chance to do this - "And what happened - tell me what happened when J came in", she did begin to do this. She paused for five seconds and then in twelve commenced to speak - "Oh he club'd 'n punch'n punch me". A mere half-second pause was allowed to elapse here however, which would have hardly allowed DP to draw a breath, before the lawyer intervened with another question without making sure that DP had finished speaking and without completing the exchange with a feedback'. DP's "Once" in (26), in answer to the lawyer's twenty-five - "And how many times did he punch you?", although it seems to contradict (12), is accepted without comment by the latter. Again (29) might have provided DP with an opening for her own elaboration - "What happened to you when he punched you?". Four seconds passed before DP commenced - "My lip started bleeding", but only three-quarter second elapsed before, again without any feedback, the next question was posed.
In (49) DP's whispered "I can't remember" was discounted, with the injunction in (50) "Try very hard". This time the lawyer paused for seventeen seconds for her to comply, on his terms (by trying very hard to remember') before again resuming his questioning. DP's reaction to this was silence.
(12) is interesting for its repetitiveness "... he club'd 'n punch'n punch me" - which seemed to describe an assault incorporating more than a single blow. Subsequently however when the lawyer, referring anaphorically to this piece of information (104-114) questioned her in more detail, especially in (108) - "Well is there any suggestion from your injuries that you were hit more than once?" and again "only once - you're fairly sure of that are you?" he understood DP to be telling him that she had received but one blow. And when he asked about kicking in (112) and (114) "... he didn't kick you at all ...", DP said "No" in (113) and (115). Rather than its being a change in DP's story however it could well have been that she was referring to the one occasion when she was being pummelled, rather than to a single as opposed to many blows. With regard to her saying she had not been kicked, this too may have been taken literally by DP, whereas in LN's account, in the interview with his lawyer (see Appendix) he referred to J as having knee'd' her: "Well he had one hand around her throat ... He had his left hand down'n punchin' her and knee-in' her ..." (page 24 Lawyer/LN transcript).
There are, in Aboriginal English, many more words to express the ways in which one person may physically assault another than there are in our more protected and comfortable White Middle-class' society. There is potential therefore for unresolved ambiguity on more grounds than one.
In addition to DP's saying she did not know, or did not remember, in answers (6), (22), (24), (49), (65), (68), (72), (90), (103), (147), (153), there were others where she chose not to respond at all when it was her move or turn and when she was given some time to do so by her questioner - as in (70), (125), (127), (152). It is useful to look at one in particular as an example of the way in which a compound question might perhaps defeat its addressee. In (152) there are no fewer than eight separate propositions put forward for DP's consideration: "Someone said; J punched you a lot of times; J kicked you; you were screaming for quite a long time; J got you down on the bed; LN came in; that be right; that be wrong". In the event, she did not respond to any of them. The fact that she did not may or may not have given the lawyer to understand that she could not substantiate them. His next question refers to a previous exchange (106/107) and by effectively rephrasing it he incorporates her halting reply in (107) with her silence in (152) in his "You've told me a few moments ago that you were punched once on the face". D's (153) "That's all I remember" could indeed have been an affirmation of what he said. Alternatively however it could have been her way of saying that she had said all that it had been possible for her to say under the circumstances in which she had been placed. Equally it could be suggested that it was the system, together with its White cultural connotations, rather than the individual lawyer himself, which contributed in the main to the lack of clarity and to the distorted communication which occurred.
As in the previous case, the Dragon principle' was an essential aspect of the interview with DP in the sense that here too the lawyer's prior knowledge of the case gleaned from other texts - police statements, statements by LN his client etc. comprised a basic agenda' for him, a knowledge of which the witness being interviewed did not share and the extent of which she could not possibly have gauged. This alone could have put her at a disadvantage from the first and might well have been one cause of her cautious and non-committal answers. In (71) "Did LN have anything in his hand when he came into the room?" introduced a mystificatory tone into the lawyer's questioning which pointed to this prior knowledge. LN had been accused of attacking JM with a machete and while no mention had been made of this in the previous 70 utterances the present oblique reference signalled this weapon's unnamed and unseen role in the developing line' of questioning and in the construction of the lawyer's narrative. (77) "So you didn't see anything in LN's hand" reinforces this. DP's audible "No" in (78) seems as if it is being challenged in (79) "Is that right - No' is that right?" and again in (81) the emphasis on the possibility of the existence of something in LN's hand was foregrounded "Did you see anything in Lewis' hand at any stage after he came into the room again?" (89) "Did he have anything in his hand at that stage?" again invokes the still unnamed object. DP's (90) "Can't remember" might equally have indicated a wish on her part to alienate herself from a line of questioning which, in addition to its, to her, mystificatory intertextuality, by its very cross questioning' demonstrated all the qualities of White authoritarianism and domination from which Aboriginal people shrink.
One might indeed reasonably be inclined to wonder, given the observations of Eades, Samson and others regarding information exchange in Aboriginal culture, whether instead of the formal question (152) "If someone were to say that J punched you a lot of times ... and that you were screaming ... would that be right or would that be wrong?" (indicating at one and the same time the + and the - knowledge of her questioner) the lawyer had first acquainted DP of the source of the information from which his question was constructed, it might have led to a more communicative response from her. In the event she did not reply at all, either because of the complexity of the question in itself or because of her resistance to the Dragon principle evidenced in the intertextual knowledge implicit in the question. The very same considerations could equally be applied to the overt (102) "Did he say anything about that L would have to pick up the pieces when he'd finished with you - when J finished with you?" which also, clearly, referred to the text of another conversation in another place and at another time to which DP had not been privy. Her reply, perhaps predictably, of (103) "Not that I know" effectively closed off the possibility of exploring what sounded as if it might have been, potentially, a valuable piece of evidence. Whether DP intentionally withheld this information only she could say. If she did so however it could indeed have been an appropriately cautious response to the same stimulus.
Even in the deceptively simple exchange - (94) "What did you do after - what happened after you saw L standing over J?" (95) "I dunno I fell out the door" (96) "You went out the door did you" - D in her (97) "Mmm" did not challenge a factually false representation in the lawyer's narrative. DP said she "fell out the door". She and anyone familiar with the conditions in that sub-section of the Nyungar social system to which both witness and accused at that time belonged would have been familiar with the construction of the demountable cabin where the incident took place and would have understood that reply literally to mean "fall" and not "went" out, for two possible reasons: firstly, there are usually wooden steps leading up to the main door of these cabins so one could indeed fall down those steps. Secondly, there are sometimes three or four doors in the one long cabin against which beds are commonly placed. These doors are open or closed depending on the weather, the time of day or the state of the hinges and handles. Had DP been thrown on the bed in the attack on her person she might indeed literally have fallen "out the door". The mediatory discourse of the lawyer however simply and expediently mapped her reply onto his own inter-discursive narrative in the more usual sense to him of going out through a door. The same confusion seems to have arisen in regard to the' door (as though it were the only one, which it was not) in the questions relating to the whereabouts of the machete in (130) to (143): (130) "Where was it when you saw it?" (131) "On the side of the bed" (132) "On the side of the bed - what was it resting on the bed itself or standing on the floor or what position was it in?" D's (133) "Twas between the door and the bed" and (137) "... sorta like squashed" and (141) "No - it was between the bed and the door", could have been a sufficient answer to the questions for someone conversant with the kind of inadequate housing and furnishing arrangements with which witness and accused were familiar; not so however for someone accustomed to beds and doors being in the correct' spatial relation to each other according to White middle-class norms.
The lawyer did indeed attempt to clarify and rationalise (132), (136) and (140) in terms of such White discourse: (134) "On the floor?", (136) "Or on some object?"; (138) "What was it on though - what was it resting on?"; (140) "Well was it on the floor or on a table or on a chair or the bed or?". Finally however his (142) "I see ... did you see it in any other place after that?". D's "No" terminated a particular information exchange which was both ambiguous and mystificatory in that it did not really provide any feedback to indicate that there had been a misunderstanding which was now resolved. In addition it could be interpreted as an indication on the lawyer's part that he was simply side-stepping the particular issue not because of any acknowledged limitation in his own local knowledge or any inadequacy in his mode of questioning but because of what he might have considered to be intentional or unintentional obtuseness or lack of clarity on the part of the witness.
While those questions might not seem highly significant in themselves, clearly they would have been asked with a purpose in mind which would presumably have had some connection with the inter-discourse of the defence. Insignificant or not in themselves therefore though they might seem it would have been of some importance from the point of legal exactitude that no distortion in the exchange of such information should have occurred and the fact that such distortion did occur again highlights the sensitive and central part which valid communication inevitably plays in the earlier as well as the later links in the chain of discourse leading to the court.
As was observed by an ALS official quoted later, it is important for Aboriginal people to be able to express their feelings about events concerning them. There is a notable absence however in the legal discourse surrounding most if not all law cases concerning Aboriginal people of any evidence to show that such aspects of the communication process have been in any way noted or taken into account. The interview under discussion here, as well as the previous one, is no exception. For example, in answer to (83) "Did you see LN hitting J?" DP answered (84) "I was frightened". Since at that precise time, according to a later description of the incident by LN, DP was being brutally assaulted by J, her reply was perfectly understandable. It was either misheard or ignored however by her interviewer because the next question again focused on the discursive production of the lawyer's own necessary narrative - (85) "And what did you see when they were fighting - what did you actually see?" Her (86) "I seen J on the floor that's all what I saw", while it may well have been true, did little to advance the flow of required information. In (75) the somewhat insistent "Where were you looking when L came in?" evoked the response (76) "I was busy cryin". The lawyer's businesslike (77) "You were busy crying right" highlights the massive gulf between his professional discourse and any possible recognition of such feelings as might have been expressed in his interlocutor's reply - feelings which could have originated either in the memory of what must have been a highly traumatic experience for her or in fears which may have arisen from her current interaction.
For a most important aspect of the questioning of this witness seems as if it was completely overlooked - that she was indeed frightened. In the words of L's father to whom I subsequently showed the transcript of the interview: "She's afraid of both of them. She's scared whether from JM or LN. She's scared of everything round her now".
The line of questioning required by the legal system however and professionally followed by the lawyer, albeit through no malicious intent on his part, took scant account of such subjective aspects of the case during the interview, despite some clear signs of them by the witness herself in the barely audible voice of her suppressed narrative. The emphasised now' of L's father's statement in itself however expressed an awareness on his part that whatever expectation there might have been that DP could have been a helpful witness under the right circumstances had, as a result of her unsatisfactory interview with the lawyer, been effectively rendered void.
Thus, while DP, could her fears have been somehow allayed, might well have been willing and able to contribute to this very important narrative (and indeed, given the fact that she had agreed to give evidence, it is likely that she was so willing) there was little opportunity for her, due to the closed and constrained nature of the exchanges, to do so. What emerged, rather than a form of valid communication which might have resulted in a reasonable evidential text, comparatively close to the whole truth', was a set of somewhat arbitrary statements which only occasionally and almost fortuitously coincided.
As a result firstly of what he saw as lack of support from the ALS and secondly of the unsatisfactory nature of the ALS lawyer's interview with his only witness, LN decided to take his case out of the hands of the ALS and enlist the services of a private lawyer through the support of Legal Aid. His interview with the latter was tape-recorded and transcribed (Appendix A [1 iv]).
It can be said that in this case (in contrast to the previous ones) most of the questions posed by the new lawyer facilitate his client's construction of the narrative relating to the offence of which he stands accused and for which he is to be tried by judge and jury. The particular interest of this interview resides in the fact that despite the inherent constraints of the lawyer/client interview form as such the Aboriginal client in this particular case is not only permitted but also to a considerable extent enabled (a) to tell his story in his way of telling it; (b) to tell his story according to the way in which he remembers it; (c) to recall the various pertinent details which are likely to be of assistance to his lawyer in constructing a favourable case for the defence.
Roughly sketched, the details which emerge from the interview form a credible narrative. First of all the victim and his assailant are cousins, friends and drinking partners who, even during the time between the incident which is the subject of inquiry and the court appearances of the one as accused, and the other as witness for the prosecution, continue as usual to fraternise with each other. In fact JM would prefer that the case did not go ahead, and does not want LN to be sent to jail. The discourse of the law and the inexorable machinery of the system are already in progress however.
Shortly after the attack (and, according to LN's words in a recorded conversation with myself (TR:1984), before JM had had time to sober up or recover from the drinking bout which had culminated in the incident) JM had given a statement to the police. Despite the fact that at the preliminary hearing during cross-examination JM retracted, saying he did not know what had happened that night because it had been too dark', the State (The Queen') was preparing to prosecute and this same statement would be a crucial aspect of the case. The prosecution, as it turned out, did not call any witnesses other than the victim JM himself.
In the year leading up to the incident LN and DP had been living in a de facto relationship and DP, according to the former, was pregnant. Before that time however DP had for the previous two or three years lived as his de facto with JM. Somehow, according to LN, his relationship with DP had, up to March 17, the date of the incident, been kept secret from JM. On the evening of that day however when JM came to be aware of the situation he was so angry that he physically assaulted DP in a manner which LN claimed he felt might lead to her death: (520) "... if I wouldn't 'a intervened she probably would'a been dead that night". By LN's account, JM had been wild' (262) as he approached DP, and had told LN he could pick up the pieces after' (274). LN, knowing JM's propensity for violence (101-112), and that he always carried a sharp knife (282-315), became conscious of the danger DP was in and quickly removed a machete which was in the cabin to take it outside so that JM might not use it on DP (362-388). On hearing her screams for help however he rushed back in with the machete still in his hand to find JM attacking DP (408-423). LN then proceeded to hit JM on the back with the flat side of the machete in an attempt to stop him injuring DP who was held pinioned on the bed, gripped round the throat by JM's left hand, and being at the same time choked', punched' and kneed' according to LN. JM did not stop immediately and LN continued with, as he acknowledged, pretty hard force' (512) to slam' JM on the back (494). On or about the fifth blow, JM finally fell to the floor but this time the slam' missed its intended aim and hit JM a glancing blow to the head in mistake' (484).
At this time the others, who had been outside near the fire, rushed in and disarmed LN. He had however, once JM was on the ground and DP released, already ceased to wield the machete and was holding it with the handle in his right hand and the blade in his left when it was wrenched from him. In the process his left hand was cut by the blade of the machete and the blood on it was his own according to him (527). A cousin assisted JM to his feet who then left the cabin on his own two feet' (536).
It can fairly be said that in this interview also the interviewing lawyer, no less than the lawyer in the preceding interviews, occupied a position of power and privilege vis-a-vis his Aboriginal client. Nevertheless, this did not constitute such an irreducible impediment in itself alone as to exclude the possibility of its amelioration by various means to enable valid communication to take place between himself and his client. The ways in which the lawyer's handling of the discursive event differed from those of his predecessor in this case and those of the lawyer in the RW case illustrate how he was capable of becoming an effective advocate for his client despite any social, cultural, institutional and discursive differences which may have existed between them.
Firstly, although it was necessary for the lawyer to provide certain information to the Legal Aid Service in order to fulfil the necessary requirements, he did not, in the general context of the interview, give unnecessary prominence to this task at any point. Of the over 724 utterances which made up the interview only 68 are devoted to this task, some at the beginning (1-46) and some when the interview is well advanced (345-356); (591-603).
Significantly, the sequencing of turn-taking' is evenly balanced, as is the length of time allotted each speaker to complete his utterance. There is a strong triadic structure in this interview, involving consistent and constructive supporting feedback' on the part of the interviewing lawyer. This third element varies from monosyllabic utterances such as Right', Good', Yes', Mmm', to repetition, confirmation and clarification of the responses made to questions, and affirming silences during which the lawyer quickly makes a note of his interlocutor's reply. This structure can clearly be seen in this case as a strategy for enabling a lucidity and exactness in the client's narrative which will in its turn be effective material for the lawyer to work with in court.
The lawyer in this interview also raised questions both of employment and of previous convictions (comprising 27 utterances all told, 575-603). He did not do so however until his client had first had good and sufficient opportunity to speak on relatively equal terms with him regarding the present charge - a matter of positioning and timing which, whether it came about by accident, instinct, or by conscious design, contributed to the success of the interview in very practical terms. It provided time and space before the particular point in the interview where it occurred for a relatively constraint-free construction of narrative on the part of the Aboriginal client; it comprised a mere 27 utterances in all; it did not give undue primacy to such aspects of intertextuality as had so distorted the lawyer/RW and the lawyer/DP interviews. Introduced by the boundary-marker (574) Right - And that's your story - right?' and in the context of an ongoing free flow of information, the matter of previous convictions and the potentially emotive questions of employment status (particularly so for an Aboriginal person for whom opportunities are even more limited than they are for Whites) were handled with relative tact and ease. So too were questions relating to the statement in police possession purporting to have been made by JM, a copy of which the lawyer also had, and which, in preparing his case, he would have had to take into consideration (614-639). Questions too which led to further extensions and elaborations of the core narrative (aspects of which might have to be considered in court during possible cross-questioning) were also considered - important questions such as were covered in (668-698) regarding the fact that LN had only used what seemed like sufficient and necessary force and no more against her attacker to prevent serious injury to DP.
As for the interruptions, which can be both common and distorting in many such interviews, in this interview they rarely occur. It is interesting also that, invariably, when one does occur, it is either by the lawyer for the purpose of clarification of his client's utterance as, for example (177) "So - wait a minute - Before he got his money you'd bought some also had you"; or in instances of overlap' when both speak together to complete, as it were consensually', an information unit; for example, the quadruple (436, 437, 438, 439) on page 16 following the lawyer's (435) "Were there other people there?" - LSYeh - there was about - LAll of them would've heard her screaming LSSix or seven - Yeh LYell for help. There is also what might be classified as a sub-category of the interruption which occurs in this interview more than in the others and which is really more in the nature of a supporting interjection, than an interruption' as such. There are a number of these where LN is hearing spoken, and giving assent to, those aspects of his narrative which are in the process of being appropriated and reformulated by his interviewer.
It seems appropriate here to mention again those aspects of register and discourse in the courtroom explored by Atkinson and Drew. A case may well be made to support the use of a particular type of language register in the courtroom. What is at issue however is not only the efficiency but also the justification and legitimacy of the transformations which are inevitably involved in the re-codification of the relevant source material.
Put another way, the argument is that while the letter' of the law can fairly easily be seen to be served in these transformations, the spirit' can in the process just as easily be betrayed and frequently is.
And since too, to revert to the theory of the ideal form of communication as described by Habermas, it becomes a question of aspiring to rather than necessarily always, if ever, achieving absolutely such an ideal, then what can be suggested regarding this interview is that it comes closer to that ideal than do the previous two.
Of more importance however, from the point of view of the freedom of the accused, was that this latter interview was efficient and successful in the task it set out to perform - on the day of the trial LN was vindicated and acquitted by the jury and justice was seen to be done. In other words, the skilled advocacy of his lawyer had been facilitated and made possible by the understanding talk' he had had with his client.
By contrast, the lawyer/client interview in Case A fell so far short of any acceptable criterion of valid communication that it was perhaps predictable that the end result of the advocacy prepared on the basis of such an unsatisfactory foundation should prove wanting - as indeed it proved to do, especially for the lawyer's Aboriginal client whose sense of injustice was compounded by his having to serve a prison sentence for a crime he claimed not to have committed.
Not only therefore, in other words, is valid communication desirable from the fundamentally human point of view of the ideal form of life' but, in a narrower and strictly professional legal sense, it is necessary and desirable for the very practical task of adequately defending an accused person.
Perhaps the Aboriginal Legal Service holds the key both to self-determination and to improved communication for Aboriginal people, in direct proportion I would suggest to the extent that it continues to become more truly Aboriginal both in character and composition. Aboriginal people appealing for help to the ALS invariably tend to ask to see an Aboriginal Field Officer first. This first and crucial stage is of such importance that the mediatory role demanded of the Field Officer should neither be under-rated nor side-stepped. For it is here where the case can be prepared for the specialist skills of the lawyer to pursue in court that the discourse of the Aboriginal client is first both employed and appropriated.
Aboriginal Legal Services are currently operating in all Australian States. As described by G.R. Lyons (1984) mainly since the early 1970s a keen sense of Aboriginal identity, encouraged by a growing number of White supporters, has been accompanied by an increase in the political activity of Aboriginal people. Among other things they have planned and established their own health and legal services. The first Aboriginal Legal Service was set up in the inner suburb of Redfern in Sydney in 1970 in response to complaints by Redfern Aboriginal people that they were being unfairly dealt with by the law and its representatives. Largely as the result of efforts of the Aboriginal activists of that time a group of Sydney lawyers helped to establish the Redfern Aboriginal Legal Service which served as a model for subsequent Aboriginal Legal Services in other states.
Before this time however, alongside the established legal aid schemes of the 1960s and early 1970s, there were some ways, even if they were limited, whereby some Aboriginal people's special needs could be considered. In Victoria this was described by Lyons (1984:67) as "a fragile, informal network of legal representation for Aborigines" from a few "specially committed private lawyers". A group was formed in Victoria who ran an informal legal service' for Aboriginal people - a group which included such well-known and respected figures as Colin Campbell, Professor Louis Waller, Philip Felton, Doug Nicholls, Elizabeth Eggleston and Colin Tatz. Largely through the initiative of Pastor Doug Nicholls, other eminent lawyers such as Frank Garbally gave their services free in the defence of Aboriginal people.
Lyons makes the important distinction between the circumstances of an Aboriginal client either of the Legal Aid Committee or of the Public Solicitor's office, and the Aboriginal client of one or other member of this informal network. In the case of the latter, Pastor Doug Nicholls, who would have been the person requesting assistance on behalf of the Aboriginal client in the first place, also played an important subsequent role. He acted as a bridge' between the defendant and the lawyer. This made communication easier and more valid. In the case of the former, the solicitor generally had no such go-between to call on.
Of considerable significance also is the fact that, as noted by Lyons (68) "the role played by Nicholls, that of a bridge between the defendant and the lawyer, was the model later adopted by the Field Officers working for Aboriginal Legal Services". Significant, because one of the common complaints levelled at the Western Australian Aboriginal Legal Service by some Aboriginal people in this state is that, in their opinion, this function of mediation and facilitation has been largely overtaken and superseded by one in which Field Officers are expected to act more in the capacity of lawyers themselves than as a bridge between Aboriginal people and White solicitors.
Because Aboriginal people have in most instances themselves been responsible for setting up the Aboriginal Legal Services, even if they must perforce still employ White lawyers until such time as a sufficient number of Aboriginal lawyers is available, they rightly feel that their decisions in the manner of running those services should be respected and paramount. Original expectations of ALS's were high - not only that they should provide individual assistance in individual cases but also that they should take up and pursue larger issues of justice and reform in the legal system itself. Above all other considerations their autonomy as purely Aboriginal organisations was emphasised. As noted by Lyons (1984:94 fn.), a resolution passed at the Aborigines and the Law seminar held at Monash University 12-16 July 1974 required That all white executive or committee members of Aboriginal Legal Aid organisations resign or be removed'.
While separate ALS's can claim, to a greater or lesser extent, varying degrees of success or failure regarding these original expectations, all have been faced with threats of one kind and another, from lack of adequate funding and political support to questions as to the necessity or desirability of their continued existence as separate facilities when the services of the Legal Aid Commission are available to all. Lyons's 1984 study of the Victorian Aboriginal Legal Service's genesis and struggle to survive provides an illuminating account of the difficulties encountered by a service which could perhaps lay claim to be one of the more successful as well as the more Aboriginal-oriented services in existence at present. It has an all-Aboriginal governing body and, as mentioned by Lyons, (130) some twenty to thirty Aboriginal people attend annual general meetings as well as its own staff. In general, those elected as VALS directors are closely associated with a variety of Aboriginal organisations, often as executive or council members. By virtue of their leadership qualities and experience in running Aboriginal organisations, and hence their experience in Aboriginal politics, they form a political elite. The interlocking of directorships means that an effective information network exists between various Aboriginal organisations and that some individuals have considerable influence on the activities of several organisations.
Lyons's research clearly demonstrates the need for and value of a separate legal service for Aboriginal people. Amongst the principal reasons given by Kooris for preferring a VALS' lawyer were that they were more understanding'. Lyons listed the reasons as follows: (Table IX:4):
Will fight harder and is not 'in' with the local police
Prefer a black lawyer
2% (And VALS has one)
Offers a more comprehensive service
Feel more secure
Lyons's interviewees who preferred to deal with VALS lawyers were not he said making judgements about their legal skills. They were assuming competence on the part of lawyers and then "indicating that they possessed additional desirable qualities". He quoted his interviewees as saying, for example, "They've mixed with Koories. They know how to talk to you and stuff like that"; "You feel more comfortable with them"; "if someone's coming up from VALS you know you can shake his hand, talk to him"; "you can go there and sit down and talk to them (VALS lawyers). The environment is different at a private lawyer"; "ALS lawyer cause he understand you better when you're tellin' him about things. ... have got feelin'. They like me"; "I'd stick with VALS ... they're always there for your best interest and not for their own"; "I've had two outsiders (private practitioners) - they don't seem to understand what you tell 'em".
As noted by Lyons (376-7) clients are rarely in a position to evaluate the technical skills of lawyers. He cites Rosenthal's assertion however that lawyers tend to over-estimate the role of technical proficiency in evaluating other lawyers, and asserts quite strongly that sound communication between client and lawyer is the "sine qua non" of effective legal performance:
Rosenthal's description of the lawyer's problem-solving task identifies points at which lawyer-client dialogue can assist effective representation. While clients will probably be poor judges of the lawyer's skill in drafting pleadings, conducting negotiations, researching the law and in advocacy, they will be keenly aware of whether they have got their story across, of whether they have been listened to and understood'.
Lyons suggests that, having passed the important threshhold test' of good communication with their Aboriginal clients, VALS lawyers' ability subsequently to deploy their technical skills is enhanced.
The problems inhering in the ongoing administration of the VALS are clearly outlined by Lyons in his thesis. He notes also that, due to the preponderance of White lawyers, "the precise nature of the Aboriginal control' exercised by VALS' directors and executive officer remains problematic". Nevertheless his findings clearly show that the VALS' organisational structure is viable. Elected lay community representatives - "rather than lawyers and bureaucrats" have key decision-making power.
Most importantly however, VALS meets with the overall general approval of Melbourne's Aboriginal people themselves who see it not only as an effective source of legal services but also as an unthreatening meeting place for people who can, as it was put by the Booroloola women, have a quiet talk - an understanding talk' - a place in other words where valid communication and true dialogue becomes more than a remote possibility.
Whereas the Victorian Aboriginal Legal Service was started by Aboriginal people, and continues to have a considerable proportion of Aboriginal people involved in the running and in the policy-making decisions of that organisation, the Aboriginal Legal Service in Western Australia was started by a group of caring volunteer White solicitors and developed into a professional organisation which up to the present time (1988) has been run in the main by Whites rather than by Aboriginal people. Aboriginal Field Officers were originally employed to act as a bridge between that organisation and the community it was set up to serve. Ironically this resulted in an ever-increasing flow of clients for an overworked staff of solicitors; this in turn necessitated training the Field Officers in court work to make up for a shortage of solicitors; the result, according to critics of the Service, was a weakening of the Field Officers' mediatory role leading to a serious flaw in the structure. For though it claims to be, and is seen to be, an Aboriginal organisation, it has had since its inception, and continues to have, a preponderance of White specialist professionals in key policy-making positions. Such professionals while they may be perfectly capable in their own fields are not trained in, or geared to, effective liaison with the community they endeavour to serve.
It was against a background of such aspects of the Service that, in a letter to the President of the ALS in 1982, the Aboriginal Fringedwellers of the Swan Valley voiced, among other urgent recommendations and requests, the following plea to the Service (Correspondence: Fringedwellers Association):
The Field Officers should be the ones getting all the information from the blackfellas ... that's what they should be doing, not appearing in court. They're not lawyers, that's where the White blokes come in. As soon as blackfellas are arrested, the Field Officers should be there too, getting information from the black man's point of view, information on what happened while it is still fresh in the mind of the blackfella, information from him before he starts to think to hemself - "What's the use?", and that will help him when his case comes up. The Field Officers should be doing a Field Officer's job not a lawyer's job.
"Information from the black man's point of view" however, which should be the pivot around which the law revolves can all too frequently be suppressed by means of the law's own discourse. This is not of course to say that the ALS is ineffective. In representing Aboriginal people who might not otherwise be represented it is substantially effective, particularly if its representatives can be successful in contacting their clients before they have made and signed damaging and incriminating statements. This is not always possible however, particularly in areas where there are no ALS offices. As noted by one of its Aboriginal Field Officers (TR:1988):
The harsh realities are that there are Aboriginals in prison from areas where we haven't got an office and where we can't get to them quickly - that aren't going to prison where there is an office. When we get to someone held in Canning Vale prison for example it's all over then. And what's more we're getting it all the time - coming up against statements admitting guilt - a few obscure witnesses signing statements - and then we find them here in Canning Vale. We're starting behind the eightball all the time. ... It's the process of the law that we have been disadvantaged by - the process of the law is not geared to Aboriginal people in their natural setting and their normal lifestyles whether it's urban or rural. The only way we can help is to be there on the spot at the right time. It's impossible when the police have already done all their work and they then tell us - We've got somebody in the lockup here who's been charged and they want to see you'.
Some basic practical suggestions put forward by Robert Bonson of the Western Australian ALS as being appropriate when interviewing Aboriginal clients were summarised by him as follows (Typewritten notes made available by Mr. Bonson):
1. Initially the client will want to unload his/her emotional burden. Normally this has nothing to do with the offence itself but how the client feels about events and circumstances they are in.
The client must be permitted to express him or herself if the interviewer wants to establish full rapport.
Too often an interviewer will cut the client off and only concentrate on the 'legal' aspects surrounding the offence. If this occurs our client will not offer any information. The client will then only respond to specific 'legal' questions asked. Quite often vital details on mitigation or details of a possible defence may be missed simply because the client won't tender anything.
2.The interviewer should initially ignore any alleged police statements etc. The majority of Aborigines will eventually co-operate and say anything they feel will get them out of any mentally and emotionally stressful situation such as a prolonged police interrogation. They will admit to anything at the time.
3.The interviewer should allow the clients to tell their story in full firstly. Then they can be asked why they said this and that in the alleged (police) statement. Most times they will say "They made me say that", or "they said it will be better for me if I say that."
4.If the interviewer feels the client is not fully understanding his circumstances, all attempts to get an interpreter from his or her community should be made.
5.Pains must be taken to understand the Aboriginal mentality towards the white man's legal process and the Aboriginal principles and values at all times. It must be remembered that the stress or duress comes with the initial arrest and continuously heightens during any period of incarceration. The Aboriginal client will in the end say anything to alleviate this and hopefully return to an environment he or she understands. We must take care not to add to this stress through lack of understanding of the Aboriginal perspective of the white man's power.
Current Aboriginal thinking centres on the need for the Aboriginal Legal Service to recover its original principles. This entails a gearing of the service to the expectations of the Aboriginal community rather than to the expectations of the White legal system. Aboriginal people, according to Bonson, fully understand and accept that they must work within and in conformity with the basic tenets of White law but they feel very strongly that Aboriginal principles and values must be incorporated into their legal service if it is to work effectively for them.
Essentially, Aboriginal people see the need for attitudinal as well as structural change within the Aboriginal Legal Service - a change which they would see as only being possible through the co-operation of specialist professionals having the vision to accept their interdependence with their black co-workers and possessing the flexibility to accept the necessary changes attendant upon such productive interdependence.
On the positive side, Robert Bonson of the ALS does not endorse the currently popular pessimistic predictions regarding black/white relations, especially police/Aboriginal relations. He points to many advances being made in this area such as, for example, the attendance of Aboriginal Field Officers at Police/Aboriginal Relations Committee meetings; truancy talks with Aboriginal parents; and other even more positive instances both of police and of ALS/Aboriginal Community involvement at a social and at an educational level.
Perhaps one of the questions needing to be addressed is whether any White lawyer, professionally formed in the White discursive mode is adequately prepared for the special work he will be called upon to do in the Aboriginal Legal Service. The comparatively high turnover of White solicitors in that service bears out a comment made by the same Aboriginal Field Officer, that "many solicitors come in and out who haven't the faintest idea of what they are coming into, don't like what they find, and they go". There is too, according to him, a certain resistance on the part of some specialist professionals to accept that necessary guidance from Aboriginal people which their lack of experience in intercultural communication demands.
In the current climate of enquiry surrounding troubles associated with police/Aboriginal relations the question is frequently posed in respect to police (as it was for example by Justice Muirhead during the Perth hearing of the Royal Comnmission into Black Deaths in Custody which he chaired) regarding their training in this area. Of necessity, given the overall brevity of police training, the time given to this aspect of their education is all too brief and inadequate. Given however that a lawyer's training takes at least six years, it does not seem unreasonable to suggest that some part of their training for those among them who may expect to be involved in intercultural communication should be devoted to this important skill.
This is not in any way to underestimate, or to suggest that Aboriginal people do not appreciate, the very genuine willingness to help which attracts professional White people to join the Aboriginal Legal Service. In fact there is no doubt that many forfeit more lucrative employment elsewhere in order to do this. It would seem both reasonable and desirable however to expect that lawyers prepared to offer their services should also be prepared in some way for the very special demands which are likely to be made on their communicative skills in this special area. And it is here of course that their best teachers will be Aboriginal people themselves.
In addition to this, there is an uneasy philosophical divide between some who would wish the service to restrict itself to the hands on' approach of assistance for Aboriginal people brought before the courts, and others who would wish to see this activity as one, albeit an important one, in a greater complex involving increased activity in civil' areas of law relating to Aboriginal people and their varying needs. This latter position, which would give equal prominence to matters of a civil nature has been gaining considerable ground in recent years as an increasing number of successes by Aboriginal associations have been recorded. For as insisted by Tatz (1984:103-137) while the Australian political system has little or nothing to offer Aboriginal people Australian law and legal process has. Tatz asserts (and in this he is supported by many other lawyers concerned with Aboriginal issues - see for example Lyons 1983:137-159 inter alia) that Aboriginal people now, as never before, may be able to win legally what they cannot win politically. In other words, White law and White legal process, effectively employed, may become a more successful means of establishing and recovering rights than conventional politics. The part which the ALS will be called upon to play in this area is, naturally, of paramount importance and the creative challenges open to their members and lawyers virtually unlimited.
Commissioner Muirhead (IR 4.6:22) is strong in his defence of, and support for, the ALS:
Aborigines with their vulnerability in the law, and beyond all others, require the assistance of readily available and appropriate legal services throughout this country, a role which has been assumed by the Aboriginal Legal Services (ALS) for some years, a service over which Aborigines have a measure of control. ... Because of its diversity, because of the availability of Aboriginal field officers, ALS have succeeded, at times under great difficulties, in providing a measure of protection and security to Aborigines. From time to time the ALS are the subject of criticism, its managers, solicitors and other staff, understandably from time to time outspoken, are positively distrusted in some circles. Suggestions are made that separately funded bodies serving the Aboriginal people are unnecessary and perhaps too expensive. I emphatically disagree. It is vital that the ALS be fostered, that their capacities be widened rather than restricted. ... Views may differ, but I have no doubt that ALS and the efforts of solicitors, counsel and staff in their employ, including ALS field officers are a valuable aid for the courts as well as the people they assist.
Perhaps 'appropriate' is the key word in the Commissioner's recommendation here. Lawyers, concerned as they are in asserting and disputing possible worlds, need above all else to acquire the appropriate skills in interaction and communicative behaviour if they are to be successful in the truly valid sense of that word. For not only would this be to the advantage of their individual Aboriginal clients but, in a broader sense, it would also strengthen the effectiveness of that same White law and legal process to which Aboriginal people must ultimately and inevitably appeal in their continuing struggle to survive and to progress as a people in their own right.
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