Silence in Court

Teresa Ashforth

Chapter Six: Writing the text

"Because we are Nyungars"
The Speaking Subject
(i) The Statement
(ii) The Record of Interview
(iii) The 'verbal'
(iv) The Proof of 'Evidence'
Appealing to the Law - Two Cases
(i) Police/Aboriginal Interview - Interviewee as Complainant
(ii) Police/Aboriginal Interview - Interviewee as Witness
Law, Discourse and the Social Whole

"Because we are Nyungars"

A hearing of a case in court can be seen as the discursive construction of a text - sometimes of course a text comprising more than one appearance in court by the participants, depending upon the length of time taken to satisfy all the systemic legal requirements. The raw material for such a text can be seen to comprise preparation on the part both of the prosecution and of the defence in the form of discursively-produced sub-texts which already to a certain extent determine the likely outcome of the case.

In the discursive production of these sub-texts, as for example in the lawyer/Aboriginal interactions discussed earlier, various other ancillary sub-texts are called into play. In looking at the concept of text as evidence the question has to be asked as to why in the construction of the final determining text one sub-text should be privileged over another (as, for example, the text of the police statement or record of interview). And if in fact such privileging is seen to arise on the basis of the kind of language used in one text rather than in another, while this might be an accepted principle at the level of prescribed forms for particular purposes (in effect a self-legitimating process) it might at the same time at another level be seen as a dubious basis for evidence. This same principle can be applied as much to the initial sub-text in the chain of discourse as it can to the final determining text of the courtroom.

I think it can be seen that in fitting the raw remembered stuff of diverse past events (in which people of flesh and blood have taken part, sometimes a violent part either as victim or perpetrator of a crime) onto a generic framework purporting to be an objective dispassionate factual' one, something happens. Language is reduced to a standard formula which has the capacity to conceal as much or more than it reveals. It can be manipulated strategically so that it can do much more than it can say. And lest it should be thought that since such manipulation, managed properly, should advantage the defence as much as the prosecution, thereby equalising the scale of justice, such is certainly not the case in respect to Aboriginal people generally. For from the time they are first required to speak about that which concerns them (even while at the same time being assured that they need not do so) the form of their inscription assumes a predictable pattern which is faithfully reflected in those constructed texts. The fact that they themselves play a part in the production of those texts, whether it be a willing or in any sense a coerced one confers on those very texts the legitimation which the law itself requires. And yet, as previously suggested, conclusions based on these factors become a question of probability. It would be naive to suggest that it is possible to prove that all Aboriginal people are unjustly treated or unjustly convicted. It has to be said in their regard however that the possibilities for unjust conviction are for them numerous and ever present in a system which by its structure lends itself to such an outcome. Aboriginal people themselves do not need to be persuaded that such is the case. As observed by Ivan Jarran, for some years associated with the Aboriginal Legal Service both as President and in other capacities (TR:1988):

Yeh - well what happens is that the police - they make the statement out and they make you sign it. They write the statement out themselves Then all you do is sign it. Oh yeh they ask you questions but they just do the writing or the typing themselves. I mean in actual fact the true statement should be in writing in the hand of the person himself but of course it's not. It's accepted as long as he's got his signatutre there. And maybe nine times out of ten he couldn't read that bloke's writing anyway. He's probably never said half those things. Or the police says Sign this here now and you can go'. Of course he wants to go so he signs it. Many's the time I've come across statements that have been different from anything that could have been said. Many's the time, yes. Then the prosecuting sergeant gets up there in court and says this is the statement he's given'. He'll read it out to thejudge and that's it and that's the weakest thing and yet it's the vital thing. And it's very rarely thrown out - very rarely. Video or tape-recording should happen. It should be a right of every individual. But they don't want Aboriginal people to have rights.

Such perceptions on the part of Aboriginal people simply cannot be dismissed as being without foundation since they are constructed from the raw material of their world and lived experiences. They reflect the underlying fear and distrust with which they approach most encounters between themselves and the police. They determine their responses even to legitimate and routine requests by the police for assistance in the latter's enquiries. As observed by an official of the Aboriginal Legal Service: "We get a lot of people ringing in and saying - Look, the police are looking for us, we want to give ourselves up but we're terrified'".

In an attempt to offer some protection the ALS at times provides its clients with a letter to be signed and given to the police saying:

we are willing to help you with your enquiries, but we are not making any statements and we have informed the Legal Service we are not going to make any statements. Any statements said to have been made by us will be challenged strongly in court.

All too few Aboriginal people however are fortunate enough even to have this limited safeguard built into their encounters with their questioners. Elderly grandmother (Isobel) Bropho has lived through many and long remembered years of vicarious experiences of incidents involving her mob' (TR:1986):

They're afraid of the police because they do bad things to them - belt them up. They belt these boys up all the time in the lock-up there. They're handcuffed and they belt them up, and then they get time as well. The magistrates don't listen to them because they're black, because they're Nyungars. They think they're no good, think they're liars.

Her son Robert displays the same strong conviction regarding the to him predictable patterning of the events leading to the court and the verdict (TR:1985):

That's the way they work when they approach anybody. If it's a police officer, if it's two, or if it's a policeman in uniform or if it's two plainclothes detectives. The way they work it in their minds is when they approach you with some complaint it's like two judges coming to you. And they make up their minds there and then on the spot with what you tell them ... If you say, Well I don't know nothing about it' and you keep your mouth shut - but if you keep talking on then through that conversation they pick up points here and there and if they feel in their minds there's a small possibility ... they can arrest you on suspicion, take you to the police station and then they'll give you a roasting in that room - questioning you ... I think it's wrong, the police is fully aware that young persons shouldn't give statements if they don't want to so why does the police pressurise them? Why does the government allow this sort of thing to go on? ... An Aboriginal is arrested for an offence and he's taken to the police station and to some extent when he's questioned there and a statement's given you can rest assured that the questions that are aimed at him by the constable or the detective in charge of the enquiries, asked of the Aboriginal person, he doesn't understand it that's for sure. As soon as the Aboriginal Legal Service hears about this then the police say: Oh he's made a statement', or she's made a statement' and then the Aboriginal Legal Service Field Officer or lawyer or whatever gets the statement then he shows it to the person that is charged ... I think the law says that a person (is) entitled to change the statement but I tend to feel that Aboriginal people don't know this and they learn to look for more assistance from a solicitor whether it be from the Aboriginal Legal Service or whatever. The thing that's got to be understood is if you're representing the law you must represent the law in a proper way - not just grab hold of somebody and Come ere Sambo - you're under arrest you black so-and-so' and all this sort of thing and give you a sock in the guts. ... We have not got to the stage yet where these members of the police force has been schooled properly to approach Aboriginal people.

Granny's despairing "If they tell on em they don't believe them. They do all sorta things to em but nobody listens to what they gotta say ... cos they reckon that it's not true - see they're black people - Nyungars - nobody listens to them" reflects a commonly-felt Nyungar sentiment regarding any acknowledgement of their wrong treatment. This is echoed by her son in his appeal to the Human Rights Commission in 1984 on behalf of the Fringedwellers of the Swan Valley (TR:1984):

What we are concerned about is if the police are going to continue on as they always have in the past we can't seem to come to grips with it or to find a solution which will stop these incidents occurring as they did in the past. We feel and believe we're encountering experiences with police which will continue on until such time until we can find, work out, a solution where this sort of treatment is stamped out or stopped or whatever. I feel that the problem I think and realise is communication - communicating with one another. I mean we can sit and cry over it - it's been with us so long and we write letters from the bottom of the ladder up to the top and we get answers back from the top saying that the matter is being investigated - and get letters back saying that our complaints are not worthy of the ability of the people at the top and we fail in these avenues and we feel that there's nowhere else to turn to ...

The current negative Aboriginal reactions to the investigations, deliberations and reports of the Commission of Enquiry into Black Deaths in Custody have their roots in such deep-seated and long-established patterns of response which are difficult to overcome.

Bi-dialectal Aboriginal scholar and activist Vic Hunter demonstrates a wry and somewhat bitter sense of parody in his cameo of a black/white court hearing, concurrently tilting both at the quality of White laughter and the measure of White justice (Malcolm TR:1983):

This woman now she bin go court - she bin turning up in court now. That man bin come out with long hair up to ere. Then that sergeant he bin tell her now - he bin say to that woman What your name'? That woman bin tellum his name. He bin ask that woman what your address?' That woman tellum dis the dress I bin have one'. And then that judge bin tellum - that sergeant been tellum that judge what that woman been in court for. And that judge tellum Well how you plead?' She bin tellum that judge I bin bleed from my head where that man bin hit me'. An' he tellum, that judge been tellum then Well I fine you five dollars'. She bin tell the judge Oh thank you judge - because I bin lose that money last week'.

There is little humour however to be found in Aboriginal accounts of the discursive situations which form the bases for the construction of their crimes', for their many court appearances, and for their all-too-frequent convictions.

In fact, Nyungars frequently and insistently claim that they are bullied and coerced both into admitting things which are not true and into signing statements which do not reflect reality as they perceive it. My task has not been to verify or disprove such claims. I think it important to record them however.

An Aboriginal observer who affirms that he has had both personal and vicarious experience of many encounters with police in such situations needs no convincing in this regard. In his words (TR:1984):

The one thing that's in the Aboriginal's mind when he's arrested and when he's in that room is - I better answer this dominating person's questions properly otherwise I'm going to get a bash in the mouth'. That's the Aboriginal person or persons who's been questioned in that police station or police office - room or whatever. Yes - it's passed on - Aboriginal people will always think along these lines because they know that the law that's in existence today doesn't hold too much water where the Aboriginal person is concerned because through their passing on through their generations they know that the ten Commandments has been broken in the beginning and is still being broken now although it's behind closed doors by the lawkeepers themselves and the White people that's governing the country. And that is the one thing that scares an Aboriginal person or persons it's that threat of violence: If you don't talk straight to me - did you steal that car? - I'll thump you in the mouth'. What are the choices? Is the Aboriginal person - be it teenager or adult sitting there - what's he going to do? Is he going to say - No I didn't do this and that' because even if he didn't do it, even if he did do it, just he'll still say it. But no person should be allowed to have that sort of thing done to them - this violent threats. I get sick and tired of hearing my sons and other people telling me.

The suggestion here, repeated elsewhere, is that for an Aboriginal suspect to answer properly' is to give not so much the 'true' answer as the expected answer, true or false.

Inactivity, apathy or even scepticism on the part of those among us with the capacity to challenge or to change such undesirable practices, even though we neither take part in nor ultimately condone them, is simply a disguised form of the activity of perpetuating things as they are and inculpates us whether we wish it or not.

The Speaking Subject

As observed by Bob Hodge (1989:101)

Texts and discursive practices typically make claims about their own transformational histories, indicating which texts and statements form the genealogical chains that constitute them. The task of recovering all these missing texts is usually impossible. However, when some are available ... transformational analysts should seize on them gratefully, not because they should believe such claims but because this is the only way to investigate them critically, and thus reconstruct the typical forms of these chains and understand the 'normal' progress of this transformational work.

The sensitivity of the WA Police Force towards any scrutiny of the discursive practices involved in the Chain of Discourse in which Aboriginal people in this State become involved seems acute. Responses to my requests to the Police Department in Western Australia that I be given access to recorded interviews between police and Aboriginal suspects for the purposes of my research could be broadly described as varying between incredulity (including a suggestion from one officer, at the time - 1984 - in charge of 'communication', that I change my topic), and polite but firm refusal. High priority among the reasons given for this refusal was accorded to the principle of the rights of the accused to his or her privacy' (even though I had made it clear that no names or dates were of interest to me and would not be needed or used, and that I left the choice of material to the full discretion of the Police Department itself). Another objection to my request was founded on the principle that the material concerned could be sub judice' (an objection which, given the lengthy period I was prepared to devote to this research, I could not consider to be a valid one).

The final and insurmountable objection was based on what was unofficially described to me at that time, in conversation with an officer of the Department, as a recently-formulated policy of non involvement, or non-co-operation, with academics'. The reasons for this caution were not exactly specified however. Repeated approaches on my part over a period of five or six years were met on each occasion by replies similar in substance and tenor to the reply to my final approach, made in April 1987 and answered more than a month later (May 14, 1987) as follows by the then Acting Commissioner of Police:

In reply to your letter of April 8, 1987 concerning your request to secure any actual tape recordings of interviews between police and Aboriginal suspects, I advise that I cannot accede to your request. It has not been the practice for members of my Police Force to tape record interviews with suspects and at present the only format of recording such interviews is in note or written form. Should a tape recording of a Police/suspect interview become available due to a change in current policy it is unlikely such a tape could be made available to a third party due to reasons of consent, sub-judice, confidentiality and copyright.

Given that the task of totally recovering all the texts in the 'genealogical chain' constituting the transformational history of any particular text is difficult or impossible anyway such a blanket refusal was not helpful. Such texts as are available however, even if they do not necessarily constitute the total picture or the whole truth' still yield evidence of a type of distortion and deformation which, even in the absence of what could be considered, and frequently is, a deliberate breach of communicative ethics, can so easily lead to serious legal consequences.

I have been fortunate enough, with the kind co-operation of some police officers, some lawyers and many Aboriginal people, to have acquired a sufficient number of typical texts to enable me to make a judicious' selection. Of these I shall indicate the particular genre to which each belongs. By scrutinising some of the more obvious examples of miscommunication occurring within them I shall endeavour to show some of the distortions to which they are particularly liable by virtue alone of their generic properties. Different kinds of discourse and the demands of an institutional site for which and by which they are designed can produce a uniformity with an appearance of correctness and truth' which successfully conceals the many intentional or unintentional tamperings to which they have been subjected. I shall endeavour to argue that even a paralogy' which is the outcome of a consensus based on valid dialogic communication would by any standards by contrast be preferable.

It could be argued that, short of tape-recording and/or video recording each interview which takes place between police officers and suspect or witness (a practice energetically resisted by police in Western Australia), this present system is the most feasible, economical and least time consuming one if the work is to be done and the business of the law is to proceed along its expected course. Such arguments tend to obscure or conceal serious weaknesses however. One of the main objections raised against them is that, frequently, the resultant documents do not truthfully convey the meaning or the intentions of their purported authors.

Telling lies, whether they be whoppers' or only little lies' is not the only way in which facts and events can be misrepresented. There are more sophisticated ways however in which the truth', whether wittingly or unwittingly, may be perverted and justice denied. Both the conditions under which these documents are customarily constructed, I would suggest, and the manner of their construction, are deserving of a closer scrutiny than they are customarily accorded. I hope therefore that by questioning some of these practices and illustrating them by examples I may be successful in helping to illustrate the objections so frequently voiced by Aboriginal people in their regard.

When the police are investigating a disturbance of the peace' or a breach of the law they can either request' a suspect or witness to accompany them to the police station to help them in their enquiries, or, if they have sufficient grounds for believing someone to be guilty of a particular offence they can arrest that person and take him or her to the station for further questioning and possible detention. Alternatively, they may question people connected with the incident on the spot and record the details of such questions and answers in a notebook. Whichever course of action they adopt however they are responsible for producing a written document claiming to be a true representation of what occurred and which may be, and frequently is, tendered as evidence in court. This document can be significant in determining the outcome of the case in which it plays a part.

The written documents produced by police officers and lawyers along the Chain of Discourse in which an accused, an accomplice, or a witness becomes involved belong to specific genres of text. Firstly, there is the statement' or confession which usually purports to be volunteered by the witness or suspect and given of his or her own volition in the context of an interview with police and which is usually, though not invariably, signed by that witness or suspect. In practice, this is usually a selective and judicious summary on the part of the interviewing police officer of what he or she considers to be the significant points covered in the interview in question and constructed in accordance with the demands of a particular genre of text. Secondly, there is the Record of Interview - a text purporting to be a written reproduction of the verbal exchange between police and suspect or witness which is sometimes signed by the person involved but sometimes not. It, too, is characterised by its own particular register. Thirdly, there is the notebook verbal' from which the police simply recite in court a prepared question-and-answer type text purporting to be a verbatim account of the encounter with the accused and which implicates the person charged - again a text with its own individual characteristics.

The discursive processes preceding the production of texts such as the above could be said to incorporate what Goodrich (1987:79) described as preconstructed' patterns of meaning. These patterns of meaning according to Goodrich react upon the linguistic structure. One could hypothesise that the complex discursive processes which have already taken place in the Chain of Discourse in which the purported Aboriginal authors of signed or unsigned statements have been involved may well have comprised discrete patterns of meaning. Firstly there is the pure and primary untold story' - the Ur text known only to the participants in the original event and which can be suppressed or distorted by means of a variety of possible inhibitory factors, some examples of which have been tentatively explored earlier in this thesis. At the opposite end of the spectrum there is the very real possibility of a pre-conceived rough outline of an account based on stereotypical impressions and expectations which, again as previously explored, contribute in no small measure to the meaning - making mechanisms employed both by police officers and by Aboriginal people in their dealings with each other. In between there is a range of possibilities for a variety of other patterns of meaning - depending on the relationship established between participants in the communicative encounter which provides the raw material for the actual text produced. In an ideal Habermasian world of course such a variety of competing narratives would be allowed such unrestricted play as could conceivably result in a true' consensus the linguistic construction of which could justly assist in the determination of the case. As we are reminded by Goodrich however (1987:79) "Linguistic structure itself encodes inequalities of power and is also instrumental in enforcing them".

In other words, the asymmetrical agonism typically experienced in the resolution of such conflicting patterns of meaning derives on the one hand from a powerful institutional site represented by police officer or lawyer and on the other from a relatively powerless (not only in the particular situation but also in the wider social sphere) subject of that institution. It is also constrained by an intradiscursive practice weighted strongly towards the production of an appropriate as opposed to a valid text. Paradoxically, such a text relies for its legitimacy on, and is symbolically validated by, the voice of its purported author.

The syntactic features of intradiscourse according to Goodrich, raise problems of a semantic nature which he describes as an opposition between "articulation" and "preconstruction". "Articulation" (as in the wording of the text of the statement for example) is, he says, to be understood as a primarily discursive (intra-linguistic) process but as one which ... presupposes an anterior referential (extra-textual/extra-linguistic) axis of language - that of the pregiven or preconstructed character of the items which the given text actually chooses (seldom fortuitously) to link.

The relationship between articulation and preconstruction is best viewed, according to Goodrich, "as one of potential opposition or disjunction rather than one of straightforward resemblance", and meaning should more correctly be viewed "as socio historical', as the end-product or effect of the relationships and organisational form of language use within and between particular discursive formations".

Bakhtin's claim from The Dialogic Imagination is cited by Goodrich (156-159) to illustrate his point:

Every discourse has its own selfish and biased proprietor: there are no words with meanings shared by all, no words belonging to no-one ... Who speaks and under what conditions they speak: this is what determines the word's actual meaning. All direct meanings and direct expressions are false.

In isolating the "imperative" character of the legal system and of its discourse, which he calls "the most basic and in many ways most obvious facet of legal institutionalisation", Goodrich (1987:174) joins forces with Poulantzos who affirms that:

in its most explicit and fundamental expression, law is the monopoly and codification of authorised and public violence. Violence and terror are a primary feature of the legal institution and of the social experience of it.

He cites Poulantzos as having said that state monopolised physical violence:

permanently underlies the techniques of power and the mechanisms of consent: it is inscribed in the web of disciplinary and ideological devices, and even when not directly exercised it shapes the materiality of the social body upon which domination is brought to bear.

When Aboriginal people speak of their social experience of the law what they have to say comes closer to the Poulantzos evocation of law as violence than it does to any other sanitised and privileged interpretations within the self-referentiality of legal discourse itself. They also clearly recognise, like Poulantzos and others, that it is in the white man's' capacity to name' that the justification for the violence towards them resides. As noted by IJ (TR:1988):

They've got a name for everything these white people and of course the police supports that. I mean they say, if an Aboriginal starts playing up' because he feels that he's in his right - the sort of thing that happens is that he's thrown in jail and then he's asked questions the next day. The coppers don't come down and say Well look - what's happened - what did you do and what did you do?' As soon as the publican rings the police he's there and he chucks the Aboriginal in the wagon and he's gone. ... I just don't know where to look for that thing they call justice.

Such questions are rarely permitted to arise however, because of the way in which the law constructs the individual. For the law, as described by Goodrich (1987:180):

makes the individual according to the model of sovereign discourse, namely as a similarly formal or artificial unity; as an independent, responsible and active speaking subject. ... The ethical image of speaking person or of a unitary and unique subjectivity pervades substantive legal discourse; legal enquiry and evaluation devolve around fundamental categories of speaking person as intentional author, as conscience (innocence, guilt and mens rea of the inner word), repentance (free admission or voluntary confession of wrongdoing), truth and falsehood, as well as the capacity of being liable and not liable etc.

"The discourse of the ethical and legal human being", says Goodrich, "carries an inordinate weight within the construction of legal interdiscourse". Aboriginal people would agree, reducing this more elaborate theoretical enunciation to a briefer yet equally expressive metaphor in their suggestion that the law's discursive practices "put words in our mouths".

Such reflections by Goodrich as a critical lawyer fittingly illuminate the predicament of the individual subject once he or she becomes involved in the discursive formation of the law. The severity of this predicament may vary in degree according to the role occupied by that individual, i.e. whether it be as suspect being interviewed by police, a witness being interviewed by police, a victim being interviewed by police or whether it be suspect, victim or witness being interviewed by a lawyer or Field Officer. The nature of the predicament in each case remains the same however in that the subject's discourse is, almost inevitably, suppressed, emasculated, or perverted in its appropriation by the speaking voice and authorship of the discourse of the interrogator/interviewer. The term violence' therefore, as used by Poulantzos, is not too strong a term to use in such a context, for, whether or not physical violence is used by police at any time (and certainly there is no suggestion that it is used by lawyers) the extent of some of the systemic transformations suffered by the language of the subject during the normal conduct of such communicative interactions and processes could indeed be classed as violent. There is a sense in which that type of violence could be related more to the concept of violation, given that the thread of discourse between any two people endeavouring to come to a true understanding of the matters between them can be of such fragility and violability.

To return therefore to Bakhtin's concept of the mutuality of any utterance in speech as being shaped as much by the addressee as it is by the one who actually speaks, it is not difficult to see how an interlocutor who is dominant is in a position to violate the subject's discourse both primarily in the latter's utterances and secondarily and finally by means of a written text purporting to be a reproduction of those utterances.

This thesis argues therefore that it is not only a matter of simple exchange of meaning that is at stake, although this certainly is important in all such encounters, but rather the matter of a model of ideal communiction as it has been outlined by Habermas either being observed or being breached: a model where moral as well as linguistic demands are made upon both participants. In other words, a measure must be taken against the good' as well as against the true'. It is not unreasonable I suggest to consider such a model as being particularly appropriate in a situation where law purports and claims to mete out justice.

(i) The Statement

The document known as the statement purports to be a written declaration by the accused or by the witness accurately and truthfully describing the event or events under investigation. But although the voice' in the statement is that of the witness or of the accused who is purportedly the speaker of what is said and written s/he does not in fact actually write or type the words. The interviewing police officer does this and the accused or witness is then asked to read it aloud and to attest to its veracity by signing it. It is also signed and witnessed by the police officer conducting the interview, and, when this is considered necessary as an added imprimatur, also by a fellow officer.

The vitality' of the statement, referred to by Ivan Jarran, could be said to reside in what Goodrich (1987:151) calls "the imaginary conception of an individual ego or author as the sole explanation of the form the text takes". In the case of the signed statement this conception could be said to be grounded in three main effects: firstly, the process of naming or identification and the use of the first person pronoun "I" at the commencement of each statement; secondly, the stylistic aspect of cohesion - that aspect of linguistic structuring which, while it can be defined at various levels, has as its overall and central effect that, as noted by Goodrich (1987:148), "the stable identity of the referents - what is at issue - comes to be guaranteed in the thread of discourse" - in other words, it confers a certain aspect of autonomy and legitimacy on the text; thirdly, the powerful effect of the purported author's own signature. The fact that this third effect is sometimes substituted for by the collaborative evidence of police officers does not always or necessarily weaken it. Yet, on examination, this conception of an individual ego or author of the statement, a conception upon which the evidence' against the accused is virtually built, is seen to be a false one. The statement, in effect, postulates a transparent referentiality of the written text to particular events in the world which it purports to describe. In doing so however, it manages at the same time to sidestep and ignore all the many intertextual and inter-discursive processes involved in the means of the text's production: processes many of which if taken into account could conceivably render dubious or invalid those very propositions upon which many a conviction is secured.

Goodrich (1987:144-147) refers to the social authorship' of linguistic practices and suggests that it is necessary to describe "the specific institutional site and interrelationships from which the authorised subject or speaker makes his discourse, and from which the discourse derives its ... specific objects and instruments of verification". Immediately the notion of the authorship of the statement' as that of the person who signs it dissolves into the realisation that the real' author is indeed the institutionally-authorised speaker in the person of the police officer. He or she it is who is responsible for the precise articulation of what is stated'. Goodrich (p.144) suggests that the discursive formation is best defined in terms of three aspects or levels:

those of its material basis, or institutionalisation; its self-articulation or internal ordering, intradiscourse, and its relation to other discourses and discursive formations, its interdiscourse"

Goodrich (p.146) defines the self-authorisation of a discourse as "its delimitation of its objects, its elaboration of the rules and procedures appropriate to recognition or knowledge of such objects, and its privileging of specific terminologies, values and meanings in its systematisation".

While it need not be argued here that the self-authorisation', manifest regularities', and transparencies of meaning' which are such distinguishing features of the statement' as genre should necessarily always or inevitably invalidate or render suspect its meaning in toto, it is nevertheless important to recognise the problematics inherent in unquestioningly accepting it as "the whole truth". Perhaps most importantly it should be recognised and remembered that it is not the actual speaking voice of its implied author, nor is it necessarily the truth of what he or she said or intended to say.

Goodrich (1987:149) describes intradiscourse as "an intentionally-determined form of syntactic organisation" and goes on to incorporate Pecheux's argument: that the syntactic features of intradiscourse imply the active subjectivity which has chosen the specific forms of selection and combination that render the text "coherent and fluent".

Pecheux (cited Goodrich p.147) describes intradiscourse as:

the operation of discourse with respect to itself - what I am saying now, in relation to what I have said before, and what I shall say afterwards, i.e., the set of co-reference phenomena that secure what can be called the thread of discourse' as the discourse of a subject.

Verisimilitude is what is largely striven for and typically achieved in the textual construction of the statement as genre. The statement genre is characterised by explicit linguistic forms which have the effect of presenting what appears to be an uncomplicated and objective version of the real truth of specific occurrences. The way this is achieved is by the simple selection and combination of information units' into an orderly and unified whole, and by the exclusion as much as possible of forms of modality, or what Halliday (1985:319-345) terms metaphorical modes of expression'; or indeed of any form of language which relies on meta linguistic aspects such as, for example, intonation, for the expression of its meaning. Since most forms of spoken language rely heavily on metaphor and intonation for meaning making and most forms of written language (with the exception of the various forms of specialist/technical language) are metaphorical in character also, this sets the statement in a class of its own and confers on it a well-nigh unassailable status of exactitude.

In order however to bring this discourse to life as text and to make it acceptable and credible as discourse and as evidence it requires what Halliday and Hasan describe as cohesion. Halliday and Hasan (1980:298-302) discuss the general meaning of cohesion. "Cohesion", they say, (p.299) expresses the continuity that exists between one part of the text and another.

The continuity that is provided by cohesion consists ... in expressing at each stage in the discourse the points of contact with what has gone before ... some circumstance, some relevant feature or some thread of argument persists from one moment to another in the semantic process, as the meanings unfold.

The 'circumstance' in the statement as text is the event or events it purports to describe and to which it constantly refers, as noted above, in unambiguous and unmodalised language. The 'relevant feature' or 'thread of argument', which is sustained from moment to moment in the semantic process, is the admitted involvement of the speaking subject of that statement in that circumstance or event.

Cohesion provides for the text, which is a semantic unit, the sort of continuity which is achieved in units at the grammatical level (the sentence, the clause and so on) by grammatical structure. As noted by Halliday and Hasan (1980:303):

Like everything else in the semantic system, cohesive relations are realised through the lexicogrammar by the selection of structures, and of lexical items in structural roles. ... But the cohesive relations themselves are relations in meaning, and the continuity which they bring about is a semantic continuity. ... This is what makes it possible for cohesive patterns to play the part they do in the processing of text by a reader or listener, not merely signalling the presence and extent of text but actually enabling him to interpret it and determining how he does it.

Herein perhaps resides the most fundamental significance of cohesion in terms of the statement as genre: that it determines how the discourse is interpreted. It is the continuity provided by cohesion that enables the reader or listener to supply all the missing pieces, all the components of the picture which are not present in the text but are necessary to its interpretation. And it is particularly important in the analysis of the statement as genre to recognise that the interpreted meaning is not only based on the text itself but is also influenced to a considerable extent by the context of situation' or semiotic space within which that interpretation takes place.

The context bearing on the interpretation of the text in the court is firmly grounded in the formal expectation, firstly, that the statement is true and correct, and, secondly, that it is the whole' truth. These combined assumptions favour a literal interpretation of its content which has already been well established by the processes described above. They take no account whatsoever of the specific effects of any of the interdiscursive forces forming the discursive chains that act through police as agents and gatekeepers on the way to the court, forces which could be described as a typical alignment of agents, purposes and contexts heading towards an always already pre-defined goal of discipline and punishment.

The series of signed statements by Aboriginal people included in Appendix (B [1/i-vi]) are generically typical. They show some of the elementary forms of cohesion described by Halliday and Hasan as being repetitively present to a degree which would be unusual in any other form of narrative.

The status of such signed statements is considerable in terms of the court hearing. Not only do they bear the signature of their purported authors but also, usually, the additional collaboration of not just one but two recognised representatives of White law - the interviewing police officer and a colleague. And because it is customary to present such statements in a manner which accords with court convention it inevitably follows that there is a certain undefined scale of permissable distortions to which they may be subjected during the course of their transformations.

The texts exemplify what Kress and Hodge (1979:19) describe as a "systematic use of linguistic forms". There is a high predominance of what Kress and Hodge describe as the transactive, and to a lesser extent the non-transactive model of causality, jointly referred to as actionals', a model which is about actions with causes and effects. Commonly, there is an actor, a verbal process, and an affected entity. As noted by Kress and Hodge - "If the writer is concerned with clearly establishing causes and causal relations, then the transactive is the best model for the job".

In the transactive model, say Kress and Hodge (1978:9):

there is an actor, the verbal process, and an affected entity. Thus the source of the process is indicated in the actor, who is presented as the causer of the process; and the entity which is affected by the process is equally indicated, actor and affected being linked by the verbal process.

In the 'confessional' context of the statement as text this could be represented by the simple equation: transactive = responsibility = guilt (for the agent).

And while in the non-transactive' actional there is minimally one entity related to a process - for example, Statement (v) (46) "The Torana broke down"; Statement (v) (6-8) "We cut our way out of ..."; and Statement (i) (15) "I used some bolt cutters"; its significance in the context of the statement is that, as pointed out by Kress and Hodge (1978:43):

the indeterminacy of the non-transactive is an important property. It has the immediacy of a basic model without requiring an understanding on the part of the speaker or hearer of the causality involved. It may even seem more immediate, more palpable, and hence unarguable.

While the predominant syntactic form of the statement, i.e. the transactive and non-transactive actionals, functions primarily thus it also in turn lends itself persuasively to the textuality', cohesion' or intradiscursivity' of the text as a further assurance of its acceptability.

As each statement therefore is constructed according to a system of grammatical markers which excludes any which might make it ambiguous the result is that, as an instrumental strategic product, it allows for a single interpretation only. Such exclusions are purposeful exclusions of some consequence. For as noted by Kress and Hodge:

Reducing the complexity of an argument and limiting the terms which it can contain is a drastic intervention. Showing less means someone else seeing less, and seeing less means thinking less.

The witness's signed statement employs a preponderance of the third person form, about which Kress and Hodge have to say:

The detachment from a particular person gives the utterance an impersonal force. First and second person forms, like determiners, limit the scope of the utterance. The third-person form implies a neutral transmitter and it is the form in which to present a statement as authoritative.

Authority here then is grounded not only in the signature of the witness him or herself and a police officer or magistrate but also in the intradiscursive grammatical markers of the text itself. Briefly, there is a marked departure from the normal speech patterns of Aboriginal people and an incorporation of the forms of the genre over which the interviewer/writer has control and by which s/he commands both the form, and by extension the content, of the resultant text.

In the course of their work police officers are themselves sometimes called as witnesses. They prepare their own statements which also conform to the required style for the genre. The police statements (Appendix B [4/i-v]) are typical. Certain regularities of structure can be observed; particular and more formal' choices of lexical and phrasal items are made; and, in addition, the illocutionary acts of declaring' and corroborating' are foregrounded. For example, statements can be expected to have as their opening marker the adverbial phrase "as a result of information received"; "due to information received by"; "as a result of a conversation with"; "as a result of a message received".

The police officer writer in the case of his or her statement, while occupying a somewhat ambiguous role as author could, clearly, be said to have an interest in establishing causes and causal relations and so it is not surprising that the best model will have been chosen for this job. Kress and Hodge's claim that when a systematic theory, an ideology, is guiding the use of language they would expect systematic use of linguistic forms to be evident. They are here. The implausibility of their representation as being the actual words of the implied speaker is overtaken and superseded by their correctness and appropriateness as befitting the genre to which as written texts they belong. The process by which this is accomplished can be best understood as having been facilitated by the dynamics involved in their immediately preceding link in the Chain of Discourse - the interview itself. There is a sense in which such utterances not only situate the speaker in a + knowledge relationship with regard to the - knowledge of his hearers but also proclaims the high seriousness and professional status of a speaker who adopts not only the appropriate dress for the occasion but also suits the register of the language to the ritual nature of the activity in which he or she is involved. Similarly with the individual lexical choices which also are at one somewhat archaic remove from the lexical choices of normal spoken conversation: "attended", "tendered", "inducements", "preferred", "observed", "approached", "pursued", "conveyed", "glanced", "apprehended", "conversed", "located", "a male person", "alighted", "activate", "caused", "the complainant". The closing illocutionary performance of the statement provides an appropriate conclusion to the authority, legitimacy and truth' of what has been said: "I declare that this statement is true ...".

The close resemblance between the statement of the accused and the verbal' account by the police officer of his or her conversation with the former is at one level hardly surprising and yet at another worthy of note: not surprising in that the statement in the accused's "own words" could be expected to contain much if not all of which he or she responded in answer to the police officer's question. What is worthy of note and what can be seen occasionally to happen is that a question in the words of the interrogating officer requiring a yes' or no' for an answer, if replied to, for whatever reason (and as previously noted there are some problematic ones) in the affirmative, can be translated in the statement into the own words' of the accused. An example from Police Verbal' (Appendix B [3]) illustrates this: "I said did you run the car into trees when you were driving it around?' He said, Yeah'". In the accused's signed statement (Appendix A [ii]) this reads "we hit trees ...". The question of questions has already been discussed. The other important constant in each category of document is the caution' so-called: this intrinsic ingredient presents itself to the logic of the Aboriginal mind as the supreme paradox. For if he or she does not have to answer any questions then why should representatives of the law go to such lengths to ensure that the questions they ask are answered. The extent of those lengths are described by Aboriginal people themselves in their complaints against the police.

There is yet a further element to be taken into account however, I would suggest, not only with regard to the police statement but also with regard to the statement of the accused and the statement/s of the witness/es. The silence of the accused as he or she stands in the dock, while it is an arbitrary silence imposed by the order of the court is a silence nevertheless. Silence as an aspect of communication has received less attention than speech in the study of linguistics yet it is, unquestionably, an important aspect of communication. And yes, the silence of the accused in the dock, notwithstanding the fact that it is arbitrarily imposed is nevertheless unquestioningly accepted as a natural given. As such it can have the effect of making him or her seem to acquiesce in what is being said. It is in this sense then that it could be argued that the Aboriginal person is spoken by rather than spoken for in the White judicial system.

(ii) The Record of Interview

The Record of Interview as genre, while having in common with the statement/confession the linguistic characteristics observed above, differs from the latter in that there are two speaking voices instead of one. Its structure is generally dyadic and any of the type of feedback' characteristic of normal communicative interaction is conspicuous by its absence. Records of the interviews upon which statements are based are not always available to the lawyer representing the accused and sometimes, too, if the accused does not agree to the making' of a statement the Record of Interview itself is treated as evidence. Sometimes it is signed by the accused and sometimes, if the accused refuses to sign, it is verified by the police officers who were present during the interview.

As noted by Kress and Hodge (1979:9) "the world is grasped through language. But in its use by a speaker language is more than that. It is a version of the world, offered to, imposed upon, exacted by, someone else". Such a dictum is perfectly illustrated where the version of the world exacted by the interviewer from the interviewee is subsequently, by means of the written mode and by a series of transformations, imposed upon the court in an appropriate mode but in a new and different form and content.

It could doubtless be reasonably argued that modifications and transformations are necessary and justified to the possibly disorderly, or what might appear to be irrelevant, inarticulate, or unnecessarily verbose, material of any interview, since they serve the function both of economy and stylistic appropriateness for the particular written genre for which they are intended. On the other hand however, and as observed by Kress and Hodge, although it is assumed in transformational theory that transformations do not alter the basic form and can always be reversed, this while it can sometimes be true is not by any means always the case. Transformations they say serve two functions, economy and distortion, "often so inextricably mixed that even the speaker cannot separate them". And, whereas "modal classifications are a service, provided by the speaker for the hearer (-) transformations are more like permissable tamperings".

Little or nothing in the way of modal classification is allowed to intrude on the spare and economical written mode of the Record of Interview any more than it is on the statement. And while this systematic re-presentation' in a written mode of the matter and manner of an oral interaction is unquestioningly accepted as legitimate it ignores the practically unlimited scope for intentional or unintentional mis-representation' such an exercise can give rise to.

The subtle, various and complex intonation patterns which are employed by speakers of a language to convey, over and above the words used, the exact meaning of each utterance are explored by Kress and Hodge (1979:10-11) and are only one form of the many modalities used in speech which are eliminated in the transition to writing. Kress and Hodge also, for example, refer (p.127) to physical movements during speech, shifts in position, and facial expression, which have a modal function. In addition to intonation and kinesics there is a large class of verbs which have a modal function and also modal auxiliaries which precede the main verb, all of which can significantly affect the meaning of any utterance. Indeed, although Kress and Hodge claim (1979:126) that the major content of an utterance is often to be found in the modal operations, rather than in the ostensible content, they also insist (p.122) that while sometimes the context of an utterance makes the modality unambiguous, in practice unambiguous uses are the exception. Hence the almost unlimited potential for the manipulation of meaning which can occur in the transition from speech to writing. The exact words however, can, if accurately transcribed, even in the absence of the other modalities lost in the transcription, "typically pick up many modal indications which neither speaker nor hearer was conscious of in speaking", and which could substantially assist in the interpretation of any speech event. It follows that to exclude all of the lexical or grammatical modalities in addition to those inevitably lost in the absence of videotaping or professional linguistic notation is to critically reduce the chances of accuracy. Precision there is, as already indicated, in the document presented in court but it is a precision achieved at a considerable cost - a cost all too frequently borne by the purported author of the written statement or the purported participant in the Record of Interview or Verbal.

And while the declarations made in court by police officers and their collaborating colleagues (that to the best of their knowledge and belief the statements, records of interview, verbals are "true") may indeed be made in good faith, the implausibility of such declarations is well-nigh inescapable if, as it claims to, the law really seeks "the truth, the whole truth and nothing but the truth". In other words, it seems clear that the operations performed on language itself during the Chain of Discourse can and do seriously affect the legal process.

Records of Interview (Appendix B [2/i and ii]) are the ones relating to statements (i) and (ii) quoted and described above. They were made available to me by the lawyer representing the accused and with the full permission of the latter. Record of Interview (ii) is of particular interest here as its veracity was subsequently brought seriously into question when the accused, JJ, who was being interviewed and who actually signed the Record of Interview, took action through his lawyer against the police officers who co-signed the Record of Interview, claiming mis-representation by them and alleging that he had been physically assaulted in the course of his interrogation and then forced to sign the document. In this particular instance the case went against the police, firstly because witnesses came forward to testify as to the accused's physical condition before and again after the interview/interrogation and secondly because it was established that the police lied during the court hearing. To all extents and purposes the text of the Record of Interrview reflected no more than a routine and factual exchange of question and answer, typical of and appropriate to its particular genre, and one which appeared to fit neatly an open and shut' case likely to lead to a guilty' verdict for the accused. The young man's own account of that interview however, (See Appendix B [5]) in his subsequent complaint to an A.L.S. Field Officer, about his treatment at the hands of his interrogators, presented an entirely different picture. The case was a rare example of a successful complaint against police. It succeeded on this occasion as a result of exceptional and largely fortuitous sets of circumstances facilitating and supporting the veracity of the narrative of the accused, and, most importantly, as a result of effective legal representation leading to the true application of legal principles.

(iii) The 'verbal'

The term 'verbal' is conventionally, if somewhat colloquially, applied to a statement presented in court and purporting to represent what a suspect said or wished to say during his interview with the arresting officer or officers but which he has not signed. The verbal can consist either of an unsigned record of interview, or notes recorded in a policeman's notebook (notebook verbal) from which the police recite a prepared question-and-answer-type statement which implicates an accused person in the crime under investigation. "Unfortunately" says Mark Dimelow (1982:89) "the miserable reality is that police verbal - the fabrication of confessions - is the biggest single issue of organised corruption in the criminal courts and lawyers are having very little success in fighting and exposing it." Dimelow, a member of the organisation CALM - Campaign Against Legal Malpractice, claims (1982:43) that there is "a huge gap between th legal profession and the public as regards knowledge of that institutionalised perjury we term police verbal" and remarks that we have to go back nearly a hundred years to find a reported case where a judge has used "straightforward language" to put the issue in perspective. He quotes Justice Cave in R. v Thompson (1983) QB12 as having said :

I would add .... that I always suspect these confessions which are supposed to be the offspring of penitence and remorse, and which are nevertheless repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when proof of prisoner's guilt is otherwise clear and satisfactory, but when it is not clear and satisfactory the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement with a confession; a desire which vanishes as soon as he appears in a court of justice.

Police in Australia however, according to Dimelow, "appear to be in no danger of even such restrained candour from the bench ...

Not a word is said against what is at best unreliable evidence, and often transparent lies, unless there is conclusive evidence that the police allegations are absurd and embarrassing. In that case, it is pure self-interest that disposes of the case, with no penalty to the police.

Police presenting unsigned confessions' says Dimelow are afforded every possible benefit of the doubt', which is in turn subtracted from the accused person. There is indeed as Dimelow points out "no serious argument" over the existence of police verbal, but only over the extent of it. Yet on the few occasions during my own fieldwork when I ventured to raise the question with senior police officers I was tacitly given to understand that my question was out of order and they professed not to be aware of any such abuses.

The fact that the police do not need signatures to alleged confessions is seen by Dimelow (1982:94) not only as "a measure of the greater persuasive and manipulative sophistication of the modern state" but also indicative either of a naivete or an apathy on the part of a public which leaves such frauds unchallenged.

As recorded by Dimelow (1982:89), in 1980 CALM published a pamphlet specifically designed for jury members entitled Beware of Police Verbal. According to the authors of the pamphlet "a loophole in the laws of evidence allows this practice to go on unabated".

The resistance of police to the tightening of control in this area is justified by them on the grounds that conviction rates would drop dramatically if any such control were effected. Yet while it may be, as doubtless many police believe, that many of the accused who are verballed are in fact "guilty" and they see the verbal as a justifiable means to an end, as Dimelow (1982:96) points out such a rationale "can never be accepted by people who believe there should be some connection between law and justice". And, further, as Dimelow insists (1982:88) "the question for the Australian people is not conviction rates, but who should judge the guilt or otherwise of people charged with crimes - the courts and juries or the police".

As stated by Dimelow (1982:93) police verbal is not merely an abuse' but a serious crime. He claims that it is a crime "committed with almost monotonous regularity and with the least public exposure". He suggests that it is perhaps because of the very frequency and regularity of such occurrences that lawyers are as he puts it "numbed" to its seriousness. The people who do have knowledge of the law and police practices he says "have not been able either to make the law adapt to the exigent realities or to communicate this knowledge adequately to the uninformed public". Dimelow goes so far as to claim that lawyers actually want to conceal "the epidemic proportions" of police verbal "by accepting its existence but writing off the bulk of allegations as imaginary".

While there are as yet no surveys or statistical studies which have produced percentage figures of fabricated statements the results of a preliminary survey into the incidence of fabricated statements undertaken by CALM (Dimelow 1982:94-95) indicated clear trends which give credibility to these allegations. There is little doubt therefore either of the existence or the prevalence of the police verbal and while Dimelow in his report does not specifically mention Aboriginal people, what has to be emphasised in this connection is the particular vulnerability of Aboriginal people in this area - a vulnerability not only admitted by themselves but also attested to both by police and by lawyers alike.

In a society geared to time and motion', efficiency, and, above all, to success, perhaps it is not surprising that police have such an enormous investment in getting a conviction once they have spent some time trying to find the offender in any particular case. It is in the conviction that their work pays off' and marks them as winners, whereas they may well see in an acquittal a slur on their skill or efficiency and a mark of failure. For in their commonly-held view an accused would not be in custody in the first place if he or she were not guilty so therefore they set considerable store on a plea of guilty and attach major importance to the statement admitting guilt and in securing that statement. This evidence is of such prime importance to them that considerations regarding the rights of the accused would sometimes seem to take less than second place.

The following 'verbal' is typical of its genre and relates to the case of RW examined in Chapter 5 which led to the imprisonment of the accused concerned. This document was available to the lawyer representing the accused. The verbal narrative genre rarely deviates from this standard format of I said', He (or she) said'. In semantic terms the most notable absence in the verbal is, again, any form of modality associated with negation of any sort: hesitancies; ambiguous utterances such as No - yeh - uhm', etc.; uncertainties or denials. It is most likely to be unequivocal, positive and using the past perfect of the verbal process.

In this verbal the noting of the arrest' and its timing is interesting in that it is represented as being a separate act from the act of requesting' the accused to accompany police to headquarters noted in the opening lines and his agreeing' to do this. The recording of such formalities indicate conformity with correct practice on the part of the police at the same time as they are unlikely to be perceived with such fine distinction by the person subjected to them. The other notable absence in the verbal is, of course, its verification by the subject's signature. This particular verbal was not challenged in court. It is accompanied by its companion text - the corroboration by the second policeman present.

By contrast with the active voice markers of the verbal itself, its companion text is couched in grammatical terms consonant with the implied passive role taken and maintained by the allegedly non-participant observer and auditor of the interview: "I was on duty"; "... remained with him"; "... was present"; "... have been present"; "... I corroborate"; etc.

(i) The Verbal

The accused was requested to accompany police to headquarters. He agreed and was brought to the 79 Division office.

At the office I asked the accused questions regarding his movements earlier that morning.

I said, "Were you with P.M., W.H. and W.A. this morning?"

He said, "Yes."

I said, "Did you go with them to a flat in X. St.?"

He said, "We was drinking at a flat but I don't know where it is."

I said, "Did a fight start while you were at the flat?"

He said, "Yes, Mark and a white bloke was fighting."

I said, "I have been told you got involved and punched and kicked the white bloke also. Is that right?"

He said, "The white bloke got mad because the girls were pinching his food. I hit him after Mark did."

I said, "Did you also kick him?"

He said, "Yes, we all give him a punch and kicked him when he was on the floor."

I then cautioned the accused and asked him if he wished to make a written statement regarding the incident.

He said, "I don't want to make no statements."

The accused was then arrested and charged.

I spoke further to the complainant and took a written statement from him regarding the incident.

I declare that this statement is true and correct to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe is true.

Signed ...

(ii) The statement in corroboration:

I am a Police Constable attached to the X Division, Police Headquarters, Perth.

On Saturday March (date) I was on duty with Senior Constable X and remained with him whilst enquiries were made in relation to a complaint made by T.L.

I was present when ... the accused present in Court, was interviewed at the Division office.

I have read the statement made by Senior Cosntable X and have been present whilst he has given evidence in this Court.

I corroborate that evidence given.

I declare that this statement is true to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe is true.

Signed ...

The fact that the defendant in this particular case, a 'fairly regular offender' who on all other occasions had acknowledged his guilt and cheerfully 'taken his medicine', consistently and passionately denied the offence of which he was accused on this occasion and refused to sign the Record of Interview was to little avail. Neither his protestations nor the efforts of his legal representative were a match for the texture of the orderly prosecution which, with the assistance of the verbal' and the unsigned Record of Interview, succeeded against him.

(iv) The Proof of Evidence

When a lawyer appears in court to defend a client he or she is equipped, among other things, with a document entitled Proof of Evidence. As a term, Proof of Evidence is at the same time both self explanatory and typical of the mystificatory nature of much legal discourse since the word proof' here is used not in the sense of something establishing that something else is true but, rather, in its more archaic sense of putting something to the test - in this case the truth or validity of the evidence put forward by the prosecution.

Unlike the Record of Interview, Statement or 'Verbal', the question of the Proof of Evidence's being admissable as evidence does not arise, nor is it a document to be shown to a jury. It is designed to assist the lawyer the better to recall the substance of the interview with the accused upon which it is based.

It does have about it however some formal linguistic properties which, in common with these other texts, proactively and properly fit it for the particular register of legal discourse obtaining in the court. Not only are all these documents, though they may differ in certain respects, discursively related but so too are the interviews upon which they are based as are also their respective transformational histories.

The ways in which they resemble, and differ from, each other could be represented as follows. The transformational history of the Statement, Record of Interview, or Verbal, as text, could in a sense be described as a self-sufficient tripartite semiotic construct in that its genealogical chain' extends from event in the world through interview/interrogation to the written text which results from The transformational history of the Proof of Evidence on the other hand does not share the self-sufficiency of the Police text chain. The reasons for this are that (a) it usually takes place at a later time or date than the interview with the police and the production of the resultant text (which may well have implicated or incriminated the lawyer's client), (b) aspects of both of these circumstances must be taken into account in the production of the lawyer's text. While it also has its origin ostensibly in the event in the world which gave rise to the police action in the first place it would more properly be represented as follows and described as intertextual or interdiscursive:

The fact that such constraints are inherent in the production of the Proof of Evidence constitutes a problematic in the matter of valid communication which tends, for similar reasons to those already outlined, to put the accused at a very real disadvantage from the outset. A further hazard for the accused regarding the Proof of Evidence however, and an additional and pressing reason for striving for the most faithful textual representation possible of the crucial aspects of the case as discussed in the interview, is the ever-present possibility that it may not even be the lawyer who initially interviewed him or her who actually speaks for the accused in court. Should the former for any reason be prevented from attending and an adjournment not sought, a lawyer who merely has the accused's file, and a very brief encounter in the detention centre of the court at his or her disposal before the hearing, may have to mount a defence.

Their university training amongst the lawyers who assisted me in my research did not include either training in interviewing techniques or any of the interactional aspects of their work with clients. Such techniques were absorbed during the course of their practical articled work - a 'learning on the job' not too dissimilar from the experience of young police constables who, similarly, learn by practice in association with experienced members of the force. I do not suggest by any means that this observation has universal application as I have not researched it particularly. I merely note it from the limited observation it has been possible for me to make. There is no doubt that many lawyers, as indeed many police, possess both a natural aptitude for, and a professional and ethical approach towards, this area of their respective professions, as some of the interviews to which I have had access testify. The question has to be asked however whether sufficient attention is generally paid to this aspect of police and legal education.

The Proof of Evidence is distinguished not only by the different purpose it sets out to fulfil (as a basis upon which to contest the accusation of guilt with regard to the accused) but also by the choice of grammatical markers employed in its construction. Like the statement the Proof of Evidence is most frequently presented in the first person' form; it does nevertheless permit of some aspects of grammar and syntax which are excluded from the statement' and which go towards the production of a richer text - an indeterminate one with a wider choice of meanings - a polysemy which (as in the following example) is in contrast with the one-dimensional aspect of the statement.

My idea was that she would come back to my camp at the One Mile Reserve and we would live together again; She had a cut on her forehead with some stitches in it - somebody had hit her or kicked her but I am not certain how she got that; I wanted her to stay out at the One Mile with me but she wanted to go back into town. I grabbed hold of her and stopped her going back to town but I wasn't hitting her, I was just grabbing hold of her; I thought the car might hit us and I gave her a push across the road so the car wouldn't hit us, but I was drunk and I pushed her under the car. I wasn't able to judge where the car was because the light was shining on us and I just pushed her to get her over the road to get out of the way of the car. But I made a mistake, and she fell under the car and that was how she got injured.

Secondly, while the past finite non-modal verbal tense is characteristic of the statement: "We hit trees", "We smashed the windows", the form of the Proof of Evidence frequently includes examples of the modal adverb - "Just" in "just grabbing hold of her", "Only" in "only fell", "Straight out" in "say it straight out". Thirdly, whereas the statement is concerned with material processes of doing' only, the Proof of Evidence deals also with mental processes of sensing: "I thought", "I wanted", "I was afraid".

It is not true that I pushed her under the car on purpose - she only fell under the car because I pushed her but I was drunk and didn't realise I was pushing her under the car. When I was interviewed by the policeman - by the detective and the constable - the constable threatened me with his fist. The detective said to me if you don't say it straight out, this man will punch you'. Later on when we had the Record of Interview, that is what happened again. He said that and I agreed with him because I was afraid I would get hit if I didn't.

The underlying purpose of the Proof of Evidence is obviously in opposition to the underlying purpose of the statement. But whereas it does have an expanded version of alternative possibilities to the certainties contained in the statement it does not have the sacrosanct signature of the latter and relies on the verbal performance of the lawyer in court and his adversarial skills to take advantage of it. For while, in theory, the suspect is said to be innocent until proven guilty', in practice it can be the opposite: the brief for the prosecution can be more than just a charge' if the signed statement is so incriminating that it virtually assigns guilt to the accused at the outset. The onus of proving him or her innocent then rests with the lawyer for the defence rather than the reverse. The defence lawyer then, in addition to his or her professional and adversarial skills, and whatever documents relating to the case made available prior to the hearing, must inevitably rely to a considerable extent on the knowledge and information obtained from the client during the interview. The importance therefore of the most effective conduct of such an interview should not be underestimated. Of equal importance is the need for an adequate documentation of this interview in the text of the Proof of Evidence itself. There is some evidence (as explored in an earlier chapter) that lawyers, no less than police, can put their Aboriginal clients in particular at a disadvantage through lack of attention to some important aspects of interaction and communication, and by so doing jeopardise the outcome of the exercise in which they are involved.

Appealing to the Law - Two Cases

There is no evidence that Aboriginal people, as people, have less respect for the law than others in our society, and this despite the fact that they may well have good reason to feel that they can easily be discriminated against in the application of that law. Consequently, they frequently appeal to it either for protection or in an attempt to right a perceived wrong or injustice.

The following examples are instances of two such appeals and illustrate some of the discursive obstacles which can be encountered by Aboriginal people who are prepared to take part in such exercises. The first one is concerned with a complaint against the police, the second with a complaint against an Aboriginal assailant.

(i) Police/Aboriginal interview
Interviewee as Complainant - Complaint againt the police

A young Aboriginal man complained to his father about his rough treatment at the hands of police who had arrested him on a 'car stealing' charge. His father took him to the East Perth Police station to make a formal complaint. They were accompanied by a friend who transcribed exactly, word for word, what was said. The key text here, as in other instances, is the complaint/statement typed by the police inspector, purporting to be the content of that interview. Read, signed and witnessed' it becomes the material of the formal complaint and the complainant's sole subsequent advocate. Its subsequent history will be constructed however within the discursive formation of whichever police department whose responsibility it is to attend to such matters and will be determined not only by further reference to itself but also in conjunction with the voices and ideological biases of the actual police personnel involved. It reads as follows:

H.K.B. states: I am 19 years of age, unemployed, and reside at X. I have no telephone there but messages can be left with Mrs. M. on (telephone number).

At about midnight on the night of 25th-26th September 19.. I was arrested in Perth for stealing a car. I had been walking across the Horseshoe Bridge when some police officers in uniform ran towards where I was with CE and MEB. We ran over to the Northbridge side.

I was called on to stop by an officer who pointed a gun at me. It was a small gun. I stopped and he handcuffed me. He put the cuffs on tight. I did not say anything about it because I only found out they were tight when I got into the police van.

I was taken to the lockup. I sat down for a while then one of the officers said something. I didn't hear and he grabbed me and took me to the counter where another officer grabbed one hand pulling both arms up behind me as they were still handcuffed. I was then searched.

After I was searched I was booked into the book and taken to the cells. In one of the cells several constables pushed me to the floor. Two held my legs, one held my back, and one held my head. Someone took off the handcuffs.

I am complaining because I think the officers were rougher than they needed to be. I was drunk at the time and did not make any threats or anything.

I cannot read but Mrs. M has read this statement to me and it is true and correct.

Signed ...

Read and Witnessed ...

Read and Witnessed ...

The above statement is a typical example of, and adheres faithfully to, its genre - brief, clear, factual', and totally devoid of modality or ambiguity of any kind. What is notable, and has to be said, about the text of the interview (Appendix B [2 - i]) upon which this statement was based, is its unusual brevity. For, based on my observations, information, research and fieldnotes, I think it would be fair to say that, generally, interviews between police and Aboriginal suspects, witnesses or victims in the investigation of any other kind of offence than here - one attributed to the police themselves - take a good deal longer and are much more comprehensive. This one was, of necessity, chosen since it is one of only two verbatim records of interviews between police and Aboriginal people which became, if only fortuitously, available to me. The other, with which I shall deal later, was also a complaint by an Aboriginal person, but this time against one of her own community and it is, as will be seen, considerably longer. The outcome of such complaints rarely if ever, provides satisfaction to those making them, and this case, in the event, was no exception.

The "genealogical chain" constituting the transformational history of this particular statement might seem, in one sense, comparatively unproblematical and the complainant's account of the event in the world leading up to his sense of injury and his appeal to justice at one level uncomplicated and unambiguous. The status of the account as constructed by the police inspector, as distinct from any previous and non-recoverable accounts the complainant may have given to his family or friends nearer the event, is determined and constrained however in a way which renders questionable its validity as communication. The two principal ways in which this constraint and invalidity may be seen to arise are (a) by means of the way in which the police inspector structures the interview itself and transforms the utterances of the complainant, and (b) the way in which the police inspector transforms the verbal transaction of the interview into the written text of the statement/complaint.

With regard to the structuring of the interview, the positioning of the addressee as subject and the establishment of an unequal interactive status between the participants fits all that has previously been suggested regarding such interviews between representatives of the law and Aboriginal people. The fact that in this particular instance the Aboriginal person concerned was accompanied and supported by two other people and that in this particular instance he was the one accusing others of an offence made no material difference to the quality of the exchange in which he took part. The biographic question/answer introductory format established at the outset invokes the frame with which the powerless are only too familiar. That accomplished - (49) "O.K." - the next constraint is introduced - "just shortly". The message contained in "just shortly" is twofold, at one and the same time giving an instruction regarding time and an instruction regarding language: "Be quick", and "be brief", a message to be reinforced in (37) "And what happened there? I'm just getting short details now".

At the outset therefore the interviewer takes firm control of the direction and duration of the exchange which he at no time relinquishes. Nor does the interviewer rely on his addressee to fulfil the request or obey the command contained in (11) and again in (37) but appropriates the addressee's responsibility in this matter by the direction and conclusion of his questioning. X's attempt in (12) to outline the substance of his complaint was successfully deflected in (13) by the question "What did they say that was for?" and the complicity of the addressee ensured by his reply (14) "Don't know". The inference was thus established that the "that" imputed to the agency of the police on this occasion was something of a normal and legitimate practice when it was "for" something imputed to the agency of its object. The suggestion was also implicit that if such action had indeed been taken its perpetrators would have "said" what it was "for", and that the alleged victim would have in consequence been expected to possess this knowledge:

(41)"... did they have some reason?";
(43)"Why did they have the handcuffs on - do you know?";
(45)"Are you sure you don't?";
(116)"I see - I'm just wondering why - were you saying anything at the time?"

further reinforces the interrogatory nature of the interaction, effectively changing its theme from one of complaint against the police as offenders to an enquiry regarding the culpability of the complainant as offender.

The most successful of the many moves in this direction however, can perhaps be seen in the transformations embodied in the text of the typed statement itself. For example, (31) regarding the addressee's arrest - "On what sort of charge?" and the reply (32) "stealing a car" were conflated and transformed to a virtual admission of guilt in line 5 of the statement - "I was arrested in Perth for stealing a car". The words of the addressee's complaint in (12) on the other hand, " ... about ten police officers came into the cell and roughhandled me - grabbed me and threw me on the floor - held me down ..." was transformed to 19,20,21,22 - "After I was searched I was booked into the book and taken to the cells. In one of the cells several constables pushed me to the floor. Two held my legs, one held my back, and one held my head. Someone took off the handcuffs".

In other words, a reading of the text of the complaint/statement, in the absence of any consideration of the dynamics of how language has been at work in the genealogical processes of its formation, can do two things: it can demonstrate a verisimilitude sufficiently compatible with the verbal transaction of the interview as to appear to be true and correct' both to the complainant himself and to his friends who witnessed and heard it, thereby ensuring the complainant's compliance in signing it. It can also however serve as a basis for the justification of the alleged yet unwitnessed actions of the police officers since it is couched in terms of the normal' carrying out of their duties: arresting, handcuffing, searching, securing of the accused in a cell pending questioning, and removal of handcuffs. For, as noted by Kress and Hodge (1979:35):

Transformations can act as a code, fully interpretable only by initiates, safeguarding their privileged knowledge. But transformations can also create the illusion of such knowledge for both hearer and speaker, masking contradictions or confusions, and imposing an unexamined consensus.

(114) "Fair enough - That's it X. You think they were far too rough and no reason for it", and (115) "Yes" were transformed into 12-24 "I think the officers were rougher than they needed to be". The difference in meaning between "far too rough" and "rougher than they needed to be" becomes the difference between a matter of fact and a matter of opinion, thus opening up a question which in the discourse of the accused and their collaborators or witnesses could very easily be weighted in their favour against someone represented not merely as a suspect any more but more as an acknowledged car thief who was also drunk and who, ipso facto, could perhaps conceivably also be said to have been violent himself and deserving of the necessary force' required of police in order to restrain' him.

Scholars such as Bain (1979) and Eades (1982) continue to remind us that we may not so simply take for granted that our ways of speaking' are necessarily the ways of speaking of Aboriginal people even though we may all speak English. They remind us also that this applies in the urban Aboriginal society no less than in more traditionally-oriented environments. The claim is not made here, nor is the suggestion intended, that these are absolute dichotomies. Obviously, successful interactional modes of communication can be practised between all cultures in the interests of harmonious relationships, as Habermas, among others, suggests. Generalisations such as those of Bain, Eades and others with regard to Aboriginal people are sufficiently well grounded in scholarly research however to be taken seriously into account together with the other factors which contribute to the possibilities for the occurrence of malformed or distorted communication in Aboriginal encounters with the White legal system.

The ideological bias of a police officer, coupled with a pattern of expectations centering on Aboriginal people as trouble-makers', could conceivably for example in the above case favour a pre-existing version of reality (or as Goodrich puts it, a preconstructed pattern of meaning') on his part in direct opposition to that of the Aboriginal participant in the interaction, who in his turn could be expected to have a quite different version of that reality and a quite different set of expectations regarding the present encounter. Further, the structure of the interview, the positioning of the Aboriginal participant, the clash of codes involved and the pragmatic nature of the task as far as the interviewer is concerned, all lend themselves to the construction of a functional version of reality which could be said to have departed in quite fundamental and radical ways not only from the event in the world on which the account is focused but also from the Aboriginal discourse which attempts to represent it. And even if one allows that there is inevitably, a "monstrous gap" between any stretch of language and the event in the world it purports to narrate (including indeed the gap between the writer's discourse and his or her topic') this is still no defense for the type of motivated transformations which can effectively appropriate and disenable the discourse of the other in circumstances crucially concerned with justice and freedom.

That the subject can be, and frequently is, virtually divested of the rightful power of free' speech under the rubric of the very institution to which he or she is most likely to turn for help in moments of crisis is a serious matter which no amount of commonsense logic can hope to dispel. And when, as can be seen in the present instance, this is compounded by the appropriation of the fragments of discourse demanded of the interviewee during the course of that enterprise, there is a sense in which the victim's own discourse can be made to double back on itself in a way which can be seen at the same time to lend verisimilitude to the functional written statement produced and yet effectively to mask the true meaning of the subject's original utterances.

An Aboriginal mother was so distressed by her son's account of his experiences at the hands of police from the local police station that she was urging him to take the matter up with the proper authorities. She asked him to tell me what had happened. He did so as follows (TR:1988):

We were up there at the shopping centre - Linda my cousin was driving without a licence. So they tried to push me in the van and I said 'No I'm not going in there'. Then they rung up for another car to come. Two more blokes came. That's when I got booted here then - right in the privates. Then they shut the door on my foot. My foot was still out and they tried to shut the door. That's when I was in the van. They tried to choke me and throw me in. They forced me - pulled my neck back so I couldn't breathe. So I fell down. I don't know what I done. I just fell down. I was still struggling to get out. That's when I was booted in the privates then. I know the bloke - that big flabby bloke up there. I know him when I see him. They said 'We're going to give you four hours - that's all, then you can go home'. But they kept me in all night until I went to court. I wasn't that drunk, real drunk. My head was just spinning that's all. They kept me in the lockup all night and I went to court next morning and I got nineteen dollars and twentyfive cents to pay for just drunk. One of the prosecutors said 'Oh he was that drunk - he couldn't help himself so we thought we'd put him in for the night'. But I wasn't even drunk. I could have come up home from up there it's not far. I still can't breathe hardly, because they gripped me hard in the throat. Just can't breathe properly now. I just can't get my wind up properly. They always get away with it. Even the judge is on their side. It's no use. They always get away with them things. I never even did anything. I was sitting in the car all the time only when I got out when the police came, only when the police came.

The young man saw no point however in pursuing a complaint since he was quite convinced, perhaps correctly, that his chances of a fair hearing were negligible. The richness of his description of his encounter with the police however, a description situated outside the Chain of Discourse in which he would of necessity have become involved were he to have taken his mother's advice and made a formal complaint contrasts nicely with the style of the formal statement in the previous case. Needless to say there is little likelihood that this text would have been accepted as befitting the appropriate form for presentation in court as the speaker's statement of what he saw as the truth. And this despite his having expressed himself on this particular occasion without fear, favour or affection'.

(ii) Police/Aboriginal Interview
(Interviewee as Witness/Victim)

The very act of breaking down a statement in a way which points to a certain inconsistency in its construction will of course raise the very pertinent question of 'commonsense'. Short of tape-recording each interview which takes place between police officer and suspect or witness (a practice strongly resisted by police in Western Australia) the question will be asked as to how (other than by the present practices) the work can be done and the business of the law proceed along its expected course. Present police practices are hallowed by custom, and still continue despite numerous angry protests by Law Reform commissions and other concerned individuals and groups.

On a number of occasions I have accompanied Aboriginal women who approached the police for assistance in one way or another and who were interviewed by them. I took it upon myself to record and transcribe one such interview (Appendix B [2 - ii]) in an attempt to follow through in a little more detail some of the discursive processes involved. The background was as follows.

I was requested by a young Aboriginal woman that I should take her to the local police station. She had telephoned me on being discharged from hospital having had treatment for a fractured jaw, and she wished to register a complaint against her assailant. They were both members of the same Aboriginal community and had had an ongoing if sporadic relationship for some time but she clearly felt impelled to take some action against the young man nevertheless and was quite prepared even to go so far as to approach the police for that purpose. The young man in question was being sought by the police at this time for other alleged offences but her interest lay in his offence against her. For her, the fugitive is the father of her child but he has seriously injured her and she wishes both to punish him and to be protected from further injury. Her interest and needs are immediate ones and have nothing to do with the criminal construction of a man who when, as is likely to be shortly the case, he is in prison she will visit and who is still one of her people. For the moment however, and suffering the pain and discomfort of a broken jaw, she is determined to make her complaint. Nor will her assailant in his turn necessarily think it strange that she should do so or, necessarily, hold it against her.

In the shape of the statement/text constructed by the police officer in the previous case one can see an example of how a statement can be both true and untrue; in this case the position is somewhat different in that it is one where the police could be supposed to wish to hear and incorporate the truth of the witness's narrative since it will substantiate the official perception of the fugitive as a criminal. The resultant text in this case also nevertheless must still conform to the discursive conventions of the genre into which it will be transformed. In that transformation similar forces can be seen to be at work as are evident in the previous example. In the one the ideological bias of the police officer gives shape to a version of reality unlikely, for the reasons discussed above, to be effective in furthering the claims of its purported author; in the other, while the same bias is present, this time the emphasis is on a co-operative co-authorship of a narrative destined to be effective in the conviction of a person who, albeit for widely different reasons, is already judged to be guilty' by both interactants.

To the police officer, well acquainted with the young man's police record, he is a known law-breaker and a regular player in the game of hide and seek only too common a feature of Nyungar/Police relations. Even while the interview is being conducted the local police are in full pursuit of the alleged offender and radio reports on their progress are being intermittently relayed to the sergeant during his conversation with the young woman. Although the fugitive is being pursued for offences other than the complaint by the witness - offences relating to motor vehicles and other property-related offences - her complaint constitutes additional material to lend further weight to his construction as a criminal.

In the interview under scrutiny it could be said that S and J can understand each other quite well. Given that their cultural background, statuses and roles are so different, this can be largely explained as being due to the fact that they both understand the framework or context of the situation within which the conversation takes place and the purpose or function it is directed to serve. As observed by Halliday and Hasan (1980:10) "the situation in which linguistic interaction takes place gives the participants a great deal of information about the meanings that are being exchanged, and the meanings that are likely to be exchanged". This they term the field' of the exchange, which, to a very great extent, determines not only what each person is likely to say but also enables one or the other or both participants to have a fairly accurate idea of what may be coming next. According to Halliday and Hasan (following Firth and Bateson) we make unconscious predictions, below the level of awareness, about what the other person is going to say next, and that is how we understand what he does say. This theory has implications of particular relevance to the interview situation under review because it cannot be totally separated from the question as to whether this knowledge or prediction of what the other person is going to say bears a direct relation to the degree of power, or lack of it, exercised by one or other participant in the exchange and the way in which such power can actually control the direction and semantic content of the resultant text. Such power is both an element of, and reflected in, the tenor' of the text, an abstraction defined by Halliday and Hasan (1980:12) as referring to:

the nature of participants, their statuses and roles: what kinds of role relationship obtain among (them), including permanent and temporary relationships of one kind and another, both the types of speech role that they are taking on in the dialogue and the whole cluster of socially-significant relationships in which they are involved.

And both field' and tenor' together affect the "instance of living language" or semantic unit coded or expressed in the sounds, words or structures of spoken language which constitute that text: in a way that symbolises and expresses a systematic relation between the social environment as a semiotic construct on the one hand, and the semantic system and the functional organisation of the language on the other: a text which, in the case of the interview, is the matrix from which the authorised officer of the law constructs a subsequent and most crucial other text - the statement'. Thus, the three concepts of field, tenor and mode are a useful way in which to interpret the social context of a text - the environment in which meanings are being exchanged, drawing together as they do the various elements that constitute that text.

The function of the interview, its field', from the point of view of the sergeant in the execution of his duty, is the generation of verbal material appropriate for the construction of a written statement which will assist in the successful prosecution of an offender in court. The process in which S plays his part is predictable and its conduct exemplary. He informs his potential witness regarding the expected outcome of the interview and the part she will be expected to play (exchanges 9-19). His questioning is relevant to the matter of common concern to himself and his interviewee (his regarding his job, hers regarding her safety). The young Aboriginal woman who is being interviewed is appealing for the protection of the law in a situation in which she has already been injured and continues to feel threatened. The function of the interview as far as she is concerned is twofold: its primary intention to secure protection for herself, through the intervention of the police, its secondary one to hit back in some way at the person who has attacked and injured her (20). The function of the interview as far as the police officer is concerned is to assist in convicting a man who is already known to him as a fugitive from justice.

The tenor of the exchange is one of contrast between people of very unequal status - one commanding respect and exuding authority and confidence, the other cautiously respectful and in a position of relative insecurity. S is clearly an authority figure. This authority is signified at more than one level: rank and status - he is referred to as Sergeant by the desk-duty constable; age, sex and appearance - he is a mature male and wears a uniform; setting - he is in control of a police station and lockup. J by contrast is young, female, and without authority, and her status is ambiguous. Her physical appearance and her speech have been impaired by a broken and swollen jaw; her clothing is somewhat shabby; her previous encounters with representatives of the law have been in the role of the accused in petty offences and in attendance at this same police station. Hence the setting for her is one in which she has already had the experience of being controlled rather than in control. Her perception of the police has been largely conditioned by negative experiences of one kind and another, either her own or those of members of her family or relatives and friends. She is not totally powerless because she possesses knowledge which S does not have and since she is offering to exchange this knowledge for his protection and action she is, to some extent at least, if only to a minor degree, in a position to approach him on this particular occasion on something like equal terms. Broadly speaking however, the tenor of this discourse is one of authority on the part of the police officer; discipline (both in the personal sense and as a specialist in a particular area); and control, of a subject to that authority, a potential object of that discipline and one not privy to the full ramifications of that particular specialist area.

The third concept, the mode, of this particular text refers (Halliday and Hasan 1980:12) to the part that language plays in its creation:

what it is that the participants are expecting the language to do for them in that situation: the symbolic organisation of the text, the status that it has, and its function in the context, including the channel (whether spoken or written or some combination of the two) and also the rhetorical mode - what is being achieved by the text in terms of such categories as persuasive, expository, didactic and the like.

Clearly, this interview, apart from any predictabilities or constraints associated with previously-mentioned aspects of field and tenor, is characteristic of its kind in that, rather than being solely verbal in process, it is a combination of both verbal and writing process on the part of the one participant S and verbal process only on the part of the other participant J. For, while J is answering the questions put to her by S and he is formulating his next one, he is at the same time constructing a typed text which will be the one he will ask her to sign as her statement'.

Its dialogic question/answer, initiation/response, format follows the conventional pattern of turntaking common not only to its own field but also common to exchanges such as those between doctor and patient, employer to job applicant, bank manager to borrower, and, most particularly, the field involving lawyer to client. All of these distinctively employ both verbal and written processes. In each case, also, the interviewer is in control of two processes, while the interviewee is the subject of both and has but limited control over one - the verbal process. Such limited control is exercised in and reflected by the use of speech modalities rather than by any attempt at role reversal which might allow the interviewee to be in control of the initiation or questioning process. J's utterances (132) and (138) in the interview text are such notable exceptions from amongst the 167 which constitute that text as merely to prove' this rule. And it is interesting that these two exceptions occur only when S, by misreading J's cues regarding her ability to read and write, disturbs both the field and tenor of the conversational exchange and places J in an untenable position which forces her temporarily to reverse her role and be the one who asks a question.

Otherwise, modality, defined by Kress and Hodge (1979:9) as the expression of the speaker's assessment of the validity or probability of what he or she is saying, is the principal means by which J exercises such limited control as is at her command. She does this by the frequent use and particular intonation of the phrase "I think"; in the many uses and particular intonation of "Mhm" instead of "Yes"; and in the fairly frequent and sometimes ambiguous use of negation as in, e.g. (65), (67), and (130). In the prepared statement however, there are rarely any traces to be found of such modalities, and when they are present, as in Line 19, one is forced to look for their particular function. What they do in this particular instance of course, is to emphasise the scrupulousness of a recorder who sees fit to include them, and, by extension, to lend credibility to the text of which they form a part.

The material of the statement, which purports to be J's own and is signed by her as such, could be broken down into at least five separate categories:

(a) Direct use of J's own words Lines 12, 13
(b) Biographical details given by J and correctly recorded 1, 2, 3
(c) Direct use of J's words but excluding repetitions, redundancies and reformulations 14, 15, 16, 17, 18, 19
(d) Information extracted in interview 6, 7, 8, 9, 20
and processed by S with deletions 4, 5, 22, 23,
and transformations 24, 10, 11
(e) Information not included in interview but derived by S from wider
context, including police records, local common' knowledge, or derived
from White cultural assumptions about Aboriginal people
1. (place or residence
2. (accused's surname)
3. (accused's relationship with witness).

In (a) J's own words which appear in lines 12 and 13 of the statement "I told him to go and leave me alone but he wouldn't go and leave me alone" have their origin in utterance 77 of her interview with S and are his paradigmatic selection from among other possible choices which, had they instead been chosen, might conceivably have altered the combinatory or syntagmatic import of the overall text in one way or another.

In (b) the generation of lines 1, 2 and 3 of the statement which include the biographical details given by J is interesting on two scores. Firstly, it is on the face of it a straightforward statement by J as though simply to announce or impart some factual information which the context and genre demands - a knowledge which is hers only to give or withhold and is freely given. Scrutiny of the exchanges 32 to 45 inclusive however makes clear that they include instances of S's recording some of those details on the basis of his own knowledge through previous acquaintance with J and directing the questions or requests for confirmation in the light of that already-existing knowledge: "JL isn't it?"; "a pension or just unemployed?"; "can you read'n write?". Secondly, this sequence of exchanges serves to position J in an undeniably subservient position to that of her interviewer. Quite apart from establishing the formal register of the question and answer interview genre, Question 40, for example, "a pension or just unemployed" makes clear the assumption on her questioner's part that to be an eighteen-year-old Nyungar is to have recognisably limited economic and life options. S's private codes, ideological biases and knowledge permit him to narrow J's choice of replies to two. Interestingly here (41) J challenges such presupposition by providing a third option - "No, mother's supporting allowance" (she has a young daughter - the child of the man against whom she is making the complaint) thereby conferring, if only briefly, a sense of equilibrium to their exchanges. Question 42 however - "Can you read'n write?" quickly counteracts that. The question, although unambiguous in itself, is premised on the probability that J may not (as in fact turns out to be the case) be able to read and write. Such an assumption, while at one level it may be a reasonable one based on S's local knowledge', at another level could possibly be seen to stem from private bias in that it has the effect of categorising his addressee at both class and race level. In other words, it has to be asked whether such a question is likely as a general rule to be addressed to a white middle-class', or working-class', interviewee.

In (c) J's words in Lines 14 to 19 inclusive

He was arguing and he grabbed me around the throat; I was laying on the bed at this time and when he grabbed me I fell onto the ground; when I was on the ground he bent down and punched me on the left side of my face with his right hand; I think it was his right hand but I'm not really sure.

include some but not all of the information content of utterances 77 to 89 inclusive. Again, here, it is S who makes the choices as to what will appear in the statement and what will be omitted. In addition, slight but potentially significant changes are made with regard to lexical choice: e.g. punched' instead of hit'; I'm not really sure' for I dunno'.

In (d) the exercise of reduction accomplished in the production of the 20 lines 4 to 24 (based on the 61 exchanges 46 to 118 inclusive) and describing the events surrounding the attack, and the attack itself, is considerable. While, despite the constraints its structure imposes, the interview conveys to a certain degree some of the existential qualities of the real-life drama with which it is concerned, those qualities in their translation to the statement are annihilated or suppressed. The resulting text bears as little resemblance to the text of the interview, and, by extension, to the happening in the world which it purports to describe, as the bald story board' line for a film script bears to the finished production of that film. Nevertheless it will be accepted and used according to the formalities of the discursive formation of the law as evidence. And while professional translators agonise over the faithful transference of meaning from one language to another in the course of their work, and are vulnerable to criticism for inadequacies or failures on that score no such scruples seem to trouble the daily routine of police officers engaged in an equally important and even more difficult task, and rarely if ever are they investigated or taken to task for omissions, transgressions or failures in the execution of that task.

Some of the words purported to be J's were not in fact exchanged in the interview but filled in from S's own previous knowledge. While objection to this could be dismissed on the grounds that the information was in fact true and correct it is nevertheless yet another example of a type of appropriation which is open to abuse. Certainly, while it may at one level be factually true, at another level and coming under the heading "JLB states" it is untrue. And, given the presumed and ostensible exactitude of the application of the law it would only seem logical and appropriate that this exactitude should extend to the preparation and quality of the brief for the prosecution. That it does not is sufficient of an evil in itself; that the practice can still be surrounded by relative complacency along the broad front of day-to-day law enforcement business reflects even more unfavourably on our claims to be a just and democratic society.

While the greater part of the statement is concerned with the events surrounding J's injury, the section incorporating her personal biographical details includes a brief encapsulation "I can't read but I can write" of what in the interview itself had been for J a stressful sequence of exchanges (123-140) between herself and her interviewer. Because of J's admission (124) that she could not read S requested that I read the statement aloud to her. S (127) then asks Is that correct J?". The closed generic form of the statement has so conferred on J's transformed utterances a sense of absoluteness, correctness and importance that she is unlikely, even if she were skilled enough, to challenge it. In addition to this, the form of the question and its friendly intonation, in addition to the familiar and informal use of J's Christian name, all invite the agreement which is readily given.

The stress arose (129) when S, having taken J's statement quite literally that although she cannot read she can write, expected her to write in her own hand at the bottom of the statement one of the usual affirmations of legitimation customarily requested of the signatories of these documents by their interviewers, e.g., in this instance, the dictated (139) "What I want you to put on here is This statement has been read to me and it is true and correct to the best of my knowledge' ...". This move by S signals a series of interpretive failures' on his part regarding the extent of J's literacy skills. His main question to her (133) "No, can you actually write, apart from your signature, can you write?" was only partially answered by her in (134). "Yeh I can write" was her answer to the main, repeated, interrogative "can you write ... can you actually write?" but not necessarily a response to the unspoken but in the event dependent apart from your signature'. The latter may not have registered with her. On the other hand she may have wished to avoid the shame' of proclaiming her inadequacy by ignoring that part of the question. Her discomfiture in the predicament, while it was evident, did not seem to be noticed or understood by S who continued to press for her compliance in writing what he wished to dictate to her (137). The result was that J (138) obediently, and somewhat in desperation at her failure in continued attempts to make herself clear or understood, accepted the pen which was handed to her by S. She looked at the statement uncomprehendingly however and, once more, attempted to make clear that she could not read. Her confusion and rising frustration at not being understood however was such that she actually transcended momentarily her positioning as subject and, briefly, subverted the order of interrogation by asking a two-part question herself: "What did you just put? Did you just put statement? Well I can't read".

When it was finally made clear that J's writing skills were not adequate for the demands being made on them S adjusted the procedure accordingly by enlisting the co-operation of the other person present to help verify the transaction. To S's (143) "You agree that this statement is correct do you?" J then willingly answers "Yeh it is". The question may have seemed a welcome one as a sequel to her foregoing ordeal and an easier one to which to respond, despite her expressed uncertainty in (138). She signed with an appearance of relief.

One could in no way suggest that the foregoing interview was either overtly coercive or manipulative, or deny that the police officer involved was both friendly and courteous, albeit in a fatherly' manner, to the young woman witness. Therefore, since it can be seen how distortion can occur under such a favourable circumstance and when the guilt or innocence of the interviewee is not in question, (a circumstance which would be categorised as an exception by Aboriginal people accustomed to a less than friendly treatment in many of their encounters with police) it does exemplify the means by which less benign tamperings can be effected when the guilt of the interviewee may well be assumed by the interviewing police officer and an appropriate text to assist in his or her conviction is required.

Law, Discourse and the Social Whole

Aboriginal people insist that they do not argue against White law as such; in fact they frequently appeal to it; what they are saying is that they object to the wrong of ill-treatment and illegal methods in the application of that law. Unfortunately, there is a commonly-held belief among Aboriginal people, that the authorities' of the law (in their case the police) do indeed almost as a matter of course in fact proceed in their regard by means of irregular methods. Clearly therefore either the belief or the methods are in need of correction. And since the eradication of the belief could only conceivably come about by means of the eradication of the practices which give rise to them in the first place then the responsibility does seem to rest with representatives of the law that they should be the primary agents for change in this regard.

Peter Goodrich (1987:212) concludes his study of legal discourse with a strong plea:

Rather than reading the law according to its internal criteria of validity ... the law should be defined as primarily constituted by the connections between legal practice and the social whole. There is no guarantee ... that the internal criteria of legality in any sense reflect the actual practices (formal and informal) of the legal institution and legal actors. Nor is there any overriding reason to suppose that the textual discipline of the law is best read in its own terms. On the contrary, the analysis of the law as a rhetoric clearly indicates that the law is not a uniquely privileged discourse. Its specialism is in many aspects arbitrary in the sense that, like any other discourse, the predominant modality of its production and reception is interdiscursive. The legal text as discourse is comprised of the network of its relations to other discourses, its dialogic, intertextual, functions and effects.

The interdependency between the social whole and the internal criteria of validity of the law is occasionally brought into sharp focus when there is a sudden and unexpected breakdown in law and order'. When aspects of race relations trigger such breakdown, as they did in England in 1981, it becomes urgently necessary both to explore their causes and to seek out and implement ameliorating and preventative measures against their escalation or repetition. In 1981 British people were jolted into sharp awareness of the serious nature of racial disorder in their midst when in the words of Lord Scarman in his report into that disorder (1982:1):

the British people watched with horror and incredulity an instant audio-visual presentation on their television sets of violence and disorder in their capital city, the like of which had not previously been seen in this century in Britain. In the centre of Brixton, a few hundred young people - most, but not all of them, black - attacked the police on the streets with stones, bricks, iron bars and petrol bombs, demonstrating to millions of their fellow citizens the fragile basis of the Queen's peace. ... These young people, by their criminal behaviour - for such, whatever their grievances or frustrations, it was - brought about a temporary collapse of law and order in the centre of an inner suburb of London.

Two views, according to Lord Scarman (1982:1-2), were forcefully expressed in the course of his Inquiry as to the causation of the disorders. The first was "oppressive policing over a period of years, and in particular the harassment of young blacks on the streets of Brixton. ... They were anti police'"; the second was that the disorders "... were a protest against society by people, deeply frustrated and deprived, who saw in an attack on the forces of law and order their one opportunity of compelling public attention to their grievances".

Nonetheless, Scarman observed that either of these views, even if correct, would be an over simplification of a complex situation' and that neither would be the whole truth' since the policing problem specific to the disorders cannot be understood or resolved save in the context of the social problem of which it is necessarily part.

He went on to say however, that although the social and economic problems besetting the ethnically diverse communities are difficulties for which the police bear no responsibility, save as citizens, like the rest of us, unless they "adjust their policies and operations so as to handle these difficulties with imagination as well as firmness, they will fail: and disorder will become a disease endemic in our society".

Various recommendations were made by the Inquiry including the recommendation of a reform of the procedure for handling complaints against the police (7:11):

No matter how effective recruitment methods, training and supervision and monitoring procedures are, instances of police misbehaviour will arise about which the public wish to complain. It is essential therefore that a procedure for considering complaints is established which carries the confidence of both the public and the police.

Lord Scarman (7:8) also endorsed the recommendation made in its Report on Deaths in Police Custody by the House of Commons Home Affairs Committee "that Chief Officers of Police should arrange for sufficient random checks to be carried out to ensure that the procedures are properly observed". In endorsing this recommendation Lord Scarman (7:10) added his own recommendation that, as a safeguard, it would be greatly strengthened if it were backed by a statutory system of independent inspection and supervision of interrogation procedures and detention in police stations: "provision for random checks by persons other than police officers on the interrogation and detention of suspects in the police station".

The so-called Geraldton Riots' in Western Australia in 1988 and other similar racial disturbances which occur here from time to time, while they may not yet be of the scale of the Brixton disorders, have in common with the latter that their participants are, rightly or wrongly, largely anti-police'. And whether or not it can be argued that the causes of such disturbances are complex and deeply rooted in the social fabric, because they become an issue for law enforcement' the question of relations with police are inevitably and immediately foregrounded, all too frequently in a negative way. The violent physical expression of anger and frustration which plays such a visible role in such events however is only the culmination of a complex network of relationships and discourses having their origins in dialogic intertextual processes and effects. Such intertextual processes take their shape not only from ordinary social intercourse but also, and perhaps most effectively, from standard and systemic institutional practices. There is, as Goodrich and others have shown, a certain dissonance between the internal criteria of legality and its actual practices. Such a dissonance is clearly demonstrated to and recognised by Aboriginal people. Perhaps it is not surprising therefore that since their subjection to those criteria was an enforced one in the first place the expression of their discontent should be the more acute.

It is important to bear in mind however, that the architects of inquiries, reports and recommendations are themselves part of a powerful discursive formation. There is a real and somewhat ironic danger therefore that the addressing of the weaknesses, failures or perversions prevalent among representatives of the law could come to be seen by the latter as, and in fact be, in another if more sophisticated sense, a form of oppressive harassment which would reap its own whirlwind in the form of resistance by the police. The already-existing conflict between the Western Australian Police Union and the Commission of Inquiry into Black Deaths in Custody is a case in point and one which could all too easily absorb energies and resources, financial and otherwise, best directed towards the resolution of the underlying problem.

And to have "random checks by persons other than police officers" on the interrogation and detention of suspects in the police station would be very likely also to disturb a hornet's nest of protest and dismay amongst the members of the force and their union which could well deflect attention from the area most deserving of it.

Adam Ashforth in his study of Commissions of Inquiry into the "Native Question" in South Africa (1987:36) notes that governments frequently use commissions of inquiry to limit debate by appointing them to investigate matters of contention:

hoping thereby to remove these issues from the political arena. Following publication, debates on matters covered by reports often become debates with reports, debates over reports, debates about reports, and so on ... In many cases the central terms of debate are determined by the content of the report.

The current Royal Commission of Inquiry into Black Deaths in Custody in Australia is seen by some as running true to form in that respect as objection to it mounts - not only from the Western Australian Police Union but even more strongly from the families of the Aboriginal victims concerned, incompatible bedfellows though these two groups may well be.

Ashforth (p.37) sees the commission of inquiry as a particularly authoritative institution with its authority deriving from three sources:

Firstly, commissions of inquiry are authorised (commissioned) by high-level political authorities within a state to conduct investigation on behalf of the state. Secondly, they are empowered to speak authoritatively on particular subjects by virtue of the status and expertise of their members (deriving from sources formally external to the political institutions of the state). Thirdly, the rational, impartial, objective and independent procedures they follow impart an authority to their findings'.

Having been produced through received procedures of forensic enquiry they can, he says, be interpreted as representing a state speaking the truth' about itself. He further argues that, read in this way, commission reports:

can be interpreted as revealing the discursive formations underlying state power in a way that goes beyond the conventional treatment of them as policy-making exercises or as legitimatory devices in the limited sense of educators of public opinion.

And yet the police force is in a very real sense most admirably placed to devise and conduct its own internal self-evaluation. As a strongly cohesive body of men and women with generous organisational, technological and personnel resources it is well equipped for this task. And instead of adopting a siege mentality against any form of external scrutiny or criticism its members might be better advised to exploit to the full the insights of dedicated and experienced people in their own as well as in other professions. For example, more enlightened developments in the field of education in recent times have not only seen the futility and the potentially damaging effects of corporal punishment but also have put an end to the days when the School Inspector descended for a random check' on the hapless teacher doing the job to the best of his or her ability. Whatever the solution however, whether it be in the area of external intervention in whatever form or in the area of honest internal self-scrutiny and self-evaluation in the light of ethical principles, it becomes more and more urgent that a solution be found.

It is generally agreed, and in particular with regard to Aboriginal people, that the police need the respect and the support of the communities with which they are engaged if their work is to be successful in its truest sense - that of guardians of the peace and protectors of life and property - in Lord Scarman's words, the human factor'. In fact, a society's strident and insistent demands that the police fight' or wage war on' crime could well create an imbalance by directing attention away from their equally-important task of policing freedom'. As noted in the Scarman Report (5:3):

They (the police) are now professionals with a highly-specialised set of skills and behavioural codes of their own. They run the risk of becoming, by reason of their professionalism, a "corps d'elite" set apart from the rest of the community. Technological advances have offered new ways of preventing and fighting crime, of protecting life and property, and of quelling disorder without the necessity of maintaining close personal contact with the community. Indeed not the least of the problems the police now face is how to take advantage of their technological aids without destroying the human factor, so essential if policing is to command public support.

Paradoxically, the very technological advance which might well assist police in cultivating and preserving this human factor - that of the audio and visual recording of their encounters with the social objects of their practices is the one seen to be most shunned or feared by them. And occasional failures are less likely to be harshly judged when a counsel of perfection is seen to be set as a standard to follow and a measure against which any such failures can be measured and dealt with. All of which, I would suggest, is inextricably bound up with the need for a model of ideal communication, some aspects of which I have endeavoured to explore in this thesis.


Given that as a society we are committed to a system of law and law enforcement, we are inevitably also committed to a method in the pursuit of those ends. According to Gerth and Wright-Mills (1977:180) the Weberian interpretation of power and the social order proposes that law exists:

when there is a probability that an order will be upheld by a specified staff of men who will use physical or psychical compulsion with the intention of obtaining conformity with the order, or of inflicting sanctions for infringement of it.

Such a lucid proposition would seem to fit the Aboriginal system of law enforcement as neatly as it does our Western one and explains indeed why, despite the problematics involved, Aboriginal people as much as anyone else, do, on the whole, both accept a responsibility towards, and expect protection from, our legal system.

The problem, as Aboriginal people see it, is that amongst the body of men and women entrusted with the task of upholding that order they encounter far too many who somehow seem to consider themselves so above the law they purport to enforce that in the process of that enforcement they transgress its limits. An even more deep-seated problem however would seem to lie in the schemata binding the juristic thought whereby Western jurisprudence establishes what is valid. Jurisprudence, according to Weber (1977:144), "establishes what is valid according to the rules of juristic thought, which is partly bound by logically-compelling and partly by conventionally-given schemata".

Perhaps it could be said that the "logically compelling" schemata of our juristic thought are likely to be the ones most in conformity with the schemata of Aboriginal juristic thought. Where the difficulties are likely to arise however, would seem to be in the area of the "conventionally given" schemata which further constitute that thought and which are socially constructed (see Berger and Luckman, 1979 The Social Construction of Reality).

Clearly, the Australian Law Reform Commission, for example in its examination of Aboriginal Customary Law, is aware of and addresses such problems, not only in regard to Aboriginal people but, increasingly, in regard to other peoples in our multicultural society also. While this might seem a daunting task, it is not only an exciting and challenging one but, whatever it may cost us, one of the utmost importance for our times.

An ever-present danger in the application of any such principles however is the arbitrary categorisation of so-called tribal' Aboriginal people to the exclusion of others who have, supposedly, become, or are in the process of becoming like us'. This denial of, or lack of respect for, the genuine Aboriginality of urban and fringedwelling peoples in the enforcement of our laws lies at the root of much of the frustration and despair which manifests itself in the all too frequent confrontations which occur. For us to recognise and admit that racism, cultural arrogance, and political and economic expediency are the principal impediments to the resolution of such problems would be an important first step to take in their resolution. So that it is not a question of relegating Aboriginal people to a special archaeological or archaic position in our society but of working side by side with them, looking for the best ways to ensure that their real needs, albeit they may be somewhat different from others, are not denied, nor their basic human rights infringed.

Although the Habermasian notion of pure interaction, which is only possible through the freeing of discourse from the constraints of action, might seem a well-nigh impossibly Utopian one, the very recognition of those constraints of action which impede it is in itself perhaps a small step towards emancipation from the prison house of language' and its terrorising effects. Furthermore, there is an inescapable conjunction between the Habermasian concept of communicative ethics and the true application of legal principles.

In touching, if only briefly, on the relationship between language and oppression this thesis does no more than endeavour to respond to as many of the ways of speaking' and signifying practices of the Aboriginal people its author has come to know as the limitations of a Wadjila form of discourse permit. And it is because they themselves have so frequently spoken of injustice that it has been necessary to raise questions of morality as well as of language in addressing the question at issue.

I have endeavoured in this thesis therefore to address the perceptions of Aboriginal people that White law is not administered fairly where they are concerned. I have suggested that this unfairness is both engendered by and reflected in the discourse in which Aboriginal people become involved in their encounters with representatives of the law. In other words, the role of discourse has to be seen as a major site - as instrument, and as a major site of effects. I have suggested that the fatal flaw in the discursive process of the law, as far as valid communication is concerned, lies in the systemic practice of legitimated distortion brought about in the ostensible interests of economy, clarity and order'. In other words, I have argued that much of what is discarded as noise', or random effects of communication, in the process of the imposition of this order', is more likely to contain the real signals of the underlying whole truth' than are the texts produced as a result of the transformations and permitted tamperings customarily practiced upon them.

While such a hypothesis is capable of wider application to a variety of cases I have suggested that for cultural, psychological and sociohistorical reasons it is particularly applicable and pertinent to Aboriginal people in this state, and a contributory cause of their over-representation in the Criminal Justice system.

How the unfolding story of race relations in Australia will ultimately be told depends very much on the success of the efforts made by both sides in talking together and in particular on the part of Whites to stop and really listen to what Aboriginal people are trying to say. As was insisted by an Aboriginal speaker at a Community Aid Abroad weekend conference on Aboriginal Australia at Parkerville W.A. in September 1988 (TR:1988):

Our doors have been open - the invitation is there and we have been waiting and waiting ... We've said - Let's talk - come out and talk with us in the Bush' and that's been ignored time and time again.

To talk in the 'Bush' - or as the Boroloola women put it, to have an 'understanding talk', echoes and encapsulates the frequently repeated plea by Aboriginal people that we should talk together effectively - that their ways of talking be respected and that they not be expected automatically to conform to the rules of our White signifying practices, especially our institutional ones.

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