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How to assist an Aboriginal defendant

There are a combination of language, cultural and social factors to be considered to best assist an Aboriginal defendant. This section will consider language and culture insofar as they interact and impact communication.

Assessing the need for an interpreter

Aboriginal people in the remote north-west of South Australia may speak in the Western Desert language which has many dialects. Port Augusta has a settled population of Aboriginal people, and is also a traditional meeting place and crossroads for Aboriginal people who travel to and through this area from the north-west of the state and beyond. This means that people from many different Western Desert language groups are in this area at any one time.

For those people from the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), their first language may be Pitjantjatjara or Yankunytjatjara and their second language may be English. It is important to remember that Pitjantjatjara and Yankunytjatjara people identify as separate and distinct groups despite intermarriage between the two groups. Pitjantjatjara can be understood by Yankunytjatjara, Ngaanyatjarra, and Manjiljarra speakers. Interpreter services are available for both Pitjantjatjara and Yankunytjatjara, as well as several other Aboriginal languages.

There are two main services which have Aboriginal language interpreters available in South Australia. For further information on these interpreting services, please visit their websites as follows:

Be mindful that many people also speak Aboriginal English which is a recognised separate dialect of English. Not only may this be difficult to understand, it also incorporates indigenous words, and some English words have different meanings. As there is no interpreter service available to assist with Aboriginal English, the duty solicitor needs to be attentive when taking instructions in Aboriginal English to avoid making false assumptions and misinterpreting the defendant’s instructions. As discussed in the Role of the Duty Solicitor chapter, many legal terms and concepts are culturally foreign. It is therefore important for the duty solicitor to avoid using legal jargon, and instead to describe the situation the defendant is in and their rights in general terms and plain English. An interpreter would also be able to assist with this dilemma.

The Lawyer's Protocols for Dealing with Aboriginal Clients, Third Edition published by the Law Society of South Australia in March 2020 set out:

  • how to assess whether an interpreter is necessary before taking instructions (see box below).
  • how to talk to your client about using an interpreter.
  • the need to use plain English as much as possible. Northern Territory agencies have put together The Plain English Legal Dictionary – a useful resource for judicial officers, Aboriginal interpreters and legal professionals working with speakers of Aboriginal languages.
  • the importance of explaining your role to your client.
  • the importance of explaining the legal or court process to your client before taking instructions in such a way that:
    • they can tell you their story, being mindful or gratuitous concurrence and different ways of communicating (see further below).
  • the need to assess whether your client has a hearing or other impairment that also affects their ability to communicate.
REQUEST AN INTERPRETER

It is the task of the duty solicitor to try to relate abstract legal rights to the immediate experience of the Aboriginal defendant and their situation. Aboriginal people whose second language is English may give the appearance of understanding the court process. The duty solicitor must be on guard against the possibility that this appearance is deceptive, and may signify a familiarity with police procedures only.

The Lawyer's Protocols for Dealing with Aboriginal Clients sets out a 4-step process for assessing the need for an interpreter.

  1. Ask your client an open-ended question regarding working with an interpreter, the role of an interpreter and whether they would like to use one.
  2. If they decline, continue to assess their speaking ability.
  3. If speaking ability is sufficient, continue to assess their comprehension.
  4. If their comprehension is sufficient, then assess their overall communication against the table provided for an indication of whether to use an interpreter.

If the duty solicitor has reason to think that the defendant is unable to understand even the simplest concepts such as bail, adjournment or the circumstances that have brought them to court, then it will clearly be necessary to ask the court to arrange for the services of an interpreter [see Role of the Duty Solicitor chapter].

The Judicial Council on Cultural Diversity (the Council) has developed Recommended National Standards for Working with Interpreters in Courts and Tribunals These standards also recommend legal practitioners use the 4-step process outlined in the Lawyer’s Protocols as per the box above.

A further resource put together by the Council is the Interpreters in Criminal Proceedings Benchbook for Judicial Officers (PDF, 210 KB) These refer back to the recommended standards and cover other practical matters, as well as sample directions to the jury.

Gratuitous Concurrence

Gratuitous concurrence is when a person appears to assent to every proposition put to them even when they do not agree. For many indigenous people, using gratuitous concurrence during a conversation is a cultural phenomenon, and is used to build or define the relationship between the people who are speaking. For example, it may indicate respect towards a person, cooperation between people, or acceptance of a particular situation.

However, it is widely recognised that people who are in a position of powerlessness when confronted by alien institutions and authority figures, and who are disadvantaged due to a language barrier, may adopt a strategy of always agreeing or saying what they think the person in authority wants them to say, regardless of the truth of the matter. Gratuitous concurrence is not confined to traditional Aboriginal people from the north-west of the State [see Role of the Duty Solicitor chapter].

Different ways of communicating

Often taking an indirect approach to seeking information is more appropriate when taking instructions from an Aboriginal defendant. This may avoid gratuitous concurrence, as discussed above, as it removes the necessity to respond to direct questions, or respond to questions with expected “yes” or “no” answers. Allowing a person to tell in their own words what has happened is culturally appropriate when taking instructions from an Aboriginal defendant and allows moments of silence and pause while thoughts are put together. Silence and pause are an important and normal part of communication and the exchange of information. A duty solicitor has to possess the virtues of patience and sympathetic understanding and must listen attentively to an Aboriginal person's story. The story and the telling of the story are essential aspects of Aboriginal culture. Stories are only revealed to people who can be entrusted with them [see Role of the Duty Solicitor chapter].

The use of body language is an integral part of communication for many Aboriginal people. For example, hand gestures and movement of the head and eyes can be important. Direct eye contact may be taken as a sign of aggression, rudeness or disrespect; lowered eyes and talking in a quiet manner may be seen as respectful behaviour.

Working with an interpreter

Many of the points outlined below are further explained in the Australian Institute of Interpreters and Translators Inc information sheets, Interpreters: an introduction (PDF, 293 KB) and Communicating via an interpreter (PDF, 459 KB)

Before the session:

  • Be aware of kinship and gender issues when booking a particular interpreter.
  • Allow at least double the amount of time for the booking.
  • Provide the interpreter with as much information as possible regarding the appointment and the subject matter, including:
    • The client’s name, age, gender and community of origin and skin name to assist in identifying kinship and avoidance relationships.
    • The purpose of the interaction and expected outcomes.
    • Any legal terms that might be used
  • Confirm that the interpreter does not have any other role.
  • Ensure the interpreter is familiar with, understands and is willing to adopt the Code of Conduct for Interpreters in Legal Proceedings and understands their role as an officer of the court or tribunal [Recommended National Standards for Working with Interpreters in Courts and Tribunals (Second Edition, March 2022) (PDF, 938 KB) The Code of Conduct sets out the interpreter’s duty to the Court or Tribunal, to be compliant, accurate, impartial, competent and maintain confidentiality.

During the session:

  • Introduce all parties to one another and explain the interpreter’s role and each of your roles.
  • State that there is an expectation that everything communicated will be interpreted and kept confidential.
  • Speak plain English, making one point at a time and pausing for interpretation.
  • Ensure only one person speaks at a time.
  • Speak directly to your client in the first person (while being aware that direct eye contact might also be avoided due to different ways of communicating)
  • If possible, sit in a triangular arrangement so that you are facing both the client and the interpreter.
  • Allow the interpreter to clarify information.
  • Invite the client to ask questions at any time.
  • Clarify that the client has understood by asking them tell you back what you have said in their own words.

After the session:

  • Clearly indicate when the appointment has finished.
  • Consider de-briefing with the interpreter after the client has left.
  • Log the interpreter’s attendance, and when the appointment starts and ends.
  • Provide feedback and make adjustments for future appointments if necessary.
How to assist an Aboriginal defendant  :  Last Revised: Mon Nov 20th 2023