LLB106 - Cultural Competency Critique PDF

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LLB106 Cultural Competency Critique Mine Coetser – N10486968

Question 1:

Quantifiable specification One key verbal communication issue present is quantitative estimates. As outlined in the Equal Treatment Bench Book, in Aboriginal traditional language, specification includes qualitative elements such as geography, social matters or the climate. 1 This contrasts with other cultures where numbers, time and place are examples of specific details. 2 Because of this trait, the indigenous person in question may sound vague, imprecise and may contradict themselves when being questioned using western specifics. 3 This is shown when the witness is asked about the time she arrived at the park. The counsel became passive-aggressive and sarcastic when she responded with, “later.” This misunderstanding is reiterated when the prosecutor states, “…you seem deliberately vague about that timing yourself.” Aboriginal witnesses are placed at a disadvantage when questions such as these are asked, as it not a part of traditional languages.4However, this could have been avoided, had there not been a misunderstanding in communication differences.

Gratuitous Concurrence Gratuitous concurrence occurs when a person agrees with the questioner regardless if that is their stance on the subject matter. A common trait in Aboriginal people is to agree to questions even if the content is not understood in order to escape an uncomfortable situation or to agree to the question to emphasise their cooperation when being interrogated even if it is not factually accurate.5 This is highlighted in the dialogue, where the witness is saying “yeah”, or “yes” to a majority of the questions asked by the prosecutor. Many of these questions include subject matter that is not a part of the traditional indigenous practice. An 1 Supreme Court of Australia, ‘Equal Treatment Benchbook’ (Supreme Court Library Queensland, 2nd Edition, 2016) 93. 2 Ibid 93. 3 Matt Foley & Judy Spence, Aboriginal English in the Courts: A Handbook (Cunnington Publishing), 15. 4 Ibid 15. 5 Matt Foley & Judy Spence, Aboriginal English in the Courts: A Handbook (Cunnington Publishing), 14.

example of this is when the counsel made assertive remarks such as “you had an argument. You started to punch her…you then decided to either go back to your own group of friends or leave the park. Is that right?” The witness then responded with “yeah. I left the park.” The witness did not agree with the entire statement, only that she left the park. This statement could be interpreted as agreeing to all the claims made by the prosecutor. It is gratuitous concurrence which disadvantages the aboriginal witness substantially. 6

Direct Questioning The most consistent cultural communication problem evident within this encounter is the overuse of direct questioning. Direct questioning uses a ‘yes’ or ‘no’ form of questions to acquire information in non-aboriginal cultures. Direct questioning is an ineffective method of interviewing, because in customary Aboriginal English a “two-way exchange of information” is required to allow for a narrative response, therefore an indirect questioning approach. 7 Direct questions are easily interpreted as hostile by aboriginal witnesses and can cause distress and confusion when persistently being asked direct questions.8 By asking the witness questions which allude to the information required and offering information, it allows for an indigenous person to respond in a familiar form.

Question 2:

Eye Contact The main cultural communication flaw within the advice of the junior lawyer is his suggestion to the witness to look the prosecutor in the eye when addressing him. Alongside this, it was proposed to speak to the prosecutor as a “family member.” In western culture, eye contact is a sign of confidence and courtesy, and thus, a lack of can be interpreted as dishonest, disrespectful and insecure.9 In the Pinkenba Six case, counsel noted that the lack of eye contact shown by one of the boys was an indicator of untruthfulness. 10 Conversely, in Aboriginal societies, eye contact with anyone other than a person who is closely acquainted 6 Matt Foley & Judy Spence, Aboriginal English in the Courts: A Handbook (Cunnington Publishing), 14. 7 Matt Foley & Judy Spence, Aboriginal English in the Courts: A Handbook (Cunnington Publishing), 13. 8 Ibid 13. 9 Matt Foley & Judy Spence, Aboriginal English in the Courts: A Handbook (Cunnington Publishing), 38. 10 Purcell v Vernados (No.2) [1997] 1 Qd R 317.

with them, such as family, is seen as disrespectful, rudeness and aggression. 11 This advice is contradicting as means of showing respect and honesty differs in the respective cultures.

Question 3:

Non-Verbal Features One of the most significant forms of miscommunication when dealing with Indigenous people in the legal system is non-verbal features such as eye-contact, gestures and facial expression. An implication a Judge of the District Court could make would be to make the jury and opposing counsel aware of the cultural difference to ensure a fair trial. As stated in the Equal Treatment Bench Book, body language such as lack of eye-contact represents a sign of respect for authority in Aboriginal culture. 12 By adapting to accommodate for the Aboriginal communication barrier, Indigenous person in court will not be disadvantaged in court proceedings.

Indirect Questions In cross-culture exchange, it is imperative to understand the differences between Aboriginal English and Standard English to conduct a fair trial. Direct questions are common within court proceedings, as asking precise questions is viewed as an effective way of attaining information in non-indigenous societies. However, direct questions are “culturally alien” to many aboriginal people, as their common practice is to engage in a two-way conversation. 13 Aboriginal people who offer information on certain affairs can become humiliated when their contribution is questioned.14 By changing the style of which questions are presented in court when dealing with an Aboriginal person, it will allow the trail to be fairer and will allow members of both counsels to uncover more information.

Another option would be to employ an interpreter to ensure there are no misunderstandings between either counsels.

11 Ibid 317. 12 Supreme Court of Australia, ‘Equal Treatment Benchbook’ (Supreme Court Library Queensland, 2nd Edition, 2016)) 88. 13 Supreme Court of Australia, ‘Equal Treatment Benchbook’ (Supreme Court Library Queensland, 2nd Edition, 2016) 90. 14 Ibid 90.

Question 4:

Lexical Perversion A key cultural communication issue evident in the questions asked by the prosecutor is described by Diana Eades as lexical perversion. Lexical perversion is the non-acceptance of a witness’ account of their individual experience, through persistent correction and substitution of another phrasal item.15 In this case, counsel is making consecutive statements that are constructing a narrative, by changing the context or intended meaning of Ms Waru’s testimonies. The misinterpretation of the negative responses given by the witness is used by the prosecutor to design a new narrative. To give an instance, the witness states, “I didn’t punch no one.” The prosecutor went on to say “so you did punch someone,” and described her answers as word games. In Aboriginal English, the second negative in a sentence reaffirms the first negative, whereas as in standard English, it cancels it therefor making it positive.16 This is a misconception on the prosecutor’s behalf. Lexical perversion is seen repeatedly in the Pinkenba Six case, where officers reconstruct the complaint’s account of the series of events.17

Leading Questions Leading questions are proposed in a way that manipulates or prompts the listener to give a specific answer. The questions and language used by the prosecutor provoke specific answers. The prosecutor asked the witness, “you were explaining to the court how you punch Ms Damara because you believed she was sleeping with your partner.” Despite the fact that is not a direct question, it is a leading statement which narrows the answers of the witness by proposing the content of the question as facts. 18 As stated in the Equal Treatment Bench Book, a judge may exercise his power to require counsel to renounce this form of examination. Question 5: 15 Diana Eades, ‘Lexical struggle in court: Aboriginal Australian versus the state’ (2006) 10 (2) Journal of Sociolinguistics 1,1. 16 Matt Foley & Judy Spence, Aboriginal English in the Courts: A Handbook (Cunnington Publishing), 28. 17 Purcell v Vernados (No.2) [1997] 1 Qd R 317. 18 Supreme Court of Australia, ‘Equal Treatment Benchbook’ (Supreme Court Library Queensland, 2nd Edition, 2016) 94.

Silence In Australian culture, silence is avoided in most social and formal settings, except amongst intimate friends and family.19 Silence can be interpreted as a sign of guilt, elusiveness and ignorance in a court setting.20 Among Indigenous people, silence is a common and appreciated occurrence in conversation which allows the speakers to think or adjust to the circumstance. Silence can also be an indicator that the person feels uncomfortable with the subject matter being discussed, or unsure and confused about the proposition. 21 Ms Waru’s pause of silence could be misinterpreted by a jury as a sign of guilt even though this is common practice in aboriginal culture. The witness has been placed in a position where she is being misunderstood and accused. This situation rightfully demands silence. The lack of understanding of this practice in indigenous communication would be significant to those of non-aboriginal societies.

Word count: 1287

19 Matt Foley & Judy Spence, Aboriginal English in the Courts: A Handbook (Cunnington Publishing), 39. 20 Supreme Court of Australia, ‘Equal Treatment Benchbook’ (Supreme Court Library Queensland, 2nd Edition, 2016)) 88. 21 Ibid 88....