hearing loss and the criminal justice system - Australian Indigenous ...

Senate Inquiry March 2010_________________________________________________________________________________________________________________Communication in courtFair and just outcomes are more difficult within court processes not only because of thedefendant’s hearing loss but also because of the hearing loss among Indigenous witnesses(Howard, 2006). Hearing loss related communication difficulties often interact with culturaland linguistic issues, but to date it is only the cultural and linguistic factors that have beenconsidered in research and practice in the justice system. One example is the greaterpropensity of Indigenous people to have a long silence before responding to questions.“Long periods of silence are generally avoided in mainstream Australian discourseexcept among intimate friends or relatives. Particularly in formal proceedings,there is a felt need to ‘fill in’ silent periods. In Aboriginal societies, on the otherhand, lengthy periods of silence are the norm, and are expected duringconversation, particularly during information sharing or information‐seeking.(Queensland Government, p 39)Diana Eades describes the importance of understanding this for courtrooms."an Aboriginal woman from central Queensland, who was in prison in Brisbane. Sheasked to give evidence at a Criminal Justice Commission hearing in Brisbane in themid 1990s in a case investigating allegations of police wrong doing (in theirinvestigation of a crime). This woman had been a witness to certain events shewanted to tell the commission about. I was to give evidence later that day aboutAboriginal communication, and was asked to listen to evidence of a few of thewitnesses including this woman.Although it had been she who had approached the lawyers, when she took thestand, she seemed unable to tell her story, or answer the questions. Doubtless shefelt some unease in the situation, but the thing that struck me was the fast pace ofquestions, with no time for answers ‐‐ the old western anglo thing of feelinguncomfortable after about 1 second silence, and then going on to ask the nextquestion.The lawyers and the commissioner were getting frustrated, so they asked thewitness to step outside while they discussed the problem. When they asked for myopinion, I said they needed to allow longer time of silence as the first part of theanswer to their questions.When asked exactly what they should do, I said, "ask your question and then shutup". When asked how long they should wait, I said "till after the answer". Thecommissioner directed the lawyers to proceed according to my advice and thewitness was brought back in. To the lawyers' credit they followed my instructions,and the transformation in the witness was amazing. She did pause noticeablybefore answering some questions, and then proceeded to give a very articulate andcoherent account of what she needed to tell the commission. The only differencebetween the two sessions of evidence with this woman, was the pacing of thequestions – that is, the lawyers allowing for silence as the first part of her answers._________________________________________________________________________________________________________________13 Phoenix Consulting