The requirement to tell suspects about their right to avoid self-incrimination ideally puts all suspects in an equal position at the start of a police interview. However explaining the right to silence to some Aboriginal suspects is notoriously difficult, and lack of understanding may further disadvantage some Aboriginal people who are already over-represented in the criminal justice process. A number of rules and policies attempt to regulate the way NT police communicate the right to silence. Police are required to explain the right to silence and obtain evidence of apparent understanding, which often leads to long conversations with suspects, which are recorded. This is a linguistic study of those conversations using transcripts from court decisions.
This study examines how police explain the right, how Aboriginal people might understand it, specific language issues that arise, and what is left unsaid. Although there is a legislated text explaining the right to silence, there is evidence that this text is difficult to understand. Specific language issues are revealed by some suspect responses and by analysis of some Aboriginal languages. In conversation, police explain the right in a variety of ways. For each police paraphrase we can analyse the likely inferences required to understand it, and compare it with translations of the text, which tend to be longer and reveal assumed knowledge. Examining interaction, discourse, semantics, and pragmatics, I argue that suspects need to understand 'what is happening' and what is under discussion, in order to learn about the right. Ultimately, explaining the right to silence calls on contextual knowledge. It is probably difficult to understand the right and make a decision about exercising it without some knowledge about how the legal process works, but it is unclear to what extent this knowledge is required to be explained or understood.
Alex Bowen was a criminal defence lawyer at the North Australian Aboriginal Justice Agency from 2012-15, based in Nhulunbuy and Darwin and working with Aboriginal people from diverse language and cultural backgrounds, particularly in Arnhem Land. The criminal justice system uses language to do most of its work, and when language and culture are not shared this can lead to miscommunication, which is a challenge for many non-Aboriginal people. Alex has recently completed an ANU master's thesis in linguistics, looking at one part of the criminal justice process, the way police explain suspects' rights.