Denial of Language: Grounds for Occasioning an Unfair Trial?

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Abstract

Judicial proceedings in Australia operate primarily in Standard Australian English. As put by Sharon Davis, ‘Standard Australian English is the language used in law, media, politics, and education in Australia, holding vast power… many Indigenous people have been forced to speak [it] at the expense of ancestral language, Kriol, or Aboriginal English’.

In Ebatarinja v Deland [1998] HCA 62 the High Court held that in a criminal trial, ‘if the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial.’ However, languages like Kriol and Aboriginal English might readily be mistaken for Standard Australian English – a mistake which is particularly problematic in the courtroom because even where those languages use the same words as Standard Australian English, the meaning of seemingly identical words and phrases can differ between the languages. With this in mind, to what extent do – and should – courts understand and respond to the linguistic distinctiveness of witnesses who speak Kriol and Aboriginal English?

This issue arose in Murray v Feast [2023] WASC 273, in which Solomon J of the Supreme Court of Western Australia found that Mr Murray’s initial trial was unfair because the Magistrate failed to recognise his 'linguistic distinctiveness'. Despite information provided by Mr Murray’s interpreter at trial, the magistrate mistakenly regarded Mr Murray as speaking Standard Australian English when he was actually speaking in Kriol and Aboriginal English.

This case represents a significant development of the law – it recognises that an unfair trial can be occasioned in this way even where a fulsome interpretation is provided and no material misinterpretation or misunderstanding of evidence can be identified. This article canvases Murray v Feast so as to provide a clear picture as to how this development of the law came about, and to illustrate the circumstances in which it might be relevant in future cases.
Original languageEnglish
Pages43
Volume1
No.3
Specialist publicationFirst Nations Law Bulletin
Publication statusPublished - 2024

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