The politics of misunderstanding in the legal system: Aboriginal English speakers in Queensland

Over the last two decades John Gumperz and his colleagues have drawn attention to the fact that 'speakers may have similar life styles, speak closely related dialects of the same language, and yet regularly fail to communicate' (Gumperz and Cook-Gurnperz, 1982, p. 13). On the basis of interactional sociolinguistic work in the Australian state of Queensland, it has been argued (e.g. Criminal Justice Commission, 1996; Eades, 1994, 1996) that such communication failure is an important factor in the way in which Aboriginal people are disadvantaged by the legal system. This chapter focuses on the role of misunderstanding of Aboriginal English ways of speaking in this disadvantage, drawing on specific cases. I follow Bremer (1996, p. 40) in saying that misunderstanding occurs when the listener achieves an interpretation which makes sense to him or her, but is not the interpretation meant by the speaker. For the purposes of this chapter, I take misinterpretation to be synonymous with misunderstanding. In this chapter, I examine how Aboriginal English ways of speaking have been misunderstood in the legal process, highlighted in a brief outline of a particular case, known as the Kina case. I show how the disadvantage which results from this misunderstanding has begun to be addressed. I then turn to another case (the Pinkenba case), which shows how a knowledge of cultural differences in ways of speaking can be used to achieve misunderstanding. This leads to a discussion of the politics of misunderstanding in the legal system. The chapter begins with some background about Aboriginal people in the criminal justice system, and about Aboriginal English, the language variety spoken by most Aboriginal people in their dealings with the law.