"It’s your rights, ok?": explaining the right to silence to Aboriginal suspects in the Northern Territory

Abstract

When a suspect is interviewed by the police, s/he has the right to decline to answer police questions and avoid self-incrimination. This is a fundamental procedural protection, and police are required to inform suspects of the ‘right to silence’, also called the ‘caution’, before beginning the interview. However, the way the caution is stated, both in legal texts and by police officers, is often linguistically and conceptually complex. This makes it less likely that suspects will understand their right to remain silent, especially if they are Aboriginal and speak English as a second language or dialect. Aboriginal people are over-represented in the criminal justice system, and, if they do not understand the right to silence, this may aggravate that disadvantage. In Anunga (1976), the NT Supreme Court attempted to reduce this disadvantage, by requiring police explaining the caution to Aboriginal suspects to obtain evidence of “apparent understanding”. However, this has led to conversations about the caution which are sometimes long and unsuccessful. Difficulties with the caution have long been acknowledged by courts, linguists and others, but regulatory guidance and police language have changed little in 20 years, and there has been no systematic study of the speech event (‘caution conversation’) resulting from the Anunga requirements. The caution originates in a legislated text but police vary its form and content. This thesis examines transcripts in which police explain the caution to Aboriginal suspects and test understanding. It examines what is said and how it is expressed, and what is left unsaid in the caution. It compares the transcripts with translations into Aboriginal languages, and shows that these further vary the caution text, revealing additional meaning. The caution’s meaning is partly about interaction (establishing norms for the interview speech activity) and partly informative (describing the consequences of speaking or not speaking to police). The linguistic analysis takes place at different levels. At the conceptual level, most paraphrases arguably assume knowledge, particularly about rights and evidence. At the conversation level, the caution conversation is a complex speech activity, and the extent to which suspects can understand its purposes and mechanisms is likely to affect understanding of the right to silence. At the discourse level the way police repeat and explain the caution affects its interpretation. Multiple versions of the caution may provide different ways to understand the caution, but unclear discourse relationships between restatements of the caution can also create confusion. At the sentence level, the ambiguous roles of conditional clauses may make versions of the caution harder to understand and relate to each other. At the word-level, police lexical and grammatical choices have different kinds of equivalence in Aboriginal languages, and suspect responses suggest that modality used by police to say that silence is permissible is particularly unclear. Analysis of existing problems in communication and alternative ways of expressing the caution can suggest ways to improve communication to attempt to demystify this aspect of the legal process