Dowling said those reforms provided a “good model” for a direction to “counter incorrect or stereotypical assumptions” that might affect jurors’ assessment of the evidence of First Nations witnesses. This would not remove judicial discretion and directions were “not required in every case or for every First Nations witness”, she said.
Building a culturally safer justice system
- Director of Public Prosecutions Sally Dowling, SC, has identified a range of potential changes that could help build a culturally safer criminal justice system for First Nations victims of crime.
- The changes might include a new requirement for judges to give a direction to jurors in some cases to help situate the evidence of First Nations witnesses in a cultural context. This could be modelled on the direction about consent given in some sexual assault trials.
- The Evidence Act could also be changed to make it easier to introduce expert evidence about sociolinguistic factors that may affect the assessment of First Nations witnesses’ evidence.
- Inspiration could be drawn from the state’s child sexual offence evidence program, which allows for a deviation from conventional cross-examination in some cases. This may allow evidence to be given in a narrative form.
- Dowling said that “the very fundamental thing that needs to happen is that there is comprehensive judicial training into trauma-informed practice and also cultural awareness and culturally safe practices in courtrooms”.
The directions could “be as simple as highlighting to the jury that in many First Nations communities it’s considered polite to avoid eye contact or that a silent pause is an important part of Aboriginal communication,” she said.
This year, Dowling’s office discontinued a prosecution involving the alleged sexual assault in the 1970s and 80s of an Aboriginal teenage girl, given the pseudonym Leah, after Leah raised concerns about the trial process and a lack of cultural safety.
Leah’s concerns included the potential for long silences in the evidence of First Nations witnesses to be misinterpreted, and her desire to give her evidence in a narrative fashion without cross-examination.
“Leah noted that both she and her mother were storytellers, and that there is significant cultural value and power in storytelling for First Nations people,” a DPP case note said.
Leah’s case was not isolated. Dowling said that “for First Nations people, cultural safety is central to wellbeing” and her office “frequently terminates prosecutions involving Indigenous complainants because the criminal justice process is not culturally safe and does not meet their needs”.
“These proposals are not radical. They are about fairness, and justice is all about fairness.”
NSW Director of Public Prosecutions, Sally Dowling, SC
Judges have discretion to give a direction to jurors about the evidence of First Nations witnesses, and they have been given in trials in the Northern Territory, Queensland and Western Australia. However, they have rarely been given in NSW despite applications by prosecutors, and they have no legislative basis.
“We have seen with the consent directions … that there’s not a lot of movement in this area without legislative amendment,” Dowling said.
She said there was “a widespread misconception that only First Nations people from remote communities have these distinct sociolinguistic characteristics” but “even quite urban communities” could share those features.
Dowling said separate changes to the NSW Evidence Act could be considered to allow “expert evidence on the sociolinguistic features of First Nations people … to be given in court much more easily”, as is the case for expert evidence about the impact of sexual abuse on children.
The state’s child sexual offence evidence program also provided “a precedent for a significant deviation from conventional cross-examination in NSW”, she said, and it was “an analogue … from which we can draw inspiration in this context.” The Evidence Act already allows judges to give a direction that witnesses give evidence in narrative form in some cases.
“These proposals are not radical,” Dowling said. “They are about fairness, and justice is all about fairness. We’re pursuing these changes largely in response to what our First Nations staff … have identified as the difficulties they face in working with our First Nations witnesses and complainants.”
The changes “would be just as beneficial for First Nations people who are accused of having committed crimes”, she said.
Indigenous Australians are overrepresented as victims of crime compared with the non-Indigenous population and “they are a really important cohort of the people who are needed to be serviced by the criminal justice system”, Dowling said.
Bureau of Statistics figures based on police reports reveal First Nations people experienced sexual assault at 2.5 times the rate of non-First Nations people in NSW last year, the DPP said in a report tendered in a Senate inquiry.
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