1. See, for example, R v Anunga (1976) 11 ALR 412; Fry v Jennings (1983) 25 NTR 19; R v Kina (Unreported, Supreme Court of Queensland, Court of Appeal, Fitzgerald P, Davies and McPherson JJA, 29 November 1993); Ward v Western Australia (1998) 159 ALR 483, 504 (Lee J); De Rose v State of South Australia  FCA 1342,  (O’Loughlin J). See also Stephanie Fryer-Smith, Aboriginal Benchbook for Western Australia Courts, Australian Institute of Judicial Administration (2002), part 7.4, pp 7:33-40; Adam Alter, Aborigines and Courtroom Communication: Problems and Solutions, Australian Human Rights Centre Working Paper 2004/2 (2004). Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (ALRC 31) 1986, Part V.
2. Diana Eades, Aboriginal English and the Law, Queensland Law Society (1992), 54.
3. Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts (1996) (‘CJC Report’).
4. Supreme Court of Queensland Library, Brisbane, 2005.
5. For a history of the development of Aboriginal English from its ‘pidgin English’ origins at the time of early colonisation, see Eades, above n 2, pp 18 – 20. She concludes: ‘Today the majority of Aboriginal Australians speak varieties of Aboriginal English as their first language. Aboriginal English is a distinctive dialect of English which reflects, maintains and continually creates Aboriginal culture and identity.’ (p 20). See also Chapter 6 generally (pp 57-78) for a detailed discussion of differences in pronunciation, grammar and vocabulary between Standard and Aboriginal English.
7. Queensland Benchbook, p 107 [9.4].
8. Queensland Benchbook, p 109 [9.4.5]. See also Eades, above n 2, pp 22-23.
9. Eades, above n 2, p 11.
10. ALRC 31, above n 1, pp.404-5. See also The Queensland Handbook pp 7-8.
11. For a more detailed outline of differences between Standard and Aboriginal English in a courtroom setting, and the common miscommunications that can arise, see The Queensland Handbook pp 19-34.
12. J Harkins, Bridging two worlds: Aboriginal English and cross-cultural understanding, University of Queensland Press, 1994, discussed in Alter, above n 1, at pp 3- 5.
13. See The Queensland Handbook p 29. For example, in De Rose v State of South Australia  FCA 1342, O’Loughlin J observed: ‘All too frequently during the course of the trial, counsel would ask a question that included an option such as: "Did you go out or did you stay at home?" All too often the reply was ‘Uwa’ (‘Yes’). There would then follow a period of confusion whilst counsel and the witness sorted out whether the answer ‘yes’ meant that the witness went out or whether it meant that the witness stayed at home. Although it might seem laborious, it is quite often much quicker to ask ‘Did you go out?’ If the answer is ‘Yes’, there may be no need to go further. If the answer is ‘No’ then counsel can follow up with the next question ‘Did you stay at home?’ Witnesses cannot be blamed for evidence that is ambiguous or uncertain if they are required to answer questions that they find difficult to understand or analyse.’ 
14. See Alter, above n 1, pp 6-7.
15. The Queensland Handbook notes that in some varieties of Aboriginal English, a negative question is answered the opposite to how it would be answered in Standard English. For example, the question ‘Didn’t you see him?’ this answer might be answered ‘yes’ (meaning, ‘yes I did see him’) in Standard English, but might be met with the answer ‘no’ in Aboriginal English (meaning ‘No I did not not see him’) (p 16).
16. See The Queensland Handbook, p 28.
17. The Queensland Benchbook, p 123 [9.14.6].
18. See, eg, Alter, above n 1, p 6. See also Equality before the law: NSW Bench Book, Judicial Commission of NSW (2006), p 2308.
19. Eades, above n 2, pp 27-8; Alter, above n 1, p 7; The Queensland Handbook p 13; The Queensland Benchbook pp 113-4 [9.7.2]
20.Eades, above n 2, p 45.
21. Eades, above n 1, esp at pp 51-4; Alter, above n 1, pp 7-8; The Queensland Handbook p 14; The Queensland Benchbook pp 114-5 [9.7.3].
22. Eades, above n 2, p 26.
23. (1976) 11 ALR 412, 414.
24. See, eg, Alter, above n 1, pp 3-4, 8-9; The Queensland Handbook p 14.
25. Eades, above n 2, p 49.
27. For example, Eggleston comments ‘The witness does not understand why he is asked to tell the same story over and over again and, not wishing to offend the authorities he changes his story, believing that this is required of him. This makes the cross-examiner’s task of trapping the witness in inconsistencies very easy.’ E Eggleston, Fear, Favour or Affection, Australian National University Press, Canberra, 1976, p 167. See also G Neate, ‘“Speaking for country” and speaking about country: Some issues in the resolution of indigenous land claims in Australia’ Paper delivered to the Joint Study Institute, Sydney, on 21 February 2004, pp 37-41.
28. Eades, above n 2, p 50.
29. Neate, above n 26, p 60. See also Eades, above n 2, p 91.
30. Alter, above n 1, p 3, 9; Queensland Benchbook p 112 [9.6.1].
31. Queensland Benchbook, p 112 [9.6.1]. See also The Queensland Handbook p 38; Eades, above n 2, p 47.
32.Eades, above n 2, p 46. Queensland Benchbook p 112 [9.6.2].
33. Alter, above n 1, p 9. See also The Queensland Handbook p 39.
34. The Queensland Benchbook, p 112 [9.6.2].
35. The Queensland Handbook p 37. See also the Queensland Benchbook p 113 [9.6.3].
36. Federal Court Rules, Order 10, Rule 1. The Court also has an implied power to control and supervise its own proceedings to avoid a miscarriage of justice. See, eg O'Toole v Scott  AC 939; Grassby v R (1989) 168 CLR 1 at 16 (Dawson J); RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 392-3 (Woodward and Foster JJ)
37. Eades provides a checklist for assessing bicultural competence: above n 2, 12.
38. See, eg, De Rose v South Australia  FCA 1342. See also Neate, above n 26, pp 44-48.
39. See also the Queensland Benchbook at pp 119-22.
40. The Queensland Handbook p 9.
41. See CJC Report, above n 3, p 47.
42. Ibid 49-51; Alter, above n 1, pp 11-2.
43. CJC Report, above n 3, p 49. See also Alter, above n 1, pp 11-12.
44. See Order 8 of the orders made in these proceedings on 22 February 2007.
45. Pursuant to s 29(2) of the Evidence Act 1995 (Cth), a witness may give evidence in narrative form with leave of the court.
46. CJC Report, above n 3, 53. See also Hon. Justice D Mildren, ‘Redressing the Imbalance Against Aboriginals in the Criminal Justice System’ (1997) 21 Criminal Law Journal 7, referred to in the Queensland Benchbook pp 117-8 [9.11].
47. Section 41(1)(b) of the Evidence Act 1995 (Cth) permits a Court to disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the question unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. Section 41(2) further states: ‘Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account, inter alia: (a) any relevant condition or characteristic of the witness, including age, personality and education. The Commissioner submits that Aboriginality is an additional relevant characteristic of a witness for the purposes of s 41.
49. CJC Report, above n 3, pp 52-53, citing Transcript of Proceedings, R v Kenny Charlie (Northern Territory Supreme Court, Mildren J, 28 September 1995) T210. The CJC Report provides examples of alternative forms of questioning that counsel may adopt to avoid unfair leading questions while also effectively challenging a witness and the evidence given by them.
50. See Eades, above n 2, p 41.
52. Ibid 47-8; CJC Report, above n 3, 23. Alter, above n 1, p 6; Queensland Benchbook p 123 [9.14.6].
53. Eades, above n 2, pp 49-51; Judicial Commission of NSW, above n 18, p 2308.
54.For example, in De Rose v State of South Australia  FCA 1342 O’Loughlin J used a substitute name for a witness, explaining his reasons as follows: ‘The oldest was Owen Kunmanara, who was born around 1910. The word “Kunmanara” was not part of his name; it is more like a title or a description. Owen's other name happened to be the same as that of a man who had died recently. In accordance with Aboriginal tradition, the name of the deceased man could not be spoken. Instead, the living person is referred to as “Kunmanara” - which literally means “substitute name” - thereby identifying him or her as a person whose name could not be spoken because of the death of another who had the same name.’
55. For examples of Courts adopting such a practice, see Neowarra v Western Australia  FCA 1402, - as well as , -, , -, ; Land Tribunal, Aboriginal Land Claims to Mungkan Kandju National Park and Unallocated State Land Near Lochinvar Pastoral Holdings, 2001, p 28 . See also Neate, above n 26, pp 60-2.
Last updated 19 April, 2007.