ABSTRACT
As its title suggests, this book is intended to function as a handbook of forensic linguistics. I have been asked to provide a final chapter, expressing the point of view of a judge about some aspects of forensic linguistics. The two aspects I have chosen are related to the lack of communication between those engaged in the practice of the law and those in the field of forensic linguistics. The first is the fundamental ignorance on the part of most lawyers that there even is another profession concerned with the study of the language used in the functioning of the legal system. The second is the problems that forensic linguists can encounter when asked to give evidence as experts in court. To put my remarks in context, I think it advisable that I tell the reader something of
my experience. Between 1972 and 1984, I practised as a barrister in Melbourne. In my early days, I was involved in a wide variety of cases, including minor criminal proceedings before magistrates, claims for damages for personal injuries, and minor commercial disputes. The mid-1970s were a time of great opportunities for those at the Victorian Bar. My practice expanded quite quickly into one dealing principally with matters of commercial law, equity and property. In 1978, I began to receive briefs in labour law matters. This aspect of my work developed rapidly into a specialisation which required me to travel all over Australia. In 1984, I had the very good fortune to be appointed as a judge of the Federal Court of Australia, a position I still hold. Initially, my judicial work was principally in the field of labour law, although it has since expanded into areas of public and commercial law. The court of which I am a judge deals with almost no criminal law; the work is spread
across a range of aspects of federal law and is interesting and challenging. The criminal cases that it does hear involve regulatory offences with relatively small maximum penalties, so that there have been no criminal trials involving juries. It is therefore a very long time since I have been in a courtroom with a jury. During the 1990s, I was also appointed as Aboriginal Land Commissioner, pursuant to
the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This Act operates only in the Northern Territory of Australia and enables groups of Aboriginal people to seek from the Commissioner findings that they were the traditional Aboriginal owners of specific areas of Crown land, as a result of which the Commissioner would recommend that the
land concerned become Aboriginal land under the Act. As a result of the operation of this Act, approximately half of the land in the Northern Territory is now Aboriginal; the freehold titles, along with traditional entitlements of various kinds, are held by various land trusts for the benefit of Aboriginal people. The hearings conducted under this Act were administrative investigations, rather than trials resembling court proceedings. Hearings were conducted routinely on the land in question and travelled from site to site by four-wheel drive vehicle or helicopter. It was very common for the Aboriginal claimants to supplement their oral evidence of traditional attachments to land by demonstration of those attachments through ceremonial performances, involving dancing and singing, with appropriate designs painted on their bodies and the use of sacred objects. In the course of dealing with Aboriginal land claims, I had many dealings with
anthropologists and linguists, people whom I had not previously encountered. For each claim, I was entitled to engage a consulting anthropologist. There were two such persons, each of whom gave me different and very valuable perspectives on a number of issues. In addition, it was typical for the claimants to have the assistance of one or more anthropologists or linguists in the preparation and presentation of their claims and their reports were vital in providing a framework to enable me to understand the oral evidence of the claimants themselves. In a number of claims, linguists functioned as anthropologists. They had become associated with the claimants over a number of years for the purpose of studying the claimants’ language or languages and, as language and culture are inseparable, the linguists had become the leading experts on the kinship systems of the claimant groups and their relationships with land tenure. My involvement in Aboriginal land claims prompted an interest in cross-cultural
communication. I continue to be an active member of committees at the national and state levels, aiming to educate judges, magistrates and tribunal members in Aboriginal cultural awareness, to minimise the injustice that arises from misunderstandings in legal proceedings. It was this interest in cross-cultural communication that led me to my first biennial conference of the International Association of Forensic Linguists (IAFL), held in Sydney in 2003. I applied to become a member of the IAFL and, although I do not have any qualifications in linguistics, I was permitted to join and have enjoyed attending subsequent biennial conferences.
