‘You Don’t Have to Say Anything’: Modality and Consequences in Conversations About the Right to Silence in the Northern Territory^*

* This paper has developed from part of my Masters thesis, in relation to which I would like to thank my supervisor Jane Simpson as well as Denise Angelo and Susy Macqueen. A version of this paper was presented at the 2017 Australian Linguistics Society Conference in Sydney, and I thank participants for their helpful comments. I would also like to thank Michael Cooke and Prudy McLaughlin for allowing access to unpublished material. All errors, of course, remain my own.

Abstract

Police are (generally) required to inform a suspect of their right to remain silent before questioning that suspect about a potential crime. This is a key protection for suspects which is implemented through a policy about language. Unfortunately, there is evidence that many Aboriginal suspects in the Northern Territory often fail to understand their right to silence. A key reason for this is the way the right is expressed in the law and by police, centred on the expression ‘you don’t have to say anything’. Analysis of the meaning of this language shows that it is a vague way of providing legal information which relies on a subtle semantic distinction in Standard Australian English. This expression is especially vulnerable to misinterpretation by suspects who speak (or learn) other varieties of English, especially in conversations where police purposes are not clear. The way police explain the right to silence can be contrasted with other existing texts including translations which present the information in terms of agency, decisions and consequences. This suggests that the language policy could be significantly improved, with consequences for equality of access to justice.

Keywords:

• Language and Law
• Forensic Linguistics
• Modality
• Sociolinguistics
• Communication of Rights
• Aboriginal Englishes

Notes on Contributor

Alex Bowen works with Aboriginal people in the Northern Territory to develop culturally-meaningful approaches to law and justice, by using Aboriginal languages, building capacity to communicate legal information through translation and plain English, and consulting about intercultural communication and community engagement. He has also practised as a criminal defence lawyer in Arnhem Land and Darwin. Alex Bowen’s research interests include how language is used in the legal system and assumptions that professionals in the legal system make about language. He investigates how language could be used more effectively to achieve justice and communication objectives. Email: [email protected]

ORCID

Alex Bowen http://orcid.org/0000-0002-5018-5790

Notes

* This paper has developed from part of my Masters thesis, in relation to which I would like to thank my supervisor Jane Simpson as well as Denise Angelo and Susy Macqueen. A version of this paper was presented at the 2017 Australian Linguistics Society Conference in Sydney, and I thank participants for their helpful comments. I would also like to thank Michael Cooke and Prudy McLaughlin for allowing access to unpublished material. All errors, of course, remain my own.

1 Evidence (National Uniform Legislation) Act 2011 (NT) s 139(1)(c). A very similar text is found in Police Administration Act 1978 (NT) s 140(a).

2 Police Administration Act 1978 (NT) ss 139, 131, 142.

3 Other phenomena which can be analysed based on the language in these conversations include interaction, discourse, paraphrases of the caution, and the meaning of concepts including rights and evidence (Bowen 2017).

4 An interpretation that ‘you must not answer the questions if you don’t want to’ may seem reasonable to some suspects. However it may then be unclear what police mean when they say ‘you don’t have to answer’ without the condition ‘if you don’t want to’.

5 It should be noted that Walters’ practice of directly contradicting Age’s answers and providing blunt ‘feedback’ is unusual among police in this study.

6 If a suspect refuses to answer police questions in an interview, a court must not draw an unfavourable inference from that fact (for example, an inference that the suspect refused to answer because s/he was guilty): s 89 Evidence (National Uniform Legislation) Act 2011 (NT).

7 It should be recognized that some paraphrases used by police in response to suspect confusion draw out different ways of understanding the caution. Police sometimes talk more directly about suspect agency (‘it’s your choice whether you answer’ (Lawrence #1 2015)) and the impermissibility of police compulsion (‘I can’t force you to answer’ (Todd 1995)) These paraphrases may avoid some difficulties caused by modality, but have the potential to be ambiguous in other ways (Bowen 2017: 149).

8 These interlinear glosses for Djambarrpuyngu follow Wilkinson (1991) and Greatorex and Charles Darwin University (2014).

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