Police shot a 66-year-old man in the stomach on Monday night after the man allegedly threatened a taxi driver and then police officers with a knife.
The man had been a passenger in a taxi, along with two women, when a dispute arose with the taxi driver. It’s alleged the man stabbed several tyres before they arrived at the scene.
Western Australian police refused to use local Indigenous language interpreters, for the women who speak Kukatja, despite being told they did not speak English well enough to understand their legal rights.
Paul Tobin, managing lawyer of the West Kimberley branch of the Aboriginal Legal Service of WA says the failure to not use an interpreter can leave gaping holes in versions of events and led to injustice.
“The risk where interpreters aren’t utilised is that injustices occur whether it be for accused persons, witness, family members, victims; the risk of injustice is heightened,” he said.
“When you’ve got two people who don’t speak the same language trying to communicate about what can be serious legal situations.”
Tobin says for all witnesses to a matter who have English as a second language, interpreters should be called for.
“The police manual stresses that police interpreters need to be contacted especially in circumstances such as this - where two women from a very remote area, being Balgo up near the Tanami desert and whose family members are stressing they aren’t strong with English,” he said.
“My understanding is that the Kimberly interpreting service also contacted the Broome police station and offered their services… in fact the officer refused to involve them in the investigation.”
The Aboriginal elder was flown to Perth for surgery on Tuesday and a spokeswoman from Royal Perth hospital said he was in a serious condition.
Police claimed the man, who was from Balgo, a remote Indigenous community 926km from Broome, on the edge of the Tanami desert, had become agitated while sharing a taxi with two women from the same community.
Those women were picked up by officers and taken to Broome police station for interview about 10am on Tuesday.
Mr Tobin said he advised the Kimberley district superintendent that the women would require an interpreter.
“We were informed by family members that both women were scared and concerned with what was happening, due to a person known to them having being shot on the previous evening,” he said.
“We were aware they were at the police station and sought to advise the police that they should be assisted by interpreters because they were Kukatja women but that wasn’t taken up by the Broome police station.”
Kimberley Interpreting Service, WA’s only Aboriginal language interpreting service, had two registered Kukatja interpreters available in Broome.
But Tobin said an officer investigating the shooting said he would not use anyone from Kimberley Interpreting Service.
“He refused to involve Kimberly interpreting services with the investigation… the reason for that was not disclosed to Aboriginal Legal Services, we did ask but it wasn’t disclosed.”
Tobin said the officer told him they had already spoken to one of the women, in a video-recorded interview, but had to cease the interview when she became unwell (for reasons unconnected to the investigation) and had to go to hospital. They then began speaking to the second woman.
A WA police spokesman told NITV News that they couldn’t use people from Balgo because they’re from the same community and that would be a conflict of interest.
“No formal interviews were conducted with the two women that were present at the time of the incident. Both women are considered witnesses and after the shooting they were both hospitalised. After their release they were spoken to and arrangements made to conduct a formal interview with the aid of an interpreter at a later date.”
“The NT Interpretation Service offers qualified reliable interpreters who speak all the Western Desert languages. WA Police are aware a number of the Kimberley Interpretation Service staff have links to, or live at Balgo and considered there may have been a conflict of interest to use this service.”
Tobin pointed out that this isn’t the first time police failed to use an interpreter, and that six years ago, the murder charge was downgraded due to police violating his right to have an interpretor present, also that three police officers lost their job.
In 2010, WA Police were investigated by the Corruption and Crime Commission (CCC) for their failure to use appropriate interpreters when speaking to Indigenous suspects and witnesses in a high-profile case in Broome, involving a Pintupi-speaking man named Gene Gibson, who was convicted of killing non-Indigenous man Joshua Warneke.
Gibson was originally charged with murder but the charge was downgraded to manslaughter after the Supreme Court ruled police interviews were inadmissible because they violated his right to an interpreter under the Criminal Investigation Act 2006.
In June his lawyers lodged an appeal with the Supreme Court, saying the manslaughter conviction, on the basis of a guilty plea, had been a miscarriage of justice.
Eleven police officers were reprimanded for their role in the investigation and three received a commissioner’s loss of confidence notice, the highest internal reprimand.
In January the police commissioner, Karl O’Callaghan, announced a suite of reforms, including a pre-recorded Aboriginal language caution, in response to the CCC review.
Tobin said he had not seen any improvement since the Gibson case.
“In my near four years in the west Kimberly, there’s a real lack of the use of interpreters be it with accused persons, be it with witnesses, I’ve never worked in the matter where police have sought the use of interpreters and I’ve worked in perhaps somewhere between 2000 to 3000 matters, many with persons who have difficulty with English.”
He said the failure to do so “can leave gaping holes in versions of events” and “regularly led to injustice.”
“Indigenous persons all over the country, whether confident with their English or not should be offered what would be considered basic rights, and they are that an interpreter be present. It should always be offered to witnesses.”
Police procedures in WA explicitly recommend the use of the Kimberley Interpreting Service when an Indigenous witness or suspect does not have sufficient English competency to understand their legal rights or provide an accurate statement.
The Kimberley Interpreting Service chief executive, Dee Lightfoot, told NITV News that when people don't understand, the justice system fails everyone.
“It is a gross breach of basic human rights to not understand or be understood, everyone has a right to speak and be spoken to in their first language,” she said.
“There is no shortage of human rights conventions and government policy that support this view.”
Lightfoot said too many people believe speaking English is easy so everyone should be able to do it.
“Clarity and reliability are crucial when a person’s guilt or otherwise is at the heart of how evidentiary data is presented and judged.
Language and cultural interpretation is central to both the legal and ethical process in such circumstances.
Interpreters for Indigenous persons are vital to the enactment of due process, natural justice and equality before the law.”
Bill Shorten says the situation is concerning.
“I do think we’ve got a problem in our custodial system, in our justice system where Indigenous Australians are disproportionally represented in the jails of Australia.”
“Let’s call it as it is – your skin colour should not be a predictor of whether or not you go to jail in Australia.”
“We don’t have enough non-custodial paths to make sure that were not seeing a disproportionate number of our young black people ending up in jail.”