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Understanding Aboriginal silence in legal contexts 287

successfully appealed against the conviction, on the grounds that her lawyers did
not find out the necessary information from her to run her defense (Pringle 1994).
Her conviction was quashed and she was released from prison (having served the
equivalent of the sentence she would be likely to receive for manslaughter).
In Kina’s 1993 appeal, there were three types of expert evidence: from a
psychiatrist on the issue of repressed memory, from a social worker on the ‘bat-
tered woman syndrome’, and from a sociolinguist (this author) about misunder-
standing between Kina and her lawyers. The sociolinguistic evidence (which is
discussed in detail in Eades 1996) showed how Kina’s lawyers, who were not
aware of Aboriginal English ways of speaking, lacked sufficient intercultural
communication ability to find out her story and to adequately represent her at
her trial. For example, not recognizing that Aboriginal answers to questions
often begin with considerable silence, the lawyers had been unsuccessful in
their attempts to elicit her story. They reported that she had been very difficult to
communicate with, and she reported that they had asked her questions, and not
waited for the answers! As a result of this serious miscommunication, the jury at
her trial had convicted her of murder in the absence of important evidence
which should have been used in her defense.
In finding that Kina’s trial (in 1988) had involved a miscarriage of justice,
the appeal court (in 1993) cited ‘cultural, psychological and personal factors’
which ‘presented exceptional difficulties of communication between her legal
representatives and the appellant’ (R v Kina 35–6). In effect, the court accepted
the sociolinguistic argument that Kina and her lawyers had suffered serious mis-
understanding, which resulted in her wrongful murder conviction. This mis-
understanding, it had been argued, was rooted in cultural differences in their
uses of English, for example in the use of silence.
One of the shocking things about the wrongful conviction in Kina’s case is
that it was her own lawyers who failed her – it was not skilful manipulation of
her evidence by an aggressive cross-examination. In fact she had given no evi-
dence in her own defense, as her lawyers had not managed to find out her story,
finding her ‘extremely difficult to communicate with’ (Eades 1996: 219).

3. Intercultural communication awareness for lawyers

As the judges in Kina’s successful appeal pointed out, her trial had taken place
before there was any intercultural awareness training for legal professionals,
and thus her lawyers could not have been expected to recognize the causes of
miscommunication in their interviews with her. But in the early 1990s, intercul-
tural awareness began to be provided for legal professionals, by means of work-
shops, and a handbook written to help lawyers in more effective communication
with Aboriginal English speaking clients (Eades 1992; cf. Rost-Roth in this vol-