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Understanding Aboriginal silence in legal contexts 295

lence. From here it is very easy to get Albert to agree to the assertion (in
Turn 11), in a context which strongly suggests that this is an answer of gratu-
itous concurrence.
The linguistic strategies, such as illustrated here in relation to silence and
gratuitous concurrence were very overt and effective. Given the highly adver-
sarial nature of the hearing and the fact that the two defence counsel were
among the top criminal lawyers in the state, it would be safe to assume that these
strategies were deliberately used to destroy the credibility of the witnesses
(which is, after all, the major aim of cross-examination).
But it was disturbing to find out that the two defence counsel had at the Bar
table a copy of the handbook for lawyers (Eades 1992). The handbook had been
written to assist lawyers in more effective communication with Aboriginal wit-
nesses. But, in the Pinkenba case, it appears to have been used upside-down, as
it were. The provision of intercultural awareness for lawyers seems to have been
used to make things worse in terms of intercultural communication. An under-
standing of cultural differences in communication, such as the use and interpre-
tation of silence, appeared to provide the defence counsel with a powerful tool
in the manipulation the evidence of the Aboriginal boys.
This situation realized my initial fears in writing the handbook, that in-
formation provided about cultural differences in communicative style, might be
used against Aboriginal witnesses. But I had been reassured at the time that the
adversarial balance would prevent such a situation. I now realize that this reas-
surance, and my acceptance of it, was based on a naively apolitical view of both
the legal process, and the nature of intercultural communication. What hap-
pened to the adversarial balance in this case? If we examine the courtroom in-
teraction, we find a situational power imbalance. The defence counsel (hired by
the Police Union to defend the six police officers) were the most highly paid bar-
risters in the state, while the prosecutor and the magistrate were considerably
more junior is terms of experience and income. It has been suggested that the
prosecutor and the magistrate were fearful of being exposed and ridiculed by the
two top barristers.
But to analyse the intercultural communication in this hearing only in terms
of the immediate context would be inadequate. Following Fairclough (1989), we
need to go beyond the immediate situation of the courtroom in order to under-
stand the power relations that were operating within the courtroom. This exam-
ination of ‘power behind the discourse’ in Fairclough’s terms takes the socioling-
uistic study of intercultural communication beyond a difference approach, to
encompass the domination approach (or as it is generally called in language and
gender studies, the ‘dominance’ approach, see Freed 2003). In this approach, “the
focus shifts to larger structures of domination, and the need is stressed for insti-
tutions to combat the institutional processes and ideologies that reproduce the op-
pression of subordinate groups” (Rampton 2001: 261, emphasis in original).