Page 319 - Handbooks of Applied Linguistics Communication Competence Language and Communication Problems Practical Solutions

Understanding Aboriginal silence in legal contexts 297

lice in the exercise of neocolonial control over indigenous people (see Cunneen
2001). While these questions were discussed in the media, they were officially
tested in the criminal justice process, through the committal hearing in this case.
And this is where sociolinguistic analysis becomes central to the understanding
of the reproduction of oppression, because the power struggle here is enacted
through linguistic practices.
These linguistic practices are filtered through the laws of evidence. Thus the
police officers, guilty until proven innocent by the prosecution, did not have to
speak at all. And the Aboriginal boys had no protection, despite their youth,
from the worst of cross-examination in an adult court. Further, most of their
cross-examination was about their previous criminal records. Compounding
these constraints on topic and participation structure, were the specific linguistic
strategies used to manipulate the boys’ evidence. This point takes us back to
cultural differences in the use and interpretation of silence. As we have seen, it
can not be argued that there was a misunderstanding or lack of awareness about
cultural difference in communicative style. In fact, it appears most likely that a
conscious knowledge of such issues was essential to the cross-examination
strategy. Thus, a sociolinguistic explanation of the intercultural communication
in this case requires an approach which examines power relations, both within
the situation (or within the discourse), and in the wider society (or behind the
discourse). Such an analysis fits with a third approach to linguistic and cultural
diversity, termed the ‘discourse’ approach by Rampton (2001), and ‘problemat-
izing givens’ by Pennycook (2001). What is important in this approach is ‘view-
ing language as inherently political’ and ‘understanding power more in terms of
its micro operations in relation to questions of class, race, gender, ethnicity, sex-
uality, and so on’ (Pennycook 2001: 167; see also Conley and O’Barr 1998).
Thus a sociolinguistic analysis of intercultural communication which uses this
approach can examine actual linguistic strategies, such as the ways in which
cultural differences in the use and interpretation of silence are exploited in
cross-examination.
Of course, it can be argued that this was an extreme case, and certainly I
have never seen cross-examination like it, either before or since. But the import-
ant point is that it happened, and it was allowed to happen. The cross-examin-
ation was so successful that the magistrate decided to drop the charges against
the police officers. When the families of the boys complained, an appeal was
launched against this decision. This resulted in a judge reviewing the magis-
trate’s decision, and dismissing the appeal. So, it is clear that while the cross-
examination of the three boys in this case may have been an aberration, it was
still widely taken as ‘due process’ and the proper functioning of the justice sys-
tem, and indeed it was legitimized by the judicial review. So the linguistic strat-
egies, such as the ways in which cultural differences in the use and interpre-
tation of silence were exploited in cross-examination, have effects far more