Aboriginality is often relevant to the judicial officers’

ASSIGNMENT QUESTION ‘In my view Aboriginality is often relevant to the judicial officers’ responsibility of ensuring that the proceedings are conducted fairly. But, it seems that this relevance of Aboriginal identity—specifically in terms of communication in interviews with police or lawyers, or during courtroom questioning—is often ignored.’ Diana Eades, ‘Judicial Understandings of Aboriginality and Language Use in Criminal Cases’ in Peter Toner (ed), Strings of Connectedness: Essays in Honour of Ian Keen (ANU Press, 2015) 35. Critically evaluate this statement in the context of questioning Aboriginal witnesses in court. The critical evaluation should include: • _Identifying the major issues in relation to the questioning of Aboriginal witnesses in court which affect the fairness of a trial. (5 marks) • _Analysing the relevant provisions in Chapter 2 of the Evidence Act 1995 (NSW) and evaluating whether or not they, and the judicial guidelines, provide adequate mechanisms for overcoming the issues identified. (15 marks) • _Independent research (as guided by the materials provided) used to critically evaluate the statement and explain whether, and to what degree, you agree or disagree with Eades. You should also state why you agree or disagree with reference to the critical evaluation of the problem. (25 marks) • _Marks are allocated for written expression, grammar and referencing (5 marks). This assignment will primarily assess your skills in critical analysis and reflection. This requires you to move beyond descriptive analysis of subject matter; you are required to take an attitude of ‘reflective scepticism’. Central to critical evaluation is identifying and challenging assumptions underlying the law, legal processes, and commentaries and critiques of it. You should be aware of the assumptions in your own and others arguments, and weigh and evaluate them. You should take account of contexts, motivations and interests, to see where these may conflict. Must have used all of the below sources and at least three of your own. Your essay should reflect upon the following materials and resources when undertaking your assignment: • _R v Stack [2004] WASCA 300 (Austlii) • _Judicial Commission of New South Wales, Equality Before the Law Bench Book (June 2015) section 2 ‘Aboriginal People’ http://www.judcom.nsw.gov.au/publications/benchbks/equality • _Diana Eades, ‘Judicial Understandings of Aboriginality and Language Use in Criminal Cases’ in Peter Toner (ed), Strings of Connectedness: Essays in Honour of Ian Keen (ANU Press, 2015) ch 2. http://press.anu.edu.au/wp-content/uploads/2015/09/ch022.pdf • _Diana Eades, ‘Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications’ (2008) 20 (2) Current Issues in Criminal Justice 209. http://www.austlii.edu.au/au/journals/CICrimJust/2008/26.html • _Standing Committee on Law and Justice, New South Wales Legislative Council, The Family Response to the Murders in Bowraville (NSW Parliament, 2014) ch 4. http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/358f671c05a63ccbca257d87007d17e7/$FILE/76061981.pdf/Bowraville%20-%20Final%20report.pdf • _Sophia Beckett and Felicity Graham, ‘Asking Aboriginal People Questions: A paper about calling evidence from Aboriginal clients and witnesses and the application of the Evidence Act 1995 (NSW)’ (Paper presented at the Conference of the Environment and Planning Law Association, 16 October 2015) http://epla.org.au/media/2015-epla-conference/Asking%20Aboriginal%20People%20Questions%20-%202015%20EPLA%20Conference.pdf/view • _Trevor Riley, ‘Advocacy – The Aboriginal Witness (Part 2) (2000) 9 Balance: Journal of the Law Society Northern Territory 17. http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/BalJlNTLawSoc/2000/220.html?stem=0&synonyms=0&query=gratuitous%20concurrence • _Susan C Kerr, ‘Gratuitous Justice: A Review of the Queensland Criminal Justice Commission’s Report into Aboriginal Witnesses in Criminal Courts’ (1996) 3 (84) Aboriginal Law Bulletin 12. http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/AboriginalLawB/1996/62.html?stem=0&synonyms=0&query=gratuitous%20concurrence • _Mark Lauchs, Rights versus Reality: The Difficulty of Providing ‘Access to English’ in Queensland Courts (Report produced by the Faculty of Law, Queensland University of technology, 2010) 15-17. http://eprints.qut.edu.au/38933/1/Rights_Versus_Reality.pdf • _Innocence Betrayed (SBS Documentary) http://www.sbs.com.au/ondemand/video/316286531592/innocence-betrayed Referencing: Assignments must contain accurate references in accordance with the Australian Guide to Legal Citation 3rd ed. Use footnotes, not endnotes. Footnotes are not counted in the word limit where they contain references only; no discursive footnotes (i.e. anything other than references) are permitted; if you include discursive footnotes these will be counted in your word limit. You must include a Bibliography, although this is not included in your word limit. MARKING CRITERIA A good assignment should: 1. Address all the main issues raised by the task and questions; 2. Demonstrate ability to interpret the task, answer questions and clearly communicate understanding; 3. Demonstrate ability to structure a coherent analysis and present a justifiable, persuasive argument, logically ordered, and well-supported by research; 4. Demonstrate ability to read, understand, distil and explain legislation, cases, parliamentary and judicial reports, and scholarly writing; 5. Evidence of individual research that identifies relevant material. 6. Evaluates and synthesises legal and scholarly research through critically analysing the material and using it to support arguments. 7. Demonstrate creative and critical thinking about the law and issues raised; 8. Demonstrates judgment and responsibility in the context of academic integrity including submitting own work, and accurately and honestly referencing and acknowledging the sources of law and scholarly writing etc that assisted in the formation of ideas; 9. Written expression is clear and concise with correct use of grammar and spelling; 10. Referencing complies with the AGLC 3rd ed. High Distinction (85% +): An outstanding response to the task; exceptional in some way that exceeds work at a Distinction level. • _Demonstrates excellent understanding of the issues raised by the task and questions. • _Answers question exhaustively and accurately. • _Displays an excellent ability to read, understand, distil and explain legislation, cases and secondary materials • _Demonstrates precise and thoughtful legal skills. • _Content appropriate and relevant. • _Relevant, substantial and original independent research; argument is based upon outstanding and rigorous use of research. • _Appropriate and accurate referencing without errors. • _Demonstrates exceptional understanding and ability to use material. • _Considerable evidence of creative and critical thinking. • _Exceptionally well structured and well written. • _Is otherwise exceptional in some way. Identifies the major issues in relation to the questioning of Aboriginal witnesses in court which affect the fairness of a trial: /5 4.25+ Excellent Complete and accurate identification of the major issues; clearly communicated understanding. 3.75+ Very good Mostly complete and accurate identification of the major issues; clearly communicated understanding. 3.25+ Good Reasonably complete and accurate identification of the major issues; mostly clear communication of understanding. 2.5+ Adequate Generally accurate but incomplete identification of the major issues; inconsistent communication of understanding. <2.5 Poor Incomplete or inaccurate identification of the major issues; unclear communication of understanding. Analyses the relevant provisions in Chapter 2 of the Evidence Act 1995 (NSW) and evaluates whether or not they, and the judicial guidelines, provide adequate mechanisms for overcoming the issues identified: /15 12.75+ Excellent (thorough & correct) explanation of relevant provisions; excellent evaluation of provisions & judicial guidelines; clearly communicated understanding. 11.25+ Very good (thorough & mostly correct) explanation of relevant provisions; excellent evaluation of provisions & judicial guidelines; clearly communicated understanding. 9.75+ Good (mostly thorough, minor errors) explanation of relevant provisions; excellent evaluation of provisions & judicial guidelines; clearly communicated understanding. 7.5+ Adequate (incomplete, minor errors) explanation of relevant provisions; excellent evaluation of provisions & judicial guidelines; clearly communicated understanding. <7.5 Poor (incomplete, errors) explanation of relevant provisions; excellent evaluation of provisions & judicial guidelines; little or no attempt to communicate understanding or unclear communication. Demonstrates critical evaluation of the statement and problem, supported by research; explanation of dis/agreement with the statement, and why. Coherent & persuasive argument: /25 21.25+ Excellent, consistently demonstrates application of critical analysis & creative thinking to propositions and argument; extremely well-defended with research; impressive grasp & insight of all the issues. 18.75+ Very good, clear formulation of propositions & argument, application of critical analysis & creative thinking; very well-defended with research; grasp & insight of major issues. 16.25+ Good, largely clear formulation of propositions & argument, with application of critical analysis to them, some creativity; well-defended with research; grasps most issues & some insight of major issues. 12.5+ Satisfactory, some evidence of critical thought & analysis, some creativity & coherence; defended with research; shows grasp of some key issues but lacks insight; mostly descriptive / paraphrases. <12.5 Unsatisfactory, lacks ability to formulate clear & coherent propositions, argument & to critically analyse; inadequately defended with research; little grasp of key issues, no insight; mostly descriptive/ paraphrases. Clearly & concisely written; correct use of grammar & spelling; complies with AGLC: /5 4.25+ No errors: correct grammar etc; fluent & coherent expression; correct uniform referencing. 3.75+ Minor errors: correct grammar etc; fluent & coherent expression; correct uniform referencing. 3.25+ Minor errors & inconsistencies: correct grammar etc; fluent & coherent expression; correct uniform referencing. 2.5+ Mostly satisfactory, some notable lapses: correct grammar etc; fluent & coherent expression; correct uniform referencing. <2.5 Largely lacking: correct grammar etc; fluent & coherent expression; correct uniform referencing.