In some cases it may be necessary to give specific directions concerning a witness’ cultural and linguistic background. The issue should be first ventilated with the parties in the case. The Judicial Commission of NSW, Equality Before the Law Bench Book, 2006-, provides guidance on issues relating to cultural and linguistic background of witnesses. Section 2 “Aboriginal people” discusses various issues that may arise for Aboriginal witnesses or defendants. Section 3 “People from culturally and linguistically diverse backgrounds” discusses a broad range of issues including cultural differences, translators/interpreters, modes of dress, oaths and affirmations, appearance behaviour and body language, verbal communication, the impact of different customs and values, cultural and linguistic differences and jury directions. Sections 2 and 3 are useful starting points for issues that may be raised in a given case.

It is axiomatic that any given case must be decided by the jury on the evidence of the witnesses and not on stereotypical or false assumptions about people from culturally and linguistically diverse backgrounds: Judicial Commission of NSW, Equality Before the Law Bench Book, 2006-, at [2.3.5]. In the Northern Territory, Justice Mildren developed suggested directions for that jurisdiction in relation to Aboriginal witnesses: see D Mildren, “Redressing the imbalance against Aboriginals in the criminal justice system” (1997) 21 Crim LJ 7, pp 21–22. It is accepted that the issues in that jurisdiction “differ in many respects from those in NSW”: NSW Law Reform Commission, Jury directions, Report No 136, 2012, at [5.129].

The issue of appropriate jury directions in relation to Indigenous witnesses has been raised in a number of interstate intermediate appellate court decisions (see below) and reports, including Jury directions at [5.120]–[5-133] and the NSW Parliament Standing Committee on Law and Justice, The family response to the murders in Bowraville, Report No 55, 2014.

Generally, it is inadvisable to give directions to the jury about cultural and linguistic factors in the form of preliminary observations before any witnesses are called: Stack v Western Australia (2004) 151 A Crim R 112 at [19], [144]; Jury directions at [5.128], [5.130]. General directions are not helpful because they encourage a stereotypical approach to the evidence of Indigenous witnesses: R v Knight [2010] QCA 372 at [283]. If a direction is given, it should specifically address the issues raised in the case and be framed in terms of the competing submissions of the parties concerning individual witnesses: Bowles v Western Australia [2011] WASCA 191 at [69]; Jury directions at [5.132]; Equality Before the Law Bench Book at [2.3.5]. In “Language and communication” at [2.3.3] of the Equality Before the Law Bench Book, contextual information about potential socio-linguistic and extra linguistic features of some Aboriginal people is provided. The topics discussed include the use of Aboriginal English, gratuitous concurrence, silence (of a witness) before giving a response and the avoidance of eye contact. (See further Jury directions at [5.125].) In some cases, these issues may be the subject of submissions in closing addresses.

Although a judge may comment on the facts and witnesses (see R v Zorad (1990) 19 NSWLR 91; B v The Queen (1992) 175 CLR 599 at 605–6; R v Heron [2000] NSWCCA 312 at [74]–[81]), the safer and wiser course is to make no comment and to explain the competing arguments of counsel: RPS v The Queen (2000) 199 CLR 620 at [42]; Castle v The Queen (2016) 259 CLR 449 at [61]. If any comment is made it is essential that: (a) the judge make clear that it is entirely within the jury’s province to determine the facts; and (b) that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence: Castle v The Queen at [61] citing Brennan J in B v The Queen (1992) 175 CLR 599 at 605.

A judge should refrain from suggesting to the jury how to approach the assessment of a witness’ evidence in a manner that has the appearance of a direction of law: RGM v R [2012] NSWCCA 89 at [97]. It is for the jury alone to decide the facts and to assess the credibility of the witness in light of the evidence and the submissions of the parties. It is important that the judge does not exceed his or her judicial function and enter “into the arena”: CMG v R [2011] VSCA 416 at [18]; Doggett v The Queen (2001) 208 CLR 343 at [1]–[2].