Western Australian police refused to use local Indigenous language interpreters to interview witnesses to the police shooting of an Indigenous man in Broome despite being told they did not speak English well enough to understand their legal rights, the Aboriginal Legal Service has said.
Police shot the 66-year-old man in the stomach on Monday night after the man allegedly threatened a taxi driver and then police officers with a knife.
He was flown to Perth for surgery on Tuesday and a spokeswoman from Royal Perth hospital said he was in a critical condition.
Police claimed the man, who was from Balgo, a remote Indigenous community 926km from Broome, on the edge of the Tanami desert, had become agitated while sharing a taxi with two women from the same community.
Those women were picked up by police and taken to Broome police station for interview about 10am on Tuesday.
Paul Tobin, managing lawyer of the West Kimberley branch of the Aboriginal Legal Service of WA, said he advised the Kimberley district superintendent, Allan Adams, soon after that the women would require an interpreter.
Tobin said the women spoke Kukatja, a language not widely spoken outside Balgo, as well as some English and some creole. He said their family had described their English skills as poor and that “they would not be able to tell any story without the assistance of an interpreter”.
Kimberley Interpreting Service, WA’s only Aboriginal language interpreting service, had two registered Kukatja interpreters available in Broome.
But Tobin said an officer investigating the shooting, who does not report to Adams, said he would not use anyone from Kimberley Interpreting Service.
“He said, ‘I won’t deal with them, I won’t deal with Kimberley Interpreting Service’,” Tobin told Guardian Australia. “He refused to explain. And then I essentially said you should delay speaking with them, and he said, ‘we just want to have a little chat’.”
Tobin said the officer told him they had already spoken to one of the women, in a video-recorded interview, but had to cease the interview when she became unwell (for reasons unconnected to the investigation) and had to go to hospital. They then began speaking to the second woman.
In a statement to Guardian Australia, WA police denied an interview took place, saying the women “were spoken to and arrangements made to conduct a formal interview with the aid of an interpreter at a later date”.
WA Police were investigated by the Corruption and Crime Commission (CCC) for their failure to use appropriate interpreters when speaking to Indigenous suspects and witnesses in a high-profile case involving a Pintupi-speaking man named Gene Gibson, who was convicted of killing non-Indigenous man Joshua Warneke in Broome in 2010.
Gibson was originally charged with murder but the charge was downgraded to manslaughter after the supreme court ruled police interviews were inadmissible because they violated his right to an interpreter under the Criminal Investigation Act 2006.
In June his lawyers lodged an appeal with the supreme court, saying the manslaughter conviction, on the basis of a guilty plea, had been a miscarriage of justice.
Eleven police officers were reprimanded for their role in the investigation and three received a commissioner’s loss of confidence notice, the highest internal reprimand.
In January the police commissioner, Karl O’Callaghan, announced a suite of reforms, including a pre-recorded Aboriginal language caution, in response to the CCC review.
Tobin said he had not seen any improvement since the Gibson case.
“The police have not used the Kimberley Interpreting Service [for any of my clients] in my four years here at the ALS,” he said. “Not once with any witness or any victim.”
He said the failure to do so “can leave gaping holes in versions of events” and “regularly led to injustice.”
“The risk is that someone’s version of events can be completely misinterpreted through two person’s inability to speak the same language,” he said. “When you have people that think they do have experience with people from language groups that aren’t spoken regularly, like Kukatja language, and you have police officers who don’t speak Kukatja but think, ‘oh, I can speak with Aboriginal people,’ then the risk of misinterpretation is heightened.”
Police procedures in WA explicitly recommend the use of the Kimberley Interpreting Service when an Indigenous witness or suspect does not have sufficient English competency to understand their legal rights or provide an accurate statement.
The Kimberley Interpreting Service chief executive, Dee Lightfoot, told Guardian Australia that police calls for assistance had increased markedly since the Gibson investigation, going from “one call in 10 years” to about 10 calls in the past two months.
Lightfoot said the service contacted police in Broome on Tuesday and offered their services, and was “greatly disappointed” witnesses were spoken to without an interpreter present.
Police said they had made arrangements to use a Northern Territory service that “offers qualified reliable interpreters who speak all the Western desert languages.”
“WA Police are aware a number of the Kimberley Interpreting Service staff have links to or live at Balgo and considered there may have been a conflict of interest to use this service,” a police spokesman said.
But Lightfoot said there was only one certified interpreter outside of Kimberley Interpreting Service that spoke the WA language, and as of Tuesday evening neither that person nor the NT’s Aboriginal Interpreter Service had been contacted.
She also said the language was not widely spoken outside of Balgo’s 460 residents so all speakers had a level of familiarity with the community.
She said the service had a good relationship with police and she did not understand why they would object to using local interpreters.
The WA chief justice, Wayne Martin, has publicly advocated for the service, saying a failure to provide interpreters was an example of systemic discrimination that contributed to WA having the highest Indigenous incarceration rate in the country.
