Using the protocols below and any other relevant material students draft 5 questions that incorporate aspects of the material elements of the offense outlined in the scenario below.  The questions should be annotated with an explanation that references material relied upon during drafting.

Scenario

The defendant, Lyle White, is charged with murder.  Whyte has pleaded not guilty to the charge on the basis that although he stabbed the deceased, he did not do so with the intent to kill, and/or he was acting in self-defense.    

The deceased was a homeless person, sleeping rough nearby the defendant's unit.  Whyte and the deceased knew each other, meeting when collecting their doses of prescribed medication, and sometimes the deceased had visited Whyte at his home unit. Whyte was aware that the deceased normally carried a knife for self-protection.

On the day the deceased was killed Whyte believed that the deceased had broken into his unit to get some food and drink and had left it in a mess.  Whyte decided to confront the deceased to scare and deter him from coming to his unit again, but not to hurt him.  When he heard and saw the deceased knocking on the door of the next-door unit, Whyte grabbed a knife from his kitchen, then went outside, grabbed the deceased by the back of the neck, and held the knife to the deceased's throat. A violent struggle followed and during that struggle, Whyte claimed he accidentally stabbed the deceased.

Aaron Baira, an Aboriginal man, is visiting his cousin who lives in the unit a few doors away from Whyte's unit.    Aaron is from Ceduna and is a Kokatha man.  He can speak English which he learned at School, but Aaron usually uses the Kokatha language when in Ceduna.  When visiting his cousin in Adelaide, Aaron uses a mix of English and Kokatha.

Due to the heat, Aaron had the front door of his cousin's unit open on the day of the alleged murder.  Around dusk, Aaron remembers hearing yelling and a scuffle.  He came out to the landing and about 15 metres away saw Whyte and the deceased struggling with each other.  Aaron saw Whyte holding the deceased in a chokehold with one arm and a knife in his other hand.  After scuffling for a few seconds, the pair then pulled apart from each other.  According to Aaron, the deceased then started swinging his arms about, yelling 'Stop! Stop!' At that point, Aaron saw Whyte lunge toward the deceased, grab him with one hand and stab him with the knife with his other hand.  

When completing this section of your trial notebook please think about the following:

• Identification of the cultural, social, and linguistic elements affecting how Aboriginal testimony is adduced and understood
• Application of the principles governing how evidence should be adduced from Aboriginal witnesses incorporated within relevant communication protocols
• Avoiding miscommunication that may occur when Aboriginal witnesses testify
• Supporting your draft questions with references to communications protocols and/or literature

Please refer to the websites bellow 

Law Society of South Australia

https://www.lawsocietysa.asn.au/Public/Publications/Guidelines/Lawyers_Protocols_for_Dealing_with_Aboriginal_Clients.aspx

Law Society of Northern Territory

https://lawsocietynt.asn.au/images/stories/publications/indigenous_protocols_for_lawyers.pdf

Answer rating: 100% (QA)

Question Mr Baira during the incident were you able to clearly hear and understand the words spoken by the defendant Mr Whyte and the deceased Explanation This question aims to address the cultural an... View the full answer