David Newry Nyoongoong is an accomplished Aboriginal elder, but he still remembers the day he was a skinny, scared 16-year-old boy appearing in court for the first time.
Warning: Aboriginal and Torres Strait Islander readers are advised that this article contains confronting images and images of people who have died.
"I was shaking in the dock because it was really frightening," he said.
"I didn't understand the evidence, I wasn't asked, and I just stood there not understanding what was happening."
The Miriwoong man is now an Aboriginal interpreter, working to ensure Indigenous people get a fair hearing in court — whether they are witnesses, victims, or alleged offenders.
Now, he has had a rare opportunity to give feedback directly to some of the most senior judges in Australia.
A group of 26 judges has headed bush to learn about the cultural complexities that can lead to miscarriages of justice.
"It's a good thing that these judges have come to sit down and learn about cultural protocol, and how it affects things in court," Mr Newry said.
"There are lots of misunderstandings — sometimes people don't talk because they're embarrassed they don't speak English, so they end up sentenced for something that they don't even understand."
Judges go bush
The 26 judges travelled from Sydney, Melbourne, Brisbane and Perth in early September, as part of an innovative program aimed at improving their understanding of Aboriginal culture and communication.
They spent three days in communities in the West Kimberley on a cultural immersion program organised by the University of Notre Dame's Nulungu Institute.
Chief Judge Julie Wager, who heads the District Court of Western Australia, said it was an eye-opening experience.
"It has been important to understand that there might be cultural reasons that things can't be discussed in court," she said.
"So having a blank answer, or 'I don't remember', might not be the case, and further investigation is needed.
"I think every judicial officer really wants to make sure that Aboriginal people get a fair deal, and that they feel heard and safe in court, but we need to have the knowledge to do that.
"We need to make sure that we're not ignorant about really complex Aboriginal issues, and the different ways people communicate."
Among the main issues discussed were the need for court interpreters to be available and used, and the cultural protocol that can prevent an Indigenous person from looking at a certain relative, or speaking their name.
Mr Newry said that some people appearing in court could be trapped between complying with court instructions and causing deep offence to their family — something that he, as an interpreter, could explain to the court.
"For example a witness might be asked who was there [when a crime happened], but they can't say that name out of cultural protocol," he said.
"The judge might think he's hiding something, but he's not, he's abiding by his cultural obligations not to give that information out."
'Valley of the hidden bones'
The ABC was given a rare opportunity to discuss the issues with two judges during their visit.
The itinerary required them to leave their comfort zones, and hear about the confronting history of law and order in outback Australia.
Walmajarri and Nyikina tour guide Edwin Lee Mulligan took the group to the so-called Derby Boab Prison Tree, which has become a symbol of the harsh treatment of Aboriginal people in the 1800s and 1900s.
Men accused of crimes, such as killing cattle, were shackled together with iron neck chains, and marched long distances to attend court.
"There are massacre places, and I have actually been there," Mr Mulligan told the group.
"I've seen a lot of bones — it's like a valley of the hidden bones.
"They are amazing stories and sad stories, but it is our history, our shared history."
Judge makes rare comment
Among those listening was Justice Stephen Hall, who was recently appointed to the Western Australian Court of Appeal.
The role requires him to deliberate on some of the most complex legal cases in the state.
"People have to feel confident that the courts are a place they're going to get justice," he said.
"So for Aboriginal people, they need to have the belief that the courts are not just for white people, but for all Australians — that they can go there and expect they'll get fair justice like everyone else will."
There have been high-profile miscarriages of justice linked to Aboriginal people being denied their legal rights.
In 2017, Kiwirrkurra man Gene Gibson was released after serving almost five years in jail in WA, after being wrongfully convicted of murdering 21-year-old Josh Warneke in the Kimberley town of Broome.
When asked how confident he was that Aboriginal people could enter courtrooms and be able to at least understand what was going on, Justice Hall acknowledged work still had to be done in that area.
"I couldn't say I was confident about it, but I would say we are aware of the problems," he said.
"We are aware that we, as judges, often don't have as good an understanding of those things as we need to have, but being aware of the problem is the first step.
"It means we can then try to obtain information, get cultural awareness advisors in, people who can assist the court and try to explain those things to us.
"It is an area where there needs to be constant improvement … I think we are doing a good job, but we are on a road of continuous improvement."
Result of 1991 royal commission
The cultural immersion program has its origins in the 1991 Royal Commission into Aboriginal Deaths in Custody.
It recommended that judicial officers acquire a better understanding of Aboriginal society, customs and traditions, and "wherever possible participate in discussion with members of the Aboriginal community in an informal way in order to improve cross-cultural understanding".
The first bush immersion program was held on Karajarri country south of Broome in 2019.
Notre Dame University Professor Anne Poelina helped put together the itinerary for the 2022 visit, and said it was a rare opportunity for judges to hear directly form people about their experience of the court system.
"They are city-slickers, but we believe they're coming in good faith," Professor Poelina said.
"What we're seeing right now is a grave injustice happening with Aboriginal people, so it's a chance to create a dialogue.
"To share — as the oldest living culture in the world — how we communicate, how do people access the justice system, and what are the barriers."
