LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
Ngayulu nyurranya putu kulini1
The Legal Right to an Interpreter
Russell Goldflam
Australian courts recognise that access to an interpreter is an essential incident of a fair trial
for an accused who is otherwise unable to effectively participate in the proceedings.
Nevertheless, in reality many non-English speaking Aboriginal people are processed by the
Northern Territory criminal justice system without effective interpreting assistance. This
paper surveys some recent Australian and overseas cases dealing with the nature and
scope of the right of an accused person to an interpreter, and explores the gap between the
right to an interpreter in theory and practice.
THE RIGHT TO HEAR
As we all know, a proceeding in a criminal court in which findings are made is called
a “hearing”. There are bail hearings, committal hearings, hearings to determine the
admissibility of evidence and issues of law, hearings to decide whether an accused
is guilty or not, and sentencing hearings, among others.
It is a fundamental feature of our criminal justice system that these hearings be fair.
And for a hearing to be fair, it is essential that the accused person gets not just his or
her right to be heard, but also his or her right to hear.
In our legal system, an accused person has the right to be present during the
hearing of their case. The right to be present doesn’t just mean that the accused is
entitled to be physically in court. For the hearing to be fair, the accused must be
present in both body and mind.2 Similarly, the right to hear doesn’t just mean that
the accused is entitled to be within earshot of what is said. For the hearing to be fair,
the accused must be able to both hear and understand.
By the way, in Pitjantjatjara, the word kulini means both “hear” and “understand”, and
in Arrernte, the word aweme also carries these two meanings. In what I said a
moment ago, the difference between “hear” and “understand” is crucially important.
Anyone with the job of interpreting the apparently simple sentence “For the hearing
to be fair, the accused must both be able to hear and understand” into Pitjantjatjara
or Arrernte would, I expect, find it quite a challenge. Just the sort of challenge
Aboriginal interpreters have to face every time they walk into a Northern Territory
courtroom. I make this point up front, because whenever we talk about the subject
of legal interpreting in the Northern Territory, we must always bear in mind how
extraordinarily challenging – how bloody difficult – it is to actually do their job. There
have been a lot of interpreters here at this conference. More interpreters than I think
1
(Pitjantjatjara) “I can’t hear/understand you mob”
Kunnath v The State [1993] 1 WLR 1315 at 1319; [1993] 4 All ER 30 at 35; cited in Ebatarinja v Deland (1998)
194 CLR 444 at 454 [26] per Gaudron, McHugh, Gummow, Hayne and Callinan JJ
2
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
I’ve ever seen before at once. So I’ll say this now. Thank you for doing such a
bloody difficult job. If I was wearing a hat, this is where I’d take it off to you.
And as I’m acknowledging the interpreters who are here today, I also now
acknowledge some of those who are no longer with us, men and women of great
skill who I had the great privilege to work with and be taught by when I first came to
the Territory. I pay my respects to Mrs R Furber, Mrs M Swan, Mrs M Cousens (who
came up here to Darwin to interpret for the Azaria Chamberlain case), Mrs M Watson
(who remembered as a child seeing her first white person, the ghostly Daisy Bates),
Mr S Renkeraka, and Mr R Taylor (who worked for many years as a field officer and
interpreter with CAALAS). There are of course many, many others, but I remember
these people with particular affection.
Now where was I? I was talking about the right to hear.
For an accused who can’t communicate competently in English, there are only two
ways to make sure they get their right to hear. The best way, from the point of view
of the accused, would be to conduct the whole hearing in their language. The judge,
the lawyers, the court staff, the jury, the witnesses, the court guards, the police all
speaking, for example, in Yolngu Matha. That’s something I would love to see one
day. But I don’t suppose it’s likely any time soon. The only other way to protect the
right to hear of, say, a Yolngu Matha-speaking accused is to provide a Yolngu Matha
interpreter.
This right has long been recognised in Australia. Perhaps the first recorded case is
a very brief note of a decision by a Queensland judge 127 years ago, in 1885, when
he discharged four Aboriginal men who were facing a murder charge because no
interpreter could be found to enable them to hear and understand what they’d been
charged with.3 Those four men were, one assumes, pleased to be set free. No
doubt they were also pretty confused. The grieving family of the person who’d been
allegedly murdered were probably also confused, but it’s unlikely they were pleased.
Not a very good way to run a justice system.
In many countries with legal systems like our own, the right to hear, as I’ve called it,
or, as it’s usually called, the right to an interpreter, is enshrined in a Bill or Charter of
Rights. Generally speaking, Australia doesn’t go in for that model of human rights
protection, but we have signed up to an important international human rights treaty,
the International Covenant on Civil and Political Rights (the ICCPR) which
guarantees “the right to the free assistance of an interpreter if the person cannot
understand or speak the language used in court.”4 And in recent times Australian
courts have consistently upheld this right.
For example, a few months ago, in the Supreme Court of the Northern Territory
case of R v Wurramarra,5 Blokland J not only affirmed that the ICCPR is a legitimate
influence on the development of Australian law, but found that contemporary practice
3
R v Willie [1885] 7 QLJ (NC) 108
Article 14(3)(f)
5
[2011] SCNT 89
4
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
and standards for the provision of Aboriginal interpreters are generally consistent
with the right to an interpreter as set out in the ICCPR.6
(Blokland J was careful to note that there is one possible difference between the
right to an interpreter under the ICCPR and under Australian law, namely that in
Australian law, the judge has a final discretion whether to allow an interpreter or not.
But that discretion must be properly exercised. If a judge or magistrate in an
Australian criminal court ever refused to allow an interpreter for an accused who
could not understand or speak English, in my view it is highly likely that an appeal
against that decision would be successful.)
Judicial pronouncements along these lines are important. One reason is that not
everyone in high places is prepared to recognise the right to an interpreter. For
example, as recently as 1999, then Chief Minister of the Northern Territory Denis
Burke stated that “providing Aborigines with interpreters is like giving a wheelchair to
someone who should be walking”.7
Despite this, I’m happy to report that only five months later, Mr Burke and the
Commonwealth Attorney-General signed an “Agreement between the
Commonwealth of Australia and the Northern Territory of Australia Relating to the
Diversion of Juveniles from the Criminal Justice System in the Northern Territory and
the Alleviation of Language Barriers faced by Aboriginal Persons”. In plain English,
this included a deal to properly fund, for the first time, an Aboriginal Interpreter
Service for the Territory. It had taken over 20 years of agitation and campaigning for
this to come about. Indeed, my own very first visit to Canberra was to lobby for
interpreter service funding, back in 1982.
That was almost exactly 100 years since the Queensland case I mentioned above.
In the intervening century, Australian courts gradually, grudgingly came to accept
that the right to hear is, alongside the right to be heard, a basic right, a component of
the right to a fair trial. But without funding to recruit and train and manage and
consistently deliver competent interpreters, all the fine statements of principle by our
courts don’t necessarily result in the non-English speaking Aboriginal accused
getting a fairer go from our criminal justice system.
To do that, we need both authoritative judgments which provide a sound legal basis
to flesh out what the right to an interpreter means, and resources – the funds, the
systems and most importantly, the people – to breathe life into this body of rights.
CUI BONO?
If we do find a way, one day, of consistently providing high quality interpreting
services to everyone who is entitled to them in our courts, this will benefit many
accused. But that’s not the only, or even necessarily the most important benefit. In
many cases, the people who benefit will be the victims of crime, whose testimony is
often fatally weakened because they just can’t find a way of convincingly telling their
6
Ibid at [33]
24 November 1999, Catherine Munro AAP; cited in Helena Blundell, “A Long Fight for a Basic Human Right”
(2000) 25(5) AltLawJ 219 at 220
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
story to the court without the help of an effective interpreter. A very sad example of
this was the 2007 Queensland case of R v Watt,8 where the evidence given by an 18
year old hearing-impaired Wik-Mungkan speaking alleged rape victim was, to put it
bluntly, such a mess, that the appeal court was obliged to overturn the jury’s guilty
verdict. Between them, the trial judge, the prosecutor and the interpreter had been
unable to ensure she was provided with a full opportunity to give her version of
events. The President of the Court of Appeal said this:
Our community has an obligation to do everything practicable to ensure that
even complainants who do not speak English or who have other disabilities
have this basic access to the criminal justice system.9
But over and above the benefits to defendants and victims, the proper use of
interpreters strengthens the justice system itself. It is fundamentally important that
we maintain the integrity of, and confidence in our courts and the other agencies
which together make up the justice system. Partly because our rates of offending
and imprisonment are so extraordinarily high, developing and maintaining community
confidence and respect for the criminal justice system is a particularly important and
difficult challenge in the Northern Territory, especially in communities and camps
where English is not the main language, and where what is said and done in court is
often poorly understood.
Respect for the rule of law in our society is undermined if justice is administered, and
legal services are distributed, in disparate or discriminatory ways to different
segments of society. It is a basic feature of our justice system that everyone is equal
before the law, as affirmed in Re East & Ors; Ex parte Nguyen,10 one of the two
leading High Court judgments delivered in 1998 which extended and clarified the
right to an interpreter. As Kirby J said in that case:
Australian courts... subscribe to, and enforce, as an attribute of fair trial, the
principles of equality and non-discrimination…11
WHERE THE BUCK STOPS
For reasons I don’t need to go into, the High Court dismissed the application of Mr
Nguyen, a Vietnamese man with only “survival proficiency in English” who had
originally fronted a criminal court without the assistance of an interpreter, a process
which he later claimed was racially discriminatory. Nevertheless, the court clearly
and strongly affirmed the right of an accused to an interpreter “as an aspect of the
commitment of the judicature to fairness of the trial process”.12 And whose job is it to
ensure that this commitment is honoured? Firstly, if an accused who needs an
interpreter is legally represented, then his or her lawyers should raise this issue with
the court. But the buck doesn’t stop with the lawyers. While politely criticising Mr
Nguyen’s lawyers for failing to have applied for an interpreter when their client was
8
[2007] QCA 286
Ibid at [3] per McMurdo P
10
(1999) 196 CLR 354
11
Ibid at 389 [81] per Kirby J
12
Ibid at 390 [83] per Kirby J
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
being sentenced, Kirby J made it clear that in the end, it’s up to the judge or
magistrate. He said:
It is the duty of a judicial officer conducting criminal proceedings to ensure the
fair trial of the accused. Where a trial would be unfair because of the absence
of an interpreter, it is the duty of the judicial officer to endeavour to ensure that
an interpreter is provided. Where the accused is legally represented, the
judicial officer can usually rely upon the legal representative to communicate
to the court the needs and wishes of the accused. But even then, the judicial
officer will not be relieved of the obligation to ensure a fair trial if it should
subsequently appear (from something said or done in the trial) that an
interpreter is needed.13
One feature of Nguyen was the alleged failure of the defendant to understand the
nature of a Community Based Order made against him. Similar events used to occur
(and perhaps still do) on a frequent basis throughout the Northern Territory court
system, as Aboriginal people with apparently little or no understanding of what they
are doing, sign bail undertakings, recognisances to be of good behaviour,
recognisances to prosecute appeal, agreements to comply with Community Work
Orders, and other similar documents. On at least one such occasion a Northern
Territory court acquitted an Aboriginal man charged with breaching a bond to be of
good behaviour, after accepting expert linguistic evidence that the defendant’s
English was insufficient for him to have understood the nature of the bond he had
purportedly entered into.14 Similarly, a charge against an Aboriginal man of failing to
comply with reporting obligations was dismissed because Blokland CM, as she then
was, was not satisfied that he understood those obligations, which had been
explained to him by police without the use of an interpreter.15
A WORK IN PROGRESS
I said that there were two 1998 High Court cases dealing with the right to an
interpreter. The second one, as it happens, comes from my own little town of Alice
Springs. I don’t say this with parochial pride, but with profound sadness, because
although the case of Roland Ebatarintja is well-known to lawyers as one which
confirms the right of an accused to an interpreter, not just in a jury trial, but also in a
magistrate’s committal, it is also a case which brings into sharp focus the terrible
conditions on town camps, and the helplessness of the criminal justice system, with
all its power, in all its majesty, to effectively deal with an accused person who is,
through no fault of his own, in a sense an outcast, and even an outlaw. At the same
time, this case highlights the crucial role that interpreters can play in bridging the
huge gap between the legal system and such people, to bring in, if you like, the
outcasts and outlaws.
I have called Roland Ebatarintja an outcast. I’ll explain why. In 1995, he was only
16 years old. His family was already embroiled in a deadly feud which has been
13
Ibid at 390 [82] per Kirby J
Police v Starlight (Unreported decision of McGregor SM in the Court of Summary Jurisdiction at
Katherine, 1995)
15
Police v Balarka [2009] NTMC 037
14
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
going on for generations, and may still be simmering: a couple of years ago, one of
Roland’s younger brothers pleaded guilty to the murder of one of the Ebatarintjas’
so-called enemies. So Roland grew up in a family which in a way lived outside the
law. The trouble he got into was at Larapinta Valley town camp. If you live in a town
camp, also known as a fringe camp, in a way you are living outside society. That, at
any rate, is how many suburban Alice Springs residents would see you. And Roland
was born with a disability which meant he couldn’t hear or speak, so he was in that
way too, cast out and cut off from other people, even within his own community and
family. It seems that it was an awful misunderstanding which led to him being
charged with murder. He hugged a woman, her husband got upset and punched
him, and Roland fatally stabbed the husband. If only someone had been there who
could have communicated with Roland to make him understand that 16 year olds
shouldn’t hug married women, and that husbands can get jealously angry. There
was no interpreter for him at the police station or in court either. Eventually, after his
case was shunted backwards and forwards, all the way up to the High Court and
back, Roland was found unfit to plead and released, rather like the 1885 Queensland
murder case I mentioned before.
Now, Roland Ebatarintja’s case was exceptional: at the time, no interpreter could be
found for his language, because he didn’t have a language (although years later,
with the assistance of an interpreter for the deaf, he acquired the capacity to
communicate in sign language). It was impossible to give him his right to hear, and
so the only way to deal with him was to use the same special procedure that applies
to people who are unfit to stand trial because of a mental illness or other serious
cognitive disability.
However, unfortunately there is nothing exceptional about Aboriginal defendants who
do not speak English appearing in committal hearings in the Northern Territory Court
of Summary Jurisdiction without an interpreter. One example is the case I
mentioned earlier of Wurramarra, in which Blokland J, upholding the right to an
interpreter, adjourned his trial until one could be found. In her decision, she provides
a detailed account of the dogged but ultimately unsuccessful attempts which had
been made to get an interpreter for the committal. Perhaps because there was no
application before her to stay the indictment on the ground (following the law as laid
down in Ebatarintja) that the committal had been invalid, and that the ensuing
indictment was therefore a nullity, Her Honour did not do so. However, only last
month, another judge of the Northern Territory Supreme Court, Reeves J, did just
that, over the objections of both defence and prosecution counsel, in a case
involving a man who had purportedly been committed despite being apparently
unable to understand the facts and circumstances alleged against him, because of a
mental illness.16 I emphasise that this wasn’t a case involving an accused who
needed an interpreter, but the legal principles are equally applicable to people whose
lack of understanding is the result of their linguistic rather than medical
circumstances.
This decision of Reeves J should put Northern Territory magistrates, lawyers and
interpreter services on notice: it is legally unsafe to go ahead with a committal where
the defendant cannot understand the facts and circumstances alleged against him or
16
R v Plummer [2012] NTSC 30 (SCC 21004292) delivered 17 April 2012
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
her, unless there is a competent interpreter present. It will also be very interesting to
see whether and how future proceedings will reconcile this apparent difference of
opinion, or at least difference of approach, amongst members of the Northern
Territory Supreme Court.
Like Wurramarra, the 2007 South Australian matter of Frank v Police17 is a case in
which the frustration of the court at the failure to provide an Aboriginal interpreter
leaps off the page. In that case, a Pitjantjatjara man spent seven months on remand
during which there were at least nine occasions when no interpreter was provided as
requested to enable the defendant to communicate with his lawyer, a forensic
psychiatrist, or the court. He was eventually sentenced without an interpreter. His
lawyers appealed. The appeal was heard and allowed, again, without an interpreter.
Having found that the magistrate should not have sentenced the defendant without
an interpreter, the appeal judge considered it would be wrong for him to do repeat
this error, and ordered that resentencing be adjourned until an interpreter could be
found. He said that the magistrate should have released the defendant on bail,
instead of sentencing him without an interpreter. The reported decision does not
record whether Mr Frank was bailed by the appeal judge pending his resentencing.
By the time the appeal was heard, he was about to be released anyway, on parole.
Whether he was released on bail or parole (or both), one wonders whether Mr Frank
would have been able to understand the conditions of his release.
A different sort of frustration arose in R v RA,18 when Angel ACJ allowed an
application by the accused that an interpreter from the same clan as the complainant
not be permitted to interpret her evidence, on the ground of apprehended bias.
Unfortunately, the interpreter involved was reportedly so offended by the suggestion
that she might be seen as biased that she quit her job as an interpreter altogether.
Eventually, the trial proceeded using the original interpreter’s sister as an
interpreter.19
These four cases, Wurramarra, Plummer, Frank and RA, graphically show that
securing the right to an interpreter is still very much a work in progress, and that this
work involves striking a balance which can be difficult to achieve. Obviously, we all
want to see appropriate and competent interpreters being used whenever needed.
But, when they are unavailable, the court faces a real dilemma. Should it give up
and just let the accused go, as that Queensland judge did back in 1885? Should it
allow the proceedings to drag on indefinitely, with the accused in custody? Should it
release the accused on bail, with a real prospect of a breach because the bailed
person doesn’t understand the conditions? Should the court use its discretion to
proceed without an interpreter, or without the ideal interpreter, so that the case can
be finalised?
17
(2007) 98 SASR 547
NTSC SCC 20603761 (Angel ACJ, transcript 30 July 2007); reported in Heske, “Interpreting Aboriginal Justice
in the Territory” (2008) 33 AltLawJ 5, 8
19
Op cit
18
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
NEAR ENOUGH, GOOD ENOUGH?
Even when an interpreter is made available, problems can arise. In R v Tran,20 a
leading Canadian case which has been considered by various Australian courts, a
conviction was overturned, not because there was no interpreter, but because the
interpreting in the trial was just not good enough. You have to feel sorry for the poor
interpreter in that case: during the trial, not only was he required to interpret for the
accused, but he was also called as a witness on a crucial issue, and directed to
interpret his own evidence while he was being cross-examined. A warning: don’t try
this at home, or, for that matter anywhere else, especially in court. In the appeal, the
Supreme Court of Canada identified and discussed five criteria for court interpreting
of an acceptable standard: continuity, precision, impartiality, competence and
contemporaneousness.
In Tran, the court found it hard to pin down the criterion of competence, observing
that “there are, as of yet, no universally acceptable standards for assessing
competency.”21 What was true in Nova Scotia in 1994 remains true in the Northern
Territory of Australia in 2012. Even though the first Aboriginal interpreter training
courses were accredited by NAATI as far back as 1983, the objective of attaining
and maintaining a consistent benchmarked standard of competence for court
interpreting remains elusive. Unfortunately, this unsatisfactory state of affairs applies
not just to Aboriginal interpreters in the Northern Territory, but throughout the
profession in Australia, as Hayes and Hale have recently observed:
Despite... all the evidence supporting the need for improvement in legal
interpreting standards, little has changed in the past 35 years.22
Over the years there has been much debate about exactly how the interpreter should
approach their task.23 In Tran the court put it very simply and, with respect, very well:
“the interpretation must be, as close as can be, word-for-word and idea-for-idea”.24 I
emphasise that this passage does not mean that interpreters should aim to interpret
word by word, which, as any interpreter knows, would produce nonsense. The court
in Tran went on to expand a little on what it did mean by stating that:
The interpreter must not “clean up” the evidence by giving it a form, grammar
or syntax that it does not have; the interpreter should make no commentary
on the evidence; and the interpretation should be given only in the first
person…25
In De La Espriella-Velasco v The Queen,26 the Supreme Court of Western Australia
also endorsed meaning-based interpreting, saying this:
20
[1994] 2 S.C.R. 951
Ibid at 44
22
Alejandra Hayes and Sandra Hale, “Appeals on incompetent interpreting” (2010) 20 JJA 119
23
See, for example, Sandra Hale, “The Challenges of Court Interpreting: Intricacies, responsibilities and
ramifications” (2006) 32(4) AltLawJ 198
24
Tran, above n. 20 at 42, citing G. J. Steele, "Court Interpreters in Canadian Criminal Law" (1992), 34
Crim. L.Q. 218 at 240
25
Loc cit
26
(2006) 31 WAR 291
21
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The requirement that the idea or concept be interpreted... includes the notion
of appropriate register, or conservation of meaning. That is to say, the form
and expression of what the interpreter says in the target language should
reflect the form and expression used by the witness in the source language.27
So, if the witness gives their evidence hesitantly and evasively, the interpreter should
sound hesitant and evasive. If the witness speaks angrily and abusively, the
interpreter should sound angry and abusive. Yes, interpreters are professionals, but
they should not always sound professional: they should sound like the witness
means to sound. As Hayes and Hale point out, this approach is evidence-based.
Studies show that juries are influenced more by how the interpreter renders the
evidence, than by the way the non-English speaking witness originally presented it.28
This makes sense: we tend to switch off to the person we can’t understand, and
switch on to the one we can.
In Tran, the court ruled that although a high standard is required for courtroom
interpreting, a standard of perfection would be impossible to achieve. Australian
courts have been similarly pragmatic.29 Hayes and Hale have criticised this
approach, arguing that when people’s lives are at stake, near enough just isn’t good
enough.30 However, near enough is as good as we’ve got, for the time being, so we
have little choice but to make do. Of course, a conference like this is an excellent
opportunity for us to try to make do, better.
One way of making do, better, would be for the judge to insist that all interpreting in
court is done out loud and consecutively. I was trained as an interpreter myself to
believe that the highest form of interpreting, and a method used in many Australian
courts, is simultaneous whispering interpreting. (Incidentally, there’s no common
single English word for this mouthful, but the profession has borrowed from the
French a gorgeous onomatopoeic term for it which I can’t resist sharing with you:
chuchotage.) The problem with chuchotage in court, however, is that there’s no
convenient way of checking if the interpreting is faulty, as became an issue in the
recent New Zealand case of Chala Sani Abdula.31 (By the way, New Zealand is one
of those countries with a Bill of Rights which expressly guarantees the right to the
free assistance of an interpreter to an accused person who cannot speak or
understand the language used in court.32) It is more than hard enough to manage
consecutive interpreting in court, so it should be something of a relief to the
interpreters at this conference to know that the Supreme Court of New Zealand has
now expressly disapproved of simultaneous whispering interpreting in court.33
There’s a cost to this: the disruption of consecutive interpreting can slow cases
down. But there’s also a benefit: the risk of miscarriages of justice will be reduced.
27
Ibid at 313 per Roberts-Smith JA
Hayes and Hale, above n.22, 128
29
For example, Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [29]
30
Hayes and Hale, above n.22, 127
31
[2011] NZSC 130
32
s24(g) New Zealand Bill of Rights Act (NZ) 1990
33
For a contrasting view, see DZAAA v Minister for Immigration [2011] FMCA 434 at [43]
28
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
Here in the Territory, bush courts are often the ones with the longest lists, the
shortest time for each hearing – and the most need for interpreters. More time
should be allocated to hearing cases in bush courts, to allow interpreting to be done
properly. Otherwise, there is a real risk that defendants who appear in bush courts
get second class justice. This wouldn’t necessarily involve having to find more
resources for longer bush circuits. Bush court lists could be significantly reduced by
conducting short matters in Darwin, Alice Springs or Katherine, with defendants
appearing by videolink from their home community.
WHO PAYS THE BUCK?
And on the topic of costs, there remains the not entirely settled question of who
should pay the court interpreter or translator. As I have already said, the buck stops
with the judge when it comes to deciding whether an interpreter should be provided
to the accused. In the 2007 South Australian case of R v Rostom,34 the
unrepresented accused was assisted by an interpreter at court, but could not read
the prosecution witness statements, which he needed to use when cross-examining
their authors. Court staff told him that the court could not help him with the cost of
getting them translated into his language, Arabic.35 On appeal, the Supreme Court
held that “it is necessary for a judge to ensure that the accused can read and
consider relevant material in a language that he can understand,”36 and went on to
find that the trial judge had failed to discharge this duty, that as a result the accused
had not received a fair trial, and that his appeal should therefore be allowed. The
appeal court, however, having found that the buck stopped with the judge, did not
spell out who precisely should have come up with the bucks for the translation.
In a recent Federal Magistrates Court case concerning asylum seekers in
immigration detention here in Darwin, this issue was squarely raised and squarely
answered: “the Court finds that it is for the Court to pay for the provision of Court
ordered interpretation services.”37 This decision was in accordance with paragraph
3.2 of the Federal Magistrates Court Interpreter and Translator Policy.38 I urge our
criminal courts to issue Practice Directions in similar terms.
Another way of settling the question of where the buck comes from might be to enact
a provision like s131A of the Queensland Evidence Act, which provides that:
In a criminal proceeding, a court may order the State to provide an interpreter
for a complainant, defendant or witness, if the court is satisfied that the
interests of justice so require.
34
(2007) 98 SASR 528
Ibid at 532 per Gray and Sulan JJ
36
Ibid at 540
37
DZAAA v Minister for Immigration, above n. 33 at [56]
38
“The Court will pay for interpreters assessed to be essential, when their engagement is authorised and
booked by court staff. The Court will not pay for an interpreter booked by a barrister or solicitor, nor for a
preferred interpreter selected by a solicitor in addition to an interpreter provided by the Court. Where a
solicitor considers that the services of an interpreter may be required, the solicitor shall request the Court
authorise and book the services of the interpreter.”
(Accessed on 20 May 2012 at www.fmc.gov.au/services/html/interpreters.html)
35
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Although section 30 of the Northern Territory’s new Uniform Evidence Act, already
passed but not yet in force, does not specify who is to pay for an interpreter, and
does not expressly refer to the rights of an accused, it does create a presumption
that witnesses with language difficulties be provided with an interpreter. This
reverses the common law onus, that a witness is not entitled to an interpreter.39
Referring to this provision, also now in force in Victoria, the Victorian Court of Appeal
recently stated:
An accused person whose first language is not English has a right to an
interpreter paid for by the State. This is an important right and is critical to
ensuring a fair trial. [Emphasis added]40
CONCLUSION
I first started working in this field, for the Institute for Aboriginal Development’s
Interpreter Training Program in Alice Springs, about 30 years ago. Back then, there
was no Aboriginal interpreter service, Aboriginal interpreter training was in its
infancy, and many criminal lawyers, including those sitting as judges and
magistrates, were either ignorant of or frankly hostile to the idea of interrupting their
court cases by interposing interpreters. Some 15 years later I reflected on this in an
article I called “Silence in Court! Problems and Prospects in Aboriginal Legal
Interpreting”.41 I rather provocatively argued then that there was a “conspiracy of
silence” against the use of interpreters, and concluded that the problems were
profound and the prospects gloomy. Not long afterwards, I became a criminal lawyer
myself, and have spent the last 15 years working with interpreters from inside the
courtroom.
Things have certainly improved since 1981, and indeed since 1995, when I charged
us all with being part of a conspiracy of silence. I now believe that this charge can
no longer be maintained. This conference is itself a strong indication that there is a
genuine commitment by participants in the criminal justice system to respect the right
to hear.
However, a prominent theme throughout this conference has been the continuing
reluctance and discomfort felt by officers of the court (whether we be judges,
magistrates or lawyers) when people talk in our room in their language. Earlier at
this conference a list of common excuses given by lawyers for not using interpreters
was read out. I want to go beneath the excuses, to what I consider to be an
underlying reason for our reluctance and discomfort. It is, it seems to me, because
courtrooms are places where language isn’t just used to communicate, but to do
things. Big things, like locking someone up, or setting someone free. People’s lives
can and do turn on words – even a single word – uttered in a courtroom. In our
rooms, language is power. Judges and magistrates and lawyers know this at a deep
level. Our job in court is to use language to exert power. So we feel threatened when
39
Riley J, “The Legal Status of Court Interpreters” (Paper given at Northern Territory Interpreter and Translator
Service Symposium August 2003) (Accessed on 20 May 2012 at
http://www.supremecourt.nt.gov.au/media/documents/Riley_J_The_Legal_Status_of_Interpreters.pdf)
40
Tsang v DPP (Cth) (2011) 255 FLR 41 at 65 [103]
41
Russell Goldflam “Silence in Court! Problems and Prospects in Aboriginal Legal Interpreting” in Diana Eades
(ed.) Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia (UNSW Press 1995)
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LANGUAGE AND THE LAW CONFERENCE DARWIN MAY 2012
the language spoken in court is one we don’t understand, something which is deeply
disturbing, disruptive and even subversive of the linguistic monopoly we lawyers
instinctively claim as our basic professional right.
So, as others have said at this conference, we’ve got a long way to go before we can
honestly assert that the battle to secure legal interpreters for all who are entitled to
them has been won. In the ears of many a non-English speaking Aboriginal accused
in a Northern Territory court, there still rings a yawning, hollow, deafening silence.
12