A right of a witness to give evidence through an interpreter has been given statutory recognition in s 30 Evidence Act 1995:
A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
Whether an interpreter will be used is a matter for the discretion of the court.
It is likely that a refusal to grant an adjournment in order that an interpreter be provided could amount to a denial of procedural fairness. Cucu v District Court (NSW) (1994) 73 A Crim R 240 at 243, 244 and 250.
The material consideration is whether, without an interpreter, the witness (whether a party or not) is likely to be unfairly handicapped in giving evidence. In the case of a party, the test is whether he or she cannot sufficiently understand what others are saying without the assistance of an interpreter and adequately reply. The court would bear in mind that the use of an interpreter by a witness who in fact understands the language of the court could provide an unfair advantage. Against that, regard must be had to the critical importance of a party and a witness being able to comprehend what is happening and what they are being asked:
The linguistic skills adequate for work and social intercourse frequently evaporate in stressful, formal and important situations: Cucu v District Court (NSW) (1994) 73 A Crim R 240.
A variety of legislation raises the issues of language and interpreters:
The International Covenant on Civil and Political Rights (1966) (which Australia has signed and ratified), Article 14(3) states, that in criminal cases all should:
… be informed promptly and in detail, in language which he understands of the nature and cause of the charge against him. [Art 14(3)(a)]
have the free assistance of an interpreter if he can not understand the language used in court. [Art 14(3)(f)]
Section 41 Evidence Act provides that a court may disallow a question in cross examination if the question is, inter alia, “misleading” or “oppressive” and may take into account “any relevant condition or characteristic of the witness including age, personality and education”: s 41(2). Linguistic or cultural difficulties experienced by a witness in answering any questions could fall within the scope of s 41 where the line of questioning is confusing (misleading or oppressive).
Section 22 provides that an interpreter must either take an oath or make an affirmation in accordance with the form in Sch 1 or in a similar form. Note that the oath/affirmation requires the interpreter to “well and truly interpret” — query though whether this requires a strict verbatim account.
Section 24 provides that it is not necessary that a religious text be used and an oath is effective whether or not the person has any religious belief (or belief of a particular kind) or did not understand the nature and consequences of the oath.
Pursuant to s 138(3)(f) Evidence Act, the courts have a discretion to exclude improperly or illegally obtained evidence where an impropriety or contravention of the law is contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights (1966).
Section 139(3) Evidence Act requires that any caution be given, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
Section 219ZD Customs Act 1901 requires an officer of the Australian Customs Service or a police officer when detaining a person who is not fluent in English to have an interpreter present when communicating with a detainee.
There are numerous provisions that govern the right to an interpreter for a person in custody prior to charge. For example s 128 Law Enforcement (Powers and Responsibilities) Act 2002 states:
The custody manager for a detained person must arrange for an interpreter to be present for the person in connection with any investigative procedure in which the person is to participate if the custody manager has reasonable grounds for believing that the person is unable:
because of inadequate knowledge of the English language, to communicate with reasonable fluency in English, or
because of any disability, to communicate with reasonable fluency.
Reference is also made to reg 24 Law Enforcement (Powers and Responsibilities) Regulation 2005 which prescribes categories of persons to be referred to as “vulnerable persons”:
A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories:
persons who have impaired intellectual functioning,
persons who have impaired physical functioning,
persons who are Aboriginal persons or Torres Strait Islanders,
persons who are of non-English speaking background …
Situations where an interpreter might be used:
Unable to communicate in English. No understanding or effective use of English.
Able to communicate but in a limited capacity. Conversational English may not mean competence with more formal English. “Normally where a witness has a difficulty speaking English and requests the assistance of an interpreter this will be permitted”: Cucu v District Court (NSW) (1994) 73 A Crim R 240 at 250 per Sheller JA.
Although able to communicate, may not be comfortable in using it: Adamopoulos v Olympic Airways SA (1990) 95 ALR 525.
The risk that some parties may seek to take improper advantage of the facility of a court interpreter, “must be weighed against the serious injustice, and breach of fundamental human rights, which is involved by denying that facility to a person who reasonably requests it and who may need it in the peculiar setting of a court proceeding”: Cucu v District Court (NSW) (1994) 73 A Crim R 240 at 244 per Kirby J.
Where awareness is required of cultural factors: see R v Anunga (1976) 11 ALR 412.
Where a judicial officer is not satisfied that the accused person understands the substance of the proceedings: see R v Lee Kun  1 KB 337; Kunnath v The State  4 All ER 30.
The provision of an interpreter is not the function of a court. It is generally the duty of the parties to request an interpreter if needed and, if so, to ensure the presence of an interpreter at the commencement of and throughout the proceedings until further attendance is excused by the presiding officer. However, in the case of criminal proceedings, this obligation is often assumed by the prosecuting authority or by the Criminal Listing Authority.
The principal provider of interpreting services for the court system is Multicultural NSW. Most of the members of the panel of interpreters hold NAATI (National Accreditation Authority for Translators and Interpreters) accreditation.
First preference Interpreter (formerly Level 3). This is the first professional level and represents the minimum level of competence for professional interpreting.
Second preference Paraprofessional interpreter (formerly Level 2). This is a paraprofessional level and represents a level of competence in interpreting and translation for the purpose of general conversations only.
Third preference Practitioner with recognition. Whilst recognised as competent have not sat for accreditation.
It is generally accepted that the interpreter who officiates in court should not have made his services available to any party on any prior occasion out of court, for example, conference with lawyers, medical examination.
When the court is satisfied that an interpreter should be used, the following steps should be considered:
The accreditation of the interpreter should be perused and the name, qualification and chosen language should be recorded on the transcript.
The oath (or affirmation) to the interpreter should be administered.
When the non-English speaking witness is called, the form of oath (or affirmation) must be translated, and the response by the witness (“So help me, God” or “I do” or whatever is appropriate) should be uttered by the witness in his or her native tongue and not in English.
Ascertain whether the interpreter is satisfied that the witness is of the same language or dialect and whether there are any other requirements that need to be met for a successful session.
Generally in cases of consecutive interpreting it should be appreciated by all participants (that is, presiding officer, counsel and witness) that the speed and volume of delivery need to be accommodated to the capacity of the interpreter. Directions may need to be given from time to time. These may include permitting the interpreter to make written notes.
Care should be taken to ensure that the interpreter is adequately interpreting the evidence during the course of a hearing. On occasions particularly when a defendant has some understanding of English the tendency is for interpreters not to simultaneously interpret. Complaints can subsequently be made that the evidence was not sufficiently interpreted and that a fair trial was not afforded to the defendant.
Sometimes more than one interpreter is requested for the same language when the defendant requires an interpreter and a prosecution witness requires an interpreter. In determining whether to request more than one interpreter for the same language you should be mindful of the availability of interpreters in that particular language and the extent of use of the interpreter by the defendant. If the defendant needs an interpreter to provide instructions to his solicitor it may be appropriate to order two interpreters so there is no perceived “conflict of interests”. Having said that, court interpreters are professionals whose code of conduct requires them to protect confidentiality. Holding up, or adjourning a hearing to obtain a second interpreter in such circumstances should only occur after careful consideration of the interests of all parties.
The guidance material contained in this section applies equally to other forms of interpreting, for example, the deaf and hearing impaired. It is understood however there are some persons who are so profoundly and peculiarly affected that a very limited number of persons (and even only one person) has the capacity to communicate. In these rare cases, a court will need to give such directions as are necessary to adapt to the circumstances, but it is recommended that a proper record of the circumstances and the reasons which led to any departure from usual procedures be made so as to avoid any later attack on the integrity of the hearing.
When booking an interpreter for the hearing impaired the judicial officer should find out how the person communicates:
Australian Sign Language (Auslan)
Signed English (SE).
Whenever an interpreter is being used it should be kept in mind that interpreting is not an exact science. Translating from one language to another always involves the interpreter in making a decision as to how best to convey the sense of what has been said rather than just a word for word translation.
Whenever evidence is being given by a person whose command of English is clearly limited or where it is being given through a translator then care should be exercised over the answers given. It may be worthwhile before allowing a translator to begin to instruct him or her to raise with the court any point of difficulty during the translation, such as where a clear explanation is not possible.
Professor Sandra Hale, Interpreting and Translation, UNSW
Ask interpreters to introduce themselves and state their level of NAATI accreditation and their formal qualifications (eg, Degree or TAFE qualification in Interpreting)
Ask them if they have worked in court before. If not, explain their role: “To interpret everything faithfully and impartially in the first/second grammatical person”
Remember that interpreting faithfully does not mean interpreting ‘literally’ — word-for-word translations normally produce nonsensical renditions
Ask them what resources they will be accessing in court (eg, online glossaries and dictionaries can now be accessed on smart phones and tablets. Interpreters may need to consult them at different stages of the hearing or trial)
Tell the interpreter to feel free to seek clarification when needed, seek leave to consult a dictionary or to ask for repetitions. (Note: It is a sign of a good interpreter to take such actions when needed, to ensure accuracy of interpretation)
Explain the interpreter’s role to the witness/defendant/accused/jury
Ask the interpreter when s/he would like to take their breaks — ideally breaks should be provided at least every 45 minutes (Interpreting requires a very high cognitive load and is mentally very taxing)
Ensure that the interpreter is comfortable and is provided with a chair, a jug of water and glass, a table to lean on to take notes and a place to put their belongings (such as a bag and umbrella)
Instruct lawyers and witnesses to speak clearly and at a reasonable pace, and to pause after each complete concept to allow the interpreter to interpret (Note: If you cannot remember the question in full or understand its full meaning, it is very likely the interpreter will not either)
If there is anything to be read out, provide the interpreter with a copy of it so s/he can follow. If it is a difficult text, give him or her time to read through it first
Stop any overlapping speech or any attempts from lawyers or witnesses to interrupt the interpreter while s/he is interpreting
Do not assume that the witness will understand legal jargon when interpreted into their language. Interpreters must interpret accurately, and cannot simplify the text or explain legal concepts. If there are no direct equivalents, the interpreter may ask for an explanation which can then be interpreted
Interpreters are required to interpret vulgar language, including expletives
Interpreters are required to interpret everything for the defendant or accused, to make them linguistically present. This includes the questions and answers during evidence, any objections, legal arguments and other witness testimonies. The consecutive mode will be used when interpreting questions and answers. The whispering simultaneous mode (AKA chuchotage) will be used for all other instances (if the interpreter is trained in this mode of interpreting)
If anyone questions the interpreter’s rendition, do not take their criticism at face value. Bilinguals who are not trained interpreters often overestimate their competence. Compare qualifications and give the interpreter the opportunity to respond to the criticism
For more information on Interpreting issues, refer to: S Hale “Interpreter policies, practices and protocols in Australian courts and tribunals. A national survey”, AIJA, Melbourne, 2011. <www.aija.org.au/online/Pub%20no89.pdf>.
Reproduced with permission of Professor Sandra Hale, University of NSW.