Annotated Standards: Recommended Standards for Judicial Officers

Judicial officers, lawyers and other parties in a matter all bear the responsibility of communicating clearly and sharing the communication load with the interpreter.

It is unrealistic to expect even the most competent interpreters to provide a full and accurate interpretation of legal discussions between the judicial officer and lawyers if they have not been fully briefed and given material in advance in order to prepare, or if they are referring to information that is unfamiliar or too complex.

It is ultimately the responsibility of the court or tribunal and any legal representatives to ensure that the language used is accessible. It is not the interpreter’s responsibility to make sense of and simplify difficult and technical language and content. To enhance comprehension within the proceedings, all parties in the legal system should use ‘plain English’ to the greatest extent possible.

‘Plain English’ is used to describe a style of English that assists in clear and accurate communication. ‘Plain English’ does not mean using simple words or ‘dumbing down’ the message, but rather involves all parties in the hearing room adapting their speech to avoid saying things that will cause confusion for the interpreter or the party with limited English proficiency. This is particularly important when judicial officers and lawyers seek to explain and unpack legal processes and concepts.

Eleven ‘plain English’ strategies are:

• Use active voice, avoid passive voice;
• Avoid abstract nouns;
• Avoid negative questions;
• Define unfamiliar words;
• Put ideas in chronological order;
• Use one idea in one sentence;
• Avoid using “if” or “or” to discuss hypothetical possibilities;
• Place cause before effect;
• Indicate changing topic;
• Avoid prepositions to talk about time;
• Avoid figurative language.³⁰

Judicial officers and lawyers should familiarise themselves with these ‘plain English’ strategies and use these strategies at all times, but particularly when working with interpreters. Annexure 3 expands on these strategies.

Summarising in plain English

The judicial officer can indicate what matters they will summarise in plain English to facilitate understanding. For example, the Northern Territory Local Court’s Interpreters’ Protocol advises that the following matters can be summarised with the agreement of the court:

• Judicial officers may advise the interpreter when they need not interpret legal argument in full and can instead interpret the judicial officer’s summary of legal arguments between lawyers and the bench for the purposes of interpretation;
• directions from a judicial officer or counsel to a witness;
• objections made by lawyers and answers to objections by counsel and the bench;
• questions and answers to/from expert witness; and
• discussion between parties about logistical or procedural matters (suitable adjournment dates, where and when a brief should be provided, the length of time required for a hearing).

Language needs of Aboriginal and Torres Strait Islander peoples

If an Aboriginal and/or Torres Strait Islander language interpreter does not read English, somebody should read the words to be interpreted to the interpreter, who can then interpret from English into the relevant Aboriginal and/or Torres Strait Islander language.

Further, while the Standards focus on issues concerning the engagement of interpreters, the court or tribunal, judicial officers and legal practitioners should be aware that Aboriginal and/or Torres Strait Islander people may have additional language needs that may affect the interpretation process. This includes that Aboriginal and/or Torres Strait Islander people may have a:

• lesser ability to speak and/or understand (standard) English, noting that many speak a form of Aboriginal English;
• different communication styles, for example not making eye contact or the use of silence preceding answers to questions, that make it hard for others to adequately understand them, or means that they are wrongly assessed as, for example, evasive or dishonest;
• lower literacy or educational level than average;
• disability that requires using a communication aid or different technique; or
• better knowledge or higher appreciation of Aboriginal and/or Torres Strait Islander customary law than Australian law and legal processes.³¹

If an interpreter is required for a person accused of a criminal offence, it is the judicial officer’s duty to ensure that a Qualified Interpreter is engaged. If there is any doubt about this, the case should not proceed until the doubt is removed. The judicial officer should use the Standards as a guide and always check the competence of an interpreter, including holding a voir dire hearing where necessary.

The judicial officer must do their best to ensure that the interpreter is discharging their responsibilities competently. Assuming that the judicial officer is not familiar with the language being interpreted, the judicial officer can do this by observing whether the interpreting process appears to be functioning appropriately. Where the judicial officer considers that there is a concern, they must take appropriate steps to preserve the integrity of the process.³² For example, if a limited English proficiency speaking person (whether a party, witness or person present in the hearing room) appears concerned about the conduct of the interpreter the judicial officer should ascertain what might be wrong. This could be done by arranging a separate interpreter by telephone or, if one is unavailable, seeking the assistance of bilinguals to ascertain what might be the issue of concern. In any event, the interpreter should be given the opportunity to explain or reply to any concerns or complaints. The interpreting qualifications of those making a complaint should be compared with those of the interpreter. If the judicial officer has some familiarity with the language being interpreted, the task of monitoring the process may be easier. However, even where the judicial officer can understand the language being interpreted, they must decide the case by reference to the evidence as it was interpreted into English and cannot take into account their own understanding of the language unless they has fully explained to the parties the interpretation which they have assumed and have afforded them an opportunity to make submissions on that interpretation.³³

Annexure 4 outlines a four-step process for determining if an interpreter is required for a person of limited English proficiency.

The four-part test was developed by the Northern Territory Aboriginal Interpreter Service in consultation with forensic linguists. It is a simplified form of some of the processes used by forensic linguists when preparing to give expert evidence about language proficiency. The approach is endorsed by the Northern Territory Supreme and Local Courts and the Northern Territory Law Society and is already used in Northern Territory courts.

Often the court will be able to establish easily whether a person concerned needs an interpreter. However, if after undertaking the four-part test, there is any remaining doubt, parties should obtain an English proficiency assessment from a suitably qualified linguist as part of a voir dire hearing to assess the level of English competence of the witness or party.

English language competence is a question of fact. The assessment should be directed towards the question of whether it is reasonable to infer that the person would have a sufficient command of English, even if the English spoken is heavily accented.

The four-part test also helps courts to determine whether people who have limited English language proficiency, including Aboriginal and/or Torres Strait Islander Australians, need access to an interpreter to understand and be understood in the hearing.

People who speak only one language tend to underestimate the extent of miscommunication that can occur when communicating in English with a person who is not fully proficient in it. The Supreme Court of New Zealand has found that:

Courts must be alive to the risk that a person, who appears to have a good command of English in ordinary conversation, may have difficulty understanding the more formal language of the courtroom. Language ability varies depending on the particular context and a person with limited command of English is likely to have less fluency and comprehension in English when placed in a stressful situation.³⁴

In the final instance, the judicial officer will determine whether an interpreter is required in order to ensure a fair trial or hearing. If the judicial officer decides that an interpreter is not required the judicial officer should be confident that the limited English proficiency speaking party is able to fully understand the language they will encounter in the hearing, including its speed, technical terms, implied accusations and nuances.

The judicial officer’s decision may be influenced by such factors as whether or not the witness will be giving only short evidence about a particular topic, which is unlikely to involve difficult concepts or the use of words, language or expressions which are not commonplace.

A rule of thumb

A good strategy is to ask the person to paraphrase what you have just said to them, in their own words. This will determine the person’s level of comprehension. If the court or tribunal is not satisfied with the person’s level of comprehension, an interpreter should be provided.

The dangers of biographical data

Most people who speak English as a second language will have had repeated experience providing biographical data to service providers (e.g. ‘where do you live, what’s your date of birth, are you employed’). The court or tribunal should not rely on the party’s ability to provide biographical data as the basis for deciding whether to work with an interpreter. It does not necessarily follow from the fact that a person can adequately answer simple questions about their life that they have sufficient English proficiency to understand the proceedings, discuss legal concepts, or listen to and give evidence in a court or tribunal.

The dangers of overly modifying speech

Often when a person gets the impression that another person does not fully understand what is being said, a speaker intuitively compensates by reframing unanswered open questions (e.g. ‘Why do you think the police arrested you?’) as either/or questions or even closed yes/no questions (e.g. ‘Were you arguing with the police when they arrested you?’).

When a speaker does this, the party becomes heavily reliant on the prompts, suggestions, tone of voice and other cues to enable the conversation to proceed. In other words, the party’s ability to communicate is limited to the questions asked. In these situations, even though the party appears to easily answer questions with a yes/no response, they have not been provided with the option of fully expressing their own story or opinion.

Ascertaining hearing ability and other disabilities

Apart from language and hearing impairments, there may be other impairments that affect a person’s ability to comprehend. In 2013 the Senate Legal and Constitutional Affairs References Committee reported the findings of its inquiry into justice investment and noted that people with cognitive disabilities, acquired brain injury, mental illness, language impairments and deaf and hard of hearing people are over-represented in the justice system.³⁵

For example, given the social isolation that is associated with deafness, it is important to determine whether a person who is deaf or hard of hearing experiences other impairments, such as mental health disabilities. This is because the limitations in language development and in educational and social opportunities that so often occur during a deaf person’s childhood, as well as vulnerability to abuse, can lead to mental health problems in adult life.³⁶

In a criminal case, the judicial officer is ultimately responsible for taking all of these factors into account to determine fitness to plead. Legal representatives also have the responsibility to alert the court to these impairments.

Many courts and tribunals are fitted with hearing amplification devices. Judicial officers and counsel must ensure that deaf and hard of hearing people are provided with adequate support in both the hearing room and during instruction taking. Persons who speak a language other than English and are also deaf or hard of hearing are unlikely to be able to hear simultaneous whispering interpreting. Therefore, either consecutive interpreting or the use of simultaneous interpreting equipment will be needed.

How to talk with the party about the need for an interpreter

It is important to raise the topic of working with an interpreter in a sensitive manner. There may be a number of reasons the party might not want to work with an interpreter:

• the party might not know what an interpreter does;
• the party might have had a negative experience with an interpreter in the past;
• the party may feel shame or anger because you are indicating their English isn’t ‘good enough’;
• the party might not want other people knowing about their business.

Before directly asking the party what they think about having an interpreter present, the interpreter’s role should be explained so that the party can make an informed decision.

‘Before we start talking about this, I want to talk to you about what language we should use today.’

‘Maybe we can talk in English, or maybe we can talk in your language. I don’t speak your language, so if we think it’s better to talk in your language I will ask an interpreter to help me.’

Remember that the interpreter is not there ‘for’ the client. The interpreter is there for the court or tribunal – to help the parties communicate with each other.

‘An interpreter is someone who speaks your language and speaks English and will interpret everything said today.’

‘The interpreter will put everything I say into your language, and everything you say into English. The interpreter must follow rules. They can’t take sides.’

‘They must keep the message the same; they can’t add anything or leave anything out.’

‘Interpreters are trained to interpret accurately and impartially. They are also required to keep strict confidentiality’

What if an interpreter is not available?

An interpreter may not be available for a number of reasons. These include:

• the parties did not identify the need for an interpreter in advance;
• an interpreter was arranged, but did not attend for various reasons;
• an interpreter attended as arranged but their services were not used (for example, there was a challenge to their competence; the interpreter disqualified themself on ethical grounds; the interpreter declined the job on learning more about the matter); or
• there are no qualified interpreters for that language and a search failed to secure the services of a competent interpreting team.

There are also some circumstances where an interpreter will feel compelled to withdraw from the engagement due to ethical conflicts. For example:

• the interpreter may be related to the witness or the accused;
• they may have some conflict of interest;
• there may be cultural issues that make it difficult for them to accept the assignment; or
• they may not be able to adequately interpret into the relevant language because it is a different dialect from the one they know.

The right to withdraw should be respected by the court.

Interpreters may decline particular jobs, or request additional support, for distressing matters (for example, violence matters). Their reasons for declining a job, or requesting additional support, should be respected in order to keep highly qualified practitioners in the profession.³⁷ For example, they may advise they have interpreted a number of violence matters recently and need to have a rest from this sort of work for their own mental health, or at a minimum do it as part of a team to manage the isolation and stress associated with such work. Debriefing is also important in alleviating potential secondary stress.

Managing the risk associated with a parties’ failure to identify the need for an interpreter

One reason interpreters may not have been arranged is that a party may not have identified the need for interpreters in advance. It is important for judicial officers to hold other parts of the justice system accountable for their use of interpreting services, as part of their overarching responsibility to ensure a fair trial. All parts of the justice system – for example, police, lawyers and child protection authorities – are required by administrative arrangements to use interpreting services to communicate with persons of limited English proficiency.

If a party did not identify the need for the interpreter, the judicial officer will need to ascertain whether such failure affects a fair trial. For example, the judicial officer will need to determine whether an accused understands the caution, the charges against them and their plea, and was able to give proper instructions to legal representatives. Part of a trial judge’s responsibility in criminal trials is to ensure that the defendant understands the language of the court before the accused enters a plea. If there is any doubt about this the trial should not proceed until the trial judge is satisfied that the accused has a sufficient understanding of English to plead to the charge and to instruct legal representatives without the assistance of an interpreter.

What if an interpreter cannot be found?

If there is no interpreter available for a particular date and place, the court or tribunal should not proceed without language assistance. Instead, there are a number of different options available:

• a short adjournment to see if an interpreter can be arranged at short notice and be at court in reasonable time;
• an adjournment to arrange for an interpreter to attend by video link or to travel from another State or Territory;
• changing the date to accommodate for a local interpreter to be present.

If these steps are unsuccessful the next step is to seek a longer adjournment. The longer adjournment should allow for a Qualified Interpreter to be arranged (if one exists) or for an interpreting team to be organised.

When a party seeks to adjourn a matter on the basis of no interpreter being available the court or tribunal will take into account any evidence that the relevant party can provide outlining the steps taken to arrange an interpreter for the specified dates. This evidence could include material from an interpreting agency stating that no interpreter was available on the specified date.

Where matters are adjourned, parties should make arrangements to ensure that an interpreter is booked for subsequent appearances. The party should include the name of the interpreter on the booking request, so that wherever possible the same interpreter will be allocated.

If, after making all enquiries, there is no interpreter available at all, the alternatives available to the court or tribunal include a stay of proceedings, on either a temporary or permanent basis. These are measures of last resort used only after every effort to locate an appropriate interpreter, including by establishing an interpreting team, has failed.

If the limited English proficiency speaker refuses an interpreter

It may be the case that the limited English proficiency speaker advises that they do not need an interpreter. However, it is common for people who speak English as a second language to overestimate their ability to understand and speak English in the specialised environment of a court or tribunal. Research has found that limited English proficiency speakers are disadvantaged by their inability to speak in the appropriate style in court.³⁸

The judicial officer should check if the person has refused the interpreter because of concerns about the particular interpreter.

The judicial officer should carefully weigh up the complexity of the matters being discussed. For example, the judicial officer may decide to proceed without an interpreter if the limited English speaker is a witness who will be asked simple questions for a short period of time about day-to-day events. For anything that is more complex, if there is any doubt of the limited English speaker’s understanding or their ability to make themselves understood, the court or tribunal should insist on a certified interpreter being made available, in accordance with the Standards.

If the limited English proficiency speaker has concerns about a particular interpreter

If a party has raised concerns about a particular interpreter, the judicial officer should ascertain where there are any linguistic and cultural issues that will affect the quality of interpreting, as well as any strong preferences of the limited English proficiency speaking party. For example, the judicial officer should check whether there are concerns such as issues relating to gender, age, dialect or independence of the interpreter.

If the limited English proficiency speaking party expresses concerns about working with a particular interpreter, a separate interpreter should be arranged via phone so they can communicate their concerns. The judicial officer should be alert that the person requiring an interpreter is in a very vulnerable position and relies significantly, or wholly, on the interpreter discharging their responsibilities ethically. Nevertheless, the interpreter against whom the complaint is made, must be given the opportunity to explain or clarify their interpretation.

When a judicial officer decides not to proceed with a Certified Interpreter or an interpreting team

There is a range of situations where a judicial officer may decide not to proceed with a Certified Interpreter or an interpreting team when they are otherwise available. The circumstances which may warrant considering an interpreter at a level below that recommended here include:

• the difficulties encountered in trying to obtain the services of a Certified Interpreter or team;
• whether the interpreter is being engaged to interpret for a single witness or more than one witness;
• whether the interpreter is being engaged to interpret for the accused in a criminal matter, and if so, whether the matter is being heard in a superior court or a court of summary jurisdiction;
• the nature of the matter, whether the matter is a trial or a plea hearing;
• the length of time the interpreter would be required to be available in court or tribunal;
• whether the issues in the proceedings are complex or straightforward; and
• the experience and knowledge of the interpreter.

In these cases, the judicial officer should document the reasons for their decision.

The person booking the interpreter should ascertain whether there are any linguistic and cultural issues that will affect the quality of interpreting, as well as any strong preferences of the limited English proficiency speaking party. As much information as possible should be ascertained about the limited English proficiency speaking party, well in advance, to enable the best possible interpreter to be selected. In some instances, the limited English proficiency speaker may speak several languages. In some situations, it may be possible to interpret using their second language rather than their first language if the person is proficient enough in their second language.

Gender and age considerations can sometimes be significant. For example, women may not feel comfortable talking about sexual or violence matters via a male interpreter, or even in the presence of other men. Similarly, older people may not be comfortable with a younger interpreter. As a general rule, a woman interpreter should be employed to interpret for women on violence and sexual matters and a male interpreter for the male party.

A wide range of other linguistic and cultural considerations may also need to be taken into account in selecting the best possible interpreter for the matter. For example, there can be substantial differences within a language that is spoken in many different geographical areas, which can lead to potential misunderstandings (for example between Congo Swahili and East African Swahili; between Arabian peninsula Arabic and the varieties of Arabic used in Iraq and Libya; between West Kimberley and Katherine Kriol). Nevertheless, certified, trained interpreters are familiar with language varieties and, when confronted with any difficulty, they will seek clarification.

There can also be cultural and ethical complexities when trying to find interpreters for languages with a small pool of speakers in Australia, as is the case for all Aboriginal and Torres Strait Islander languages. Care must be taken to ensure respect for any kinship obligations of the parties to the litigation, both in selecting an interpreter and during the interpretation process. In addition, within some Aboriginal or Torres Strait Islander kinship systems there are avoidance relationships where people are not allowed to talk directly to each other or say each other’s names. For example, in some Aboriginal and Torres Strait Islander societies, mothers-in-law and sons-in-law may not meet face to face or speak directly with one another. The court may become aware of an avoidance relationship when a person enters a room and another Aboriginal and/or Torres Strait Islander person leaves the room, suddenly looks away and ceases talking or rearranges seating arrangements.

In all cases, the limited English proficiency speaking party should be able to meet the interpreter in advance of the proceedings and if they express concerns about that interpreter, a different interpreter should be arranged via phone so they can communicate their concerns.

The judicial officer should also ascertain whether the interpreter has received a briefing on the matters they are required to interpret.

The interpreter is more likely to accept the assignment if they have been properly briefed and know the time, date, place and matters they are required to interpret: see also Standard 8.3 (booking information to be provided to interpreters). Interpreters also need to be fully briefed so that they can identify potential conflicts of interest.

If the judicial officer is not satisfied that the interpreter has been appropriately briefed they may delay or adjourn proceedings with potentially adverse costs orders and require the relevant party to undertake the necessary briefing.

Interpreters or other persons performing the office of interpreter should not be expected to sight translate documents, especially lengthy or complex documents: see also Standard 26. A high level of technical competence is required to translate a document at sight, and in any case, it may not be an appropriate method of interpretation in the hearing room setting. Interpreting and translating are different skills that require specialist training and certification.

Nonetheless at times it may become necessary during the proceedings for written words to be interpreted to the witness or party. Where that occurs, sight translation should be limited to short portions of text only, as opposed to lengthy and complex documents which should be provided in advance to the interpreter.

Prior to beginning proceedings, it is essential that the judicial officer consider a number of factors in order to ensure that the interpreter is able to meet the required standard for court and tribunal interpreting. Courts should always prefer a Qualified Interpreter and a judicial officer can be satisfied that a Qualified Interpreter is able to meet the required standard. For Tier A and some Tier B languages, a Qualified Interpreter should be available, and therefore should always be engaged.

For some Tier B languages and Tier C languages, it may not always be possible to engage a Qualified Interpreter, and less qualified interpreters may need to be engaged, for example, interpreters with certification but lacking tertiary qualifications, or with certification and tertiary education but lacking court experience. For Tier D languages, there may be even fewer Qualified Interpreters, and Recognised Practising Interpreters or even untrained bilinguals may have to be engaged.

In the case of persons who are not Qualified Interpreters, the judicial officer should determine whether the interpreter is otherwise suitable. When determining whether the interpreter is suitable, a judicial officer may wish to establish whether and to what extent the person’s training and/or experience meets the relevant national competency standards for interpreters and translators. The national competency standards are available in the Public Sector Training Package and form a nationally consistent frame of reference for determining competence objectively.

In the case of untrained bilinguals, the judicial officer should consider conducting voir dire hearings to assure themselves of the competence of the bilinguals, and where possible, that the proceedings will be able to be performed by the two bilinguals cross-checking each other and being mentored by a Certified Interpreter.

During proceedings or a voir dire, the following are general guidelines on how to assess the competence of a person other than a qualified interpreter:

• Technique: A person is less likely to be accurate in their renditions if they:
  • use the third person (e.g. he said that he wanted to go) instead of the first person (e.g. I wanted to go);
  • engage in private discussions without seeking leave to ask for a clarification or repetition;
  • offer lay opinions; and
  • do not take notes during long segments in consecutive interpreting.
• English proficiency: the higher the proficiency, the more likely the person performing the interpretation will render an adequate interpretation.
• Delivery: A competent interpreter is usually also confident and will stop proceedings to seek clarifications if needed.

If the judicial officer is concerned about any of these matters, they may raise this with the parties to see if a more suitable interpreter is available, and adjourn matters until one is available.

The judicial officer can undertake the task of determining whether the interpreter is suitable to engage in the proceedings, or delegate the collection of information in a consistent form to court or tribunal staff or an interpreting service, provided the required information is supplied to the judicial officer and the parties.

Challenges to competence

A challenge to the competence of an interpreter could arise before proceedings, during the proceedings, or after the proceedings as a ground of appeal. The challenge could come from one of the parties, a witness, the judicial officer or jury panel. The optimum time to raise a challenge to competence is before the proceedings begin.

To manage the risk of a challenge to competence, it is essential that:

• the interpreter’s certifications, formal qualifications experience be known to the court or tribunal and the parties; and
• the evidence, and the interpreter’s interpretation of it be recorded, so that it can be reviewed by an independent expert, if necessary.

Having two interpreters working in tandem, who can help and check on each other’s performance, will also help assure the quality of interpreting.

Judicial officers have set as standards of competence the inclusion of continuity, precision, impartiality, competence and contemporaneousness, taking into account that the interpretation must be of such a quality as to ensure that justice has been done.³⁹ Linguists have specified that accuracy of content and manner are crucial when assessing competence of legal interpreting performance.⁴⁰ This should not be misunderstood as meaning a literal, word-for-word translation.⁴¹

Managing challenges to competence during the proceedings

Sometimes a challenge to competence occurs during the hearing itself, when parties present in the hearing room raise concerns with the judicial officer about the interpreter. If the challenge is based on issues such as the failure to provide consecutive or simultaneous interpreting of the evidence, or of the exchanges between counsel and the bench or jury, or the independence of the interpreter, then the challenge can probably be accommodated without having to adjourn proceedings.

If a bilingual party present in the proceedings challenges the interpreter’s interpretation, the first step to be taken is to ask the interpreter to defend or justify their interpreting choice. If the interpreter agrees that they have made a mistake, it can be easily rectified. If the interpreter does not agree, the qualifications of the interpreter and the bilingual should be compared first. If the bilingual is not qualified to give an expert opinion, the opinion of the interpreter should prevail. If two interpreters are working together, the other interpreter can be questioned on their colleague’s interpretation.

If the challenge is raised by an equally or better qualified expert, the response may require a voir dire hearing during which the judicial officer would hear evidence from the expert and also from the interpreter concerned. This procedure would interrupt the flow of the trial and may be extremely difficult to accomplish without adjourning the proceedings to a different date. It may be necessary to engage a suitably qualified interpreting expert to provide an independent assessment of the recorded exchanges.

If the challenge is upheld, the judicial officer will have to consider what needs to be done to remedy the situation. It may, for example, be necessary in a criminal case to inform the jury that the evidence of the witness so far given is to be ignored and that the witness will be recalled using the services of a different interpreter. However, other errors may be incapable of a remedy leaving the judicial officer with no choice but to dismiss the jury and order a retrial. It will depend on the particular situation. In some instances, the accused’s counsel will waive the irregularity if appropriate measures are taken to remedy the situation (for example, if the interpreter has failed to properly interpret the evidence of the witnesses to the accused in the dock).

Challenges on appeal based on alleged errors in interpreting

In many cases, the party affected by the interpreter’s errors may be unaware of the problem until the proceedings are over. Appeal courts have so far shown considerable reluctance to allow appeals on the ground that the interpreter was incompetent or otherwise failed in their duty. However, if the errors are sufficiently important so as to lead to a miscarriage of justice, the appeal court can allow the appeal and order a re-trial. There have been some successful appeals on this ground. The real impact of the interpreter’s incompetence is difficult to ascertain.⁴²

In order to demonstrate that a miscarriage of justice occurred, the appealing party would have to show that the level of interpretation was so poor as to have prevented them from being able to give an effective account of the facts vital to their case. For example, the appellant would need to provide evidence that they failed to understand in important respects what was said against them, failed to understand the questions, or the interpreter did not properly interpret their answers.⁴³ An interpreting expert would also need to demonstrate the nature of the alleged inaccuracies.

Some authorities have suggested that it is relevant for the appeal court to take into account that no objection was taken at the trial.⁴⁴ Whilst there may be occasions when it is appropriate to note that no objection was taken, this must depend on the circumstances. If the party concerned speaks no English and the party’s counsel does not have a command of the other language to be interpreted or the assistance of someone else to check the quality of the interpretation, the possibility of misinterpretation may not be obvious. Therefore, no weight could be given to the failure to object.

In De La Espriella Vasco v The Queen⁴⁵ the appeal was dismissed although the expert evidence was that there were over 500 misinterpretations, the interpreter’s knowledge of Spanish and English was at an uncultivated level, whereas the appellant’s spoken Spanish was that of a highly educated person (the opinion expressed by the expert was that because of this the appellant was wrongly portrayed as a person of low intelligence), and the interpreter had failed to provide simultaneous interpreting of the exchanges between counsel and the bench, but merely summarised them. The court was of the opinion that the misinterpretations were of no real significance, and that the jury would have understood that the witness was highly intelligent, because the Crown suggested this to the jury and the witness had not displayed any difficulty in understanding the interpreter. The court found that failure to provide simultaneous interpreting of the exchanges had not disadvantaged the appellant.

Forensic linguistic research, however, has shown that jurors make their own evaluations of intelligence, credibility, competence and trustworthiness, based on the way witnesses express themselves, regardless of what counsel may say to them to make them think otherwise.⁴⁶ What also told against the appellant in De La Espriella Vasco was that, although the question of the interpreter’s competence had been raised during the trial, the appellant, after having had an opportunity to consult their barrister in circumstances where they had available to them a check interpreter, elected to proceed with the same interpreter.

When determining whether or not an interpreter is appropriate for the proceedings, the judicial officer should have regard to cultural and other sensitivities, including:

• the language and dialect used by limited English proficiency speaking person(s) for whom the interpreter has been engaged to interpret, particularly in the case of languages with many dialects that are not intelligible by other dialect speakers of the language, such as Arabic, Chinese and Swahili;
• any cultural sensibilities, such as kinship obligations or avoidance relationships in Aboriginal and Torres Strait Islander cultures, or where there may be political, religious or other tensions between different groups of language speakers;
• the gender of the interpreter compared with the limited English proficiency speaker, particularly in domestic or sexual violence cases;
• nature of the proceedings, for example, in domestic violence cases separate interpreters should be engaged for each party.

If it becomes apparent either at the beginning of or during proceedings that an otherwise qualified or suitable interpreter is not appropriate, the judicial officer or the legal representatives should raise the matter and consider whether it may be necessary to adjourn the matter until an appropriate interpreter can be found, or to determine another acceptable strategy.

The judicial officer should ask the interpreter to depose that they are prepared to comply with the Court Interpreters’ Code of Conduct.

At the start of some proceedings, an interpreter will be required to take the interpreter’s oath or affirmation. The form(s) of the oath or affirmation may be specified by legislation and differ between jurisdictions.

If an oath is not specified by legislation, the recommended oath is:

Do you swear by Almighty God (or affirm) that you will faithfully interpret all the evidence and other matters relating to this case to the best of your skill and ability? – Say I do.

Ordinarily, the court will require the interpreter to take an oath for hearings or in any proceedings when evidence is being interpreted. When no evidence is taken, generally an interpreter is not required to take an oath. Whether an interpreter will be sworn for proceedings that do not involve evidence being given is a matter for the judicial officer.

Ethical issues

It is important that interpreters be independent from the parties. Lack of impartiality may lead to unfaithful renditions, as the interpreter may filter information to protect the witness or may improperly use information for personal gain.⁴⁷ This may work to the disadvantage of either party, depending on whether or not the court or tribunal recognises what has occurred. Similarly, while interpreters may be asked to explain their interpreting choices, interpreters cannot be asked to give their own evidence as witnesses relating to the interpreting task which has been undertaken: they must remain impartial.⁴⁸

Complete independence can be very difficult when there are limited numbers of Qualified Interpreters in a particular language or dialect. This is particularly the case when the number of language speakers resident in Australia is small, as is the case with all Aboriginal and Torres Strait Islander languages and languages spoken by some immigrant groups. In such cases, the court or tribunal should take extra steps to satisfy itself that the arrangement is acceptable to the court or tribunal and to the parties, and should closely monitor the situation. In addition, the court or tribunal can put arrangements in place to assure everyone present that interpreting will occur impartially. Strategies include:

• the judicial officer and interpreter explaining the interpreters’ role and the Court Interpreters’ Code of Conduct;
• establishing an interpreting team, so they reduce fatigue and also cross-check each other’s renditions;
• determining whether the limited English proficiency speaking party speaks several languages and whether interpreting could occur in a second language; or
• employing an interpreter from interstate or overseas.

The judicial officer should instruct the interpreter not to engage in a conversation with the witness that is not interpreted. When a concept, expression or word is not easily interpreted and needs to be explained to the witness, the interpreter should inform the court or tribunal that an explanation is required and why this is necessary, so that it can be ensured that the proper explanation is given in a manner which can be interpreted. Further, interpreters are entitled to seek to clarify with a witness what they have said if necessary. Interpreters should never hold private conversations with either party without the other party knowing what is being said.

Ensuring effective courtroom communication

Ensuring all parties understand and can be understood is a shared responsibility of all officers of the court, not just the interpreter.

As a practical measure the judicial officer should be satisfied that the interpreter and the witness or accused understand each other, including whether they speak mutually intelligible language varieties or dialects.⁴⁹

Judicial officers can assist the interpreter by:

• intervening whenever there is overlapping speech, complex questions, rapid-fire speech, or words or expressions which are likely to be difficult to interpret;
• ensuring questions are short, manageable and understandable to lay audiences;
• intervening if it appears that the interpreter and the witness are having difficulty understanding each other;
• monitoring the interpreter to ensure they are keeping up with the pace of speech – for example, explaining that the interpreter should signal if there is such a difficulty, or speak out with a request that the speaker slow down;
• listening for irrelevant answers, which might indicate failed communication. This can be due to:
  • misunderstanding of a convoluted question from the lawyer that was accurately interpreted (lawyer’s responsibility);
  • misunderstanding a poorly interpreted question (interpreter’s responsibility);
  • witness’s lack of education;
  • a cross-cultural issue that may require more or less explicit information. If it is something that impinges on the interpretation, the interpreter should be allowed to alert the court or tribunal;
• listening for incoherent answers, which may be a sign of:
  • poor interpreting (miscommunication);
  • the speaker’s own incoherence that is accurately portrayed by a competent interpreter (accurate interpreting); or
  • communication impairments associated with trauma. These may manifest as incoherence, impaired chronological logic or apathy. People who have experienced trauma have different discourse patterns to those who have not had these adverse life experiences.

Providing directions to the jury concerning the role of the interpreter

During the summing up, it may be necessary to give a direction to the jury about how to evaluate the evidence of a witness given through an interpreter. The judicial officer could consider modifying the direction depending on whether a Qualified Interpreter was engaged, compared to an inexperienced bilingual. A suggested direction is:

There are dangers in attempting to assess the truthfulness of a witness by reference to their body language or demeanour where different cultural backgrounds are involved. This problem may be exacerbated even more when evidence is given through an interpreter.

Judging the demeanour of the witness from the tone of the interpreter’s answers is likely to be unreliable [unless the interpreter is highly trained.] Judging the demeanour of the witness from the witness’ own answers in a foreign language requires a high degree of familiarity with that language and of the cultural background of its speakers. If a witness’ answers appear to be unresponsive, incoherent or inconsistent, and appear to lack candour, this may be due to the difficulty of interpreting concepts from one language to another. [However, when a highly trained interpreter is involved, such features should be attributed to the original speaker, as qualified interpreters are trained to maintain accuracy of content and manner.]

Nevertheless, the trial process does involve you in making an assessment of the witness’ reliability and truthfulness notwithstanding that the witness has given evidence in a foreign language.

Other situations might demand a direction by the judicial officer that although the witness was able to speak some English, because English is not the witness’ first language, the law recognises the right of the witness to give evidence through an interpreter in their own language, and why this is so. If a submission is made by the opposing party that the witness was hiding behind the interpreter, any question of whether or not the witness had abused their right to use the services of an interpreter is a matter for the jury even if no objection had been taken to the use of the interpreter.⁵⁰

See Annexure 5 for a summary of ways that judicial officers can assist interpreters.

It is intended that the status of the interpreter as an officer of the court or tribunal, in that they owe paramount duties to the court or tribunal, will enhance and promote the independence of the interpreter, as well as acknowledging their vital role in the hearing room. While the form of the introduction is a matter for the court or tribunal, a useful introduction for a court is presented below:

Today we are assisted by [name of interpreter], an interpreter from the [name of the interpreter service – if applicable] who will be interpreting between the English language and the [name of language].

The interpreter is an officer of the court/tribunal, whose role is to interpret everything said in court/tribunal. They play an important role by removing the language barrier in order for the court/tribunal to communicate with limited English proficiency speaking accused or witnesses.

The interpreter has promised the court/tribunal to convey accurately the meaning of what is said from one language to the other. The interpreter does not take sides. The interpreter has undertaken to follow the Court Interpreters’ Code of Conduct.

Mr/Madam Interpreter if for any reason there is any problem or difficulty which is concerning you, please interrupt the proceedings by saying “Your Honour, I am now speaking as the interpreter, I have a difficulty which I would like to raise with you.”⁵¹

Explaining the role of an interpreter to a witness

It may be appropriate in some cases for the judicial officer to explain the role of the interpreter to the witness. A suggested explanation may be:

This person is an interpreter. Their job is to interpret everything that the lawyers and I say to you in your language, and to interpret everything you say into English. Please give your answers in short sections to give the interpreter an opportunity to interpret what you say. If you have any questions about what is happening or do not understand something, please do not ask the interpreter. It is not the interpreter’s job to explain things to you or to answer your questions. If you have a question, ask me directly and the interpreter will interpret your question to me.⁵²

When tandem interpreting is being used, a direction should be given to the effect of:

Legal interpreting is a demanding task. From time to time you will see the interpreters change. This is done to ensure that the interpreters do not become mentally fatigued or lose concentration.

Physical and verbal threats to interpreters

Persons present in the court or tribunal (for example, family members of a party or witnesses) may sometimes be confused by the role of the interpreter. This can arise because the interpreter is required to use the first and second grammatical persons and is required to interpret statements accurately and impartially. This may lead family members to believe the interpreter is taking sides. At times, this has led to reprisals against interpreters by community members. For example, interpreting services are aware of instances where family members have approached the interpreter after proceedings asking “why are you saying their lies for them?” or “why are you taking sides against our mother?”. In some instances, this has led to actual threats or acts of physical violence following the case.

During the proceeding, the judicial officer should monitor the demeanour of people in the hearing room and may at times need to repeat the explanation about the duties of the interpreter.

Interpreters should be encouraged to bring any physical threats or verbal accusations to the attention of the court or tribunal as soon as possible and to seek the assistance of the police if required to assure their safety.

Threats to sue an interpreter for defamation

An interpreter is not responsible for the utterances of those for whom they are interpreting. An interpreter can only be accountable for interpreting accurately to the best of their skill and ability. Anything said in a court or tribunal attracts absolute privilege.