If you have ever been lost in a foreign country where you don’t speak the language, you probably felt a bit lost and anxious.
It is quite clear that being unable to speak the language in a stressful environment can be a very difficult experience.
Being in a police station or courtroom and not being able to comprehend what is happening around you would be a frightening experience.
Not being able to communicate can put a considerable burden on parties and witnesses involved in a criminal hearing or trial.
It can no doubt have an impact on the outcome of the case.
The law recognises this and there are provisions for witnesses and suspects who require an interpreter both at police stations and in court.
At the police station
According to Police Guidelines, it is police policy to provide interpreters to those who:
- Are unable to communicate in English;
- Have a limited understanding of English;
- Feel more comfortable speaking another language;
- Are deaf, hearing impaired or speaking impaired; or
- If the suspect is a child and their support person requires or wants one
Any investigation or interview should not be conducted until an interpreter arrives.
In court
The Evidence Act refers to witnesses having a right to an interpreter, unless they can understand and speak English well enough to comprehend and adequately reply to the questions they are asked.
But there is no absolute right to an interpreter; it is a matter for the judge or magistrate to decide.
The court must decide whether the witness or defendant is likely to be disadvantaged in giving evidence without one.
A failure for a court to grant an adjournment in order to get an interpreter could result in a miscarriage of justice.
But interpreting is a controversial issue.
The Australian Law Reform Commission noted that, even with an interpreter, there may be significant problems in court.
An example is in some Aboriginal dialects where concepts like ‘guilty’ and ‘not guilty’ don’t have equivalents.
Because many English words do not have direct equivalents in Aboriginal or other languages, interpreters are often drawn into giving explanations and their own interpretations of the words.
Because of this, some judges and magistrates are reluctant to allow evidence to be given through an interpreter.
Court interpreters must swear an oath or affirmation to “well and truly” interpret the evidence and all other matters required of them to the best of their ability.
But some fear that more than a plain interpretation is being given and that those with an interpreter have an advantage over those without.
Just how important are interpreters?
Interpreters are very important because their absence can change the entire result of a case.
Earlier this year, the failure for a defendant to be provided with adequate interpreters actually led to the murder case being dropped.
The case took place in Western Australia, where 21-year-old Josh Warneke died from massive head injuries.
The family of Warneke are horrified that the murder charges against the defendant were dropped.
It took over two years for detectives to track down their suspect – 21-year-old Gene Gibson, an Aboriginal who pleaded not guilty to the charge of murder.
He speaks Pintupi, a local Aboriginal language.
Gibson’s English was described as very basic and very minimal, yet he was not given an interpreter.
This resulted in the original charges of murder being dropped and he pleaded guilty to manslaughter.
In NSW, there are facilities in place to make sure that interpreters can be arranged for those who are charged with a criminal offence.
If you want to know more about law in the NSW courts, recent changes to the criminal law and advice in criminal matters, click here for access to more legal articles.
