Indigenous Interpreting Issues in Western Australian Courts

Indigenous Interpreting Issues in WA Courts

Central to the concept of justice in Australia is a fair trial. An essential feature of this is that the defendant ‘not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her’.[1] Therefore, if a witness is not sufficiently skilled in English to do this, a court interpreter is vital to ensure justice is done. The Western Australian Chief Justice Wayne Martin sets this out clearly in his letter to the Equal Opportunity Commissioner: If the trial of an alleged offender occurs in circumstances in which that person is unable to comprehend the course of the trial because, for example, of an inability with English and the lack of an interpreter, the trial process is unfair and any judgement obtained would be set aside.[2]

The absence of an interpreter in such situations would therefore be tantamount to a miscarriage of justice, as would the employment of an incompetent interpreter with no appreciation of the witness’s cultural background. This is necessary if they are to breach the communication divide between the witness and the court. In Western Australia interpreting issues are of particular concern regarding Indigenous Australian witnesses. Indigenous people are vastly over-represented in the prison population. In fact, WA has the highest ratio of indigenous to non-indigenous incarceration rates in Australia – 20 times higher for indigenous people.[3] The number is even greater for juvenile offenders in detention.[4] According to the WA Department of Indigenous Affairs, there are at least 80 language groups in the state, and in 35 per cent of Indigenous communities the main language spoken is an Aboriginal language.[5] With such a disproportionate level of contact with the legal system, issues of indigenous witness communication are of the utmost importance. The first scenario where a miscarriage of justice can occur is where there is a lack of any interpreter at all.

There is no automatic right in WA to an interpreter, the matter being left instead to the discretion of the court.[6] Judges and other judicial officers however do not generally have the expertise to accurately assess a witness’s level of English competency, and often overestimate it.[7] A witness may be able to understand complex utterances but not produce them him or herself, or they may mask their shortcomings by replying with stock phrases or scaffolding their replies around the questions and prompts directed to them.[8]

Additionally, some judges are reluctant to allow an interpreter to be used where the witness has some command of English due not only to a preference to speak directly to a witness if possible, but also arising from a view that it would bestow an unfair advantage upon them or allow them to somehow use the interpreter ‘as some sort of prop’ in manipulating the court.[9] It has even been suggested that a capable speaker might have a ‘field day’ in drawing out the questioning process by communicating through an interpreter.[10] Kirby J in the case of Adamoloulos v Olympic Airways SA criticised this approach, as: The mere fact that a person can sufficiently speak the English language to perform mundane or serial tasks or even business obligations does not necessarily mean that (s)he is able to cope with the added stresses imposed by appearing as a witness in a court of law.[11] Dr Michael Cooke provides many examples illustrating this statement, in which indigenous witnesses deemed competent to give evidence without an interpreter subsequently found themselves struggling to manage. One witness became confused by the rapidly changing subject matter of the questions put to him, while another confused miles with yards, and gave an absurd estimation of an important distance.[12] Complicated linguistic constructions such as negative questions can often confuse indigenous witnesses. If asked ‘you couldn’t see the gun, could you?’ a native English speaker would probably answer ‘no’, meaning they couldn’t see it, whereas a typical indigenous response would be‘ yes’ to confirm the truth of the negative statement.[13] The misleading appearance of English competency is particularly pertinent to indigenous people, as they may speak pidgins and kriols which seem similar enough to English, but in fact contain crucial differences.[14]

There is a ‘danger of attempting to interpret what a person is saying by assuming that recognisably English words mean the same as they do in English’.[15] For example, kinship terms can have different and very complex meanings when used by an indigenous person, and in some Aboriginal English varieties such as the widely-spoken Kriol, the word ‘kill’ means ‘hit’ or ‘injure’ rather than ‘kill dead’.[16] This could obviously impact hugely on a witness’s testimony. The second situation is where there is an interpreter, but they are not suitable. Finding an appropriate interpreter can be particularly problematic for indigenous languages. There are simply not enough accredited interpreters; for some languages there are none at all.[17] In fact, in a ‘deplorable state of affairs’, WA has no accredited indigenous interpreter training courses and no state-wide, properly qualified and adequately resourced interpreter service for indigenous languages.[18]

The National Accreditation Authority for Translators and Interpreters (NAATI) does not even have a test for indigenous interpreters beyond the paraprofessional level.[19] Magistrates working in the Goldfields revealed that they ‘could count on one hand the number of times they had access to trained interpreters for Indigenous people in the last four years’, despite requiring them on a weekly basis.[20] WA’s vast distances and the fact that cultural nuances will vary from community to community can also impact heavily on the provision of interpreter services.[21] Where traditional languages are involved, any interpreter is likely to come from the same clan as the witness and be personally connected to the parties in question. It is therefore difficult for them to remain objective and detached.[22] Many interpreters are unwilling to interpret for very serious matters as their role is often misunderstood by the community, and they are frightened of being accused and blamed when proceedings do not turn out favourably.[23] In extreme cases, ‘lives could be at risk just by trying to fulfil their task of interpreting.’[24] There are also complicated issues of who can interpret for whom – for example, an interpreter may not be able to speak to or about those in a particular kinship relationship to them, or a female interpreter may be unable to interpret for a male regarding some matters such as rape.[25]

The lack of indigenous interpreters available has sometimes forced courts to use unqualified family, friends or even other prisoners as interpreters, even in trials for charges as serious as murder.[26] Clearly this is a very dangerous practice, as research has shown that even NAATI accreditation is alone not sufficient for legal interpreters to perform competently. Rigorous special training of highly competent bilinguals is the only way to acquire the necessary skills.[27] The commonly held fallacy perpetuating such unacceptable standards is that any bilingual person will do, with ‘no preparation required [as] they are simple translating literally what is said in court’.[28] The case in reality is much more complicated than this. If a competent interpreter is in fact obtained, there are still issues to be solved. Firstly, there is confusion about the actual role of the interpreter. The attitude that an interpreter is simply a word-for-word translation conduit might appear facilitative to upholding objective interpreter standards, but in fact it is not only unhelpful but often impossible. As one Pitjantjatjara interpreter puts it: ‘When white fellow talk in big words there is no way of putting that across to [the witness] in the language, because Pitjantjatjara is only a straightforward language...when they come with big words and make a big sentence out of it you have got no way of trying to talk to them in the language.’[29] A single word may sometimes require a whole story to explain it, resulting in objections to what sounds like the interpreter adding in extra material.[30]

In particular, technical legal terms often do not have exact equivalents in indigenous languages and thus may be stripped of important legal significance in the struggle to convey them to a witness.[31] A true interpretation must preserve not only the pure linguistic content, but also all of the nuance, meaning and significance with which it was intended. Thus interpreting is not strictly limited to language skills. A good interpreter must also have an appreciation of the cultural background of the witness, as meaning is heavily defined by cultural contexts. In a simple illustration of this, Dr Diana Eades discusses a witness who gave evidence that on a particular night there was a ‘half moon’ shining. The cross-examining counsel asserted that this was a lie, whereupon the interpreter was able to avert a serious undermining of the witness’s credibility by explaining that what the witness called a ‘half moon’ was what court would call a ‘crescent moon’.[32] This is a straightforward example, but culturally ingrained perceptions, assumptions, beliefs and understandings can be much harder to isolate and explain. Additionally, despite the potential gravity of such situations, there is a lack of protocol regarding what an interpreter should do if they believe there to be a possible cultural misunderstanding. In a national survey of interpreting practices in Australian courts, 24% of the respondent interpreters said that they would not be willing to alert the court to such situations, and a further 21% did not provide an answer, perhaps due to uncertainty about what they should do.[33] Even if an interpreter does wish to notify the court, how they ought to interrupt proceedings to do this is unclear.[34]

How far to go when explaining cultural differences is also difficult – if an interpreter tried to explain every aspect of culture which may be affecting a witness’s testimony it could be an impossible task. However competent and culturally aware an interpreter is, sometimes the cultural gulf is simply too wide to be addressed at individual points. The question-and-answer style of witness testimony in WA courts may not serve to elicit a full and accurate story from an indigenous witness. This interview form of speech is not a feature of traditional indigenous societies.[35] In fact, direct and unequivocal questions, answers and opinions may be actively avoided, as central to much indigenous social interaction is the ‘important element of…indirectness’.[36] Silence in indigenous conversation is accepted and valued, whereas in Australian courts it may be taken as a sign of evasion or guilt. It may also be assumed that a silence in an indigenous person’s speech shows that they have finished speaking, and the questioner will therefore interrupt them before they have given their entire answer.[37] Phenomena such as gratuitous concurrence arise when indigenous witnesses attempt to align their methods of communication with those of non-indigenous Australians.

Gratuitous concurrence in indigenous witnesses has been well documented and involves answering ‘yes’ to a question (or ‘no’ to a negative question) regardless of whether this is actually correct.[38] Kriewaldt J, formerly of the NT Supreme Court, said of Aboriginal witnesses: An answer in the affirmative could indicate that the Aboriginal witness is trying to understand the question, that he has understood it, that he has understood part of it, that he may not have understood it at all, or that he does not want the question to go unanswered, or that he thinks that an affirmative answer is more likely to be acceptable to the questioner than a negative answer.[39] Similarly, one indigenous interpreter explained that ‘people will say things that a white person wanted to hear, and it's not necessarily what he really means.’[40] This even extends to a tendency to plead guilty, even when they have done nothing wrong.[41] It is difficult to see how an interpreter could overcome these issues while still upholding their duty to convey what is said as faithfully as possible. Even more impossible to address are metalinguistic issues such as body language. When assessing the truthfulness or integrity of a witness, demeanour is very influential. In indigenous societies, making direct eye contact can be a sign of disrespect, while in western culture evading eye contact may be taken as a sign of shiftiness and dishonesty.[42]

The lack of understanding about the role and importance of interpreters can also create more basic problems for them in the court room. Interpreters must at times battle inadequate working conditions and a lack of respect for their position.[43] Interpreting is highly mentally taxing work, and it has been shown that an interpreter’s skill level begins to decline even before they realise they are tired.[44] Despite this, interpreters have reported instances such as being forced to speak or stand for hours, having to sit in the dock with a charged criminal and no security guard between them, and not being provided with essentials such as a table, chair, and water.[45] One interpreter asks: ‘How can we be respected as a professional when not treated as such? How can we be expected to do our best when our working conditions are so non-conducive?’[46] The lack of briefing or preparation materials is also a problem which impacts on an interpreter’s capability.[47] An interpreter cannot accurately convey meaning when they are operating in a complete vacuum of context. Being thrust into the midst of a complicated situation they know nothing about and being expected to enable smooth communication is described as ‘walking blind’.[48] An interpreter may also suddenly be expected to have an entire vocabulary dealing with a specific technical area which they have never encountered before and which they have had no chance to look over.[49] The absence of a competent interpreter with an appreciation of the cultural background of the witness is tantamount to a miscarriage of justice as the basic elements of a fair trial will not be met, and serious misunderstandings can and do occur.

However, even the best of interpreters cannot address all of the cultural differences and misunderstandings which may arise when an indigenous witness is in court. The intimidating, foreign and interrogatory style of the courtroom does not suit indigenous people. In WA, Indigenous Sentencing Courts established at Norseman and Kalgoorlie have had some success in making the process more culturally appropriate, but are very limited in application and jurisdiction.[50] There is definitely a need for greater quality and quantity of legal interpreters for indigenous languages, along with a better understanding of the role, needs and importance of the interpreter, and a greater understanding of indigenous culture by legal professionals and the public. It is easier for non-English speakers from overseas to access an interpreter in Australian courts than it is for Australia’s own indigenous people.[51] In its Inquiry into Access to Justice Arrangements, The Aboriginal Legal Service of Western Australia concludes that there are ‘two tiers of civil justice in WA: that afforded to mainstream society, and that afforded to Aboriginal people’.[52] It should be a matter of national urgency to ensure that indigenous people are not ‘subjected…to second-class justice’. The provision of competent interpreters to indigenous witnesses is definitely an important step in addressing this, but there are more deeply rooted issues underlying the over-representation of Indigenous people in Australian courts which must also be faced.

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[1] Ebatarinja v Deland (1998) 194 CLR 444 [26] per Gaudron, McHugh, Gummow, Hayne and Callinan JJ. [2] Letter from Wayne Martin CJ to the Equal Opportunity Commissioner, 27 February 2007, quoted in Equal Opportunity Commission Western Australia, Indigenous interpreting service: Is there a need? (2010), 16. [3] Australian Bureau of Statistics, Prisoners in Australia Catalogue No 4517.0 (2012), 50. [4] Australian Bureau of Statistics, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples Catalogue No 4704.0 (2008), 228 . [5] Kate Allingham, and Dennis Eggington, ‘WA Calls for a Statewide Aboriginal Interpreter Service’ (2006) 6(22) Indigenous Law Bulletin 6, [2]. [6] Dairy Farmers Cooperative Milk Co Ltd v Acquilina (1963) 109 CLR 458, 464; Commonwealth Attorney General’s Department, Access to Interpreters in the Australian Legal System: Report (Australian Government Publishing Service, 1991) 39. [7] Michael Cooke, Indigenous Interpreting Issues for Courts (Australian Institute of Judicial Administration, 2002) 9. [8] Ibid 9-10. [9] Ibid 9, 16 . [10] Gradidge v Grace Bros (1988) 93 FLR 414, 426 per Samuels JA. [11] (1991) 25 NSWLR 75, 78. [12] Cooke, Indigenous Interpreting Issues for Courts, above n 7, 12, 16. [13] Ibid 18. [14] Ibid 2. [15] Ibid 5. [16] Ibid 3. [17] Sandra Hale, Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: A National Survey, (The Australasian Institute of Judicial Administration Incorporated, 2011) 18. [18] Aboriginal Legal Service of Western Australia, Submission to the Productivity Commission, Inquiry into Access to Justice Arrangements, November 2013, 6. [19]

Equal Opportunity Commission Western Australia, Indigenous interpreting service: Is there a need? (2010) 20. [20] Ibid 18. [21] Ibid 5. [22] Michael Cooke, Law Reform Commission of Western Australia, Caught in the Middle: Indigenous Interpreters and Customary Law, Project 94, Background Paper 2, 2006, 89. [23] Ibid 100, 84-87, 116. [24] Ibid 112. [25] Ibid 102. [26] Allingham and Eggington, above n 5, [5]; Equal Opportunity Commission Western Australia , above n 19, 18. [27] Hale, above n 17, 3. [28] Ibid 2. [29]Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report 31 (1986) s598. [30] Cooke, Caught in the Middle, above n 22, 86. [31] Australian Law Reform Commission, above n 29, s598. [32] Diana Eades, ‘Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications’ (2008) 20(2) Current Issues in Criminal Justice 209, 220. [33] Hale, above n 17, 45. [34] Ibid 44. [35] Ibid 218. [36] Eades, Diana, ‘Communicative Strategies in Aboriginal English’ in Suzanne Romaine (ed), Language in Australia (Cambridge University Press, 1991) 84, 87. [37] Eades, ‘Telling and Retelling Your Story in Court’, above n 32, 220. [38] Ibid 219; Cooke, Indigenous Interpreting Issues for Courts, above n 7, 14. [39] R v Aboriginal Dulcie Dumaia (1959) NT 274, quoted in Eades, ‘Telling and Retelling Your Story in Court’, above n 32, 219. [40] Cooke, Caught in the Middle, above n 22, 91. [41] Cooke, Caught in the Middle, above n22, 109; Equal Opportunity Commission Western Australia, above n 19, 19. [42] Eades, ‘Telling and Retelling Your Story in Court, above n 32, 224. [43] Hale, above n 17, 23-34. [44] Judicial Commission of NSW, Equality Before The Law Bench Book (2006) 3306. [45] Hale, above n 17, 24; ABC Radio National ‘Interpreters in the Courtroom’, The Law Report, 16 September 2008, (Damien Carrick), Sandra Hale. [46] Hale, above n 17, 23. [47] Ibid 28. [48] Ibid 31, 32. [49] ABC Radio National, above n 44, Tony Foley. Ludmilla Stern [50] Kathleen Daly and Elena Marchetti, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415, 435. [51] Aboriginal Legal Service of Western Australia, Submission to the Productivity Commission, Inquiry into Access to Justice Arrangements, November 2013, 7. [52] Ibid 9.

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