596. A Recurring Theme. A recurring theme in a number of Chapters in this Report is the difficulty of comprehension, both conceptual and linguistic, experienced by many Aborigines, especially traditionally oriented Aborigines, in their contact with the criminal justice system. These problems can occur at any time: at first contact with the police, during police interrogation, while being interviewed by legal counsel and during the trial. They may cast doubt on the truth or voluntariness of a confession; they may be the basis for a claim of unfitness to plead; they may create problems with taking the oath or making an affirmation; or inhibit the making of an unsworn statement, and they prevent many Aborigines from sitting on juries. In a variety of ways the legal system has been attempting to cope with these problems but, as has been seen, with only varying success. One obvious, and very important, way of dealing with them is through the provision of a competent trained interpreter with an understanding both of the relevant Aboriginal language and concepts, and with the nature and procedures of the trial.
597. The Right to an Interpreter. The common law does not entitle a person to an interpreter, but the court may in its discretion allow an interpreter to be used. Justice Brereton in Filios v Morland commented that the use of interpreters does not always achieve full, accurate and fair presentation of the evidence:
… even today it is all too common an experience to hear the interpreter giving the effect instead of giving the literal translation of the questions and answers and of his own accord interpreting questions and eliciting explanations.
Such statements raise doubts about how well some courts understand the difficulties inherent in interpreting many languages. A literal translation may be meaningless, or even impossible. But views such as those of Justice Brereton are one reason why, it has been suggested, there is some reluctance to allow interpreters:
Some judges and magistrates are very reluctant to allow the evidence to be given through an interpreter. Apparently they fear that a person giving evidence through an interpreter has some advantage over other people. Nothing is further from the truth. Even a good interpreter, and they are few and far between, can only give an approximate meaning, without the nuances and without the stress contained in the original … In reality, a person who has to use an interpreter is extremely handicapped.
598. Interpreting Aboriginal Languages. There are many accounts of difficulties that have occurred in the trial of Aborigines through difficulties of translation and inadequate grasp of English. For example:
In the lower court proceedings of the Ti-Tree case the presiding magistrate considered an interpreter was needed for one of the Aboriginal witnesses who appeared in difficulty relating his evidence in English. The witness had been confused between “baton” and “nulla nulla” and had been using the two interchangeably. Clarification, through an interpreter, changed the testimony markedly.
A good illustration of the problem of interpreting Aboriginal languages, and an illustration with some legal consequences, was provided during the Commission’s Public Hearing in Port Augusta:
Question: When the policeman says: ‘Do you plead guilty or not guilty?’ what do you ask the Aboriginal person you are doing the interpreting for?
The legal concept of pleading ‘guilty’ or ‘not guilty’ has been altered in this translation. Legally a plea of ‘not guilty’ need not involve a denial of the facts alleged: it might be a denial of mens rea, the assertion of a relevant defence, or simply an exercise of the defendant’s right to have the Crown prove its case. Because neither the terms nor the concepts exist in Pitjantjatjara, the only usable translation significantly distorts the meaning of the plea. This shows the fallacy behind simple reliance on an interpreter to solve all the problems of the defendant’s comprehension of the trial. As the same witness said:
When white fellow talk in big words there is no way of putting that across to him in the language because Pitjantjatjara is only a straightforward language … [W]hen 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.
These linguistic problems are well documented, and raise a fundamental concern. Can it be said that a person has received a fair trial who has been unable to understand the proceedings in any real way? Other problems may also occur in seeking to provide interpreter services in such cases; eg there may be an avoidance relationship between witness and interpreter.
599. The Need for Aboriginal Interpreters. Speaking of the 1950s, Justice Kriewaldt commented that:
in the Northern Territory the trial of an aborigine in most cases proceeds, and so far as I could gather, has always proceeded, as if the accused were not present. If he were physically absent no one would notice this fact. The accused, so far as I could judge, in most cases takes no interest in the proceedings. He certainly does not understand that portion of the evidence which is of the greatest importance in most cases, namely, the account a police constable gives of the confession made by the accused. No attempt is made to translate any of the evidence to him.
The position has improved since then. The creation of the Aboriginal legal services is the most significant of these improvements, and the general level of understanding of English among Aborigines has also risen. But considerable problems remain with respect to the provision of interpreters. In R v Banjo Anglitchi and others, Justice Muirhead commented that depositions taken from the girl principally involved in the case:
illustrate graphically what has been known for so long, namely that without the aid of trained and skilled court interpreters in Aboriginal languages, the administration of justice in this Territory remains sadly impeded.
In 1981 a Central Australian Aboriginal Legal Aid Service lawyer commented that:
… the new and impressive court building in Alice Springs [announces] the fact that interpreters can be obtained on request in about nine languages including two Chinese dialects. A notable omission is … any reference whatsoever to any Aboriginal language. This is despite the fact that Aboriginal people comprise between 60% and 70% of all Defendants in the Summary Courts held at Alice Springs and Tennant Creek, as well as virtually all Defendants listed in the bush courts and as much as 90% of all matters listed in the Supreme Court Criminal Sittings.
In May 1983 the Federal Minister for Aboriginal Affairs announced a grant to the Institute for Aboriginal Development in Alice Springs to establish a pilot Aboriginal interpreter service. The pilot scheme has now been fully implemented. The Institute has 114 accredited Aboriginal interpreters, 43 of whom have had over 200 hours of training, and they cover 12 languages. The need for such schemes, and for trained interpreters, is clear, as Mr Yami Lester, a skilled interpreter in the Pitjantjatjara language, pointed out:
For untrained interpreters in the court it is very hard work. It is not good enough to get any Aboriginal person to interpret just because it is his language, he must have a good understanding of English. The court language is difficult and also people who have had a university education speak strong English. They can’t realise that many people do not understand words and sentences which seem very simple to them. Even the interpreters cannot understand much of their English.
600. Proposals for Reform. In this context, a number of separate problems may be identified:
the current law relating to interpreters, which relies on the court’s discretion rather than conferring a right to an interpreter in appropriate cases, is unsatisfactory;
the role that interpreters are currently permitted to perform in the courts needs reconsideration;
there is a clear need for interpreting services to be available for traditionally oriented Aborigines, but there is a lack of trained interpreters in many localities.
Although they impinge particularly upon Aborigines coming before courts on criminal charges, the first two problems are general problems relating to interpretation in legal proceedings. In this context, in the Commission’s Evidence Report (Interim) it is recommended that there be a right to an interpreter ‘unless the witness can understand and speak the English language sufficiently to make an adequate reply to questions’. Furthermore Art 14(3)(f) of the International Covenant on Civil and Political Rights of 1966 guarantees the right to a defendant ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in court’. So far as the third problem is concerned, this is at least as much related to resources as to the law. Guaranteeing rights to translation will achieve little if there are no competent interpreters available. Some steps have been taken in this direction but it remains an urgent need. Existing programs for the training and accreditation of Aboriginal interpreters should be supported and extended. The aim should be to ensure that interpreters are available as needed at all stages of the criminal justice process (ie during police interrogation, as well as in the courts).