Indigenous Interpreting Issues in Western Australian Courts

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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,

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