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• The Present Law
• Proposed Amendments To The Present Law

7 Communication

183 A BASIC PREREQUISITE for giving evidence is that the witness and the court must be able to understand each other. Difficulties may arise due to hearing or speech impairment, or because the witness does not speak English fluently. To enable effective communication, assistance, usually in the form of an interpreter, should be available when needed. This chapter discusses when this need may arise, and how to provide for such a need in legislation.

THE PRESENT LAW

184 The common law provides that a defendant in a criminal proceeding is entitled to have an interpreter (both to give evidence and to ensure understanding of the proceedings).¹⁸¹ The rights of a criminal defendant under s 24 of the New Zealand Bill of Rights Act 1990 include the right to free interpretation assistance “if the person cannot understand or speak the language used in court” (s 24(g)), as well as the right to be informed in detail of the nature and cause of the charge (s 24(a)). In some cases the exercise of these rights will mean the court will also pay for the cost of translating lengthy briefs of evidence,¹⁸² as “the reference to the language being used ‘in court’ [s 24(g)] does not restrict the application of the section to the actual trial, but can include the production of hand up briefs of evidence at the depositions stage”.¹⁸³ Other witnesses (in criminal or civil proceedings) do not have a similar entitlement but the judge has a discretion to allow an interpreter.¹⁸⁴

185 In this context, the provisions of the Mäori Language Act 1989 apply, and any witness has a right to an interpreter.¹⁸⁵ The judge (or any other person presiding over the proceedings) must ensure that a competent interpreter is available.¹⁸⁶

PROPOSED AMENDMENTS TO THE PRESENT LAW

186 The Australian Law Reform Commission concluded that if a party or witness requires the assistance of an interpreter there should be a presumption in favour of granting the request.¹⁸⁷ This is consistent with the principles of equality before the law and equal access to the law. The Evidence Act 1995 (Aust) provides:¹⁸⁸

A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

187 We propose a statutory entitlement to an interpreter for all witnesses who require this form of communication assistance. This entitlement should be qualified, in line with the Australian approach, so the court would have some discretion to rule that communication assistance is not required where the witness has adequate English language competence. The focus should be on the ability of the witness both to understand the questions put to them, and to communicate answers in such a way that the fact-finder will understand the witness’s evidence. In addition, the code will confirm the unqualified right of a criminal defendant to an interpreter both to give evidence (where applicable) and to have the court proceedings interpreted for them (section 12 of the draft code rules).¹⁸⁹

188 It is clear that an entitlement to an interpreter for all witnesses on a need basis has cost implications. The Commission accepts that, in keeping with fairness to a criminal defendant, interpretation costs to enable a defendant to understand the proceedings should be borne by the court, not the defendant.¹⁹⁰ Interpretation costs for a defence witness will be paid for either by legal aid or by the defendant. In civil cases, the party calling the witness will bear the cost, as happens currently.

189 The provision of adequate interpretation services is fundamental to ensuring that a statutory right has meaning, and raises issues of appropriate training and competence as well as the organisation of services. It is now generally recognised that court and legal work is a specialised form of interpreting. Disadvantages of using interpreters with no or inadequate training include inaccuracy, bias, a lack of confidentiality, insensitivity to cultural differences and a lack of understanding of the interpreter’s role.¹⁹¹ Specialist training for legal and court interpreters has become available in New Zealand only recently, at the Auckland Institute of Technology. Interpreters can also be accredited at a professional level by examination from the Australian National Accreditation Authority for Translators and Interpreters.¹⁹² Information is lacking on how many interpreters with specialist training are currently available.

Who should be entitled to an interpreter during a proceeding? Who should bear the cost of providing an interpreter?