The importance of language was highlighted in a recent court case for a jailed refugee who won his appeal based on “lost in translation” legal argument.
A Queensland District Court Judge set aside convictions against a Sri Lankan refugee jailed and later taken into detention after a magistrate had accepted guilty pleas from the confused defendant due to a “lack of understanding of English”.
The case raises very interesting questions about language comprehension, particularly in our global world. Although Australian courts predominantly use the English language (and are based on English law), many people accessing our court system in Australia have nil or a very basic comprehension of the English language. This is because they originated from a non-English speaking country.
In this recent case, the defendant from Sri Lanka was sentenced to two years in jail following a hearing in February 2021 in which a plead of guilty was recorded to 30 counts of fraud. As the grounds for his appeal, the defendant argued that his first language was Tamil and that he did not have a strong understanding of English. The appeal was made to the District Court in Brisbane pursuant to section 222 of the Justices Act. Careful consideration was made of the earlier court proceeding.
It was of importance that the magistrate referred initially to there being 17 charges when the defendant’s lawyer made reference to 28 charges and the prosecutor made reference to 29 charges. Also, and more importantly, there was no demurrer (which is a legal feature involving acceptance of the factual basis of an opponent’s point but dismissing it as irrelevant or invalid) from either the defendant’s lawyer or the prosecutor.
Also of importance, in the appeal decision made by the Judge on 29 April 2022, was that the defendant lacked an understanding of the substance of the charges that he was facing and despite the indication of a plea of guilty (through the defendant’s lawyer) the defendant himself lacked the intention to plead guilty to all of the charges.
The Judge made reference to the confusion that ensued at the earlier hearing as to the number of charges before the court and that created a possibility that the defendant had been wrongfully convicted. This was an irregularity in the case together with the judge noting the serious consequences to the defendant in terms of the sentence being imposed of actual imprisonment and the cancellation of his bridging visa. The effect of the Court’s decision was to set aside the convictions against the Sri Lankan refugee. (Refer to Selvaraja v Queensland Police Service [2022] QDC 94).
The meaning of words changes over time. In court cases adjudicating the award of money in compensation cases, care is needed in the description of the claimant’s injuries in order to avoid misperceptions simply through the choice of words. Rape survivors now refer to themselves as “survivors” rather than “victims” because the word “victim” has become saddled with the unfortunate baggage of meanings like “coward” or “pretender”.
This is the result of the language definition of victim as an object of action (something bad was done to you), creating an implied passivity. Interestingly, this influence arises only if the damage to the victim isn’t obvious (and particularly for mental health conditions which are a type of “hidden injury” since they cannot be seen on the outside or detected on a medical scan). The same connotation doesn’t arise in Court cases for a burn victim or someone who has an obvious physical disability such as the loss of a leg from a traffic accident.
In a situation such as a legal case that involves both English and Japanese languages for example, choice of words is ultra-important with the quality of the interpreting/translating process becoming crucial. The challenges associated with language and communication where a party is a non-English speaker have now been recognised by the Australian Courts. Several helpful guidelines have been produced on the matter. Plus, over time certain practices have developed that have assisted the administration of justice.
For example, think of the situation where a Japanese national becomes involved in a violent assault and makes an emergency 000 call in which they speak in Japanese and the recording of that call is then crucial evidence in the later court case. Extreme care is then taken in producing the interpretation of the Japanese recording into English. This often involves consideration of allowing the appointed interpreter the opportunity to request clarification together with the use of electronic tools to enhance the sound quality.
This also takes into account that the standard unit of measure to produce a quality translation is 1 hour of work per minute of sound. It’s also important to understand that in such a situation the interpreter works for the court and is then to be seen as an extension of the court. This means that the interpreter is then not engaged by either of the parties in the case.
In our age of social media and texting, there can be traps for lawyers in running cases involving text messages and social media posts that are not in English. It’s extremely difficult to translate such messages by sight despite their apparent simplicity. Time should be given for the preparation of a certified translation.
Sometimes in court cases, it’s the plain yet highly important differentiation between similar-sounding words that can make all the difference. An example is the words “break/brake” which gives a whole different meaning to a witness declaring, “I tried to apply the brake/break of the bicycle as it headed towards the cliff!”.
In languages other than English, the same feature arises where words have different meanings yet sound similar. In Japanese, for instance, there are many words that are similar so much care is often needed for our Japanese clients. For example, “biru” means beer and is very similar to “biiru” which means building, and so you can imagine a judge’s surprise to a witness saying that the accident occurred during his drive in the outback on a hot day, and he was thirsty for a drink of cold building!
And the cardinal rule still applies: never ask a question of a witness, particularly a hostile witness, unless you either already know the answer or you don’t care what the answer is.
A famous example occurred in the British Court case where the plaintiff sued the defendant for biting off his ear (long before that type of assault was committed by the boxer Mike Tyson).
The defence was, “I didn’t do it”.
During the cross-examination of a key witness:
Question by defence lawyer: You testified on direct examination that you didn’t see my client bite his ear off? [Good question! Always useful to repeat in cross-examination a feature that was favourable that came out of direct examination].
Answer by witness: Yes Sir.
[Now is the time to say, “No further questions”, but this lawyer chose to ask further questions to which he didn’t know the answer …]
Q: What did you see?