The International Covenant on Civil and Political Rights (1966) (which Australia has signed and ratified), Article 14(3) states, that in criminal cases all should:

Section 41 Evidence Act provides that a court may disallow a question in cross examination if the question is, inter alia, “misleading” or “oppressive” and may take into account “any relevant condition or characteristic of the witness including age, personality and education”: s 41(2). Linguistic or cultural difficulties experienced by a witness in answering any questions could fall within the scope of s 41 where the line of questioning is confusing (misleading or oppressive).

Section 22 provides that an interpreter must either take an oath or make an affirmation in accordance with the form in Sch 1 or in a similar form. Note that the oath/affirmation requires the interpreter to “well and truly interpret” — query though whether this requires a strict verbatim account.

Section 24 provides that it is not necessary that a religious text be used and an oath is effective whether or not the person has any religious belief (or belief of a particular kind) or did not understand the nature and consequences of the oath.

Pursuant to s 138(3)(f) Evidence Act, the courts have a discretion to exclude improperly or illegally obtained evidence where an impropriety or contravention of the law is contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights (1966).

Section 139(3) Evidence Act requires that any caution be given, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

Section 219ZD Customs Act 1901 requires an officer of the Australian Customs Service or a police officer when detaining a person who is not fluent in English to have an interpreter present when communicating with a detainee.

There are numerous provisions that govern the right to an interpreter for a person in custody prior to charge. For example s 128 Law Enforcement (Powers and Responsibilities) Act 2002 states:

Reference is also made to cl 28 Law Enforcement (Powers and Responsibilities) Regulation 2016 which prescribes categories of persons to be referred to as “vulnerable persons”:

The accreditation of the interpreter should be perused and the name, qualification and chosen language should be recorded on the transcript.

The oath (or affirmation) to the interpreter should be administered.

When the non-English speaking witness is called, the form of oath (or affirmation) must be translated, and the response by the witness (“So help me, God” or “I do” or whatever is appropriate) should be uttered by the witness in his or her native tongue and not in English.

Ascertain whether the interpreter is satisfied that the witness is of the same language or dialect and whether there are any other requirements that need to be met for a successful session.

Generally in cases of consecutive interpreting it should be appreciated by all participants (that is, presiding officer, counsel and witness) that the speed and volume of delivery need to be accommodated to the capacity of the interpreter. Directions may need to be given from time to time. These may include permitting the interpreter to make written notes.

Care should be taken to ensure that the interpreter is adequately interpreting the evidence during the course of a hearing. On occasions particularly when a defendant has some understanding of English the tendency is for interpreters not to simultaneously interpret. Complaints can subsequently be made that the evidence was not sufficiently interpreted and that a fair trial was not afforded to the defendant.

Sometimes more than one interpreter is requested for the same language when the defendant requires an interpreter and a prosecution witness requires an interpreter. In determining whether to request more than one interpreter for the same language you should be mindful of the availability of interpreters in that particular language and the extent of use of the interpreter by the defendant. If the defendant needs an interpreter to provide instructions to his solicitor it may be appropriate to order two interpreters so there is no perceived “conflict of interests”. Having said that, court interpreters are professionals whose code of conduct requires them to protect confidentiality. Holding up, or adjourning a hearing to obtain a second interpreter in such circumstances should only occur after careful consideration of the interests of all parties.