Traditional Australian Aborigines often don’t know what’s going on when they are forced in to face to face contact with the criminal justice system. This includes contact with the police during an interrogation, interviews by a legal counsel and when a trial is taking place they. It’s more or less up to the legal counsel representing the person to decide whether he or she thinks the person has understood enough to be equipped sufficiently to sign a statement or to file a guilty plea. Steps have been taken to address these issues but the only clear resolution is for the court or police to have in its presence a trained and competent interpreter. It’s not just a question of understanding the Aboriginal language but the nature and procedures taking place in the court and how the person seems to understand what is going on.
The right to use an Interpreter is not part of the common law in Australia, but the court can use its discretion to ask for one to be present. At this point in time there is a need for interpreting services to be made available to Aboriginal people whose traditional way of life may make it difficult for them to understand what is happening in a court. Some magistrates and judges are reluctant to permit any evidence to be put forward using an interpreter due to the apparent fear that anyone giving evidence may be more advantaged.
One example of how an interpreter was used was In the Ti-Tree case in the lower court when the presiding magistrate asked for an interpreter because the Aboriginal witnesses giving evidence became confused between the words “baton” and “nulla nulla.” These were clarified using an interpreter and the testimony was changed quite considerably.
A good illustration of the problem of interpreting Aboriginal languages took place at a Commission’s Public Hearing in Port Augusta where the defendant was asked ‘Do you plead guilty or not guilty? If the Aboriginal defendant doesn’t understand these words the interpreter may translate them to mean: “You’ve done that thing or you didn’t do it?”Because there are difficulties in understanding how the legal system works, the likely answer would probably be “yes”. However, he or she could have equally have said “no” because under the legal system pleading ‘not guilty’ need not mean that the person has not committed the offence. It’s a defendant’s right to get the Crown to find the evidence, present it and get a jury to decide. These sorts of concepts aren’t present in Pitjantjatjara so even a bilingual interpreter would find it difficult to present the facts correctly.
These linguistic problems aren’t new in Australia and it’s a concern if the defendant is unable to understand the court’s proceedings and therefore may not receive a fair trial.