1. 16 LAWTALK 814 / 15 MARCH 2013
FROM THE COURTS
The Supreme Court deci-
sion in Abdula v Queen (Chala Sani
Abdula v The Queen SC 18/2010 [2011]
NZSC 130) has caused major changes to
the way in which interpreting in trials is
carried out in the courtroom.
The judgment contains three key
recommendations for best practice in
cases where an interpreter assists an
accused. These are:
1. consecutive interpreting at all times;
2. the interpreter should at all times
speak in a voice loud enough for all
in the courtroom to hear; and
3. an audio recording should be made
of all criminal trials in which one or
more interpreters provide assistance
for an accused.
As a result of this decision, most
judges presiding over criminal trials
where an accused is assisted by one or
more interpreters direct interpreters to
consecutively interpret everything being
said in the courtroom. This includes
legal discussions and expert reports.
Before Abdula, interpreters were
mostly required to consecutively
interpret oral evidence. For other parts
of the trial, including opening and
closing, chambers meetings, applica-
tions, legal argument and the judge’s
summing up, the usual method adopted
was “whisper” interpreting, which was
done simultaneously.
Using whisper interpreting, inter-
preters could only summarise what was
being said.
While court interpreters endeavour
to interpret accurately to the best of
their ability, it is worth considering and
addressing the difficulties encountered
in the courtroom on a daily basis in order
to optimise the contribution interpreting
makes towards achieving a fair trial.
Key challenges
There are two fundamental abilities
which an interpreter must succeed at.
They are linguistic ability and interpret-
ing skills. These are separate concepts.
Linguistic ability requires under-
standing of both the source and the
target languages so that it is possible
to transfer concepts, ideas and specific
questions between the two languages
without confusion, and in a manner
which provides an accurate outcome.
Interpreting skills refer to
operational skills within the courtroom.
These include:
a. communicating with the court about
issues or difficulties as they arise;
b. ensuring that everything the witness
says is interpreted in the court with-
out omission, addition or alteration;
c. controlling the pace of questions and
answers, with the assistance of the
court, to allow clear understanding
of both by all parties;
d. providing speedy interpreting so
that delay is minimised;
e. advising the court of the grammati-
cal/linguistic differences between
languages as the need arises; and
f. gaining the confidence of all parties
including witnesses and defendants
that the interpreting is accurate.
Only a very few experienced inter-
preters consistently demonstrate all
of the skills indentified. This is partly
because there is a lack of necessary
ongoing practical training.
Micro issues
At a micro level there are particular
issues which have an effect on the
interpreting outcome. These include the
fact that:
a. some languages are difficult to inter-
pret into English and vice versa;
b. some languages have a different
word order and it is necessary to
listen to the end of at least the whole
sentence, if not longer, in order
to make sense of the question or
answer;
c. some languages have no equivalents.
A concept or an idea in English or
another language may not have an
equivalent which is easily transfer-
able between the two;
d. technical terms are sometimes
different between languages, but not
always;
e. ungrammatical questions and
answers can make it very difficult
for even the most experienced
interpreters; and
f. different cultures have different ways
of answering questions, some of
which the court, and in particular,
juries, may find frustrating. Such
different ways of answering questions
are often used to show respect rather
than to provide an evasive answer.
Telling a witness to “answer the ques-
tion” does not assist when the witness
is answering a question according to
his or her cultural norms.
Macro issues
a. No opportunity is given to
prepare for trial
Before trial, lawyers, case officers,
forensic experts and others do a great
deal of preparation. There appears to
be no reason why an interpreter cannot
prepare for a trial or hearing. However,
as a matter of practice, the interpreter
is usually expected to stand in court
and interpret with no knowledge having
been gained from pre-trial preparation.
b. Legal language
Court interpreters are not lawyers.
They start with basic knowledge of legal
terminology but are usually not familiar
with the multiplicity of legal concepts.
c. Counsel’s questions
The quality of interpreting does not
simply fall to the interpreter alone.
There needs to be more awareness
among counsel as to how to properly
conduct a trial or a hearing where an
interpreter is used.
Counsel often ask questions which are
very difficult to understand in English, let
alone in an interpreted form in another
language. On many occasions, questions
asked by counsel are difficult to interpret
because of the complexity and confusion
of concepts. Questions often include
multiple questions in one question. In
most cases, witnesses answer only one of
the questions. It may be unclear which
question is being answered.
d. Briefing clients on the role of
an interpreter
Counsel need to brief clients on how to
use an interpreter to ensure that their
clients understand what is being said
throughout the proceedings.
e. Non-stop interpreting
In many trials and Dispute Tribunal
hearings, an interpreter has to interpret
everything said under pressure for periods
Challenges in court interpreting after Abdula
By Jennifer (Hae-Gyeong) Shin

2. LAWTALK 814 / 15 MARCH 2013 17
of up to 90 minutes. This is too long for
most interpreters to maintain perfor-
mance. Frequent short breaks or two
interpreters taking turns can be helpful.
Positioning of interpreter
When interpreters cannot hear clearly,
they cannot interpret. Interpreters for
defendants often encounter physical bar-
riers such as security screens which lessen
their ability to hear. They are also required
to interpret and be heard by a number of
different parties who are found in different
locations in the courtroom.
In a recent Court of Appeal decision
Young Jin Bae v Queen (CA 77/2012
[2012] NZCA 455), a specific problem
identified was that not all parties could
hear the interpreter for the witness,
including the second interpreter
interpreting for the defendant. In this
case, convictions against sentence were
quashed and a retrial ordered.
No professional support in place
Interpreters do not have any support
systems in place to discuss issues that con-
front them and problems they encounter
while working as court interpreters.
The New Zealand Society of Transla-
tors and Interpreters (NZSTI) is largely
dominated by private translators. Most
practising court interpreters have not
actively participated in this organisa-
tion to any extent until quite recently.
There needs to be a support system in
place involving experienced practising
court interpreters.
Selection and payment
The courts generally attempt to use the
best qualified and most experienced
interpreters available for the task in
hand. This selection is generally based
on the knowledge within the courts of
specific interpreters. However, lesser
skilled and inexperienced interpreters
are sometimes the only interpreters
available, particularly at short notice.
One of the challenges is to retain
experienced interpreters.
Remuneration is one element which
affects retention. Fee payments are set
out in the Witnesses and Interpreters
Fee Regulations 1974. Informal arrange-
ments exist in some courts for paying
interpreters but the statutory hourly rate
of $25 is unlikely to attract and retain
enough experienced interpreters.
If a serious attempt is to be made to
achieve high quality interpreting in the
interests of a fair trial, then there needs
to be a review of existing payment
methods and systems.
There have been a number of cases
in the last three to four years where
the quality of the interpreting has been
such that judges have been forced to
take corrective action, including rulings
making the evidence inadmissible,
ordering retranslations, conducting
pre-trial hearings on the interpreting
accuracy of statements and using expert
interpreters to analyse the accuracy of
interpreted evidence given in court.
Qualifications and training for inter-
preters need to be, and to some extent
are being, reviewed and improved.
Quality control and monitoring
Given the decision in Abdula, which
requires that an audio recording be
made, there is an opportunity for
post facto analysis of the quality of
interpreting. Assuming the audio
recording is able to accurately record all
of the relevant proceedings there is an
opportunity to audit those recordings
in relation to the performance of all of
the parties, including interpreters. The
interpreters can then be given feedback
about any issues.
Finding solutions
It is not possible to provide complete
workable solutions to the problems
and challenges described without input
and work from relevant parties. This
includes interpreters with extensive
practical experience in the courtroom.
The Ministry of Justice intends to
implement measures to enhance the
quality of interpreting and has developed
a Charter in partnership with the NZSTI.
This approach with the NZSTI, while
no doubt having value, has been done,
it appears, without any real input from
experienced interpreters currently work-
ing in the courtroom. At least as far as
the experienced interpreters in Auckland
are concerned there has been no real
attempt to find out what difficulties they
have in the courtroom, in particular the
sort of difficulties already outlined.
Until recently the NZSTI has had
little involvement from practising inter-
preters hence a number of the issues
raised in this article are not addressed
in the ministry’s Charter.
Most interpreters welcome regular
training and, indeed, better quality
training is an essential part of any
solution. The minimum qualifications
proposed are those provided by NAATI
(National Accreditation Authority for
Translators and Interpreters).
This is an Australian-based
organisation and while undoubtedly its
qualifications have real merit, they are
not in themselves a guarantee for high
quality interpreting in the court as it is
a specialised area.
What is required is active manage-
ment of the entire interpreting environ-
ment focusing on at least those areas
where improvement would create the
most benefit. The areas to focus on
appear to be:
1. provision of practical training
programmes of the sort provided by
NZLS CLE Ltd;
2. changing current practice so that
interpreters are provided with mate-
rial before trial for the purposes of
preparation;
3. training lawyers on how to deal
with matters where an interpreter
is used. The judiciary has some
training, but the writer is not aware
its content;
4. putting monitoring systems in place
which enable performance to be
measured on an individual basis
together with an analysis of the
difficulties identified;
5. court design and placement of
interpreters;
6. putting a support system in place
to assist interpreters to review their
performance and to help improve it
where necessary; and
7. reviewing selection systems for
interpreters in the context of what is
required in the courtroom.
The assurance that there is a fair trial
when interpreters are used requires a
multi-faceted approach to achieving the
required standard.
Jennifer (Hae-Gyeong) Shin, has
been interpreting in New Zealand
courtrooms for more than 15 years. She
graduated in Korea with a degree in
English education and taught English at
secondary school level for more than a
decade. She has post graduate inter-
preting certificates from the Auckland
Institute of Technology. Ms Shin has
assisted the court in identifying particu-
lar difficulties arising in a trial.
FROM THE COURTS