Language barrier does not foreclose justice

The Court of Appeal recently discussed breach of the New Zealand Bill of Rights Act (NZBORA) 1990 relating to the limited understanding of English, the language of the Courts in New Zealand.

Section 24 of the Act gives everyone the right to have free assistance of an interpreter, if the person cannot understand or speak the language used in Court.

Section 80 of the Evidence Act 2006 entitles ‘communication assistance’ to a defendant in criminal proceedings to enable him or her to understand the proceedings.

Accused accuses

In an appeal against conviction, the accused (defendant) had submitted that his rights had been breached in two respects: (1) The disclosure material was not translated to him and (2) The quality of interpretation provided at the trial was inadequate, given his intellectual difficulties.

The Court of Appeal referred to the Supreme Court decision in ‘Abdula v R (2011) NZSC 130.’ In that judgement, the Supreme Court had considered the right conferred by Section 24(g) of the NZBORA for assistance of an interpreter to Abdula.

Court interprets

The Court summarised the standard of compliant interpretation as follows:

“The authorities clearly establish the deficiencies in interpretation at a criminal trial may or may not give rise to a breach of the rights of a person charged at common law and under the Bill of Rights Act. In New Zealand, the focus must be on the right to the assistance of an interpreter under 24(g) and the right to be present at the trial and present a defence under s 25 (a) and (e) of the Bill of Rights Act. The common law illuminates the content and scope of those rights. The standard that must be attained for interpretation to be adequate in New Zealand is one which complies with those rights.”

That standard must reflect the accused person’s entitlement to full contemporaneous knowledge of what is happening at the trial.

“Interpretation will not be compliant, if as a result of its poor quality, an accused is unable to sufficiently understand the trial process or any part of the trial that affects the interests of the accused, to the extent that there was a real risk of an impediment to the conduct of the defence.”

No visible risk

Relying on the above Supreme Court case, the Court of Appeal held that although both counsel had found Mr C uncommunicative, and some witnesses had also mentioned the language barrier in their earlier interactions with Mr C, yet it was to be seen if the right conferred by the Bill of Rights had been breached.

The standard, while high, is not of perfection, yet the onus is on an appellant to show that the interpretation provided fell below the required standard.

But in the present case, he had failed to show a “real risk of an impediment to the conduct of his defence.”

The conviction was upheld (Chow v R 2013 NZCA 360).

Gurbrinder Aulakh is a Barrister and Solicitor at George Bogiatto based in Auckland. He is also the Deputy Chairman of Auckland Regional Migrant Services.

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