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JUSTICE AT THE COALFACE
Culture and summary justice - the Magistrates’ views
Michael J. Halliday *
“Fair trial, fair judgement.
Evidence which issued clear as day …
… [Q]uench your anger; let not indignation reign
Pestilence on our soil, corroding every seed
‘Til the whole land is sterile desert …
… [C]alm the black and swelling wrath.”
The Eumenides,
Aeschylus,158 B.C.
"We are drawn from countries which have different systems of government
and even amongst those countries which have similar systems of
government the dynamics of domestic culture may produce differing
conceptions about the manner in which power may be exercised.
It is not for judges, each of whom must be faithful to the laws of his or her
own country, to pass judgement on the culture of another people or on the
functions assigned to the courts by the system of government of another
country. International comity demands a respect for the differences, as
well as for the similarities of functions.”
The Honourable Sir Gerard Brennan AC KBE, Chief Justice of Australia,
17 August 1995.
“Fair and equitable access to justice, and the effective administration of
justice, are cornerstones to our legal system, and the criminal system, in
particular. It must be a given that those involved in the administration of
justice play their part, so as to ensure that all participants in the process
are treated fairly and with due respect.”
The Honourable Paul de Jersey, AC Chief Justice of Queensland, 27
March 2007
Background
Australia, like other democracies is founded upon the rule of law and the respect for
rights.
Australia is also a multicultural society, created by populations that are both mobile
and diverse both ethnically and religiously. Such phenomenon has created and will
continue to create pressures upon the traditional fundamental functions of the judiciary
to
- decide cases in a just and efficient manner
- maintain the confidence and respect of the public in the justice system and
the rule of law
and it will be necessary for the judicial system to be acutely aware of the problems and
potential problems facing litigants appearing before the courts occasioned by their
ethnicity or lack of appreciation of the judicial process for whatever reason.
It is suggested in this paper that such issues may be lessened but not resolved by the
insistence by the court in appropriate circumstances on the provision of an interpreter
for the judiciary must always be vigilant to change and adapt those measures
necessary to ensure that the traditional fundamental functions of the court are not only
fully maintained but indeed strengthened.
The manner in which I intend to deal with the topic is to consider.
1. The function and role of the judiciary with special reference to the courts of
summary jurisdiction.
2. The difficulties facing a party or witness required to appear before the court
who does not have English as a primary or mother language.
3. The role of an interpreter in assisting such a person in the judicial process.
The judiciary
In simplistic terms, there are three arms of government:
- The legislature or Parliament, which makes the Statute Law.
- The executive, which conducts the business of government and administers
the laws made by Parliament.
- The judiciary, which is called on to apply the law made by the legislature,
and the common law, whenever a dispute arises between either members
of the public, or members of the public and the State.
The role of the judiciary is to hear and determine cases referred to it by parties who
have issues or disputes either with fellow members of the public, or with the State. In
such proceedings, a party claims that there has been a breach of the law or seeks
some remedy or entitlement under the law.
The judiciary is to determine such cases brought before it according to law, without
fear or favour, affection or ill-will and in so doing acts at all times independently of the
legislative and executive branches of government, a concept sometimes even
forgotten, misunderstood or misinterpreted by some, including politicians, members of
the public and the media, from time to time.
"It is the right of citizens that there be available for the resolution of civil
disputes between citizen and citizen or between citizen and government
and for the administration of criminal justice, an independent judiciary,
whose members can be assured with confidence to exercise authority
without fear or favour."1
Accordingly, the court must be and must be seen to be separate from other branches
of government - completely independent.
"The judiciary can effectively fulfil its role only if the public has confidence
that the courts, even if sometimes wrong, act wholly independently. It is of
paramount importance that the nation must have confidence in judges at
every level as independent and impartial guardians of the rule of law."2
The process by which such disputes are resolved is adversarial, as opposed to
inquisitorial, upon consideration of the materials and evidence placed before the court
by the respective parties. Such process will be completely unfamiliar to persons
brought up under the inquisitorial system of law.
The court process is governed by certain procedures and rules which are designed to
ensure that proceedings are conducted fairly and with all due expedition to all parties
concerned in the particular litigation and the general management of the court process.
The decision of the court, as has been said, is determined according to law with regard
to the evidence adduced by the parties, and reasonable inferences drawn therefrom in
the light of the relevant standard of proof: beyond reasonable doubt in criminal
proceedings, and on the balance of probabilities, in civil proceedings.
In arriving at any decision, the court is not permitted to speculate, toss a coin or
consult an astrologer.
The judiciary, as the judicial branch of government, must apply the law equally to all
who come before it.
"It is a basic principle that all people should stand equal before the law. A
construction which results in different criminal sanctions applying to
different persons for the same conduct offends that basic principle. The
general rule is that an enactment applies to all persons and matters within
the territory to which it extends, but not to any other persons and matters.
The rule extends not only to all persons ordinarily resident within the
country, but also to foreigners temporarily visiting. And just as all persons
in the country enjoy the benefits of domestic laws from which they are not
expressly excluded, so also must they accept the burdens those laws
impose. The presumption applies with added force in the case of the
criminal law, which is inherently universal in its operation, and whose aims
would otherwise be frustrated.”3
The duty to apply the law equally includes procedural equality in the operation of court
procedures.
Courts of Summary Jurisdiction
All States and Territories have Courts of Summary jurisdiction (variously named, for
example, Magistrates or Local Courts), which
“… deal with a very high volume of cases: over 90% of all civil and criminal
cases are initiated in the Magistrates Court. Magistrates sit in urban,
suburban and remote rural areas. They typically hear a large number of
matters each day. Criminal defendants and civil litigants in Magistrates
Courts are often unrepresented.”4
The magistracy has been referred to as "the undervalued work-horse of the court
system" and "the People's Court."5
The jurisdiction of the average Magistrates Court is diverse and includes criminal law,
civil law, landlord and tenant disputes, family law and domestic violence.
As referred to above, magistrates sit in cities, suburbs and remote areas. At one stage
I was stationed at Dalby, Queensland, and my bailiwick extended from there to Oakey,
Chinchilla, St George and Taroom.
It has been said that a magistrate must get through a crushing workload of cases each
day, and does not have the luxury, as do superior court judges, of cases listed where
both parties are legally represented, the cases well argued and of enjoying a time,
where appropriate, for reflection and decision making. A vast majority of summary
cases are determined on the spot with the delivery of ex-tempore judgements and
orders.
However, it was remarked by Justice Muirhead:
"This court remains appreciative of the difficulties and pressures under
which our magistrates are working, but nevertheless it is important,
especially after a contested case, that at least succinct reasons for
decision be given and that such reasons should cover issues of law and
fact."6
The citizens and the courts
Not every member of the public has reason to have recourse to the legal process, and
in particular, being required to appear before a court of law.
Generally speaking, members of the public normally have need to consult the law only
in relation to matters concerning the making of their will or the sale or purchase of their
house and otherwise have little need to become involved with the judicial process.
Members of the community who do become so involved in the judicial process, for
present purposes, are involved in matters concerning criminal offences, civil litigation
and a multitude of other matters, including traffic offences, public nuisance offences,
domestic violence, tenancy disputes and the like. The list may well be endless
If a person is so involved on account of a "serious" criminal matter such as murder,
rape, assault or the like, there are facilities available in the assessment of such a
person for the grant of legal assistance.
In any event, any person who comes before the court on a criminal or quasi criminal
charge is generally entitled to consult a duty lawyer in attendance for consultation and
advice as to eligibility for legal assistance in relation to the matter requiring attendance
before the court.
Appearance before the court
The purpose of this paper is not to consider the position of the litigant required to
appear before the court and who is legally represented for it is presumed that the
presence of such legal representation will acknowledge the rights of the client in such
circumstances and the appropriate steps to be undertaken to protect such rights.
Rather, the situation is to consider the difficulties facing a litigant or witness required to
appear before the court, who is unrepresented and who does not have English as a
primary or mother language, and the role of the court in such circumstances.
The role of the court
The role of the court in all circumstances is to act and conduct the proceedings
according to law.
The law applicable to all persons be they represented or not, is that the court must
ensure that a litigant receives a fair trial, that the trial proceeds according to law, that
the rules of natural justice and procedural fairness are fully complied with; the content
of such rules, depending upon the particular circumstances of the relevant case.
In such regard reference should be made to what was said by Mason J. (as his Honour
then was) in Kai:
"It is a fundamental rule of the common law doctrine of natural justice that
when an order is made depriving a person of a right or interest benefit or
legitimate expectation, they are entitled to know the case against them and
be given an opportunity to be heard."7
And in such regard reference should also be made to what was said by Lord Denning:
"If the right to be heard is to be a real right which is worth anything, it must
carry with it the right in the accused man to know the case which is made
against him. He must know what evidence has been given, and what
statements have been made affecting him: and then he must be given a
fair opportunity to correct or contradict them."8
And by Griffith C.J.
"The right of every man to a fair hearing before he is condemned lies at the
root of the tree of justice."9
In the light of the foregoing judicial dicta it is necessary to consider the role of the court
in relation to particular classes of litigant, in particular, the unrepresented and the
litigant who may be disadvantaged, on account of language difficulties.
Unrepresented litigants
It is relevant to refer to the following comments and observations:
"As you know, unrepresented litigants constitute an increasing percentage of
those appearing in the courts. The trend is likely to continue. Unrepresented
litigants often present a real obstacle to the efficient disposition of the court's
lists, as the judge must take additional care to ensure that, even if they be
incapable of adequately advancing their own case, no points of merit are buried
in what is oftentimes a mass of distracting irrelevancies. There is a tendency to
want to even the scales by assisting the unrepresented litigant to develop his or
her case or to attack the opponent's case. That is a tendency to be detected and
resisted. The judge's role is to keep the ring, not to enter the fight. By all means
let the relevant rules be understood, but then the judicial duty is to retreat to the
calm isolation of the judgement seat."10
and to the following observations in MacPherson v R11, where Brennan J. (as His
Honour then was) referred to the following dicta of Lawnton L.J. in Laker Airways Ltd12,
"In a case such as this I regard myself as a referee. I can blow my judicial
whistle when the ball goes out of play; but when the game restarts I must
neither take part in it nor tell the players how to play.”
and then observed:
“But there is, of course, a distinction between telling the players how to
play and telling them the rules of the game. If the distinction is not
observed, and an unrepresented accused is kept in ignorance of the rules,
the procedural rules which are designed to protect an accused and to
ensure a fair trial, become a trap, for an unwitting failure to make objection
would avoid the judicial duty to control the admission of evidence …
… Finally, an accused who elects to defend himself forfeits none of his
rights, thereby. If he has not had a trial according to law, his intransigent
refusal to accept legal representation is no ground for dismissing his
appeal. …The absence of legal representation imposes a heavier burden
upon the trial Judge and denies an accused the assistance of an advocate
who can usually present an accused’s case more effectively than the
accused himself; … Whether any and what advice should be given to an
accused depends upon the circumstances of the particular case and of the
particular accused. What can be said is that, if it is necessary to give any
advice, the necessity arises from the judge's duty to ensure that the trial is
fair. That duty does not require, indeed, it is inconsistent with, advising an
accused how to conduct his case; but it may require advice to accused as
to his rights in order that he may determine how to conduct his case.”
And in the same case, Mason J. said:
"Giving full weight to the adversary character of a criminal trial and the
difficulties of advising an accused who is not represented, I nevertheless
consider that the trial judge is bound to ensure that an accused person has
a fair trial. To that end he is under a duty to give the accused such
information and advice as is necessary to ensure that he has a fair trial."
And Gibbs CJ and Wilson J. said:
"There is no limited category of matters regarding which a judge must
advise an unrepresented accused - the judge must give an unrepresented
accused such information as is necessary to enable him to have a fair
trial."
It is clear from the foregoing that it is incumbent upon a court to ensure that a litigant
who is unrepresented has a fair trial. However, how can such be achieved? The
answer may be found in general terms, when one has regard to what was said by
Wells J. in Cooling v Steel13:
"It is time this court made abundantly clear what its views are about the
duty of a court when an unrepresented defendant appears before it …
It is imperative, therefore, that courts of summary jurisdiction should follow
practices that will avoid that a party or witness should feel that he has not
been permitted to give a good account of himself because he has been
overawed, or he has not been made aware of his rights, or no, or no
sufficient explanation has been made of what is required of him. ..
If the court suspects that the defendant has an imperfect understanding of
the English language, it should not hesitate to adjourn to enable an
interpreter to be obtained, and when one is made available, it should
satisfy itself that the defendant and the interpreter can communicate
fluently and efficiently.
A court and those appearing before it ought to demonstrate (in the
translated words of Justinian) a set and constant purpose to give to every
man his due, and in the discharge of that joint and several duty they should
work together and assist one another - not proceed separately, and at
arm's length."
It is in the light of the foregoing observations that I proceed to address further the
subject of the paper.
Australian is and is becoming more of a multicultural society.
It is trite to say that the Australian legal system as initially adopted and adapted was for
a society that was largely monochrome in its then ethnic composition and religious
traditions. The ethnic and cultural background of the Australian community has over
the generations changed and is still so changing and the judicial system must in
accordance with such challenge adjust accordingly, but only in accordance with and in
so far as is permitted by the rule of law.
The litigant and the court
Any person required to appear before a court is confronted with a foreign environment
- unless such person is a frequent visitor - and a place which can be quite frightening
and off-putting. It may well be compared by way of analogy to a lay person visiting and
witnessing surgical procedures being undertaken in an operating theatre or visiting an
intensive care ward or at a post mortem examination or visiting a mortuary.
If such a general observation should apply to a represented person, how much more
difficult and awesome would it be for an unrepresented person, and in particular, a
person who does not have English as a mother or primary tongue who is required to
appear before the court.
Communication
In order to carry
out its adjudicative function is of utmost importance for the court to be
able to effectively communicate with the parties to the proceedings and vice versa:
"Try to imagine a criminal trial without oral communication. Our tradition
relies heavily on oral communication; victims and witnesses able to
remember, understand and recount their experience, and give a coherent
and comprehensible account of the offence or related circumstances."14
In a conventional court, such communication is normally conducted between the
presiding judicial officer, counsel for the parties and the witnesses. However, should a
party be unrepresented or, have a difficulty understanding or appreciating the
proceedings, the role of a presiding judicial officer becomes more important.
If an unrepresented litigant is unable to communicate adequately with the court, on
account of language, he or she is at a serious disadvantage and not only on the basis
of such language deficit, but may also possess, amongst other things:
- ignorance of the legal system
- lack of knowledge of the relevant law, which in turn leads to an ignorance of
the relevant issues
- lack of awareness of any relevant cultural differences
- lack of appreciation or expectation of the local law
and on account of their knowledge of or experience with such similar authorities in their
homeland, have a genuine fear or apprehension of the Australian system of justice
with which they have become involved.
Such will become acutely apparent if such a person comes from a background, where
the system of law to which they are accustomed is based upon
- arbitrary arrests
- secret trials
- indefinite detentions and without trial
- cruel or degrading treatment whilst in custody or detention.
Consequently, in a court situation such person may have genuine difficulties in
understanding and appreciating
- the legal process
- the role of the police prosecutor
- the role of the judicial officer
- their relevant rights, and in particular the right to an adjournment, to seek
legal representation and the assistance of an interpreter
- the meaning and significance of questions directed to them by the court in
the absence of an interpreter.
Furthermore, the court itself may not be appreciative of the significance of the body
language exhibited by the particular party or witness and such may include silence and
reluctance to make eye contact, which can easily be misunderstood or misinterpreted,
for example, as an evasion of question or even worse an indication of guilt.
Reference has already been made to the requirement that courts must conduct the
proceedings according to law and in such context, the judicial process must conform
and comply with the rules of natural justice or procedural fairness and in such
premises Courts possess all necessary powers, either express, inherent or incidental,
to prevent an abuse of legal process and to ensure a fair trial.
Once proceedings are brought in a court it has all such powers to regulate them so as
to ensure a justice.
To illustrate such a principle, reference is made to two instances where superior courts
have intervened to protect the interests of a defendant.
In Ebatarinja v Deland the defendant was charged with murder. Unfortunately he was
a deaf mute who was unable to understand the charge; he was unable to communicate
with his legal advisers and was unable to understand the committal proceedings which
had been brought against him and which were being heard in a Magistrates Court. On
application to the High Court of Australia it was ordered that the magistrate be
prohibited from further hearing of the committal proceedings.
In a joint judgement, the High Court15 said.
"On a trial for a criminal offence, it is well established that the defendant
should not only be physically present but should also be able to understand
the proceedings and the nature of the evidence against him or her. In
Kunnath v The State, the Judicial Committee of the Privy Council said:
"It is an essential principle of criminal law that a trial for an
indictable offence should be conducted in the presence of the
defendant. As their lordships have already recorded, the basis
of this principle is not simply that there should be corporeal
presence but that the defendant, by reason of his presence,
should be able to understand the proceedings and decide what
witnesses he wishes to call, whether or not to give evidence
and, if so, upon what matters relevant to the case against him."
In Frank v The Police an aboriginal defendant appeared before a magistrate and
pleaded guilty to offences of assaulting police in the execution of their duty, damage to
property, aggravated assault, possession of weapons and resisting a police officer in
the execution of his duty.
The defendant appeared in the local Magistrates Court at Port Augusta and was at
such time represented by a solicitor. The court ordered a psychiatric report be
obtained to explore issues concerning the defendant’s fitness to plead, and his mental
competence to have committed the offences.
The Clinical Director of Forensic Mental Health Services interviewed the defendant at
prison, and at such interview, no interpreter was present, although one had been so
requested. The doctor was unable to proceed without assistance and he relied upon
another prisoner to interpret. The doctor reported that the interview situation was less
than ideal. The doctor further reported that the defendant did not suffer from a mental
illness and that he did not believe the defendant was mentally impaired. The doctor
further reported that the defendant's knowledge of the court proceeding was limited
and that the presence of an interpreter for him during court proceedings was essential.
At no time during the judicial process was an interpreter present to assist the
defendant.
The defendant pleaded guilty and was sentenced to a period of imprisonment. An
appeal was lodged, arguing, amongst other things, that the sentence was manifestly
excessive and that the magistrate ought not to have proceeded with the proceedings in
the absence of an appropriate interpreter.
Similar problems occurred on the hearing of the Appeal in that although an interpreter
had been arranged, the interpreter did not attend and attempts to locate the interpreter
were unsuccessful.
The case is of importance for what was said by the Supreme Court of South Australia
in Franks's case16 in which Mr Justice Sulan said:
"A fundamental right of a person to have available an in
terpreter so that the
person can understand the proceedings has been denied the appellant
…The appellant was denied a fair hearing. He was deprived of a basic
right.
The defence solicitor was unable to obtain instructions because of the
failure of the administration to provide adequate and reliable interpreting
services. This makes the tasks of defence counsel almost impossible.
The solicitor was not able to advise, nor able to obtain adequate
instructions. When a defendant is receiving legal aid, there is a
responsibility upon those who administer legal aid to ensure that clients
can understand and give meaningful instructions.
The Magistrate chose to proceed and the defence solicitor agreed, both
being aware of the position of the appellant. Counsel did not have
adequate instructions and was aware that her client could not understand
the proceedings. In those circumstances the matter should not have
proceeded.
The correct course was for the Magistrate to stay the proceedings until an
interpreter could be present. The court has an inherent power to stay
criminal proceedings which will result in an unfair trial. A right to a fair trial,
or a fair hearing in the case of sentencing, is a central pillar of our criminal
justice system.
In Dietrich’s case, the High Court recognised that the Court has power to
prevent an abuse of process or the prosecution of a criminal proceeding
which will result in a trial which is unfair. Dean J observed that if the funds
and facilities necessary to enable a fair trial to take place are withheld, then
the courts are obliged to take steps to ensure that the processes are not
abuse to produce a miscarriage of justice. He said:
“If, for example, available interpreter facilities, which were
essential to enable the fair trial of an unrepresented person
who could neither speak nor understand English, were withheld
by the government, a trial judge would be entitled and obliged
to postpone or stay the trial and an appellant court, in the
absence of extraordinary circumstances, be entitled and
obliged to quash any conviction entered after such an
inherently unfair trial. Again, if the Government failed to
provide the ordinary facilities necessary to enable an accused
held in custody to attend his trial, the trial Judge would be
entitled and obliged to postpone or stay the trial and, in the
absence of such a stay or postponement, an appellate court
would be entitled and obliged to quash any conviction."
It is a fundamental right which must be afforded to all defendants who face
criminal proceedings to have an interpreter who can explain the nature of
the proceedings and ensure that a defendant understands what is being
said in court. It is not uncommon during counsels’ submissions on
sentence that a defendant will correct counsels’ submissions, or instruct
counsel to add something that has not been put to the Court which is of
relevance. A failure to afford a defendant an interpreter in circumstances
where the defendant cannot understand the proceedings, will render
proceedings unfair. If the court is unable to provide an interpreter and the
defendant is, therefore, unable to receive a fair hearing, the court
possesses the power to stay the proceedings.
The Magistrate should have ordered a stay of proceedings until he could
be assured that a Pitjantjatjara interpreter would be present. The
Magistrate should have released appellant on bail.”
The court set aside the sentence and ordered that the defendant be re-sentenced by
the Supreme Court at a time when an interpreter was available.
The role of the interpreter
An interpreter for the purpose of this paper is a person suitably trained and qualified
who conveys oral messages and statements from one language into another
language. Such process must be done competently and its success will depend upon
the skill and experience of the interpreter in question
It has been said:
"It is not simply words or grammatical construction, that have to be
interpreted, but the concepts and ideas, the meaning, behind them. A
sentence is, after all, more than an expression of a thought."17
"It may not be impossible or accurate to translate the exact words used in
the English question into the target language. In order to do their job
properly, interpreters will need to have a detailed understanding of the
nuances of both languages, and the goal must be to convey the accurate
meaning of the questions and answers, not necessary the exact words
used.”18
I believe it is instructive to refer to the steps taken in another jurisdiction in relation to
the use and role of interpreters.
I refer to the Supreme Court of Wisconsin which has developed the following protocols
in relation the use and role of interpreters:
“… Interpreters shall be impartial and unbiased, and shall refrain from
conduct that may give an appearance of bias. Interpreters shall disclose
any real or perceived conflict of interest to the judge and the parties…
Interpreters, have a twofold role:
1. to ensure that court proceedings reflect, in English, precisely what was
said by persons of limited English proficiency; and
2. to place persons of limited English proficiency on an equal footing with
persons who understand English.
This creates an obligation to conserve every element of information
contained in a source language communication when it is rendered in the
target language.
Therefore, interpreters are required to apply their best skills and judgement
to preserve, as faithfully as is reasonably possible and without editing, the
meaning of what was said, including the style or register of speech, the
ambiguities and nuances of the speaker, and the level of language that
best conveys the original meaning of the source language. Verbatim,
"word for word", or literal oral interpretations are inappropriate when they
distort the meaning of what was said in the source language. However,
every spoken statement, even if it appears non-responsive, obscene,
rambling, or incoherent should be interpreted. This includes apparent
misstatements.
Interpreters should not interject any statement or elaboration of their own.
If the need arises to explain an interpreting problem, such as a term or
phrase with no direct equivalent in the target language or a
misunderstanding that only the interpreter can clarify, the interpreter should
ask the court’s permission to provide an explanation.
Spoken language interpreters should convey the emotional emphasis of
the speaker without re-enacting or mimicking the speaker's emotions, or
dramatic gestures. Sign language interpreters, however, must employ all
of the visual cues that the language they are interpreting for requires -
including facial expressions, body language, and handed gestures. Judges
should ensure that court participants do not confuse these essential
elements of the interpreted language with inappropriate interpreter
conduct. Any challenge to the interpreter’s conduct should be directed to
the judge.
The obligation to preserve accuracy includes interpreter’s duty to correct
any errors of interpretation discovered during the proceeding.”19
The appointment of an interpreter in an appropriate case will not resolve all language
problems facing a litigant or a witness but such will go a long way to assist.
I give one example where the appointment of an interpreter did little to assist, either
the court in understanding the evidence of the witness, or the witness in understanding
of the crucial issue for determination by the court. The particular witness was asked a
series of straightforward questions but was unable to respond meaningfully. The
interpreter brought to the attention of the court that the witness was unable to
appreciate the questions owing to the witness’s general lack of knowledge and
understanding of his own language.
It is noted in passing, from my own State, that the Queensland Government
Multicultural Policy 2004 advises:
“It may be difficult to assess whether a client needs an interpreter. The
ability to converse in English does not necessarily indicate that a person
comprehends the English spoken by doctors, nurses, magistrates, lawyers,
police officers etc or that the person understands written English. If there
is any doubt as to a person's ability to communicate in and comprehend
English, an interpreter should be engaged.”
It is suggested that in the judicial field, if there is any such doubt, an interpreter be so
engaged in order to comply with the overriding requirement of the court to ensure that
every litigant has a fair trial.
Sentencing
The principle previously referred to, of equality before the law, is central to the
sentencing process.
The purposes of sentencing an offender are to be found succinctly referred to by the
High Court in the following dicta:
"The purposes of criminal punishment are various: protection of society,
deterrence of the offender and of others who might be tempted to offend,
retribution and reform…"20
And further, the role of the Court in the sentencing process has been described in the
following observation:
"The public community relies upon the Courts to try to teach, by the solemn
procedures of criminal law, certain minimum standards of morality and
behaviour. The courts act as an agency for the expression of public
indignation and condemnation. They do so as a force intended to operate
to produce cohesion within a civilised society."21
The issue thus remains as to what weight, if any, will be given to the "ethnicity" of any
defendant in the sentencing process. The answer, it is submitted, is to be found in the
following dicta of Brennan J:
"The same sentencing principles are to be applied, of course, in every
case, irrespective of the identity of a particular offender or his membership
of an ethnic or other group. But in imposing sentences courts are bound to
take into account, in accordance with those principles, all material facts
including those facts which exist only by reason of the offender's
membership of an ethnic or other group. So much is essential to the even
administration of criminal justice."22
Conclusion
In the administration of criminal and civil justice, courts act with judicial independence
and in accordance with the rule of law. In compliance with such principles all persons
who have recourse to the legal process are treated equally irrespective of their racial
or cultural background.
Should any person subject to the judicial process be perceived to be disadvantaged by
way of lack of appreciation of the legal process, or on account of difficulties with
language and communication, it is the requirement of the court to ensure that the
proceedings are conducted fairly and to take such steps as are reasonable in the
circumstances, such as the provision of interpreting services, to ensure such a result.
If such procedures are actively considered and adopted by the Court it may well be
said that the dictate of Aeschylus of "Fair trial, fair judgement” has been satisfied.
______________
* Michael Halliday, SM, Brisbane, Queensland, Australia
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