Page 3154 - Week 11 - Wednesday, 11 September 1991
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offences legislation entitles a person under questioning to an interpreter if he or she so requires. I have not adopted this model. There can be an element of cupidity in a person who plays for time and/or seeks to create a false veil of non-comprehension by demanding, as of right, an interpreter. I have not located any comparable legislation in the Northern Territory, Western Australia, Queensland or Tasmania.
On the matter of judicial discretion, I now return to the situation at large in Australia, and particularly the absence of a proper initiative from the Federal Government. Article 14 of the International Covenant on Civil and Political Rights stipulates, inter alia, that in criminal cases everyone should have "... the free assistance if he "- sic -" cannot understand or speak the language used in court". Whilst in practice the legal and judicial system does go to considerable lengths to meet this requirement, Anglo-centrism still dominates the Australian legal system.
The high point of this Anglo-centrism is illustrated by a decision of the High Court of Australia in Dairy Farmers Co-Operative Milk Company Ltd v. Aquilina - reported in 1953, volume 109, Commonwealth Law Reports, page 452, at page 464 - where the court observed:
The general proposition that a witness is entitled to give evidence in his native tongue is one that cannot be justified ... We agree with the decision of the Full Court of the Supreme Court of New South Wales ... that there is no rule that a witness is entitled as of right to give evidence in his native tongue through an interpreter and that it is a matter in the exercise of the discretion of the trial judge to determine on the material which is put before him whether to allow the use of an interpreter and the exercise of this discretion should not be interfered with on appeal except for extremely cogent reasons.
In July 1988 I was present when Sir Harry Gibbs, the former Chief Justice of the High Court, effectively re-endorsed this view whilst addressing the First National Conference on Law in Interpreting. He said:
... on one hand it has been said that if an interpreter is used a witness who has a knowledge of English may secure an advantage in cross-examination by pretending ignorance and gaining time ... and that in any case evidence given through an interpreter loses much of its impact ... On the other hand it may be argued that a witness whose knowledge of English is imperfect may convey quite the wrong meaning because of a failure to appreciate the exact meaning of words, or significance of an idiom, and that this may
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