Lawyers know that if they are representing someone in court who has limited English proficiency, it is crucial to understand how to effectively communicate with them and that they have an implied right to an interpreter as part of procedural fairness.
But what if they need to tender their evidence that is in a language other than English? This is where translators come in.
Who should translate my client’s evidence?
Engaging a non-certified translator may compromise the credibility of your evidence in court, potentially leading to allegations of inaccuracies. It is not uncommon for parties involved in a lawsuit to question the accuracy of the evidence translated by the other side, especially in disputes between two people who speak the same language.1 This underscores the importance of engaging a certified translator in the first instance.
Where possible, you can also consider engaging someone with expertise in forensic translation, as even a certified translator without experience in forensic translation may not produce translated evidence that is wholly admissible. In the case of R v Yang [2016] WASC 410, the Court questioned the reliability of a non-certified translator who failed to accurately preserve the content and intent of the source text without any omissions or distortions.
Why can’t I just ask someone at my firm to do it?
Asking someone at your law firm to translate the exhibits for your case is a bad idea. This could give rise to a potential conflict of interest, regardless of whatever legal or linguistic expertise they have. While it may be tempting to rely on in-house language abilities for expediency in preparing evidence, solicitors must still uphold their duty of skill, care, and diligence in the preparation of evidence, including affidavits in languages other than English that are translated for use in legal proceedings.2
In Rogic v Samaan [2018] NSWSC 1464, a bilingual solicitor interpreted the affidavit evidence of one of his witnesses from Serbian into English. The Court cautioned against solicitors assuming the role of interpreters, finding that it gave rise to the perception that the solicitor had prioritised cost-saving measures over an accurate and unbiased translation.
What’s the best way to find a translator?
I highly recommend you search for a translator on the NAATI and AUSIT directories, as they allow you to filter translators based on their language direction and location. You will also be able to communicate with the professional directly, without having to go through an agency. This means you will have some control over the vetting process of finding a translator that works best with you.
Securing the services of a certified translator for major international languages such as Arabic, Chinese, and French, as well as commonly spoken languages in Australia like Khmer and Samoan, is a relatively straightforward process. However, for less common languages, finding a certified translator may prove challenging as testing may not be available. In such cases, I recommend you seek out a recognised practising translator, or someone with an equivalent foreign credential. If you are struggling to find a translator for a rare language, contact AUSIT for assistance.
What challenges can I expect to face when translating evidence?
When translating written documents like certificates, contracts or correspondence, the quality of the source text can significantly impact the speed and accuracy of the translation process. To prevent delays, it is crucial to provide the translator with a clear and legible version of the document. Opting for a high-resolution scan is the most effective way to ensure that handwritten or hard-to-read texts are accurately translated.
Spoken texts, such as audio and video recordings, present a much bigger challenge. You will need to find someone to transcribe and translate the original audio into English, which will take longer and cost more. The specific language must also be identified beforehand. For example, you may be told it is “Chinese” only to find out it is neither Mandarin nor Cantonese, but another variety of Chinese.
You can ask the translator to create a verbatim transcript of the recording, but the transcribing process is highly subjective. Ambiguities often arise, especially in covert recordings with poor audio quality. Unfortunately, no transcript can ever fully capture the nuances and complexities of spoken language.3 Therefore, it is ideal to work with a translator who specialises in forensic translation. They will be able to identify ambiguities in the recording, provide footnotes and commentary, and maintain consistent style and word choice throughout the translation.4
How can I help the translator with their work?
First, provide as many details about the case as you can. This will allow them to better understand the evidence in context and translate it more accurately. Insufficient briefing of the translator may result in evidence being deemed inadmissible, potentially leading to a re-trial or a stay of proceedings.5
Second, ensure the translator understands the document will be submitted to the court as evidence, so the translation should closely adhere to the original text. Any word can influence the outcome of a case, so footnotes and commentary clarifying untranslatable phrases may be needed.
Last, avoid providing translators with biased information at the onset of the project.6 Linguists have long recognised the issue of “priming”, where people can be influenced to hear what you want them to hear from an unclear audio recording. This problem has even resulted in wrongful convictions due to misinterpretations of indistinct covert recordings.7
How can I be confident in the accuracy of the translated evidence?
You can be confident that the work of a NAATI Certified Translator will be of a high standard. They are bound by the AUSIT Code of Ethics to transfer the message of the source text without any omissions or distortions. For added assurance, you can consider having a second translator review for accuracy and consistency.
You may find that different translators have different views on how particular terms should be translated. This is normal since there is no word-to-word equivalence between any two languages. This problem can also be exacerbated when translating recorded speech with questionable audio quality.
A Master’s degree in Translation Studies and membership in a professional association like AUSIT are reliable indicators of a professional translator besides NAATI certification. When looking for a translator to act as an expert witness, these three attributes should be minimum requirements.
Once your exhibits have been translated and NAATI-stamped, it is important to provide the court with a certification of accuracy signed by the translator. This certification should affirm the translation is a true and accurate representation of the original document. Usually the translator is asked to complete an affidavit and attach a copy of their NAATI certificate to it.
Carl Gene Fordham is NAATI Certified Translator and Interpreter. He also serves as Vice President (Events & Professional Development) of the Australian Institute of Interpreters & Translators (AUSIT) and teaches translation and interpreting part-time at the University of Queensland.
Footnotes
1 Fishman CS (2006) ‘Recordings, Transcripts and Translations as Evidence’, Washington Law Review 81(3):501.
2 Lu A (2020) ‘Traps for Bilingual Lawyers – A Risk Management Reminder’, BRIEF 47(7):32.
3 Lai M (2023) ‘Transcribing and translating forensic speech evidence containing foreign languages—An Australian perspective’, Frontiers in Communication 8:4.
4 Gilbert D and Heydon G (2021) ‘Translated Transcripts From Covert Recordings Used for Evidence in Court: Issues of Reliability’, Fronters in Communication 6:9.
5 Loiacono R (2022) ‘The translator as an expert witness in court’, The International Journal for Translation & Interpreting Research 14(1):95.
6 Chin JM, San Roque M and McFadden R (2020) ‘The New Psychology of Expert Witness Procedure’, Sydney Law Review 42(1):89.
7 Fraser H (2017) ‘How Interpretation of Indistinct Covert Recordings Can Lead to Wrongful Conviction: A Case Study and Recommendations for Reform’, in Levy R, O’Brien M, Rice S, Ridge P and Thornton M (eds), New directions for law in Australia: Essays in contemporary law reform, ANU Press, Canberra: 191–200.
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