Australia: Evidence lost in translation

Last Updated: 19 November 2018
Article by KordaMentha Forensic

In this article, our Forensic team discuss the use of an expert translator in criminal proceedings and highlights the intricacies and potential issues in translating emoticons, symbols and expressions which can be subject to ambiguity and differing interpretations.

R v Yang [2016] WASC 410

"It is not the role of the interpreter or translator to express an opinion about the speaker's or author's state of mind or what it was they were trying to convey (as opposed to what the words actually convey). It is not their role to draw conclusions, let alone speculate, about such matters."

Introduction

Our Forensic team considers the use of an expert translator in the fact-finding process of a criminal prosecution of an offender charged with importing a border-controlled drug into Australia.

Questions were raised regarding the reliability of the expert translator, his use of discretion, inconsistencies in his translation notes, and whether he was providing an opinion beyond his expertise.

Background

The offender ('Yang') was introduced to an enterprise through his friend ('Jeong') whereby Yang was to deliver a piece of luggage from China to Australia. The offender had performed a similar role in delivering luggage from Brazil to Thailand just prior to the flight to Australia. Yang received all his instructions from someone who purportedly operated out of Russia.

When his luggage entered Australia, it was inspected and found to contain methamphetamine. This is a border-controlled drug that is illegal to import into Australia.

The issue at hand for Justice Fiannaca to consider was the state of mind of Yang in importing a border-controlled drug. Specifically, it was whether Yang:

  1. knew the drugs were in the luggage and was consciously aware that he was importing it into Australia, or
  2. was aware of the likelihood that the luggage contained a substance other than clothing or fashion accessories, and there was a substantial risk that the substance was illegal.

To assess these issues, a translator had to be engaged to translate from Korean to English messages exchanged on Facebook and Kakao Talk (a messaging program) between Yang, Jeong, another friend named Meng and Yang's sister. Issues arose in relation to the translations which brought into question the reliability of this expert evidence.

Expert issues

Justice Fiannaca agreed with the defence's submission that the approach taken by the translator was inconsistent with the Australian Institute of Interpreters and Translators code of ethics requirements. The Court summarised one of the requirements of this code as being that a translator should preserve the 'content and intent of the source message or text without omission or distortion'. To achieve this, an interpreter would be required to exercise judgment regarding the best way to convey the original content and intent. However, they should not use discretion regarding the importance of words, symbols or emoticons and whether to leave out certain elements of the messages.

Justice Fiannaca found there were several deficiencies in the translator's evidence, for example:

  1. lack of translator's notes when translating a laughing emoticon into 'ha'
  2. lack of translator's notes when disregarding certain parts of the messages and correcting typographical errors in the messages, which could have been ambiguous
  3. not translating all the laughing emoticons when they appeared
  4. repeated Korean expressive characters were translated into a single 'oh' or 'ah' sound, which lost its expressive characteristic, and
  5. expressing an opinion about a conclusion to be drawn from a message.

The use of emoticons in the messages added an additional element of difficulty in assessing Yang's state of mind around his conduct. This may have been because there could have been potential ambiguity surrounding the meaning of the emoticon in the context of the message. For example, many messages contained laughter through the use of emoticons in a discussion of the nature of the enterprise and whether illicit drugs were involved. The Crown inferred this to be either nervous or sarcastic laughter but during examination Yang disputed this, claiming them to signify a light conversation so his comments were not to be taken seriously.
Yang was concerned that the above inaccuracies in translation could be misleading as to his intent as they may not have been a true representation of the messages between him, his friends and sister.

For the Court, this became a question of the expert translator's reliability. With reference to the Makita principles, an expert's opinion must be:

  1. within a field of 'specialised knowledge'
  2. based on specific training, study or experience
  3. wholly or substantially based on the expert's knowledge
  4. based on facts that are identified and admissibly proved by the expert, or in some other way
  5. based on a proper foundation of facts, and
  6. a demonstration of the conclusions reached based on expert's specialised knowledge.

As such, Justice Fiannaca exercised some caution in drawing inferences from the messages that were affected by the inaccuracies. Additionally, the Court disregarded any opinions made by the translator that was outside the field of his expertise.

As a side issue, there were instances where the flow of messages did not appear to make sense. Justice Fiannaca said that the one of the messages produced as evidence was only a part of what the continuous dialogue was and did not convey the complete picture. Additionally, there may have been a missing message, hence interrupting the conversation flow. The judgment does not comment on what processes were undertaken to retrieve the messages at first instance and whether any issues arose during that process. However, forensic technology experts can be engaged in this scenario, as they often have the tools required to obtain deleted messages and other information from electronic devices.

Significance

This judgment highlights the intricacies in the translation of foreign languages and emphasises the importance of an expert bearing in mind the Makita principles. Court guidelines also typically require an expert to clearly disclose where they have relied on instructed facts and/or made assumptions . If a professional is engaged as an expert, some of these principles may also be enshrined in professional standards and codes of conduct in their field of expertise. A failure to comply with these requirements may reduce the weighting applied to an expert's evidence, and may possibly result in their evidence being found to be inadmissible.

The other issue highlighted by this judgment is the use and translation of emoticons or expressions. Their widespread use in everyday communications can provide a way of conveying more context around the thoughts and feelings of the sender. However, as demonstrated here, they can also be the subject of ambiguity and differing interpretations. Lawyers will need to be conscious of this and the potential impact on their evidence when emoticons appear in the documents critical to a case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions