THE ADMISSIBILITY OF EVIDENCE BY CROSS-LINGUAL OR MUTE-DEAF WITNESS BY USING TRANSLATOR OR INTERPRETER PDF

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THE ADMISSIBILITY OF EVIDENCE BY CROSS-LINGUAL OR MUTE-DEAF WITNESS BY USING TRANSLATOR OR INTERPRETER: Analysis on applicable law and possible grounds to amend or reform...

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THE ADMISSIBILITY OF EVIDENCE BY CROSS-LINGUAL OR MUTEDEAF WITNESS BY USING TRANSLATOR OR INTERPRETER 1. Introduction The more developed a country is, the more challenges and different aspects of issues arise. Malaysia being a multilingual country, consisting of its own multiracial citizens and foreigners residing and working here, language is one of the biggest hurdles in court. This is because we only recognize the national language and English as medium of communication in court. Other than language barrier, it is also essential to point out the challenges of mutedeaf people who are obliged to appear in the court as a witness. It is undeniable Malaysia has developed a holistic system to engage with this issue, with adaptations and references from the application of other foreign countries. Nonetheless, it is still crucial to review whether the current law we have is already enough or adequate to ensure justice is duly serve to these people who are affected by these unfortunate circumstances. Is there any loopholes in the current application of law? Or is there anything better we can do to amend or reform the law to make it better? Therefore, in this paper, a discussion will be made on the admissibility of evidence by cross-lingual or mute-deaf witness by using translator or interpreter. The reason why it will only focus on these two groups of people is because it is generally under the same umbrella, which is on communication. Throughout the research, it was found that the relationship between the regulations or provisions governing these issues are very much interconnected. Furthermore, in the references that was referred to in studying this topic, many papers discussed both matters in the same paper. This paper is aimed to see the current laws governing the admissibility of evidence by cross-lingual or mute-deaf witness by using translator or interpreter. The objective is also to view the arising issues where proposals engaging with them will be made at the end. The content of this paper will start with the current general laws and principles governing the topic. Next, the discussions will be further divided into two big parts where the former will deal on the cross-lingual witness and the latter will be on deaf-mute witness. Following that, the issues arising from the application of current laws will be examined. In reviewing the possible solutions for such issues, references to laws in England and Wales and

the laws in New Zealand will be made. In this section, the provisions related and the wisdom behind it will be presented. Finally, the proposal for reformation or amendment to made in Malaysia will be made at the end of this paper to give the overview of the possible measures that can be made to improve the justice system in Malaysia regarding these matter. 2. General Law and Principle In addressing the admissibility of statement of a witness, reference can be made to Evidence Act 1950 (EA). Section 118 EA provides as follows: All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. It essentially providence in order to be competent to testify in court, the person must be able to understand the questions imposed to him and able to give out rational answers in response to it. The explanation provided for this provision is even a mentally disordered person or a lunatic can be deemed as a competent person to testify unless the conditions had prevented them from understanding the question and respond to it with rational answers.1 To relate with the topic at hand, it can be inferred that people who have language barriers or communication disabilities are not incompetent person. They can be classified as competent person. Their statements can be admissible in court when they testify if they understand the questions and can give rational answers to them. This is where the roles of interpreters or translators is crucial. They are the key people who will assume the position and responsibility of delivering the questions and answers in manners that can be understood by the affected people to the court. Without the interpreters, the witnesses in questions are helpless, with no aid to allow them to interact and provide the court with knowledge they have on the arising issues. Now we can see a sneak peak of how critical it is the roles of the interpreters as they are the ones who will act as the bridge between the witnesses and the court. Any miscommunication or wrong translations can make or break the case, someone may be wrongfully convicted or even acquitted if the witnesses are the one holding the key information.

1 Habibah Omar, Siva Barathi Marimuthu, and Mazlina Mahali, Law of Evidence in Malaysia (Selangor: Sweet & Maxwell Asia, 2018).

Consequently, the relevant questions to be asked at this point is, who are these people appointed as interpreters and translators? Since they are essential intermediaries for the witnesses, is there any law or requirements governing this matter? Or anyone who can communicate with such languages or medium are capable of being one? Unfortunately, there are no specific provisions that can be found in the Evidence Act or other legislation regarding the requirements of being an interpreter. However, in the current practice, the Legal Practising Certificate Unit is the one responsible for managing and providing foreign interpreters service for criminal cases in criminal court throughout Malaysia.2 The service focused on providing qualified interpreters for criminal cases where the accused or witnesses require translators in foreign language, sign language, Sabah and Sarawak dialects and even Orang Asli languages. It was provided that USAG have qualified translators for over 268 languages and dialects around the world.3 The justification of why it specifically mentions criminal matter is because the only provision that mentions the need of having an interpreter to assist the accused.4 This will be explained more in detail when discussing the cross-lingual witness section. 3. Cross-Lingual Witness In this part, a more detail discussions will be made to see the current provisions governing the evidence given by people with language barriers through a translator. Why is there a need for a translator, even among the Malaysians testifying in court? The reason is due to the languages of the court itself. The language to be used in court is provided under Section 8 of National Language Act as follows: All proceedings (other than the giving of evidence by a witness) in the Federal Court, Court of Appeal, the High Court or any Subordinate Court shall be in the national language: Provided that the Court may either of its own motion or on the application of any party to any proceedings and after considering the interests of justice in those proceedings, order that the proceedings (other than the giving of evidence by a witness) shall be partly in the national language and partly in the English language.

2 “e-Jurubahasa,” Portal Rasmi Pejabat Ketua Pendaftar Mahkamah Persekutuan Malaysia, accessed 2021, http://www.kehakiman.gov.my/en/e-jurubahasa. 3 Ibid. 4 Noraini Ibrahim-Gonzalez, “Interpreting In Malaysia: An Overview Interpreting in Malaysia: An Overview,” 2007.

Based on the provision, it essentially states that proceeding of the Court should be in national language, which is Malay language, and may be done also in English. To simplify, only Malay and English languages can be used as medium of communication in court. Even though in Malaysia we have citizens that speak Mandarin, Tamil and other dialects or languages, it cannot be use as a language in court. Although it is not expressly stated in the provision, the provisions have excluded the witness from the purview of the provision where witness is allowed to speak and use in either English or Malay regardless of the language used in court. 5 Nevertheless, if it is other than the two languages, interpreter must be used. So far, the only provision that mentioned and provides a rule relating to interpretation of languages in Malaysia law in Section 270 of the Criminal Procedure Code (CPC). This section states the interpretation of evidence to accuse, which is: (1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands Section 270(1) CPC only specifically mentions the use of interpreters to the accused. Nonetheless the wider application can be seen from Malaysia case laws. The first case law is the case of Masri bin Tan Sri Dato’ Mohamad & Anor V Public Prosecutor [1997] MLJU 266. In deliberating the judgement of the case, the learned had made a reference to a common law reference which is the Thirteenth Edition of Philip on Evidence6, where it provides as follows: (i) Where a witness does not understand English a translator must be sworn and the evidence translated. Foreign witnesses or British ones where different languages prevail (e.g. Irish or Welsh), may testify in whatever tongue they are most accustomed to.” From the excerpt, it was reflected that witnesses with language can have a translator to help translate the evidence. It was also emphasized that that the interpreter sworn in must be of no bias or interest in the cases at hand.

5 Ibid. 6

Applying the deliberation from this case, it can be understood that the need of interpreters to help with the translation not only applies to the accused, but also the witnesses. However, it was nowhere mentioned on whether the application also broaden to include the witnesses in civil cases. Since there was no clear provision governing the necessary of having a translator for a witness, does that mean it is up to the total discretion of the court whether or not to allow the use of translator in such circumstances? A reference can be made to the latest case of Public Prosecutor v Tan Cheng Xing [2020] MLJU 942. This is an appeal case where one of the issues touches on the trial Court’s acceptance of Plaintiff Witness’s evidence in total without allowing her the benefit of a Chinese language translator when giving evidence. It was decided on appeal that the trial’s court decision of accepting the testimony is not an issue as the testimony made without the assistance of a translator is not a substance of the judgment, hence, it would then be within the Court’s power to disregard the Appellant’s appeal on that issue. It was further deliberated that as the examination in chief progressed, there was nothing to suggest that the witness could not understand any of the questions posed to her nor was, she labouring under a difficulty to respond appropriately. It can be inferred from the judgement that the use of translator to help with witness statement is truly under the discretion of the court. However, I would like to give a bit commentary on the judgement. I do not agree on the decision of both courts on this matter. Even though the witness testimony is not substance to the agreement, a proper and qualified translator should have been administered to ensure the justice to both parties in questions. It was said that the court observed that the witness has no problem in comprehending the questions imposed to her and was satisfies with it. Nonetheless, it can be gathered that every witness is crucial to a trial. There might be more information relevant and key to arriving to a decision, but because translator was not provided, it cannot be delivered. How can the court ensure the justice is truly served to both parties in the trial, especially in criminal cases? It may be deemed as not substance to the judgement, but with the presence of translator, maybe there can be more information gathered and miscommunication can be adverted to ensure that verdict reached was beyond reasonable doubt.

Since there is no new cases or appeal at a higher court on this matter, it is believed that the settled law on the use of translator for a witness is under the discretionary of the court so far. It is hoped that it can be reviewed soon to give much stronger stand of law in this matter where use of translator is a must especially in criminal cases.

4. Deaf-mute Witness In contrast with witnesses with language barriers, there is a provision provided of the statement by a deaf-mute or also known as dumb witness under the Evidence Act 1950. Section 119 EA states: (1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but the writing must be written and the signs made in open court. This provision essentially provides that witness with communication disabilities have deliver their statement through sign language or writing to be made in the open court. It does not mention anything on the use on interpreters, but it can be understood that there is a clear need of interpreters to translate the sign language to the court and vice versa. The evidence provided in this manner will be deemed as oral evidence in the court of law. 7 The use of interpreters to interpret the sign language can also be observed from the same case law as discussed in previous section, which is in Masri bin Tan Sri Dato’ Mohamad & Anor V Public Prosecutor [1997] MLJU 266. The learned judge had again made a reference to a common law legal textbook which is in Archbold on Pleading, Evidence and Practice in Criminal Cases. In the treatise, it was gathered that it is critical to ensure that the interpreter is a person who can be expected to interpret the evidences delivered impartially in the proceeding, where he has to be independent of any interest with the parties of the particular trials. It was accentuated that the services of interpreters can be used when the witnesses is either dead or deaf-mute but if there should be any difficulties in interpretation making it impossible for the

7 Habibah Omar, Siva Barathi Marimuthu, and Mazlina Mahali, Law of Evidence in Malaysia (Selangor: Sweet & Maxwell Asia, 2018).

evidence to be tested by cross-examination, the statement cannot be accepted and even conviction should be quashed. This shows how important it is for the witness to be a competent person, as has been defined under Section 118 EA regardless of them having communication disabilities. The perfect case law to demonstrate this matter is the landmark Federal Court case of Chai Kor v Public Prosecutor [1965] 2 MLJ 208. In this case, the witness was a deaf-mute person. When he gave the testimony, the interpreter and court found that he was unable to be understood and it was difficult to communicate with him. It was later decided that the evidence was inadmissible on the ground of incompetency as he was deemed incompetent. As discussed earlier, in order to be a competent witness, the person must be able to understand the question imposed to him and gave the right answers in response to it. 5. Issue In so far as it is concerned in the academic or legal discussions, there are very few that touches on this matter. Interestingly, while going through the cases relating to the topic at hand, I had discovered one issue that is worth to be discussed and be enlightened on. In reading the judgement in the case of Mohd Zaiham bin Mislan v Pendakwa Raya [2008] MLJU 843, the judge in his dicta mentioned on the precondition to admissibility of a statement, which is “a caution was administered.” This principle applies to all types of statements admissible to the court. However, it was pointed out by the learned judge that no definition was ever supplied for the ‘administered’. The provisions and case laws are silent on this. How do the court assess whether caution has already been administered before any statement is admitted to the court? The learned judge also deliberated that despite the ambiguity of assessing the caution has been administered or not, he did highlight that the most essential element to be observed in statement by witness is the voluntariness. Nonetheless, he has made a little comment on how it is believed that better caution must be administer, where witness poor command of language, or deaf must be given explanation to ensure adequacy of protection towards them. He opined that any diminution of that protection would inevitably dilute the admissibility of the cautioned statement.

I was intrigued by the issue brought forward by the learned judge in this case. A witness statement is undeniable crucial and may be key to any decision arrived by the court. Hence, logically, his stand on these witnesses to be given explanation during interpretations is correct. However, do the interpreters and translators actually carries the responsibility and liability to ensure the witnesses really understand the questions imposed, or they are only required to merely translate the communications only? In a research done by Naziah Mohd Alias in her thesis 8, she stated that in Malaysia court practice, service of interpreters merely offers help to an accused or witnesses who are unable to communicate or understand Malay language as it is the official language of the court, or in the wider sense as discussed before, to include English language. They have absolutely no responsibility to go beyond that in determining the accused’s intellectual comprehension of the proceedings. Thus, the question remains, how do the court ensure proper administration of caution was taken by the court? In discovering further what are the possible measures that can be taken, we will look at the implementations of law in other Commonwealth countries which is to be examine in the next discussion. 6. Laws in England & Wales and New Zealand In England and Wales, they have specific laws in countering this specific issue. Under their law, they provide qualified and skilled intermediaries to help with these categories of witnesses. The Youth Justice and Criminal Evidence Act 1999 governs the law regarding vulnerable witness. Section 16 of the Act defines vulnerable witness as someone who suffers from mental illness, all witness under the age of 17, witness with physical disability or physical disorder and those with a learning disability.9 Assistance to the vulnerable witness is provided under the law where special measures direction is taken with the aim of helping the witnesses who meets the definition of a vulnerable witness. From the definition given, it can be inferred that deaf-mute witness falls within the category of a vulnerable witness as they have physical disability. 8 Mohd Alias, Naziah. “Protections For Vulnerable Accused In Malaysian Criminal Trials: Are They Sufficient? Proposal For Reform,” 2013. 9 Ibid.

The law in England and Wales provides the use of intermediaries as one of the special measures to aid the vulnerable witness. Under the law, a registered intermediary must be a qualified and trained person with a psychology, speech and language therapy, social work, nursing or teaching background.10 This measure is taken to ensure efficiency of providing the services aiming to assist the vulnerable witnesses. What is the difference between intermediaries and interpreters? Comparing the definition of interpreters as has been discussed in the introduction of this paper and intermediaries, it can be deduced that interpreters has no specific expertise to the vulnerable witness, other than their ability to translate languages or interpret the sign languages to the witnesses. Intermediaries on the other hand has specific expertise which gives them the ability to communicate, understand and assist the vulnerable witness better. These expertise that the intermediaries possess, especially in terms of psychology, speech and language therapy in undeniably crucial in assisting the vulnerable accused or witnesses who suffers from more serious conditions, beyond just the barrier or difficulty of communicating, to cope with the court’s processes better. Next, in New Zealand, the New Zealand Evidence Act 2006 provides communication assistance...