Updates and background for this project (Digest)

• Overview of procedure and results
• Limitations of the study

4.1 The first phase of the research involved testing the capacity for Auslan to convey legal information. The goal was to conduct an experimental study which would test whether Auslan/English interpreters can accurately interpret legal terminology from English into Auslan. The study was problematic, however, due to the conditions under which the interpretation was carried out. This led to the development of the more rigorous accuracy and comprehension study (see Section 5). Below is a summary of the preliminary study, and the issues which invalidated the results. This provides the context for the subsequent study.

OVERVIEW OF PROCEDURE AND RESULTS

4.2 The NSWLRC provided a judge’s summation which was taken from a real case heard in the Supreme Court of NSW, Criminal Division.⁸⁷ Excerpts were chosen from the introductory comments⁸⁸ and parts of the text which focused on technical summations and comments regarding the onus of proof.⁸⁹

4.3 Two NAATI accredited Auslan/English interpreters were approached to participate in the study. Interpreter 1 was a native sign language user with more than 15 years experience of interpreting, a postgraduate qualification in sign language interpreting, some experience of court work, and considerable experience of interpreting in other legal settings (eg, solicitor). Interpreter 2 was a non-native sign language user with approximately seven years interpreting experience, a postgraduate qualification in sign language interpreting, and specialist legal interpreter training, but limited actual legal interpreting experience.

4.4 The extracts of the judge’s summation text were read out by a researcher, and Interpreter 1 rendered an interpretation from spoken English into Auslan, which was recorded on video camera. Interpreter 1 was given no preparation, other than being told that he/she was interpreting for a deaf juror who was a competent Auslan user and had reasonable competency in English. The location of the filming was the lounge room in the home of Interpreter 1.

4.5 Interpreter 2 was then instructed to watch the filmed Auslan interpretation (without reference to the original English text) in order to produce a back translation of the Auslan interpretation into written English. The only brief provided was that the Auslan interpretation had been targeted at a deaf juror who was bilingual in Auslan and English. No other background information or preparation material was provided to the second interpreter.

4.6 Analysis of the interpretation found that Interpreter 1 had adopted a literal translation style, borrowing English terms into Auslan using mouthing and fingerspelling to reflect the formality and register of the legal text, and to introduce legal terminology.⁹⁰ The Auslan interpretation presented information coherently, with distinct episodes (‘chunks’) representing each concept.

4.7 Analysis of the back translation found a high level of equivalence for the introductory comments, and also in some of the more technical parts of the text. However, in terms of some of the legal terminology, the interpretation was not deemed to be of the level of accuracy required to ensure that a deaf juror could access the information needed to make informed decisions.

LIMITATIONS OF THE STUDY

4.8 Given that the preliminary study was not designed to replicate a courtroom situation, various issues were identified that influenced the outcome of the research:

• The excerpts chosen for interpretation into Auslan were not linked, so it was difficult for Interpreter 1 to determine what came before each section in terms of introductory concepts. Therefore, the interpretation lacked narrative cohesion. In a real courtroom situation, the interpreter would be able to build the interpretation from the beginning to the end of the summation.
• In a real courtroom situation, the interpreter and deaf person would be present throughout the trial and would have established the signs to be used for specific English vocabulary where required.
• If the interpretation had been carried out in a courtroom, Interpreter 1 would have experienced other, additional challenges. Filming the interpretation in a lounge room provided an unrealistic advantage, in that the pressure on the interpreter of working in a formal, highly structured environment was removed. This may have impacted on the quality of the interpretation, as there were no potential adverse ramifications to any misinterpretation.
• In this preliminary study, the interpreter did not have a deaf ‘audience’ for whom to interpret. Interpreters often rely on feedback from their clients (in the form of facial expression, nodding, etc) to gauge whether their interpretation is being understood, and whether they need to make any adaptations.⁹¹ Several writers have commented on the negative impact of not having a deaf target audience when analysing the work of interpreters.⁹²
• In a real courtroom situation, an interpreter could refer to the physical surroundings to signal a witness, prosecutor, defence counsel, or the jury or other key concepts.
• The interpreter usually would be allowed time for some research, or at least would be more familiar with the elements of the trial – for example, the charge, names of participants, and the facts of the case, from an initial briefing.
• The judge’s summation was technical and dense and may therefore have posed a challenge to a hearing audience. This initial level of difficulty and potential for misunderstanding has to be considered in assessing how much a deaf person would understand of a judge’s interpreted summation.
• Interpreters typically work in teams of two when in court. In this study, Interpreter 1 was disadvantaged, as there was no co-interpreter present to provide support (eg, to clarify terms, numbers, names or to monitor for any potential or actual misunderstandings). The sign language interpreting literature has identified that working in teams is an effective approach to ensuring accuracy, consistency and participation from deaf consumers,⁹³ especially in challenging contexts (such as court).

87. R v Gordon Charles McCreath.

88. R v Gordon Charles McCreath, 1-3.5.

89. R v Gordon Charles McCreath, 20-23 and 40-43.

90. As discussed by Brennan and Brown, 1997; Brennan, 2001.

91. Brennan and Brown, 1997.

92. Maroney and Singer, 1996; J Napier, 1998.

93. Cokely and Hawkins, 2003; Fischer, 1993; Henley and Vale, 2005; Mitchell, 2002; J Napier, Carmichael, and Wiltshire, in press.