5 September 2018
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.
 
This case review is an extract from Expert Evidence: Recent Cases Edition 2.

 

About KordaMentha Forensic

At KordaMentha Forensic, we uncover, analyse and clarify facts at the centre of disputes, investigations and other sensitive matters. We have one of the largest teams of forensic investigators, forensic accountants and forensic technology specialists in Asia-Pacific. Our experts are regularly called on to provide evidence in high-profile disputes and investigations.