Tuesday, November 01, 2011

What’s the word for ...?

Procedural fairness aims at facilitating substantive fairness. Sometimes procedural rights are so close to the right to a fair trial that there is no room to argue that notwithstanding breach of procedural fairness there was a fair trial. An argument along these lines was rejected in Abdula v R [2011] NZSC 130 (1 November 2011).

The Supreme Court in this case laid down procedural guidelines for the use of interpreters in trials in the future [60]. Those procedures had not been followed in this case. At [44] the Court said:

"The consequence of a breach of the right to the assistance of an interpreter under s 24(g) [of the New Zealand Bill of Rights Act 1990] is a breach of the right to a fair trial under s 25(a). We do not accept as correct the Crown's submission that, once a breach of the right to assistance of an interpreter is shown, the court must exercise a judgment as to whether the accused nevertheless had a fair trial. Rather, a properly established breach – the failure to meet the required standard – necessarily makes the trial unfair. In those circumstances, it is axiomatic that a substantial miscarriage of justice will have occurred. There can accordingly be no resort to the proviso under s 385(1) of the Crimes Act 1961.[Footnote: R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77]]"
In my view, this question of "failure to reach the required standard" marks the boundary between procedural unfairness and substantive unfairness. While the Court seems to be denying any distinction between the right to assistance of an interpreter and the right to a fair trial, it can only remove the distinction by employing the "required standard" concept. Really, the standard required of interpreters is that of avoiding trial unfairness.

Another interesting feature of this case is that the appellant has succeeded in establishing a rigorous procedure for future cases but not his own. The question for the Court then became, notwithstanding the departures in this case from the new standard was there any defect that resulted in an unfair trial here? The Court does here exactly what the Crown had "unsuccessfully" submitted it should do at [44] quoted above. But it does that by using the "required standard" analysis.

Failure of the appellant here was not surprising, because his counsel could not demonstrate any instance where failure of accurate interpretation impeded the conduct of the defence at trial [59]. Of course it would be difficult for counsel to do that here, as the words used by the interpreter were not known. On the facts, however, the defendant had at trial expressed no concern over the adequacy of the interpretation – but then, how could he know what was adequate?

In appeals like this (rape) there might be a public perception that the Court would do everything it could to avoid a retrial. Fortunately for the public perception of the administration of justice there seems to be sufficiently careful scrutiny of the circumstances in this judgment to put such concerns to rest.