LEGAL T&I
Chinese–English T/I Victor Xu has recently been engaged to provide language services for a number of family law matters, ranging from child custody cases to domestic violence orders. He reflects here on the processes involved in sight translating affidavits, and translating digital communications for use as evidence in such cases.
The technicality involved, in these instances, is not only the legal jargon …
According to the Recommended National Standards for Working with Interpreters in Courts and Tribunals, an affidavit prepared for a CALD (culturally and linguistically diverse) party to a legal case should be sight translated to them by an interpreter before they sign it.
Sight translation is a hybrid of translation and interpreting: I read written information and reproduce it orally in the target language. I sight translate the draft affidavit – usually in the offices of a law firm – to the firm’s client who speaks limited or no English, to make sure that it is an accurate rendition of the client’s side of the story before the lawyers submit it to the court.
In several recent cases, when I sight translated the document back to the CALD client, they said that it didn’t reflect the facts as they had expressed them, or was logically or factually incorrect. This is not strange, as they have usually prepared the draft affidavit with the assistance of family members or friends. When talking about what are often – for the client – unpleasant or upsetting incidents, their thoughts may have jumped from one scene to another, and they may have spoken of events in a muddled and/or emotional manner.
An affidavit, however, is written evidence presented in court and confirmed by oath or affirmation to be the truth, so it should contain details that are as specific as possible. It should only be concerned with things that the author has directly experienced, and must be written in the first person, that is, from the client’s point of view and in their voice. All events should be described briefly, so the judges, magistrates or lawyers reading the affidavit can gain a clear understanding of the events.
We understand ‘technical interpreting’ to involve technical concepts such as engineering specifications, details of clinical trials or scientific protocols. In the area of family law, there are technical concepts such as ‘interlocutory order’, ‘parental responsibility’ and ‘heads of agreement’. However, for the large part affidavits are descriptions of ordinary day-to-day events – what two or more people did or said to each other in some past situation.
The technicality involved, in these instances, is not only the legal jargon, but also ensuring corrections are made when the client disputes the contents of an account that they originally gave in a language other than English, and which was translated into English by an unqualified family member or friend.
For example, in one case, the client and her partner had maintained a joint bank account, but when their relationship deteriorated, her partner somehow managed to unilaterally change the account to a personal account, then deny her access. The draft affidavit said that her partner had previously ‘permitted me to use the account’ to pay for things, but when I orally translated this back, the client pointed out that as it was a joint account, both parties had had access, and no ‘permission’ had been required. I corrected the statement as she directed.
When practising sight translation, I exercise judgment regarding the best way to convey the original content and intent; at the same time, however, I adhere to the requirement of AUSIT’s Code of Ethics that a translator should preserve the ‘content and intent of the source message or text without omission or distortion’. I take care not to let my own judgment regarding the importance of certain words influence my translation, and not to leave out even seemingly irrelevant elements of the content. I am also careful not to express any opinions outside of the field of language.
In today’s legal landscape, a wide range of digital documents – such as instant messages exchanged through platforms like WeChat, Line, WhatsApp and Messenger – are used as evidence. They provide records of conversations, agreements, threats, admissions and other relevant pieces of information, and when the communications are in a language other than English, translation is needed.
For one case there was a great quantity of such evidence to be translated, so I asked a colleague to work with me. We decided that the most accurate way to translate digital evidence is to maintain its original format and display the original and translated pages side by side (rather than making translator’s notes), retaining every part of the message, including all visual content – such as expressive characters, emoticons, images and juxtaposition – as well as text.
Victor Xu is a Mandarin–English interpreter. Based in Canberra, he has lived and worked in China, Japan and Singapore, and has since gained over two decades of experience in interpreting – mainly legal, political and finance – for government and private organisations.
