Court Observation at Parramatta Local Court - 14/09/2022

The last time that I took my students to the court for observation was in July 2019. I haven’t been able to take my students to the court in the last 3 years because the courts had been closed to the public due to COVID-related restrictions. In early July 2022, the Local Court announced that all restrictions had been lifted, so I quickly sent an email to the students in my Legal Interpreting tutorial last semester inviting them to come to the court with me to observe the court in action.

I’ve had to control the size of the group as social distancing is still very much on the minds of magistrates. There were 10 people in today’s group, 11 including myself; any more people would have been really pushing it. Though it’s been three years since the last group, it felt as though I was only there with the last cohort of my students yesterday!

It wasn’t just that I hadn’t brought any students to the court for three years, it seemed that magistrates had also not seen any students and members of the public there in their courtrooms for three years. So I’m pleased to say that two of the magistrates today took the time to greet us, they warmly welcomed us. One of the magistrates asked which university we were from, I said to the magistrate that we weren’t law students, that we were in fact Legal Interpreting students. The magistrate said in reply, “Ah, interpreters! Interpreters are very important, they’re sometimes not very easy to find. We really need interpreters to help keep the courts running!”

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It is my practice that every time I take students to do court observations, I would go home and write up a digest of the matters that we observed in court that day. I’d write it up and send it to the students to help them review and make the most out of the visit, and I’d also post it on my Zhihu account. Here is the summary of the matters that we observed today:

In Courtroom 1.1 at Parramatta Local Court, the first matter we heard was an appearance for case management. The prosecutor sought an 7-week adjournment, during which time the prosecution would file a “charge certificate” with the court and would serve that charge certificate to the accused. Charge Certification is a process where the prosecution formally advises both the court and the accused what charges would be levelled against them. Once the defence solicitor receives the charge certificate, they would conference with the prosecution to discuss how they would plead to each of the charges, i.e. pleading Guilty or Not Guilty.

The solicitor said to the magistrate that his client was on remand, and that on the last occasion the magistrate advised that his client would not be required either in person or via AVL (audio-visual linkup), that’s why the accused was not in court.

Charge Certification as far as I know is unique to NSW. If you’re interested in knowing more about it, click here: Changes to Committal Proceedings (NSW)

 

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The second matter was quite interesting. The female lawyer announced her appearance as being surnamed “Sant” (This will be relevant later). Her client was charged with one sequence of High Range PCA (PCA stands for Prescribed Concentration of Alcohol), this is a Driving While Under the Influence charge (colloquially known as DUI), as well as one sequence of Negligent Driving.

One day, the defendant drank one litre of whiskey and drove home. He had a minor collision on the way home, the traffic incident was very minor, no one was injured, and no property was damaged. Because of the fact that he had driven while intoxicated, AND that he had caused a collision, he was charged with both charges, not just for drink-driving.

The solicitor in asking for leniency for her client made the following submissions to the magistrate:

1. Firstly, she said to the magistrate that the client had completed the Traffic Offenders’ Program yesterday. Although they hadn’t received the formal certificate of completion, she was in possession of a preliminary written proof of it. She showed it to the prosecutor, who had no objection to it being tendered; the written documentation was thus tendered to the magistrate for consideration.
2. The defendant did not flee the scene of the incident. Rather he waited patiently for the police to arrive, and as soon as the police arrived, he made full admission to the police that he had consumed one litre of whiskey. He was cooperative with the police, he complied and did the breathalyser test as directed by the police.
3. Whilst a collision did occur, it was very very minor, causing no injury or damage. Had he crashed his car causing significant injuries to a person or extensive damage to property, that would have been a different matter all together; however, the circumstances were that no such harm resulted.
4. The defendant was charged with both drink-driving and negligent driving. Given that both charges resulted from the same incident, the magistrate was asked to take that fact into account in sentencing the defendant, having regard to the totality of the offending despite there being two sequences.
5. The defendant was aware that High Range PCA was a serious offence that could land him in prison. Having attended the Traffic Offenders’ Program also instilled in him the sense of seriousness as well as causing him to show genuine contrition.
6. The defendant drank heavily because something was bothering him, he became depressed and anxious over it; depression and anxiety was the root-cause of him consuming 1 litre of whiskey. Prior to this incident, he had not had any record of drink-driving or dangerous driving. In that sense, the “use of a mobile phone while driving” record notwithstanding, he should be recorded as a first-time offender for drink-driving. The solicitor also tendered a letter from the defendant’s family doctor showing that he has been actively seeking treatment for depression and anxiety since the incident. The defendant had also promised to continue with his treatment regime. (The magistrate was very pleased about him seeking professional help to deal with his depression and anxiety issues)
7. The defendant was an owner of two businesses, being two seafood markets (a fishmonger). Since the incidence in May this year when his driver’s licence was confiscated by the police on the spot, he had been asking his friends to drive him to the fish market at 4AM every morning to buy stock for his shops. This inconvenience has also served as a form of punishment for the defendant, the solicitor asked that the magistrate took that into account in sentencing.
8. By law, once the defendant gets his licence back following a High Range PCA conviction, he would need to have an interlock device fitted on his car for 2 years. The inconvenience and the significant cost of fitting an interlock device would also be a form of punishment.

In view of these circumstances, the solicitor asked the magistrate to make a Community Corrections Order instead of handing down a full-time custodial sentence, and that she requested the magistrate to exercise his discretion to alter the automatic disqualification period from 3 years to a shorter period of time, since he needs his driver’s licence for work.

Having heard the solicitor’s submissions, the magistrate turned to the defendant to give him a serious reprimand, but in the end the magistrate decided not to send him to prison because (1) he had pleaded guilty immediately and had shown remorse; (2) he had no prior drink-driving record; (3) the collision did not cause any actual harm or damage. The magistrate however noted that it was important to send a message to the community to show that drink-driving, particularly High Range PCA, was no small matter! His Honour therefore handed down a fine of $1,800 and a licence disqualification period of 9 months for the first sequence. As for the second sequence of Negligent Driving, the magistrate found the offence proven, and that a conviction was to be recorded. But since the same set of facts applied, no additional penalty was handed down for the second sequence.

 

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The next matter was of a self-represented client. He had been out on bail, and one of his bail conditions was a curfew: he was to be home during the hours of 9AM and 6AM of the following day. He was found loitering on the street by police at 11:55PM one night, and so he was appearing today for have breached his bail condition (the curfew).

The excuse he gave the magistrate was that he had parked his car on a nearby street, he was concerned that there was something wrong with his car, and that maybe he wouldn’t be able to drive to work the following morning, so he decided to walk over to check on his car.

The magistrate rejected his excuse as not valid at all. But since loitering outside during the curfew caused no actual harm, the breach was considered minor in nature, the magistrate decided on this occasion that he would cut the defendant some slack and still let him remain out on bail. The magistrate however warned that he would clearly write on the defendant's file: “Any further breach will result in bail being revoked!”.

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The next matter was a Chinese gentleman, Mr Law. This man was a business owner, he had a shop at the local shopping center. Mr Law said to the magistrate right away in his Cantonese accented English “It’s my fault!”.

After reading the fact sheet, the magistrate began talking to Mr Law about what had happened on the day of the incident. And it was this conversation that allowed us observing the proceeding in the public gallery to get a glimpse of what had happened. When a Mr X was exiting the defendant’s shop, the defendant saw a bulge in Mr X’s pocket. He being the shop owner decided to stop Mr X and asked to inspect the bag. Mr X refused to have his bag inspected, so the defendant called the shopping centre security to the shop. He waited for a while, the security guard did not show up, and Mr X tried to leave the shop, so in that heat of the moment, the defendant pushed Mr X, who fell and knocked over a shelf as he fell. When the security guards and the police finally arrive, it turned out that the defendant was mistaken, that Mr X had in fact not stolen anything.

The magistrate mentioned that the police in the fact sheet noted that as soon as they arrived, Mr Law the defendant was “extremely apologetic”. He made an open, full and frank admission of his own wrongdoing, and he reiterated that Mr X was not to blame. The magistrate said Mr Law should have left things to the security guards, that’s what they were there for. Whatever happened, the defendant should not have assaulted Mr X. However, the magistrate also pointed out that since it was a condition of entry to the shop that all bags be presented for inspection when asked, Mr X refused to have his bag inspected, so he was also not doing the right thing either.

The magistrate took into account the fact that Mr Law the defendant was extremely remorseful right from the beginning, the fact that Mr X was also not doing the right thing, and finally that Mr X sustained no injury as a result of the assault. In the end, the magistrate exercised the discretion granted to him by virtue of Section 10(1)(a) of the Crimes (Sentencing Procedure) Act of 1999 and dismissed the charge. Mr Law was free to go home, no conviction was recorded. A wonderful outcome indeed!

 

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In the next matter, the solicitor announced his appearance as “Sant”. The magistrate said “I just had a Ms Sant appearing before me this morning. Was that your wife?” Mr Sant said, “Yes, Your Honour!”. Haha what an incredible morning, within in short period or less than an hour, we got to witness a husband-and-wife solicitor team in action this morning!

The male solicitor Mr Sant’s defendant was a serial offender of Driving while licence suspended. He was appearing in count today facing two charges of driving while suspended, he had driven on two separate days and was caught by the police on both days, thus two charges. It turned out that when he was pulled over for the driving offence, he had been on a Conditional Release Order for a previous conviction of driving while suspended!! Now, he was facing two fresh charges, as well as the old charge being brought before the magistrate again for re-sentencing!

His solicitor Mr Sant asked for some more time so he could familiarise himself with the charge from the last occasion. He was granted some additional time for it.

 

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The last matter we heard was a chronic alcoholic assaulting a wheelchair-bound man. The female Legal Aid solicitor representing this man did a pretty good job. It was clear that the defendant was guilty, and being an unemployed alcoholic who had assaulted a wheelchair-bound man, not much could be said on his behalf, and the magistrate was probably not going to be sympathetic towards him. Nevertheless, this solicitor from Legal Aid still managed to say something positive for her client! She made the following submissions:

1. The defendant was dead drunk, he had no memory of the assault. However, having watched the CCTV produced by the prosecution, he admitted that it was him, and he pleaded Guilty to the charge. He also expressed his apology to the magistrate, noting that he felt embarrassed by his action.
2. The CCTV footage only captured the beginning of the scuffle, but clearly he was the one who initiated it. The solicitor acknowledged there was no defence available to the defendant (it wasn’t self-defence or anything like that).
3. The defendant admitted that he was a chronic alcoholic. He had been sober for 5 days as of this morning. The only period of time that he had stayed sober was 7.5 years, but sadly he fell off the wagon, and he’d been on and off like that for many years, unable to shake off the vice for good. The solicitor said that despite being a chronic alcoholic, prior to this incident, he had never allowed his drinking to become a problem for anyone else; intoxication had always been a bad habit of his, but he had never acted violently towards anyone else before when he was drunk. (Interestingly, the magistrate called the man who was assaulted “the co-accused”, that suggested to me that this so-called victim was not quite the victim as one might believe).
4. The defendant was unemployed and he was a government benefit recipient, receiving $420 a week. The solicitor therefore asked that the magistrate take into account his limited financial means if a fine was being contemplated.

In handing down his sentence, the magistrate said, (1) while the charge he was facing was Common Assault (the lowest level of assault charges, this charge means the victim sustained no injury), the fact that he punched a person in the face rather than some other part of the body meant that its objective level of seriousness was at the higher end of Common Assault; (2) his criminal record didn’t help him. His criminal record wasn’t lengthy, particularly when consideration was given to violent offences, there was only an assault in 2006 and another assault in 2015. (3) Although he was a chronic alcoholic, he had not been in trouble with the law for 6 years since his last offending in 2015, therefore the magistrate felt that the Section 5 threshold had not been crossed, it was not necessary to send him to prison. The sentence handed down in the end was an 18-month Community Corrections Order with supervision, and a $500 fine. (It looks like that solicitor’s submissions were quite effective and were very well received by the magistrate!)

 

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We finished on a civil matter. The plaintiff engaged a barrister, and the defendant had only engaged a solicitor. The barrister appeared via audiovisual linkup possibly because he was a close contact or he himself was recovering from COVID-19. He was however prepared to conduct the hearing via AVL. The defendant however, through his solicitor, handed up a medical certificate to say that he was suffering from an infection of the upper respiratory tract, and that he was on his way to get a PCR test for COVID-19, therefore he could not appear in court today. In light of the medical evidence produced, the magistrate had no choice but to adjourn the matter.

We heard in court today many terms and expression that we covered in class: High Range PCA, Negligent Driving, fact sheet, a minor collision, Traffic Offenders’ Program, tender documents, bail conditions, breach of bail, curfew, threshold, disqualification, good behaviour bond, CRO (Conditional Release Order), CCO (Community Corrections Order), plead “Guilty” at the first available opportunity, remorseful, to seek an adjournment, co-accused, in terms of the objective seriousness of the offence.

What a fun day it’s been for me! I hope the students also found the experience a valuable one, and my recap of the matters today in two languages helpful.

 

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

 

Click here to read this post in Chinese: 2022年9月14日 Parramatta 法院旁听案情回顾（中英对照）

Victim Impact Statement and Court Interpreting

I attended the sentencing hearing of a murder trial in the NSW Supreme Court in 2017.  The accused had been found guilty, and the hearing that day was for sentencing.  I sat in the dock next to the murderer (no longer just a suspect, because he’d been found guilty already) and did chuchotage or whisper interpreting for the client throughout the hearing. The accused person was very courteous to me throughout. Even though I was sitting next to a convicted murderer, i wasn’t scared.

It was the second court interpreting assignment I’d done for a homicide matter. I had nothing but tremendous sorrow for this accused person, for the immensely grief-stricken mother of the victim, and also for the father of the victim who was trying very hard, but not very successfully at all, to hold it in and to put on a brave face.

The judge said in sentencing, “There are no winners.”  This matter is a great tragedy for both families, i.e. the family of the victim and of the offender.

The victim’s mother, with the support of a victim support staff, read out a “victim impact statement” that she’d prepared beforehand. It was read out to the court through a court interpreter that’d been booked for the victim’s family (I was booked for the accused).  The Victim Impact Statement served as an outlet for the mother, so that her cry for justice and her deep sorrow would be heard. Her heartfelt expressions touched everyone in the courtroom.

Her interpreter was absolutely marvelous, handling the task with the upmost level of professionalism. I was glad that it wasn’t me, because I had a lump in my throat from just listening to the mother making her statement. It would have been an incredibly difficult job for any interpreter, especially for someone who is easily moved to tears and who gets overcome with emotions in open court.

In serious indictable matters, once an accused is found guilty, the judge will need to take into account a whole raft of factors in determining the appropriate sentence. The judge’s task is to exercise their discretion in working out  an appropriate sentence in the circumstances, bringing to bear their wealth of experience as a jurist. One such factor that the law says judges must take into account is the impact that the offending has had on the victim and the victim’s family.

Victim Impact Statement is a reflection of humanity in the legal system. It offers the victim and their family an opportunity to express their pain, knowing that they will be heard by the judge. It offers an emotional catharsis to the victim and their family, allowing them to take comfort in the knowledge that their grief and sorrow have not gone unnoticed, and that their feelings and voices will become a permanent part of the court’s official record.

Click here to read this post in Chinese: 刑事案件法庭口译与 "受害者影响陈述书" Victim Impact Statement

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

Joint Criminal Enterprise and the movie Burn by Legal Aid NSW

http://www.burn-movie.com.au/

For some years I’ve been using the movie Burn, a movie production commissioned by Legal Aid NSW, in my Legal Interpreting class at Western Sydney University. It has proven to be an invaluable aid in helping students understand the arrest process from a suspect’s point of view, from the initial police arrest to the final charging of an offense.

Legal Aid NSW originally produced the movie to highlight the need for young people to not be mixed up in the wrong crowd, because bad associates can easily get you into legal hot waters through what’s called Joint Criminal Enterprise (JCE).

Since I don’t specifically talk about JCE when I use the movie in my class, I thought I’d talk about it here and send this link to my students so they can read about JCE, that way I also honor the original purpose of this movie as intended by its producers.

Joint Criminal Enterprise, (‘enterprise’ in the sense of an endeavour), is where a group of people explicitly or implicitly agree to jointly engage in a criminal activity, and it’s reasonably foreseeable that some outcome may occur during the commission of that offence. All members of the JCE can be charged with the same offence even if a member did not physically carry out a particular act (in the movie, Tee did not stab the victim, but he was charged with murder just the same).

For example, 4 people decide to gang up on a victim to beat him up. During the beating, someone kicked the victim in the head causing his head to hit the hard floor. Bleeding in the brain followed, then soon after the victim died.

When arrested, all 4 suspects denied kicking the victim in the head, all said that they punched the victim in the arm and shoulder only, avoiding all vital organs, blah blah...😝  You can see that it then becomes almost impossible for the prosecution to prove, beyond reasonable doubt, that the fatal kick came from one particular person.  If there was no doctrine of JCE, it would mean that all 4 suspects would probably walk free.

Therefore, one way that the legal doctrine of JCE works is to prevent people who commit a crime in a group from trying to blame other group members so as to generate reasonable doubt for themselves.

If a person realises that his friends are about to rob someone or beat someone up, this person decisively walks away and says “I want to be no part of this!”  then the person will not be considered part of the JCE.  If he stood by and did nothing while others went off to commit the crime, that would be okay too.  However, as soon as the person becomes aware that a crime is about to occur, and that person *knowingly* takes action to join in (e.g. help out somehow, like go and look for a stick to give it to another group member or something), the person then runs the risk of being considered as part of the JCE.  

The argument for having JCE is firstly, in the case of my example of a fatal kick to the head, the prosecution will likely not be able to prove beyond reasonable doubt that it was Member #4 and not Members #1-3 that was responsible for the fatal kick.  With JCE, the prosecution need not prove beyond reasonable doubt which particular group member was responsible for which specific kick.

Secondly, from a moral culpability point of view, if a person at the critical point in time of when a crime is about to go down says “I want no part of this” and walks away, the other members may decide not to go ahead with the criminal activity. Likewise, the other members might be making up their mind about whether to commit a crime or not, and when they see you jumping in to help, this may firm up their determination to put their criminal desire into action.

So the morale of Burn is to walk away immediately when you realise your friends are up to no good. Don’t be afraid that your friends might be offended by you leaving, because the alternative is possibly you facing criminal liability for their criminal act, and nobody wants that!

Disclaimer: I'm not a lawyer, this is just my own babble and should in no way be considered legal advice. Do not get legal advice from some random blog 😅!

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

I got a mention in the AUSIT newsletter for passing the CSLI test!

The Australia Institution of Translators and Interpreters (AUSIT) sent out the May newsletter this morning, and I got a mention!

They included a congratulatory message to the two AUSIT members who were among the first cohort that passed the Certified Specialist Legal Interpreter (CSLI): me and Silvia Martinez. 🎉🎉

Silvia Martinez and I are both alumni of the Interpreting and Translation program at Western Sydney University 😃😃

Silvia worked as a tutor for the Spanish interpreting stream at Western Sydney University for a couple of years, I had the privilege of working alongside her as colleagues. She now runs her own Interpreting and Translation agency, she does a lot of legal interpreting work and conference interpreting jobs, among others!  We still bump into each other at courts sometimes 🙌

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

illegal vs. unlawful (vs. banned, illicit, proscribed...) What's the difference?

 

How many words are there in English to describe something that is disallowed by law???

You know how urban legend has it that Eskimos have something like 20+ words for snow❄️❄️❄️... Well, I reckon we have a similar situation when it comes to words in English that describe something as being disallowed by law.

So exactly how many word are there in English, seeing that the notion of "rule of law" is so central to the English-speaking common law sphere?  Although I don't have the answer to that question, I thought I'd share with you the following synonyms and how I have worked out over the years they differ in meaning and usage:

1. illegal
2. unlawful
3. illicit
4. illegitimate
5. outlawed
6. banned
7. proscribed

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If you look up these words in a bilingual dictionary (e.g. English-Chinese dictionaries), there's a very good chance that the dictionary will simply tell you that they all mean "disallowed by law" (e.g. 违法的 in Chinese). If that's the case, the dictionary isn't of much help to you in working out how they differ in meaning and usage.

If you look them up in monolingual dictionaries though, i.e. English-English dictionaries, you'll likely get definitions that are more nuanced, thereby offering you more insights into how they are to be differentiated.

 

illegal - forbidden by law

unlawful - not permitted by law

These two terms are probably closest among the 7 to being exact synonyms to each other, in most cases they are interchangeable. However, there are still nuanced semantic differences.

illegal is when something is expressly forbidden by law, whereas unlawful is when something is not authorised or permitted by law.

And that's why both murder and manslaughter are described in criminal law textbooks as being "unlawful killings".  Interestingly, the expression unlawful killing necessarily implies that there would be circumstances in which killings would be lawful (!)   Yes, that's right.  They include things like a death-penalty states executing a prisoner on death row, or where killing occurs during war time where all international laws on rules of engagement, etc. are properly adhered to.

My Black's Law Dictionary (6th edition) also offers unlawful in terms of "without excuse or justification".

Expressions with other collocates such as "unlawful discrimination" also help us to see this shade of meaning; it means that certain forms of discrimination are actually okay (and lawful!).  For example, a job advertisement of a women's lingerie store for a sales assistant can openly state that only female applicants should apply, as the circumstances are such that discrimination against men in this case is considered justified.

In contract law, contracts over illegal acts are invalid (e.g. contracting a hit man to kill a rival... if the hit man takes your money and changes his mind, you cannot sue him for breach of contract, because the contract is invalid to begin with).  If however the contract is over something such as ghostwriting in academia (research A writes a paper for researcher B for a fee), which isn't necessarily illegal (actively forbidden by law where breaches would attract legal sanctions) but it may be considered contrary to public policy and therefore not a lawful consideration (not permitted by law) to sustain the contract's validity. (This nuanced difference is given by English-Chinese Dictionary of Anglo-American Law 《元照英美法词典》)

illicit - forbidden by law, morals or accepted norms.

Illicit is seldom used nowadays, at least I don't see it used much at all.  My intuition of illicit is that rather than "disallowed by law", this term has evolved to carry more of a moral condemnation than strictly about something that is in breach of the law.

The two collocates that I've ever seen with illicit are illicit drugs and illicit sex.

The English word drug is ambiguous between medicinal (desirable) and addictive (undesirable). The adjective illicit helps to qualify and narrow the meaning of it to refer to the undesirable type (which in many jurisdictions also happen to be disallowed by law).  Likewise, illicit sex carries with more or a moral condemnation than any reference to the act being somehow criminal.

 

illegitimate - not in accordance with what is accepted, not justified.

Although illegitimate in the context of "an illegitimate child" had legal implications in the olden days, the term illegitimate or illegitimacy these days don't usually carry the sense of "not legally authorised" anymore.  In the olden days, a child born out of wedlock (thus illegitimate) could potentially have legal ramifications in terms of succession law and the person's capacity and right to inheritance. However those laws (at least in Australia) have been done away with for quite a long time now.

These days, when people talk about something being legitimate (or colloquially, whether something is 'legit'), they mean whether something is genuine and justified. For example, being COVID-postive is a legitimate reason for not going to work, whereas wanting to sleep in on Monday morning isn't.

 

outlawed - being made illegal, banned by law.

The word outlawed focuses on the fact that a item or an practice is/was specifically made illegal, rather than the current status of the item or the practice being illegal. Thus the word "outlawed" is often mentioned in the same breath as the legal authority that caused it to become illegal (e.g. Tear gas has been outlawed as a method of warfare on the battlefield by almost every country in the world.)

banned - being disallowed by law or other rules.

The word banned is often used in the sense of outlawed, but it can also be used in the connection with disallowed by something other than law, such as being banned by a sports governing body e.g. Australian swimmer Shayna Jack has been banned for two years for a doping violation.

proscribed - banned, forbidden, disallowed

The word proscribed has come come up in media reports of late in the context of proscribed groups or designated terrorist organisations which the law forbids. I get the sense that "proscribed" is like "banned", except that "proscribed" is of a much higher register, it is much more formal than "banned".

 

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

Click here to read this post in Chinese: illegal vs. unlawful vs. banned...“违法”的近义词分析❄️

The expression "I put it to you that..." during cross-examination (and police interviews)

Legal Interpreting students in Australia and New Zealand (and I'm sure in other common law jurisdictions) often come across the expression "I put it to you that..." when they go to court to observe the court in action.

What does this expression mean? 

How should one interpret this English expression into their LOTE (language other than English)?

 

This is a very intriguing expression😅, and you don't really come across it anywhere else outside of the legal context. A similar expression often used by police in conducing police interviews is that the police officer would say to a suspect "I suggest to you that...".

Lawyers (prosecutors and defence solicitors/barristers alike) when cross-examining a witness will often say to the witness "I put it to you that...". The ensuing "..." would usually be a version of the incident, a proposition, or an allegation of some sort, and the specific proposition being put by the lawyer to the witness would differ from that which was being advanced by the witness.

The lawyer may say to the witness something like:

"I put it to you that you only saw someone whose height was similar to my client, but you didn't actually see that person's face, therefore it was not possible for you to say with any degree of certainty that the person you saw was my client. What do you say to that?"

To work out how to interpret this expression into LOTE, one needs to firstly understand what the expression means and why lawyers would use this expression in cross-examinations. I would say that even seasoned court interpreters may not know the origin of this expression. Knowing the origin of this expression will help you to understand what it means, and to help you work out how to interpret it into your LOTE.  

It's story time! 😜😜

 

What is the origin of "I put it to you that..."

The origin of this formulaic expression I believe can be traced back to the English House of Lords judgment in the matter of Browne v. Dunn (1893) 6 R. 67, H.L.. which then gave rise to what is known as the Browne and Dunn rule for cross-examination. The entry in Wikipedia describes it as "an anti-ambush rule". It is an important rule for procedural fairness.

What is the Browne and Dunn rule? It's best explained by giving an example.

An eyewitness Mary, gives evidence in court that she saw a robber holding a knife, and she alleges that the robber was Peter, the accused person, now sitting in the dock.

Peter's barrister does not believe Mary saw the robber's face clearly on the day of the incident, so Mary could not have identified Peter as the robber, because the barrister somehow found out that Mary wore glasses, and yet Mary wasn't wearing glasses on the day the robbery occurred.

So at the closing address to the jury, the barrister plans to invite the jury to reject Mary's evidence.  The barrister wants to say to the jury that Mary chose not to wear her glasses that day, probably for cosmetic reasons, and so her identification of Peter as the robber cannot be trusted as reliable.

But what the barrister doesn't know is that Mary actually had undergone a vision correction surgery 6 months before the incident, that's why even though she used to wear glasses, she no longer needed them! So on the day of the incident, Mary and her 20/20 vision in fact had a perfect look at the robber, she was certain it was Peter.

Now, if the barrister wants to invite the jury to reject Mary's evidence because the barrister claims that Mary could not see properly without her glasses, then barrister must firstly put that proposition to Mary while Mary was on the witness stand, something like this:

"I put it to you that you could not have seen the face of the robber clearly because you weren't wearing your glasses. What do you say to that?"

Once this proposition (or suggestion) is put to Mary, Mary will then have an opportunity to respond to the proposition. Mary could seize this opportunity to explain to the jury about her vision correction surgery, and consequently she had no problem seeing the face of the robber, and that her identification of Peter as the robber was therefore credible.

But if the barrister had never put this proposition to Mary while she was on the witness stand, and the barrister had waited until Mary finished giving evidence, until Mary was no longer on the witness stand, before suddenly springing this proposition on the jury, well that would be unfair to Mary. Because by then Mary was no longer on the witness stand, she would have never been given an opportunity to defend herself, and so in that sense Mary and the side for which she was giving evidence would have been "ambushed" by the barrister.

So, the Browne and Dunn rule is a safeguard to procedural fairness, to be fair to the witness.   An allegation should firstly be "put" to the witness to allow him/her an opportunity to accept or deny the allegation.  Without first giving the witness an opportunity during cross-examination to provide a response to a particular point (i.e. without putting a particular suggestion to the witness), a lawyer will not be allowed to later on ask the judge or the jury to consider that particular point or proposition.

Likewise, towards the latter part of the police interview, the police will present what the police believe really happened to the suspect, often in the form of "I suggest to you that...", to allow the suspect to comment on such a suggestion.  The suspect may admit to the suggestion, or they may deny it (and perhaps in the course of denying it the suspect may end up giving more conflicting and inconsistent details!). Whatever the suspect choses to do (admit, deny, remain silent), at the very least s/he has been offered an opportunity to respond to the suggestion.

The Browne and Dunn rule is about being fair: being fair to the suspect, the witness and the accused person. 👍👍💥💥

Having read the example of Mary the witness above, if you now read the excerpt below taken from the judgment of Browne v Dunn (1893), I'm sure it'll make a lot of sense, and you also get to see the origin of the expression "I put it to you that...":

Justice Herschell wrote in the judgement:

"it seems ... absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case; but is essential to fair play and fair dealing with witnesses."

(The Browne v Dunn rule is an important common law rule, so much so that someone actually spent the time and expense to set up a dedicated website http://brownevdunn.com to host the full judgement of Browne v Dunn for the benefit of lawyers and law students!)

 

What does "I put it to you that..." mean?

So "I put it to you that..." and "I suggest to you that..." essentially are used to present a proposition to a witness (or to a suspect) to allow them an opportunity to respond to the proposition.

Can lawyers put any and all propositions to a witness?  My understanding is No, there are constraints to what a lawyer can put to the witness. A lawyer should have some good faith basis for putting forth a proposition.  So things like "I put it to you that your pet bird ate your homework" or some other absurd proposition that lacks any basis whatsoever should not be put to a witness.

In addition to the expression "I put it to you that...", we often hear lawyers challenging an account advanced by a witness by prefacing their challenge to the witness with a similar expression: "I think what really happened was that...", to indicate that (a) the lawyer disagrees with the witness' account, and that (b) the lawyer presents an alternative proposition to the witness for his/her response.

I hope this post helps legal interpreting students to understand the origin and meaning of this formulaic expression, and the closer examination of this expression above offers legal interpreting students some ideas about rendering it into your LOTE.

~~~2024.06.14 update~~~ 

A good example of a Browne v Dunn error in the news is the trial of Greg Lynn. Click here, here, and here to read about this trial. 

Scroll down to the subheading “Prosecutor breached “basic rule of fairness”: Judge" in the article. There, you'll see that the judge in giving directions to the jury basically chastised the prosecutor for having made Browne v Dunn errors. The judge said that when the accused Mr Greg Lynn took the stand, the prosecutor had breached the “basic rule of fairness” by not putting to Mr Lynn, during cross examination, the suggestion that the former pilot covered up the campers’ deaths because he believed he had murdered them. “Had [the prosecutor] asked Mr Lynn these questions [while Mr Lynn was on the witness stand], put these propositions to him, Mr Lynn may well have been able to respond in a powerful and convincing way,” the judge said.

“Therefore you must take into account that Mr Lynn was not given the opportunity by the prosecutor to respond to the imputation ... because of this breach of the basic rules of fairness, you may more readily reject the prosecution arguments and the inferences the prosecution wants you to draw.”

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

 

Click here to read this post in Chinese: 律师交叉诘问证人时说 "I put it to you that..." 中文怎么翻？