On 17 November 2022, the NZ Asian Lawyers Criminal Law Committee led by Karun Lakshman held a webinar with Marie Dyhrberg KC, on how to recognise or identify and deal with Culturally and Linguistically Diverse Clients (CALD) to ensure that they and their case is fully understood and properly dealt with and therefore their right to access to justice and to competent legal representation is not compromised.
Marie’s presentation drew upon actual decided cases where the issue had arisen. Marie commenced by making some general comments, based upon her own experience, about practices that could enhance the art of being an effective advocate in court. These comments were particularly helpful because they were generic in that they applied equally to all lawyers who appeared in court, whether in criminal law cases or other cases.
On the specific topic for the seminar, Marie gave an overview about the importance of the role of interpreters. If the client sought legal advice while he was under detention or arrest and before he made a statement or video interview, it was important to identify the client’s correct language and dialect and match that with an interpreter who also spoke that language and dialect – as far as possible. For example, even though many people in India speak Hindi, there are many different languages and within them hundreds of different dialects. Therefore, if a person who speaks some Hindi but whose mother tongue is Gujarati, is detained or arrested and given the caution and BORA rights, he may not fully and properly understand his rights if a Hindi speaking interpreter is used rather than a Gujarati speaking interpreter. Further the Hindi that is spoken in India is different from the Hindi that is spoken in other parts of the world such as Fiji. Therefore, if the interpreter speaks Fiji Hindi the Gujarati detainee will have even more difficulty understanding the interpretation.
If the client sought legal advice after he was charged, it was necessary to carefully examine any police statement or interview that the client gave through an interpreter, to ensure that the interpretation was correct.
Marie emphasised the need to make a pre-trial application to exclude any police statement or interview that was incorrectly interpreted and prejudiced the client’s defence.
Marie discussed the importance of identifying the issue of, and applying for, name suppression in the context of a client from a culture where publication of his name would have harsh effects on his family, including financial ruination. The necessary evidence must be provided to the court, and if that is done then the judge will normally grant name suppression.
Another issue for many immigrant clients is that the consequences of a conviction, even for a relatively minor offence, can destroy their and their family’s chance of obtaining residence in NZ. Therefore it was essential to seek advice at the outset, before a plea was entered, from an immigration lawyer about the complex and not infrequently- changing immigration laws and policies. Often it became necessary, upon a guilty plea or a guilty verdict following a trial, to apply for a discharge without conviction. The necessary evidence, including opinion evidence from the immigration lawyer, must be provided to the court and if that is done then the judge will normally grant a discharge without conviction.
Finally, Marie emphasised the importance of counsel being fearless in advocating for their client and in the conduct of their case, without of course breaching any of the rules of conduct or rules of court.
