MURRAY -v- FEAST [2023] WASC 273 (27 July 2023)

Judicial Council on Cultural Diversity, 'Recommended National Standards for Working with Interpreters in Courts and Tribunals' (March 2022)

Law Reform Commission, Recognition of Aboriginal Customary Laws (1986)

Hon Mildren J, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7

Sivak L et. al, '"Language Breathes Life" - Barngala Community Perspectives on the Wellbeing Impact of Reclaiming a Dormant Australian Aboriginal Language' (2019) 16(20) International Journal of Environmental Research and Public Health, 3918

Magistrate Syddall T, 'Aboriginals and the Courts I and II' (Presented as part of the Australian Institute of Criminology's Aboriginal Criminal Justice Workshop in September 1983

United Nations, State of the World's Indigenous Peoples (2009)

Hon Wood J, 'Cultural diversity: reflections on the role of the judge in ensuring a fair trial' (2021) Handbook for Judicial Officers 87

1. On 28 May 2021, after a two-day trial in the Magistrates Court at Karratha, the appellant, Mr Murray, was convicted of one charge of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA). Mr Murray was acquitted of one charge of threatening to unlawfully injure, contrary to s 338B(b) of the Criminal Code.[1] These reasons relate to Mr Murray's appeal against the conviction.
2. On 7 December 2021, the learned magistrate sentenced Mr Murray to 10 months' imprisonment, suspended for 12 months.[2] Due to some complexity associated with the issues raised by the appeal, by the time the matter was heard by me, Mr Murray had completed his sentence. The appeal may therefore be thought to be of lesser consequence. However, if the appeal succeeds, Mr Murray will be entitled to have his conviction quashed. In addition, Mr Murray's appeal raises important matters that have warranted careful consideration and elaboration in these reasons.

Background and the trial in the Magistrates Court

1. On the night of Saturday, 3 October and the early morning of Sunday, 4 October 2020, Mr Colin Harwood was the victim of a serious assault in his home in Millars Well, a suburb of Karratha. Mr Harwood was 70 years old at the time. As will be explained, he was quite severely beaten by a woman named Pamela. I shall refer in these reasons to her simply as 'Pamela' without intending any disrespect, because that is largely how she is identified in the transcript of the proceedings in the Magistrates Court. During the same incident, Mr Murray was alleged to have kicked Mr Harwood in the testicles. It was also alleged that Mr Murray's foot made contact with Mr Harwood's head while Mr Harwood lay on the floor in what was described as a kick or a brushing.
2. Mr Murray was charged with common assault under s 313(1)(a) of the Criminal Code. By reason of s 221, an offence is committed in circumstances of aggravation if the victim is aged 60 years or older. As Mr Harwood was 70 years old at the time of the commission of the offence, the offence was alleged to have been perpetrated in circumstances of aggravation.
3. The prosecution case in the Magistrates Court comprised the evidence of the victim Mr Harwood, as well as a Mr Robert Truarn who was a friend of the victim, First Constable Samuel Smith, Constable Don Justin, and Senior Constable Matthew Pink. There were a handful of exhibits tendered, including relevantly the bodycam footage captured by Constables Smith and Justin.
4. In broad terms, Mr Harwood gave evidence to the following effect. At about 4 or 5 o'clock in the afternoon of 3 October 2020 he was at home with Pamela, with whom he was in some form of relationship. Mr Harwood had been drinking beer. Mr Murray was with them. Mr Harwood did not know Mr Murray, and he told Pamela and Mr Murray that Mr Murray could not stay at the house and had to leave. Mr Murray did not leave. This led to an argument between Mr Harwood on the one hand, and Pamela and Mr Murray on the other. Mr Harwood then left and went to the house of Rob Truarn, a five‑minute walk away. At Rob's house, Mr Harwood had a beer with Rob and called the police to complain about Mr Murray's presence in his home. It appears by this time it was around 1.00 am on Sunday morning, 4 October 2020. The police said they would be another two hours. Mr Harwood did not wish to wait that long, so he returned home where he told Pamela and Mr Murray to leave and that the police were coming. An argument erupted, and Pamela assaulted Mr Harwood first with a slap and then by beating him on the head and other parts of his body with a metal broomstick. Mr Murray then kicked Mr Harwood in the testicles. As a result of the assault Mr Harwood was quite severely injured and hospitalised.
5. The accused elected to give evidence on his own behalf. He did so with the aid of an interpreter, Mr Donovan Jenkins. As will become apparent, the learned magistrate declined to receive information regarding Mr Jenkins' qualifications.[3] However it is uncontroversial that Mr Jenkins is accredited by the National Accreditation Authority for Translators and Interpreters. Mr Jenkins was present from the beginning of the trial to interpret the proceedings for Mr Murray, a matter to which I will return.
6. Mr Murray gave evidence that he is a Walmajarri man who grew up in Fitzroy Crossing in the Bayulu community. Mr Murray also gave evidence that he speaks mainly Walmajarri, but also Mardok, Manjaderra, and 'mixed languages'.[4]
7. In broad terms, Mr Murray's evidence was that he was out looking for a 'young fella' by the name of Chris but could not locate him (later in his evidence, Mr Murray said Chris was Pamela's son).[5] He then arrived at Mr Harwood's house. Mr Harwood was already on the ground, having been assaulted by Pamela and had 'blood all around him'.[6] In short, Mr Murray's version of events was that the whole assault had already taken place before he arrived at Mr Harwood's home, and he had nothing to do with it.
8. There were certain elements of Mr Murray's evidence that ultimately featured in the learned magistrate's assessment and reasoning and were the subject of emphasis in the submission on behalf of Mr Murray. I summarise these below.
9. Mr Murray gave evidence that when he arrived at Mr Harwood's house he sat down and did nothing, thinking Mr Harwood was asleep. Mr Murray said he was drunk at the time. His evidence was that the police arrived and 'picked him up for nothing'.[7] When asked how long he was sitting on the lounge, Mr Murray said 'maybe five or six minutes, something like that. A good while. A little bit. And then the policemen came'.[8]
10. Mr Murray denied kicking Mr Harwood in the testicles. When asked if he spoke with Pamela while at the house, Mr Murray said 'No, no. She went mad. She was going mad'.[9] When asked what she was doing to make him think she had gone mad, Mr Murray said he did not know as 'I had just come'.[10]
11. Mr Murray denied kicking Mr Harwood when he made his way out of the house at the request of the police. At the conclusion of Mr Murray's evidence in chief, the learned magistrate sought to clarify how long Mr Murray was at the house, sitting on the couch, before the police arrived. The following exchange then took place:[11]

HUGHES, MS: How long were you sitting on the lounge chair for?

MURRAY, MR: It was a little while.

INTERPRETER: A little while.

HIS HONOUR: So, when he was talking about five or - - -

INTERPRETER: But I don't know time.

HIS HONOUR: When he was talking about five or six minutes - I'm not going to hold him to five or six minutes because he also said a good while, was he talking about, you know, from when he first got there or was he talking about from when he got there, walked outside and then came back inside?

INTERPRETER: Around about.

HUGHES, MS: How long would you say you were at that old man's house in total that night?

MURRAY, MR: Five - five or six minutes (indistinct)

INTERPRETER: Five or six minutes or something like that.

HIS HONOUR: All right. Well, you see - - -

HUGHES, MS: Is that - - -

HIS HONOUR: - - - he's talking about the whole kit and caboodle then.

HUGHES, MS: Well, actually I think I asked that in a confusing way.

INTERPRETER: Because the doctor - - -

HIS HONOUR: That was okay.

INTERPRETER: - - - came after this was done.

MURRAY, MR: Policeman.

INTERPRETER: Policeman and that, the doctor came.

HUGHES, MS: I think because I said "at the house".

INTERPRETER: Policeman first and then the doctor.

HUGHES, MS: I should clarify inside. How long were you inside the house for?

INTERPRETER: I don't know. I don't know the time.

HUGHES, MS: Was it a little while or a long while?

INTERPRETER: A little while. A little while.

HIS HONOUR: A little while. And the other thing I wasn't too sure about. Did he see - he saw the old man on the floor and that's it? He only saw the old man on the floor?

HUGHES, MS: Did you see Pamela hitting the old man or is that just what you think happened?

MURRAY, MR: No. I never see.

INTERPRETER: No. I didn't see. I hadn't seen it. Negative. No.

1. In cross examination, Mr Murray said that when he got to the house, Pamela was sitting on the lounge chair and did not speak. Mr Murray was then asked to explain why he perceived Pamela was 'going mad' if she was silent. Mr Murray explained that Pamela was 'chucking things... plates and things'.[12] Mr Murray said that Pamela was doing that 'in the - around the kitchen'.[13] It was put to Mr Murray that his evidence of Pamela throwing plates in the kitchen was different from his evidence that she was sitting on the couch. Mr Murray then made reference to having walked out, then back inside, at which point Pamela was 'going mad'.[14]
2. Mr Murray then gave evidence that when he saw Mr Harwood was bleeding, he was frightened.[15]
3. Mr Murray repeated through his evidence that he was not at Mr Harwood's home earlier on Saturday and only arrived after Mr Harwood was already lying on the ground and bleeding. The cross examiner then challenged Mr Murray with an apparent inconsistency in his evidence. Mr Murray had said that he had not spoken to Mr Harwood but then said he had spoken to him 'a little bit'. Mr Murray explained that when he answered that he had spoken 'a little bit', he thought the question was about speaking to Pamela. He denied speaking to Mr Harwood at all.[16]

1. The learned magistrate gave his verdict accompanied by reasons given ex tempore. The salient points of the magistrate's reasons in convicting Mr Murray were as follows:

(a) The evidence largely boiled down to a contest between the competing versions of events given by Mr Harwood and Mr Murray;

(b) Mr Harwood's evidence was 'compelling in terms of an assessment of the honesty of the complainant';[17]

(c) Although his recollection of the events was not perfect, Mr Harwood was 'emphatically clear that [Mr Murray] at one point kicked him to the testicles';[18]

(d) It was clear that Mr Murray had some difficulty giving evidence due to a number of factors 'including that English was a second language for him' and there are always difficulties giving evidence through an interpreter. The magistrate said that he 'took those difficulties into account when making an assessment of the evidence of Mr Murray'.[19] The magistrate added that he gave particular leeway in assessing Mr Murray's evidence as he was 'from a culturally traditional background from Halls Creek';[20]

(e) The prosecution bore the burden of proof in displacing the presumption of innocence. The prosecution case needed to be assessed on its own merits even if the magistrate rejected the evidence of Mr Murray;

(f) Mr Harwood's evidence was emphatically clear. In contrast, the learned magistrate had concerns about the reliability of Mr Murray's evidence.

1. The magistrate gave several reasons for that concern, which related to the features of Mr Murray's evidence that are summarised above.
2. First, the magistrate observed that Mr Murray's evidence was that when he arrived at the house, he thought Mr Harwood was asleep on the floor. That evidence did not sit well with Mr Murray's evidence that shortly afterward he observed Pamela to be going crazy throwing plates from the kitchen. In that context the magistrate also referred to Mr Murray's evidence that Pamela didn't say anything. The magistrate appeared to be saying that it was difficult to reconcile various aspects of Mr Murray's evidence; evidence that within a short time Mr Murray observed Mr Harwood on the floor and thought he was asleep; Pamela was going crazy and at one point was throwing objects from the kitchen; and Pamela did not say anything. Presumably, the magistrate was also troubled by the suggestion that upon or shortly after Mr Murray's arrival Pamela was going crazy with Mr Harwood motionless on the floor and yet Pamela did not say anything.
3. Secondly, the magistrate referred to the discrepancy between Mr Murray's evidence that he was at the house for a little while, and Mr Harwood's evidence that Mr Murray was there for a long time and was there before Mr Harwood left to go to his friend Rob's house, which was some two hours before Mr Harwood returned to the house. The magistrate characterised the difference between the time duration of the competing versions as 'chalk and cheese'.[21] Although the magistrate said (twice) that he would not hold Mr Murray to his evidence of five to six minutes, Mr Murray's evidence was necessarily inconsistent with Mr Harwood's evidence of the duration of Mr Murray's stay at his house. In that context, the magistrate observed that Mr Harwood's evidence had 'an aspect of credibility to it'; it was a clear account, and it was clear something had upset him and caused him to go to Rob's house and call the police.
4. Thirdly, the learned magistrate observed that Mr Murray's account that he simply assumed Mr Harwood was asleep stretched credulity in circumstances where Mr Harwood was lying in the middle of the floor and obviously bleeding. It was also difficult to accept that in those circumstances Mr Murray, while claiming to be frightened, simply sat down, got up and came back in again, and did not speak to anyone.
5. Finally, the magistrate added that Mr Murray's evidence that he did not speak to anyone was later contradicted by his evidence that he spoke to Mr Harwood 'in English for a little bit'. The magistrate did not accept as plausible Mr Murray's explanation for that contradiction that he thought the question was directed to whether he spoke to Pamela, not Mr Harwood.
6. The magistrate expressly disavowed founding his conclusion solely on his views as to the unreliability of Mr Murray's evidence. He accepted Mr Harwood's evidence as forthright, honest, plausible and convincing.
7. Having convicted Mr Murray of the assault charge for kicking Mr Harwood in the groin and kicking or brushing his head with his foot on his way out of the house, the learned magistrate deferred sentencing for the purpose of obtaining a pre-sentence report.

1. Broadly speaking, the appeal relates to the way the magistrate dealt with Mr Murray's language and socio-linguistic difficulties in giving evidence. The appeal primarily concerns what occurred at the commencement of Mr Murray's evidence when his counsel, Ms Hughes, began to elicit his testimony in examination in chief. Before setting out the grounds of appeal, it is convenient to reproduce the extract of the transcript which forms the central plank of the appellant's complaint. As noted, this occurred at the beginning of Mr Murray's evidence:[22]

HUGHES, MS: Thank you. We're at court today to talk about the old man that you saw yesterday in court. Can you please tell the court your story about that?

MURRAY, MR: Yes.

INTERPRETER: Yes.

HUGHES, MS: Please tell the story.

MURRAY, MR: Well, the first part - - -

INTERPRETER: Well, in the first part, the beginning - - -

MURRAY, MR: --- I walk from the other house - other street. I walk (indistinct)

INTERPRETER: I walked from the other house in the street ---

MURRAY, MR: (indistinct) that old man ---

HIS HONOUR: That's okay. If it's in English, that's all right. We can just hear him.

MURRAY, MR: That old man ---

HUGHES, MS: Sorry, your Honour. I ---

INTERPRETER: Sorry, your Honour. May I clarify one thing? He's not talking in English. He's talking Aboriginal English and Creole.

HIS HONOUR: Yes. But he's talking English. We could hear him. I heard what he said.

MURRAY, MR: Creole.

INTERPRETER: Yes, but ---

HIS HONOUR: So, if it's a - if he gives a sentence, and it's in English, when it's also Creole, then we don't - we just don't need it interpreted.

INTERPRETER: Sure.

HUGHES, MS: Your Honour ---

INTERPRETER: But I'm required to interpret everything, your Honour, and if he ---

HIS HONOUR: No. You're required to interpret what I ask you to interpret. If he gives a sentence in English, I just don't need you to say it again.

INTERPRETER: Yes. But he's giving a sentence in Aboriginal ---

HIS HONOUR: No, no. I've made my ruling.

INTERPRETER: Sure.

HIS HONOUR: If he says it in English, I don't need to hear it twice.

INTERPRETER: Sure.

HUGHES, MS: With respect, your Honour, if I could just make a quick submission, my understanding is that a word in Creole, whilst it might sound like English, could actually have a different ---

HIS HONOUR: I don't need to hear this. If he says it in English, then I don't need to hear it twice. Because what we have by way of interpretation was the same sentence. So let's just say it means something else in Creole, he just said the same words twice. I don't need any further submissions. If you want to tell us something in English, I don't need someone else telling me what he said. But you say it in whatever language you want. Right. Use whatever language you want, but, if you do use a sentence that's in English, then I can understand what you're saying because I happen to speak English.

1. A further version of the transcript is set out below. It is not the official transcript published by the court. Rather, it is based on a reconstructed transcript produced by an expert procured by the appellant (edited and formatted for legibility). The background to the expert's reconstruction of the transcript will be explained below. It suffices to observe at this point that it was agreed by counsel for both parties that the expert's reconstructed transcript was accurate and helpful. The square brackets indicate where two speakers are speaking over each other and are taken from the transcript prepared by the expert. Mr Murray's direct speech as transcribed phonetically by the expert appears in black. For contrast, his evidence as transcribed in the original Magistrates Court transcript appears in red:

HUGHES, MS: we're at court today, to talk about, the old man, that you saw yesterday? [in court?]

INTERPRETER: [Interpreting/Speaking Walmajarri]

HUGHES, MS: [can you pl-]

INTERPRETER: [Interpreting/Speaking Walmajarri]

HUGHES, MS: can you please tell, the court [your story, about that?]

INTERPRETER: [Interpreting/Speaking Walmajarri]

MURRAY, MR: yep / Yes.

INTERPRETER: ... yeah / Yes.

HUGHES, MS: please tell the story.

INTERPRETER: [Interpreting/Speaking Walmajarri]

MURRAY, MR: wul du firs pard, / Well, the first part ---

INTERPRETER: well, in the fi- f- in the first part, in the beginning

MURRAY, MR: ie bin worg brom det uthu hous, uthu street. Ie worg deye lu dat hous iebin fiendim, / --- I walk from the other house - other street. I walk (indistinct)

INTERPRETER: I walk from the other house [in the street]

MURRAY, MR: [fiendim det oalman] / (indistinct) that old man ---

HIS HONOUR: [That]s ok, if it's] in English that's all right. We can just hear him

MURRAY, MR: det oalman, [um] / That old man ---

HUGHES, MS: [sorry your honour, I th- ]

INTERPRETER: sorry your honour, may I clarify one thing, he's not talking English he's talking Aboriginal English and Kriol.

HIS HONOUR: yeah but, he's talking English we can hear him, I heard what he said

MURRAY, MR: [indistict] / Creole

INTERPRETER: [yeah, but]

HIS HONOUR: [so if it,] if it, if it's a, if it gives a sentence that's in English whether it's also Kriol, then we don't, we just don't need it interpreted.

INTERPRETER: sure, but [it, b- but I'm required to] re-interpret

HUGHES, MS: [you honour, [indistinct]]

INTERPRETER: everything you honour? [indistinct]

HIS HONOUR: [you're] entire, you're, you you're required to interpret what I ask you to interpret. If he gives a sentence in English, I just, I just don't need you to say it again

INTERPRETER: Yeah but, he's giving a sentence [in, Aboriginal English.]

HIS HONOUR: [no, I've made] my ruling, if he says it in English, I don't need to hear it twice

INTERPRETER: sure

HUGHES, MS: wi- , with respect your Honour, if I could just make a quick submission,

INTERPRETER: [Interpreting/Speaking Walmajarri]

HUGHES, MS: [my understanding] is that a word in Kriol,

INTERPRETER: [Interpreting/Speaking Walmajarri]

HUGHES, MS: [whilst it might sound like English can actually]

INTERPRETER: [Interpreting/Speaking Walmajarri]

HIS HONOUR: [I- I- I don't need to] hear this, if he says it in [English,] then I don't need to hear it twice

INTERPRETER: [Interpreting/Speaking Walmajarri]

HIS HONOUR: [cause what we had, by way of] interpretation was the same sentence,

INTERPRETER: [Interpreting/Speaking Walmajarri]

HIS HONOUR: [so let's] just say it means something else in Kriol,

HIS HONOUR: [he just said the same,] the same words [twice I don't need any further submissions.]

INTERPRETER: [Interpreting/Speaking Walmajarri]

HIS HONOUR: you wanna tell us something in English, I don't need someone else telling me what he said.

INTERPRETER: [Interpreting/Speaking Walmajarri]

MURRAY, MR: [indistinct]

HIS HONOUR: You - you [say it] whatever language you want right,

INTERPRETER: [Interpreting/Speaking Walmajarri]

INTERPRETER: [Interpreting/Speaking Walmajarri]

HIS HONOUR: you s- use [whatever language you want]

HIS HONOUR: But if you do [use a sentence that's in English then I can understand what you're saying because I happen to speak English]

INTERPRETER: [Interpreting/Speaking Walmajarri]

1. In addition to reviewing both the official court transcript and the linguistically informed reconstructed transcript, I have carefully listened to the audio recording of Mr Murray's evidence a number of times. I am satisfied that the transcripts accurately reflect what occurred. Furthermore, in my respectful assessment the learned magistrate's tone was fairly dismissive, particularly when he responded to Mr Jenkins by saying 'no, you're required to interpret what I ask you to interpret', and became somewhat strident when, in response to Mr Jenkins seeking to explain his position, the magistrate interjected and said 'no, I've made my ruling.' The tone became more strident in the magistrate's response to Mr Murray's counsel, Ms Hughes, when she sought to make 'a quick submission'. The learned magistrate effectively cut off Ms Hughes and told her that he did not 'need to hear' what she had to say. The magistrate's remarks in that context concluded with an element of sarcasm that he 'happened to speak English'.
2. There are two other parts of the transcript that, while not referred to expressly in the grounds of appeal, are relevant to the appeal. The first relates to the introduction of Mr Jenkins as the interpreter at the very beginning of the trial. As the trial commenced, the following occurred:[23]

HUGHES, MS: Perhaps for the benefit of the transcript, we do have an interpreter present, speaking Walmajarri and Creole.

INTERPRETER: Yes, your Honour. Did you - sorry, your Honour. Did you want to take down my name - - -

HIS HONOUR: No, thank you.

INTERPRETER: - - - qualifications, swear me in?

HIS HONOUR: No, thank you. I'm okay.

INTERPRETER: Should I be sworn in?

HIS HONOUR: No, I'm all right. Thank you.

INTERPRETER: Okay. Thank you.

1. As noted above, the magistrate deferred Mr Murray's sentencing pending the receipt of a pre-sentence report. The matter returned before the learned magistrate on 21 July 2021, but the report had not yet been prepared as Mr Murray had needed to travel to Fitzroy Crossing 'for sorry business for some funerals'.[24] The exchange relevant to this appeal took place during that hearing between the magistrate and counsel for Mr Murray:[25]

HUGHES, MS: I know. Sorry, your Honour. I was just questioning that FASD because I know it takes multiple - its not just one doctor that comes, so it will take, thinking in my mind, a lot longer than three months. The practicalities of having interpreters there for multi different things - different doctors and specialists.

HIS HONOUR: Well if it's a term that an interpreter is needed, which it isn't. Then it might make it more complicated. Sometimes interpreters make things more complicated.

O'NEIL, MS:[26] I won't respond to that, your Honour. Because we have a significantly different view in relation to this matter in relation to the necessity of interpreters and it would be my - - -

HIS HONOUR: Not interpreters generally. Just an interpreter specifically, at this particular matter.

O'NEIL, MS: It's certainly Mr Murray's - it's our position that an interpreter is required.

HIS HONOUR: Yes. I know what the official position is. I also know he speaks and understands English perfectly competently. But - so a written pre-sentence report, Foetal Alcohol Spectrum Disorder being the focus of that enquiry. But you have also got to do - you have got to do a sit-down meeting with them for the pre-sentence report for the normal bits of it, you know, and you didn't do it last time. So you have got another opportunity, but you have got to keep your appointments. You know, you have got to do what you can to keep up with these things, to put yourself in the best possible light. Right. So we're off to 13 October, I will extend bail through to that date.

(Emphasis added)

1. Section 7 of the Criminal Appeals Act 2004 (WA) provides that a person who is aggrieved by a decision of the Magistrates Court may appeal to the Supreme Court against the decision. Section 8 provides that an appeal may be made on the ground, inter alia, that the Magistrates Court made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice. Under s 9 of the Criminal Appeals Act, leave of the Supreme Court is required for each ground of appeal. The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. This means that the ground is required to have a real, rational, and logical prospect of succeeding.[27]
2. Under s 14, even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
3. Mr Murray initially advanced five grounds of appeal, including an appeal against his sentence. Ultimately, three grounds of appeal were maintained, as follows:

Ground 1

The learned magistrate erred in law in failing to properly direct himself in accordance with the Mildren direction.

Ground 2

There was a miscarriage of justice because the learned magistrate's direction to the interpreter to stop interpreting portions of the appellant's evidence resulted in an unfair trial.

Ground 3

The learned magistrate erred in law and fact by finding that the appellant was speaking ordinary English during portions of the appellant's evidence.

Particulars

The learned magistrate had no regard for the expert opinion of the interpreter that the appellant was speaking Aboriginal English and Kriol.

The learned magistrate erred in assuming that words spoken in Aboriginal English and Kriol have the same meaning in ordinary English.

1. It is convenient first to provide an overview of the grounds of appeal.
2. Ground 1 concerns Mildren directions. The term 'Mildren directions' emanates from an article by the Hon Justice Mildren, then of the Supreme Court of the Northern Territory published in 1997 titled 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System'.[28] The article refers to directions and guidance that it may be necessary or appropriate to give to the trier of fact (ordinarily a jury) in assessing the evidence of an Aboriginal witness. The object of the directions is to ensure fairness to a witness by drawing attention to socio-linguistic features of the witness that may give rise to misunderstanding. The nature and status of Mildren directions will be discussed later in these reasons.
3. Ground 1 was framed as a failure of the learned magistrate to 'direct himself'. In substance, the ground as argued was directed to the application of the substantive principles underlying the Mildren directions in a manner that ensured fairness to Mr Murray in the assessment of his evidence. The essential complaint inherent in this ground was that the magistrate failed to accord fairness to Mr Murray in the assessment of his evidence because the magistrate failed adequately to take account of the special socio-linguistic features of Mr Murray's circumstances as a traditional Walmajarri man. This failure was said to be especially significant because it was apparent from the magistrate's reasons that his decision turned on the assessment of the competing evidence of the two protagonists: Mr Murray and Mr Harwood.
4. Ground 2 was directed to the remarks of the learned magistrate to Mr Jenkins, the interpreter, and Ms Hughes, Mr Murray's counsel at the trial, in the passage set out at paragraphs [25] and [26] above. Mr Murray's counsel in this appeal characterised the magistrate's remarks as a 'ruling' to Mr Jenkins not to interpret Mr Murray's evidence where that evidence was given in apparent English that the magistrate considered he was able to understand without the aid of an interpreter. Counsel for Mr Murray contended that the ruling resulted in an unfair trial and therefore a miscarriage of justice.
5. Ground 3 was directed to the same remarks of the learned magistrate. It focussed particularly on the magistrate's observation that the witness was speaking English. Ground 3 contended that this was a plain error because, as Mr Jenkins and Ms Hughes explained to the magistrate, Mr Murray was speaking Kriol, not English.[29]
6. Ground 3 was conceded by the respondent. That is, the State accepted that the magistrate's statement that Mr Murray was speaking English was an error. However, the State contended that in the circumstances it was not an error that led to a substantial miscarriage of justice. That was principally because, as is evident from the transcript, both Mr Jenkins and Mr Murray's counsel ignored the magistrate's statement and continued with Mr Murray's evidence through the use of Mr Jenkins as interpreter. The learned magistrate appears not to have subsequently sought to enforce his 'ruling' or otherwise inhibit Mr Jenkins' interpretation for the balance of Mr Murray's evidence.

1. The appeal came on for hearing before Allanson J on 28 April 2022. In written and oral submissions before Allanson J, counsel for Mr Murray submitted that the magistrate's failure adequately to apply the Mildren directions and the learned magistrate's view that Mr Murray was speaking English led to an unfair trial. That was said to be because the magistrate failed to assess the reliability of Mr Murray's evidence with due regard to the allowances that should have been made for the particular socio-linguistic features of Mr Murray's evidence. Counsel for Mr Murray drew attention to parts of Mr Murray's evidence and the magistrate's negative assessment of that evidence, contending that the magistrate's approach had failed to make proper allowance for Mr Murray's language and communication style, and had led to a misunderstanding of Mr Murray's evidence.
2. In his exchange with Mr Murray's counsel, Allanson J expressed concern that there was no evidence of the miscommunication in the sense that was being advanced on Mr Murray's behalf. There was no evidence before the court of 'any circumstance where any answer has been given in English or Kriol by Mr Murray, it has been interpreted by the interpreter, there is a difference, and the magistrate could have been mistaken'.[30] Allanson J went on to observe that the magistrate's error was not apparent, and then said to counsel for Mr Murray, 'but if there are occasions where there is an answer that has been given in English - has been given in a materially different way by the interpreter in English and you can show that that is material to the way in which his Honour arrived at the decision, then you may be able to establish your point'.[31] Allanson J and counsel for Mr Murray discussed the possibility of an adjournment of the proceeding to allow Mr Murray to procure expert evidence relating to miscommunication or misunderstanding. Allanson J continued:[32]

I have at least made clear my preliminary view that, without that evidence, it is difficult to show that the error, which, I say, is conceded by the State, is material to the outcome, because it is not possible to point to anything that was said, and either not translated or mistranslated which then has an effect on the outcome ....

1. Allanson J adjourned the matter to allow Mr Murray to obtain the evidence the subject of his Honour's comments, and to exchange with counsel for the State a transcript of Mr Murray's evidence prepared by someone with relevant expertise by reference to the audio recording. Towards the conclusion of the hearing on that day, counsel for the State confirmed her understanding that 'what we're looking at in the transcript that may then be produced is whether there was something that was not translated or mistranslated'.[33] Counsel for the State then raised the prospect of a new ground of appeal relating to a deficiency in Mr Jenkin's interpretation. Allanson J responded saying he did not understand there to be a complaint in the appeal relating to the deficiency in interpretation and if that were to be advanced it would require an application to add a new ground. No further ground was subsequently sought.
2. The relevant order of Allanson J was the grant of leave to Mr Murray 'to file further evidence relating to the issue raised in both Ground 2 and Ground 3'.[34] Although the order was not expressed in terms of expert evidence, it is plain that the order was intended to include expert evidence. In addition, although the order was framed so as to relate to Grounds 2 and 3, it was common cause between counsel at the hearing on 12 December 2022 that Mr Bowen's report and reconstructed transcript was equally relevant to Ground 1.[35]
3. Before turning to the detail of the expert evidence that was sought to be tendered on behalf of Mr Murray, it is necessary to consider the manner in which it relates to the grounds of appeal. As I have noted, the appeal did not include any complaint about the quality or accuracy of Mr Jenkins' interpretation. Rather, the grounds of appeal are broadly directed to the injustice of failing to recognise Mr Murray's difficulties with English and the failure to assess his evidence by taking into account and making special allowance for the features of his evidence that relate to Mr Murray's traditional background and circumstances. The relevance of the expert evidence was therefore in demonstrating Mr Murray's infelicity with English and the prospect of error in the assessment of Mr Murray's evidence that arose due to the failure to make allowance for Mr Murray's traditional background.

1. Mr Murray's lawyers produced a report by Mr Alex Bowen on 7 September 2022 (Bowen Report). Following the filing of the Bowen Report, on 3 October 2022 and by consent, Allanson J made an order for the exchange of submissions in relation to the report. Those submissions ultimately reflected disagreement between the parties as to the utility and admissibility of Mr Bowen's report. By that time, in light of Allanson J's pending retirement, the matter was referred to me.
2. The Bowen Report totalled 152 pages and comprised a covering affidavit, a 60-page report entitled Transcription and Sociolinguistic Analysis of Miscommunication, the reconstructed transcript of the accused's evidence before the learned magistrate referred to above (Appendix 1), a document entitled Outline of Kimberley Kriol Orthography (Appendix 2), and a document entitled Western Australian Language Services Policy 2020: Policy statement and guidelines (Appendix 3).
3. Mr Bowen is a trained lawyer and a linguist. He has attained a Master of General and Applied Linguistics which focussed on explaining the right to silence to Aboriginal people in the Northern Territory. Mr Bowen is a PhD candidate in the School of Languages and Linguistics at the University of Melbourne. Mr Bowen practiced commercial law in Melbourne and criminal law in the Northern Territory. In the latter capacity, he worked with interpreters as a daily part of his practice. Mr Bowen has various other relevant qualifications and relevant experience. However, Mr Bowen made clear in his report that he is not an expert in, or indeed a speaker of, Kriol, and he is not a qualified interpreter. Mr Bowen explained that in preparing the Bowen Report, he did not:

(a) read the court transcript of Mr Murray's evidence; or

(b) speak to the interpreter; or

(c) read the transcript of any of the evidence other than the evidence of Mr Murray.[36]

1. In light of the emphasis placed by Mr Murray's counsel on the Bowen Report and the efforts expended in its preparation, it is appropriate that it be given detailed consideration.
2. The Bowen Report is divided broadly into five sections. It begins with a summary of Mr Bowen's findings and conclusions, including a summary of his analysis of four aspects of Mr Murray's evidence which the learned magistrate rejected. These four aspects relate to the elements of Mr Murray's evidence that I have summarised above at paragraphs [11] - [16]. Mr Bowen's analysis led him to the conclusion that the learned magistrate's rejection of those parts of Mr Murray's evidence resulted 'partly from misunderstandings of language, and from the complexity of the way evidence was [37]ceived in this trial'.37 I will return to this aspect of Mr Bowen's report later in these reasons. At this point, it is important to note again that the grounds of appeal did not allege any error or problem with the interpretation. Indeed, counsel for Mr Murray expressly confirmed that Mr Murray's appeal did not include any complaint about Mr Jenkins' interpretation.
3. The second section of the Bowen Report explained the nature and function of the report. It indicated that Mr Bowen was asked to do two things. One was to prepare a 'linguistically informed' transcript of Mr Murray's evidence.[38] This was done with a team of native speakers and professional interpreters.

1. The reconstructed transcript is attached as an appendix to Mr Bowen's report. The extract set out at paragraph [26] above is based on that transcript. This first aspect of Mr Bowen's report was not the subject of controversy. The production of a linguistically informed transcript of Mr Murray's evidence was consistent with what was anticipated by the discussion before Allanson J on 28 April 2022 and was agreed by counsel for both parties to be an accurate and helpful document.
2. The second task entrusted to Mr Bowen was to identify 'if there are any significant differences in meaning between the answers and the interpretation of those answers or the way those answers might be understood by a court whose language is standard Australian English'.[39] In his report, Mr Bowen described the 'primary question' he was asked in the following terms: 'whether it is likely that any of the Magistrate's reasons for rejecting Mr Murray's evidence were affected by miscommunication or misunderstanding'.[40] In fulfilling this second task, Mr Bowen's analysis, and section 5 in particular, was directed to this 'primary question'. That aspect of Mr Bowen's report was largely objected to by the State as will be explained.
3. In the third section of his report Mr Bowen sets out and explains relevant 'linguistic methods, principles and findings'. This section addressed problems associated generally with communicating across different languages, cultures and contexts and particularly in the context of Kriol and Aboriginal English. I did not understand objection to have been taken to this part of the report. Mr Bowen is well qualified to make the observations which constitute a helpful and insightful overview of the potential challenges. Although lengthy, that part of the report warrants citing (largely) in full:[41]

Differences in language relevantly cause miscommunication when two people are not native speakers of the same language, so that at least one is a partial speaker of the language in use. Each speaker may be unaware of ways that the other uses English, so that sometimes they understand the same language differently. Differences between languages (or dialects) that can cause miscommunication include:

Differences in pronunciation/accent, which can cause words to be misidentified.

Differences in word meaning. A widely-known example is the word kill, which in Kriol/Aboriginal Englishes often means 'hit', but can also mean 'kill dead'. The meaning of words can vary between varieties of English or even between communities. There are many other differences which are less widely recognised, or not known at all.

Differences in sentence structure (grammar). For example, a Kriol speaker using English may mix up he and she, because Kriol has one gender-neutral pronoun ee. This can lead to misidentification of who is being talked about.

Differences in ways of seeking and sharing information, and ways of constructing and telling stories, narratives, arguments and other discourses.

Differences in ways of managing conversation and the ways that speakers negotiate who is speaking when, and about what.

People can learn languages or dialects partially. People can acquire partial understandings of words and the meanings they describe. Partial speakers of languages use partial language ability every day to communicate, interact and get things done.

Sometimes Aboriginal people do not realise that misunderstanding has occurred, and sometimes non-Aboriginal people are unaware of a misunderstanding. In particular, when Kriol, Aboriginal English and/or standard Australian English are involved, both Aboriginal and non-Aboriginal speakers may be unaware of or underestimate differences between these languages.

Aboriginal people who are not rushed often take the opportunity to explain what they have said. This can bring to light that a word or expression has not been initially understood, and can often clarify otherwise unrecognised misunderstanding. It is effective and efficient to elicit evidence in ways that are appropriate for each witness than to try to understand confusing evidence later, as this report attempts to do.

Even when fully understood, language alone never fully expresses what someone means. People always interpret language in combination with context (other ideas and information they have access to). To understand Aboriginal people speaking English or other Aboriginal languages, it is often necessary to understand aspects of Aboriginal societies, like kinship. Context also includes understandings of things said earlier in a conversation, knowledge about events, people and places and so on. When a piece of language is heard in a different context, its meaning often changes.

It is also important to take into account the social conditions in which people use language. Many Aboriginal people communicate with conventions that differ from those found in non-Aboriginal institutions like courts. For example, avoiding eye contact may be intended a sign of respect rather than evasiveness.

Aboriginal people vary in how familiar they are with non-Aboriginal expectations about communication. Some Aboriginal people are bi-cultural and able to function very effectively in settings like courts. On other occasions, people may be unaware about differing expectations and this can lead to discomfort or miscommunication.

Kriol and Aboriginal English

This section explains the terms Kriol and Aboriginal English [...]

Aboriginal English describes varieties of English spoken by Aboriginal people, which differ, often in subtle ways, from Standard Australian English ('SAE').

Kriol shares some features with English, as well as traditional languages, but is a separate language. Kriol is the fastest growing Aboriginal language in Australia and it is a lingua franca for Aboriginal people from a wide range of traditional language backgrounds. Linguists estimate that it is the first language of up to 30,000 Aboriginal people across Northern Australia (excluding Arnhem Land) from western Cape York (Qld) to Broome (WA) and south to Tennant Creek (NT) (Meakins 2014: 379).

While Kriol is historically related to English, as well as to traditional languages, it is considered a separate language by linguists. One key reason for this is that Kriol speakers and English speakers cannot properly understand each other (unless one of them knows both languages). However, many people, including many Kriol speakers, call it English. There is considerable overlap between Kriol and Aboriginal English.

In contrast to English, there is no standard Kriol and no standard Aboriginal English. Linguistically there appears to be a continuum so that it can be hard to distinguish between "heavy" Aboriginal English and "light" Kriol.

Even though we often refer to 'Kimberly Kriol', there is significant variation in Kriol across the Kimberley between each town or traditional language group. Many Kriol speakers use words from local Aboriginal languages (in this case, at least Walmajarri and Martu) in their Kriol. When they speak to someone from a different region, they may use a 'lighter' Kriol that is more similar to English. When they speak to non-Aboriginal people they often speak in ways that are closer to English.

There are standard ways of using Aboriginal English. Speakers tend to converge towards more standard ways of speaking English particularly on formal occasions. Variation in speech is further reduced when English is written (or transcribed). Speakers of all languages vary their speech at different times depending on who they are speaking to, among other factors. Each speaker has a small or large range of ways they are comfortable using Kriol and/or English. Toward the ends of someone's range, their proficiency is often reduced. Speakers vary their language, for example, when they speak to someone whose language is different, someone who has a different accent, is from a different age or social group or is a partial speaker of the language being used. Linguists call this adjustment accommodation.

It has been frequently observed that Aboriginal speakers of Kriol or Aboriginal English try to speak more like standard English when they interact with non-Aboriginal people and especially figures of authority. In some cases this can involve an Aboriginal speaker using a kind of English that they do not have a full grasp of, leading to reduced understanding and reduced ability to express their ideas. However, accommodation can also create the appearance that an Aboriginal person speaks English (well) when in fact their main language might be Kriol (or another language).

Speakers are often not aware of differences between Kriol and English unless they are highly proficient or educated in both, or have experience of professional language work. Speakers who use Kriol or English in a variety of settings are often unaware of ways their language could be misunderstood. This is seen when Kriol speakers use more standard versions of English but sometimes use an English word intending to express a meaning that word has in Kriol.

1. Mr Bowen then went on to explain inherent cultural features of Aboriginal society that may create obstacles and difficulties for the giving of evidence by First Nations witnesses and the analysis of such evidence by the trier of fact. Mr Bowen explained:[42]

Interviews are not typically found in Aboriginal societies. Many Aboriginal people have ways of seeking and sharing information which differ significantly from the question-answer format exemplified by courtroom examination. This means that question-answer methods of seeking and sharing information are unfamiliar for some Aboriginal people.

Cultural differences relating to questioning have been summarised by Eades (2003:1127-8) who observed (among other things, but focusing on aspects relevant for this case) that Western institutions may assume that:

(a) "Conflicting answers in an interview are a sure clue to a speaker's dishonest and untrustworthy character.

(b) The most effective way to find out many things is to ask many questions.

(c) The best way to test a person's truthfulness is to put conflicting propositions to her and see what she agrees to."

Contrasting assumptions may be prevalent in Aboriginal societies, including:

(a) "If you want to find out whether a person is honest and trustworthy, you need to take time to get to know her; don't rush her, and don't talk all the time when you are with her.

(b) Interrupting a person's story with questions makes it harder for her to be accurate and consistent.

(c) Asking many questions is rude, and it is a very ineffective way of finding things out."

Some witnesses are disadvantaged by the requirement to tell their story through answers to specific questions. Courts are disadvantaged in receiving evidence from some witnesses in question-answer formats. These difficulties may not be limited to Aboriginal witnesses.

Various kinds of direct questions have been documented to cause additional risks of inaccuracy in eliciting evidence from Aboriginal witnesses (eg Eades 1992), for example either-or questions and questions seeking quantification. Aboriginal people use direct questions at times, depending on the social context and the information being requested.

1. Later, in the same section, Mr Bowen commented:[43]

There are also difficulties with some questions beyond understanding their 'propositional' meaning. This is another area which causes difficulties for some Aboriginal witnesses and for interpreters.

For example, 'direct' questions (including many questions typical of cross-examination) can be understood as rude by some Aboriginal people and may be experienced as intimidating or embarrassing. Sometimes Aboriginal witnesses give answers to such questions which seem evasive but are more accurately understood as commenting on the discomfort or pressure created by the question. There may be little an interpreter can do to manage ambiguous problems like this.

There are published guides relating to hearing evidence from Aboriginal witnesses (eg Eades 1992). Of course, a key step is to work with interpreters where appropriate. Some courts have disallowed leading questions in some circumstances with Aboriginal witnesses. There are many other steps that could be taken to facilitate receiving more accurate evidence from Aboriginal witnesses, while some problems remain complicated to address.

1. Much of Mr Bowen's commentary was directed to how these problems may be overcome by the framing of questions in court and by the appropriate use of an interpreter. While they are not directly relevant to or concerned with the grounds of appeal, they are insightful and useful to a general understanding of the issues raised on appeal and they serve as background to the analysis of Mr Murray's evidence presented later in the report.
2. The fourth section of Mr Bowen's report described the method and process by which Mr Bowen together with others produced the linguistically informed transcript of Mr Murray's evidence. No objection was taken by the State in respect of Mr Bowen's reliance on the work of other experts in the preparation of the reconstructed transcript.
3. After listening to the audio of Mr Murray's evidence, Mr Bowen recorded the following conclusions (which, as he is not a Kriol speaker, he appears to have formulated with the assistance of the professional team referred to in the report):[44]

In my opinion, in this recording Mr Murray mainly speaks Kriol, which in his case includes some words from other languages (including Martu and Walmajarri).

In my opinion, Mr Murray is a speaker of Kriol and to some extent other Aboriginal languages, with limited English proficiency. As this proficiency is significantly less than a native speaker of English, he is a partial speaker of English.

Below are some examples of features of Mr Murray's language which identify it as Kriol, also showing some differences with the interpreters renditions of the answers in English:

(a) ee is the Kriol gender-neutral third person singular pronoun ('he or she'). Mr Murray uses it frequently, for example, "en ee bin start goan mad" (line 1235) meaning 'and she started going mad'. Mr Murray also uses other Kriol pronouns not found in English, such as demtoobulu (line 1728) ('those two').

(b) bin is a Kriol past tense marker and Mr Murray uses it frequently. For example, "ie bin worg brom det uthu hous .. ." (line 213) meaning 'I walked from the other house ... '.

(c) -im suffix is used to mark verbs as transitive. For example, "eebin taikim outsied" (line 1464), interpreted as "took me outside" (line 1466).

(d) -but suffix is used to mean that an action is continuous or repeated. For example, "ie don yoosimbut xx", (line 1685), interpreted as "I don't use a, weapons". Here, -but indicates a claim that Mr Murray habitually does not use weapons, rather than a once-off claim.

(e) nebu often has a meaning like English 'didn't'. For example "ie nebu see" meaning "No I didn't see" (line 1007).

(f) Preposition meaning in Kriol can be different from English. For example "yoo torkin for oalman" (line 1962), interpreted as "you're talking about the old man". Here, for does not mean that the old man is the beneficiary of the talk, but that he is the topic of the talk.

(g) Other words in Kriol differ in subtle or significant ways from similar words in English. For example, Mr Murray uses stand up like English 'stand': "iebin x, stand up outsied" (line 638) (interpreted as "and I went, outside, myself'). In English, stand up describes a move from sitting or lying down to standing up.

(h) Kriol thing is frequently used like English 'what dya callit', but can also stand in for verbs to mean 'do something'. For example, "wun plais eebin thing" interpreted as "in one place he stayed" (line 1024).

(i) but as a conjunction used in Kriol to introduce additional information, for example: "sidoun, toobulu lounj tjeye ... but ie thord ee wos sleep" (lines 651-656), interpreted as "sat down back on the lounge chair ... I thought he was asleep". In English, but introduces information which contradicts an expectation created by the preceding statement. But there is no apparent contradiction between sitting down and thinking the old man was asleep; but here introduces some additional information.

1. Mr Bowen makes some important observations regarding Mr Murray's use of language. They are instructive and reflect the complexity of the issues surrounding Mr Murray's use of language:[45]

It is notable that Mr Murray named four languages and none of them was Kriol. There could be several reasons for this:

(a) Aboriginal people sometimes name their language(s) of identity, or the language of the country they are from. Kriol is not a 'traditional' language and may not link with country or identity in the way other languages do.

(b) Many people who speak Kriol are not strongly aware of it, noting that Kriol has been categorised (and devalued) as 'broken English' or 'pidgin' historically and presently. Many people who speak Kriol call it English, and they are entitled to do so. However this does not mean their language is similar to SAE, and sometimes causes them to be disadvantaged when communication challenges are unrecognised.

(c) Standard Australian English (or 'High English') is seen by some people as a more prestigious language. Some Kriol speakers, whether they consider their language to be English or Kriol, may believe they will be treated better if they try to speak 'High English'.

On a few occasions in the recording, Mr Murray's speech is closer to English than Kriol. For example, "I wasn't there I came after'' (line 1584) is consistent with SAE grammar (though a SAE speaker might say 'afterwards'). On numerous other occasions Mr Murray said "ie bin kum arftu" (eg line 668), meaning 'I came after'. Isolated examples of English-like grammar are consistent with a Kriol speaker stretching to use more standard English on occasions.

1. This section of Mr Bowen's report, together with the report as a whole, confirmed the error of the learned magistrate, properly conceded by the State, the subject of Ground 3. It was plainly an error for the magistrate to conclude that Mr Murray was speaking English.
2. Section 5 of the Bowen Report was where Mr Bowen set out his analysis of what he perceived to be the magistrate's misunderstandings of Mr Murray's evidence. Mr Bowen undertook a very detailed line-by-line and, in some instances, word-by-word analysis, of Mr Murray's evidence. The report contains considered and insightful observations of potential difficulties that may have infected Mr Murray's understanding of the questions being asked and the magistrate's assessment of what was said in evidence. Many of these difficulties were said by Mr Bowen to have arisen due to the cultural differences between the language of standard Australian English in a courtroom environment and Mr Murray's traditional background. I shall give one example. At section 5.3.1 Mr Bowen made the following observations:[46]

In this example, Mr Murray's answer is inappropriate because the question is intended as a request for him to tell his story. (7:44)

1. Dfc can you please tell, the court [your story, about that?]
2. Int [...................].......

1. Acc yep
2. Int ...yeah
3. (1.1)
4. Dfc please tell the story.

The likely problem with this question is the word can, which has a literal meaning about ability, but in this question is a conventionally polite way to ask someone to do something. This question would not be ambiguous for a SAE speaker because it includes "please", which can only indicate this is a request to do something. The follow up request "please tell the story" is less ambiguous and more direct.

This example shows that Mr Murray may misunderstand even apparently basic and common ways of using English.

Mr Murray answers after the interpreter has finished, but this does not always reveal whether he listened to the interpreter.

1. This and other such observations in Mr Bowen's report are doubtless the product of a great deal of thought, skill and experience. However, with respect, they are of limited utility on this appeal. Rather than explanations as to how the failure to take account of Mr Murray's traditional background led to an error in understanding his evidence, these observations are in substance well informed conjecture about potential problems that may have arisen in Mr Murray's understanding of the question asked of him through the interpreter Mr Jenkins. The observations do not of themselves demonstrate that the learned magistrate assessed Mr Murray's evidence in a manner that perpetrated an injustice.
2. At section 5.4 of the Bowen Report, Mr Bowen gave a number of specific examples of what he considered to be the magistrate's wrongful assessment of Mr Murray's evidence by reason of the failure to take account of Mr Murray's cultural background and circumstances. Those observations focussed on four aspects of the magistrate's ex tempore reasons for rejecting Mr Murray's evidence which I have summarised at paragraph [17] above.
3. First, Mr Bowen analysed Mr Murray's evidence about the duration of time he was at Mr Harwood's house, which Mr Murray described variously as 'five or six minutes', 'a little while', and 'a good while, a little bit'.[47] Mr Bowen undertook a lengthy analysis of Mr Murray's evidence concerning this issue. He prefaced that analysis with the comment: 'Confusion about time and chronology is central to understanding (and/or disbelieving) Mr Murray's story, and this issue highlights some of the difficulties of communication in this case'.[48] Mr Bowen's analysis placed some emphasis on Mr Murray's reference to 'five or six minutes', concluding that it was unlikely to be accurate. Mr Bowen opined that on the basis of his experience this appearance of precision in Aboriginal witnesses 'can be highly misleading'.[49] Mr Bowen acknowledged that the magistrate expressly disavowed reliance on the evidence of 'five or six minutes', however Mr Bowen's view was nevertheless 'those answers are part of the evidence about the way Mr Murray answers questions about time'.[50] That is, even though the magistrate did not rely on that aspect of the evidence, Mr Murray's evidence of 'five or six minutes' demonstrated that his evidence about time periods could not be relied upon. Mr Bowen concluded:[51]

My opinion is that of the answers Mr Murray gave about how long he was in the house, those most likely to be reliable are that he does not know. This is based on previously observed patterns in the way Aboriginal witnesses sometimes answer questions asking for quantification.

1. I should observe that although at one point Mr Murray said in his evidence 'I don't know time', he did not give evidence that 'he does not know' how long he was in the house.
2. Ultimately, Mr Bowen concluded:[52]

The Magistrate found that Mr Murray's evidence "a little while" was "chalk and cheese contradictory of the explanation given by Mr Harwood", that Mr Murray was there for "a long time" or "a couple of hours" (pp 99-100). In my opinion, what Mr Murray said (leaving aside the five or six minutes) is so vague that, while it is not the same as what Mr Harwood apparently said, it is not clearly contradictory.

1. The import of Mr Bowen's evidence appears to be that the magistrate was wrong in his conclusion that Mr Murray's evidence and Mr Harwood's evidence about the time Mr Murray spent at Mr Harwood's house was 'chalk and cheese'.[53] It was wrong because the magistrate failed to appreciate that, having regard to Mr Murray's traditional background, his evidence about how long he was at Mr Harwood's house was, in fact, that he did not know. Therefore, it was not clearly contradictory with Mr Harwood's evidence. Mr Bowen felt able to reach that conclusion even though he did not review the evidence of Mr Harwood.
2. The second issue relates to the magistrate's adverse comment regarding an inconsistency in Mr Murray's evidence that Pamela was going crazy, yet Pamela did not say anything. Before turning to the detail of Mr Bowen's comment, in my view the magistrate's concern was wider than that. The inconsistency or, as the magistrate put it, 'not sitting well', related not only to Pamela going crazy yet not saying anything, but primarily the notion that Mr Harwood would be motionless on the floor looking like he was asleep, yet Pamela was going crazy.
3. Mr Bowen undertook a detailed analysis of Mr Murray's evidence on this matter. He concluded that 'it is unlikely that Mr Murray intended to make a broad claim that Pamela did not speak'.[54] Mr Bowen appears to reach that conclusion by some conjecture as to what Mr Murray intended by various answers and included an opinion that at one point, Mr Jenkins' interpretation was inaccurate.[55] Mr Bowen drew the following conclusions:[56]

I am not able to clearly reconcile the claims that Pamela started going mad when Mr Murray returned, and that Mr Murray was sitting on the lounge when she was going mad. Perhaps Mr Murray's answers above mean that when he entered the house for the second time, Pamela was going crazy and Mr Murray sat down.

In any event, there would not be an inconsistency if the claim is that Pamela was sitting on the couch and going mad at different times. This is one likely interpretation of what was said.

The Magistrate's reasoning depends involves (sic) an understanding that Pamela was going crazy shortly after Mr Murray arrived:

when he has come to the house ... he saw the old man on the floor and he thought he was asleep.

That evidence or that account, in my view, doesn't sit particularly well with the explanation also that shortly thereafter she - that is Pamela - was going crazy (p 99)

As explained in section 5.4.1, I consider that Mr Murray's answers about how long he was in the house are unlikely to be meaningful, so the events he describes may not have taken place in a short space of time.

1. Mr Bowen then addressed the magistrate's remark that it 'does stretch credulity' that Mr Murray thought Mr Harwood was just asleep when he was lying in the middle of the floor and bleeding. Mr Bowen undertook a detailed dissection of what he considered to be the relevant extract of Mr Murray's evidence. Mr Bowen remarked that 'it is difficult to follow how the interpreter renders the answers' and opined that because Mr Murray's evidence was separated by interpreting, the link Mr Murray was making between sleep and 'bleed' did not come across clearly.[57] This is one of a number of instances where Mr Bowen undertook an assessment on the basis of both Mr Murray's direct speech and the interpreter's words in order to raise the possibility that Mr Murray may have meant something other than that which the magistrate appears to have understood.
2. Mr Bowen concluded that 'it is likely that Mr Murray meant something more like my first thought was that he was asleep but then I observed he was bleeding'.[58] I raised with counsel my inability to understand the process by which Mr Bowen arrived at that conclusion. I remain unable to discern the reasoning justifying Mr Bowen's view about this matter.
3. Next, Mr Bowen turned to the magistrate's concern that Mr Murray's evidence that Mr Harwood was asleep did not sit well with his evidence that Pamela was going crazy. Mr Bowen considered that the inconsistency was likely to have been overstated by the magistrate because it is possible that Mr Murray was speaking of different times.
4. Mr Bowen then turned to further aspects of Mr Murray's evidence that were the subject of adverse comment by the magistrate. In respect of an inconsistency between Mr Murray's evidence that he did not speak to Mr Harwood and his evidence that he spoke to him 'a little bit' in English, Mr Bowen wrote 'I am unable to suggest a clear explanation', other than to suggest there was some level of confusion in the relevant questioning which in Mr Bowen's view created 'a material risk of miscommunication'.[59] Mr Bowen then referred to the possible confusion noted by the learned magistrate where Mr Murray said he thought the question related to Pamela and not Mr Harwood, which would provide an explanation of why Mr Murray said that he did speak 'a little bit'. Mr Bowen opined that 'there is a clear mechanism for confusion' because in Kriol, third person singular pronouns are gender neutral and 'the interpreter may not have separately specified gender in these questions'.[60] Mr Bowen went on to provide further analysis of Mr Murray's evidence concluding that although it is 'apparent that Mr Murray did not understand' the relevant question, 'it is not obvious why Mr Murray would interpret this question as being about Pamela'.[61]
5. In addressing what the learned magistrate said was a contradiction for which Mr Murray had no explanation, after a further analysis and dissection of the evidence, Mr Bowen said of the apparent contradiction:[62]

This could be, as the magistrate concluded, because he was at a loss to explain a contradiction in his evidence. However, it could also be that his confusing sequence of repeated questions is where Mr Murray thinks the Sergeant is talking about Pamela'.

1. In further analysis of Mr Murray's evidence to explain the apparent contradiction, Mr Bowen again suggested that there was some inadequacy in the interpretation, observing 'we did not hear the interpreter use any word for 'man' until the end of the sequence.... The interpreter might not have realised that gender was the problem until Mr Murray described his confusion'.[63] Mr Bowen went on to suggest that the interpreter may have misjudged the source of Mr Murray's apparent confusion and to suggest that an inadequacy in translation of the word 'wangka' may also have created confusion. Mr Bowen concluded that this aspect of Mr Murray's evidence was 'affected by confusion and may not be reliable evidence'.[64]
2. Mr Bowen went on to comment on Mr Murray's evidence about being worried or scared about the blood he saw. The magistrate commented on the difficulty in accepting evidence that Mr Murray was worried or scared yet simply walked past Mr Harwood and sat down. After analysing the relevant evidence, Mr Bowen concluded:[65]

The meaning of language is never separate from its context, which includes cultural context, life experiences and knowledge of people who use language (see section 3). In my opinion, a significant possible understanding of Mr Murray's answer does not seem to have been considered, namely that he was frightened for himself, frightened that he might become implicated in the conflict or be blamed for being present at the scene of the old man's injury (or even death).

This meaning could be different from being "worried about that individual" (as the Magistrate said) or 'frightened of the blood'.

1. The Bowen Report (other than the reconstructed transcript and other uncontroversial observations I have set out above) was the subject of objection by the State. The objections appeared to me to be directed particularly to section 5. It is necessary then to consider the admissibility of the Bowen Report, particularly section 5. As will be apparent, that consideration gives rise to broader issues relating to the experience and treatment of First Nations peoples in the Australian justice system, particularly in regard to linguistic and cultural barriers, and the status of professed expertise on that subject.

1. It is appropriate to begin with the requirements for the admissibility of expert opinion evidence. They include the following:

(a) it must be demonstrated that there is a field of specialised

knowledge;

(b) there must be an identified aspect of that field in which the

witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;

(c) the opinion proffered must be substantially based on the witness's expert knowledge; and

(d) the process by which an opinion is reached must be expressed in a manner that permits the conclusion to be scrutinised and a judgment made as to its reliability.[66]

1. Before turning to a consideration of matters such as the scope of expertise, it is important to note that the admissibility of evidence such as that given by Mr Bowen in this matter and by other experts in the cases discussed below, can give rise to an issue generally referred to as the, or an, 'ultimate issue'; that is, a determinative matter that it is the exclusive function of the court (the judge or the jury as the case may be) to decide. For example, whether a witness is telling the truth is a matter for the trier of fact, be that judge or jury. It is important to safeguard that function and ensure that a professed expert opinion does not stray into this exclusive domain of the court. Evidence as to the socio-linguistic propensity of a witness that exists as a product of his or her learning or life experience within a particular culture, cannot extend to the proffering of an expert opinion as to whether the witness is telling the truth.
2. In Farrell v The Queen, Kirby J explained:[67]

The problem confronted by the Court in a case of this kind is that of reconciling two rules of evidence liable to come into conflict. The first is that the assessment of credibility is a matter for the tribunal of fact (here the jury). In the present state of science it may not be usurped by technology (such as polygraphs). Nor may it be assumed by witnesses, including expert witnesses, offering their opinion on the accuracy, consistency and believability of the testimony in question, however derived. On the other hand, the study of human behaviour, including psychology, is an accepted scientific discipline. It is one upon which the frontiers of expert knowledge are constantly expanding. If it were necessary in every trial to confine the tender of psychological and psychiatric evidence to cases where a physiological injury could be objectively demonstrated, decision-makers (including juries) might be deprived of relevant evidence. In particular, where established patterns of human behaviour have been studied, analysed and scientifically described, it is appropriate that evidence about them should be available to the decision-maker. It is not then admitted to usurp the decision-maker's ultimate assessment of the credibility of the witness. Principle, and a recognition of the imperfections of the science, deny that consequence. For every pattern of human behaviour, there will be exceptions.

1. I will return to this issue later in these reasons. I discuss below a number of cases relating to the communication difficulties encountered in the legal system by First Nations people. As will be seen, those cases explore this 'ultimate issue' question as it pertains to that topic.

1. Turning now to the question of the scope and field of Mr Bowen's expertise, Mr Bowen's field of expertise is socio-linguistics. In his report, Mr Bowen explained the following in relation to that field of knowledge:

Linguistics is the scientific study of language in general and of specific languages, based on the comprehensive and systematic analysis of empirical language evidence.

Sociolinguistics is the social science which studies language use as a social activity, focusing on how speakers communicate in context, within and between social groups. A basic understanding in sociolinguistics is that when people use language, they do not merely exchange information; rather language use is a social activity with consequences for relationships and identities. Understanding social structures, patterns and relationships allows sociolinguistic analysis to investigate aspects of language use which are not readily explained when language alone is considered as evidence.

1. At paragraph [46] above, I have summarised Mr Bowen's qualifications and experience. In submissions filed on behalf of Mr Murray, it was said that Mr Bowen's specific field of expertise was 'the difficulties routinely faced by Aboriginal people in communicating about leg[68] matters'.68
2. The State did not expressly challenge Mr Bowen's evidence on the basis that it did not reflect a field of specialised knowledge. However, given the challenge more generally to the Bowen Report and the historic treatment of this field of knowledge before the courts in Australia, it is appropriate that considerable attention be directed to the matter. In light of the importance of these matters to the appeal and generally, I have made reference to prior decisions and writings (largely in chronological order) in a manner that is more extensive than might otherwise be warranted.

Communication difficulties encountered by First Nations people - some cases and general principles

1. The difficulties faced by First Nations people in communicating about legal matters, including matters associated with giving evidence, have been the subject of comments in many decisions and academic articles. As long ago as 1903, Sir Pope Alexander Cooper was moved to observe in a murder case before the Full Court of the Supreme Court of Queensland, in which the critical eye witness evidence was that of an Aboriginal tracker, that a 'well-known trick of advocacy' was 'usually to appeal to ignorance or to the prejudice or race, or class, or creed, or faction'.[69] In plain terms, the Judge was observing that a strategy had been adopted not to cross-examine the Aboriginal tracker because it was strategically advantageous to preserve his evidence untouched, and leave the prevailing prejudices to do their own work.
2. In R v Anunga [1905] ArgusLawRp 116; (1976) 11 ALR 412, Forster J (later Sir William Forster) rejected the tender by the prosecution of typewritten records of interview between the two accused Indigenous men and the police. Having done so, his Honour subsequently published reasons which included guidelines 'for the conduct of police officers when interrogating Aboriginal persons'. Forster J prefaced those guidelines with remarks that included the following:[70]

I preface this statement of guidelines by pointing out that Aboriginal people often do not understand English very well and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved. Police and legal English sometimes is not translatable into the Aboriginal languages at all and there are no separate Aboriginal words for some simple words like "in", "at", "on", "by", "with" or "over", these being suffixes added to the word they qualify. Some words may translate literally into Aboriginal language but mean something different. "Did you go into his house?" means to an English-speaking person, "Did you go into the building?", but to an Aboriginal it may also mean, "Did you go within the fence surrounding the house?". English concepts of time, number and distance are imperfectly understood, if at all, by Aboriginal people, many of the more primitive of whom cannot tell the time by a clock. One frequently hears the answer, "Long time", which depending on the context may be minutes, hours, days, weeks or years. In case I may be misunderstood, I should also emphasize that I am not expressing the view that Aboriginal people are any less intelligent than white people but simply that their concepts of certain things and the terms in which they are expressed may be wholly different to those of white people.

Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed, their action is probably a combination of natural politeness and their attitude to someone in authority. Some Aboriginal people find the standard caution quite bewildering, even if they understand that they do not have to answer questions, because, if they do not have to answer questions, then why are the questions being asked?

1. My research has also taken me to papers published by the Australian Institute of Criminology held by the National Library of Australia. The papers were delivered at a seminar in September 1983 on the broad theme of 'Aborigines and Criminal Justice'. Notwithstanding some outdated nomenclature, the papers are elevating in their depth of empathy and sensitivity. They are at the same time a cause for sadness. The content reflects a despairing similarity to the issues the justice system confronts some forty years later. Of particular interest are the papers by Terence Syddall who was a magistrate in the Kimberley region of Western Australia in the 1970s. Mr Syddall's papers reflect a sense of great understanding and humanity. He initiated a number of programs including inviting Aboriginal advisers to sit with him on the Bench. Mr Syddall observed that with the exception of those endeavours, 'the only role Aborigines played in the European system of law has been as defendants or witnesses'.[71] Mr Syddall wrote that language, cultural differences and related concepts presented a major source of difficulty for Indigenous people charged with the commission of offences, providing a number of examples of what is now referred to as 'socio-linguistic' barriers to communication and understanding. Regrettably, Mr Syddall's innovative approach and pioneering endeavours appear to have faded with his own untimely passing.
2. These issues arose starkly in the case of Kelvin Condren, an Aboriginal Australian, accused of murdering a young Aboriginal woman. Mr Condren was described by the Queensland Court of Appeal as a 23 year-old man 'of partly Aboriginal extraction' who, while 'the evidence did not disclose the extent of his Aboriginal ancestry' appeared to associate 'mostly with other persons of Aboriginal or partly Aboriginal descent'.[72] Mr Condren's mother was described as appearing to the court to be 'of only partly Aboriginal extraction and indeed that part was not predominant'.[73] In describing the relevant characters, the court observed that no effort had been made to establish the extent to which the accused appellant, his family or the murdered woman could trace their ancestry back to 'their descent to tribal Aboriginal stock',[74] although evidence from a psychologist was to the effect that neither of the appellant's parents were 'full-blooded Aboriginals'.[75]
3. It is always necessary to be circumspect and eschew self-righteous indignation when looking back at language and terms used at a previous time. Nevertheless, I respectfully observe that it is a manifestation of some progress that judges would be much less likely today to characterise a person by reference to their level of 'extraction' or blood levels. We now also recognise that there may sometimes be a lack of sensitivity inherent in the bland monolithic descriptors 'Aboriginal' and 'Indigenous', or more problematic still, 'aboriginal'. The justice system, and society more generally, is now more sensitive to identity by reference to culture, affiliation and sense of belonging. That understanding has thankfully superseded conceptions of identity by reference to genetic constitution represented by terms such as 'extraction', 'full blood', 'half caste' and 'stock'. Those terms are more appropriately deployed in farm management. I regret that the papers available to me do not allow me to identify Mr Condren by reference to his Tribal connection or affiliation, and I therefore have used the terms 'Aboriginal' or 'Indigenous' without intending any disrespect.
4. On 1 October 1983 a young Aboriginal woman, Patricia Carlton was found brutally murdered in Mt Isa. The next day, Mr Condren made inculpatory admissions to police in the presence of a Justice of the Peace. The confession was detailed and consistent with the objective data found at the scene. Mr Condren was charged with murder. Mr Condren pleaded not guilty but was convicted at a trial on 15 August 1984. The confession was central to the conviction. Mr Condren appealed his conviction on a number of grounds. One of the grounds sought to introduce expert evidence from a linguistic anthropologist, Dr Diana Eades, as to the habits of speech and expression of Aboriginal people generally, and Mr Condren in particular, which made it unlikely that he would have used the language in the police interviews which the prosecution witnesses swore he used.
5. The Queensland Court of Appeal rejected the appeal.[76] In assessing the admissibility of Dr Eades' evidence, Macrossan J dealt separately with two aspects. One related to Dr Eades' opinion in relation to the linguistic characteristics of Aboriginal people generally, and the other related to the speech patterns of Mr Condren himself.
6. In respect of the former, Macrossan J said:[77]

I do not consider that evidence of the alleged general characteristics of the speech of persons of Aboriginal descent and the general pattern of their response to questions is admissible in the present case in proof of the way in which the accused would, or might, have replied to questions asked of him if they had been put in the form seen in the record of interview. There are difficulties in defining the class of Aboriginals in any helpful way since it is necessary to include such a diverse range of individuals within it and one would think there are difficulties in accounting for the variations in speech characteristics which might be observed amongst all the members of that large class. The verbal response characteristics of a class is not a matter at issue but only the alleged responses of the applicant. Eades has conferred with the applicant and, as it is claimed, has had an opportunity to detect any of his idiosyncratic speech characteristics which are relevant for mention. To the extent that he may share these speech characteristics with other Aboriginals or other persons in general is not relevant and to the extent that other Aboriginals have alleged speech patterns which differ from the applicant's then that is even more obviously irrelevant. These observations apply both to Eades' evidence about the alleged structure of Aboriginal speech patterns and to her evidence of the tendency of Aboriginals in general to make what is called "gratuitous concurrence" to propositions put to them.

In addition, although I need express no concluded view on this proposition, I am disposed to think that, in cases like the present, evidence of what are said to be normal characteristics of Aboriginal speech and behaviour is no more admissible than evidence of any other aspect of normal human behaviour would be, or the normal behaviour of persons of Anglo-Saxon descent or the Australian community in general and is not a proper subject for expert testimony[...]

1. In respect of the speech patterns of Mr Condren himself, Macrossan J's remarks included the following:[78]

Eades' training was as a linguistic anthropologist and her claimed relevant sphere of expertise was in Aboriginal dialects of English. Her training enables her to detect significant patterns in speech. Her thesis is that the extent to which an individual can alter or does alter his speech style, and in particular these significant patterns, is restricted so that, to an extent, his recurring use of these patterns in his speech is involuntary. However, Eades did not claim expertise in the way in which factors of a psychological kind such as degree of formality of occasion, extent of preparedness in the subject-matter and a desire to conceal the truth and the like might effect some alteration in the form of an answer in response.

She accepted that it was not appropriate to speak of the existence of any particular number of dialects of Aboriginal English and referred, rather, to the full spectrum of dialects as a "continuum".

[...] Although it might be accepted that Eades exhibits skills which render her adept at isolating certain features of structural style on an analysis of samples of speech, she has not demonstrated, to my satisfaction, that she has special skills which enable her to allow for the effect, if any, of changes of environment, occasion or mood and other psychological factors upon the furnishing of responses by a particular individual subject. In other words, she should not be taken as having demonstrated possession of a special skill or expertise which would provide a basis for the consideration of the question whether the applicant made the replies attributed to him in the record of interview. She has not satisfactorily demonstrated her thesis of the existence of a degree of relevant invariability of the pattern of all individuals' response to questioning. She has not shown, as is claimed for her studies, that there is a universality, as is the central aspect of her contention, which enables her tests to be applied with predictable confidence to all individuals. On the way to her conclusions it has to be observed that she makes a number of assumptions in support of which no expert skill is shown.

I conclude that her opinion evidence should not be regarded as supported by special skills which should be accepted as assisting the court on a consideration of the question of the true source of the answers in the record of interview. I would accordingly hold it inadmissible.

1. Similar sentiments were expressed by Ambrose J with whom McPherson J concurred:[79]

I concur with the views expressed by Macrossan J that evidence as to the general speech habits of persons described as "Aboriginals" in Australia or of any tendency that persons within that category may have because of their racial background to make inculpatory statements which are unreliable is inadmissible. It is inadmissible because it is irrelevant to the only issue before the jury - the characteristics of the appellant and not characteristics commonly found within a category of persons described as "Aboriginal". I have already referred briefly to the absence of any clear evidence as to the genealogy of the appellant and to the fact that neither of his parents were full-blooded Aboriginals. It seems to me unlikely that there exists a specialised field of knowledge which qualifies an "expert" within it to attribute "unusual" characteristics to all "Aboriginals" (comprising persons of widely varying genealogical and cultural backgrounds) relevant to the issues which differ significantly from the "usual" characteristics of persons generally in the community with respect to which of course expert evidence may not be given.

While no doubt a tendency towards "gratuitous concurrence" about which Eades gave evidence may be detected in some Aboriginals - perhaps even in many Aboriginals, although there is no evidence of any statistical survey conducted to support such a theory - experience in the administration of criminal law certainly demonstrates, I think, that this is a characteristic which some Aboriginals certainly do not display. In my view, it is really quite unhelpful to seek to call expert evidence to show that an admission made by a particular accused person may be unreliable because only of his genealogy. It is perfectly clear that in every criminal case where the Crown relies upon a confession, its reliability must be established. The very basis of this rule is that sometimes people may make inculpatory admissions which are false - perhaps even because of a tendency which they have to engage in what has been described as "gratuitous concurrence".

It is clear that evidence of circumstances relevant to the making or not of alleged admissions is admissible and it is also clear that medical, psychological and possibly linguistic evidence is admissible relating to the mental condition and personality of a person alleged to have made inculpatory admissions to assist the jury to evaluate the reliability of such admissions as they find to have been made.

1. Ambrose J, however, explained that he differed from Macrossan J in that he concluded that various observations and tests performed were admissible, and the issue in respect of those matters was one of the weight to be accorded to the opinion. In that respect, Ambrose J explained:[81]

Observations of speech habits and attributes of personality of the appellant detected by persons who have studied such things would to my mind obviously be admissible if arguably relevant to either the making of admissions or their reliability.

1. Ambrose J considered however that once the inadmissible aspects of Dr Eades' evidence were excluded, the tests and related observations were of little weight. The third member of the court, McPherson J, concurred with Ambrose J.
2. I accept as plainly correct the proposition expressed by the Court of Appeal that the relevant issue is the linguistic propensity of the particular accused, and that such a propensity is not established 'because only of his genealogy'. With respect, however, I am unable to agree with aspects of what was said by the Court of Appeal in relation to Dr Eades' field of expertise. As society's understanding of the social impacts of dispossession and cultural alienation has progressed, so too has the field of socio-linguistics. In my view, the linguistic features of a particular social group and culture such as particular groups of First Nations people ought now properly be the subject of expertise. The propensity for gratuitous concurrence is but one example. The extent to which a particular accused might reflect those culturally linguistic features might also be the subject of expertise, and indeed would need to be if the more general expertise is to be relevant. Such an approach is not, as the judgment of Ambrose J suggests, an attempt to demonstrate the unreliability of a statement because of genealogy or to attribute particular speech habits to persons 'because of their racial background'. The Court of Appeal's reliance on 'genealogy', much like notions of 'full-blood' and 'extraction', as distinct from cultural affiliation is, in my respectful view, reflective of formerly normative attitudes that ought now to be regarded as misplaced.[82]
3. The appeal by Mr Condren was dismissed and he remained in prison, a convicted murderer. After seven years in prison, further exculpatory evidence emerged. The Queensland Court of Criminal Appeal (Kelly SPJ, Thomas and Dowsett JJ) unanimously set aside the conviction.[83] Mr Condren's 'confession' was falsified. Even the limited evidence of Dr Eades that the majority of the Court of Appeal in 1987 considered admissible (although of little weight) was sufficient to permit a jury to understand that it did not bear its face value.[84] In 2021, another person, Andrew Albury was charged with Ms Carlton's murder. Mr Albury had in fact confessed to the murder of Ms Carlton in 1983. His confession had included fairly accurate details of the offence. Mr Albury was called as a witness at the original trial but repudiated his confessions and denied that he had ever assaulted Ms Carlton. That same year, Mr Albury was imprisoned for life for the murder of another young Aboriginal woman. In 2004, the Northern Territory Supreme Court altered Mr Albury's sentence, at the request of the Northern Territory Director of Public Prosecutions, to a 'do not release' order. It appears that as long as Mr Albury remains imprisoned in the Northern Territory, the Queensland Police do not intend to extradite Mr Albury to stand trial for the murder of Ms Carlton. In the end, a young Aboriginal woman was savagely murdered; a young Aboriginal man was wrongly imprisoned for her murder for 7 years; and no one has been held accountable.
4. In 1997, Justice Dean Mildren of the Supreme Court of the Northern Territory published his influential article that I have referred to at paragraph [34] above. The article included the formulation of the 'Mildren direction' that is the subject of the first ground of this appeal. The article begins:[85]

The problems of providing a fair and just system for the investigation of complaints made by and against Aboriginal people, the trial of Aboriginal defendants and the appropriate use of the court's sentencing powers have been a subject of much academic discussion for a very long time. While many of the worst inequities have gone, there are still many problems which remain to be adequately addressed. There is no shortage of academic writings about what the problems are; suggested solutions are, however, much harder to find.

1. The article then referred to the Queensland Court of Appeal decision in Condren and set out passages of the judgments of Macrossan J and Ambrose J which explained the inadmissibility of the evidence of Dr Eades. Justice Mildren then noted that the attitude of the Court of Appeal:[86]

...is to be contrasted with the attitude of the courts to the calling of expert evidence on the stylistic analysis of an individual person, speech patterns, or the calling of linguistic evidence relating to an individual's speech patterns to assist the jury to evaluate the reliability of a confession, or, indeed, whether it was made at all.

1. Accepting the obvious proposition that one cannot assume that generalisations about Aboriginal English-speaking patterns will be applicable to any particular witness or accused person, Justice Mildren went on to argue that the awareness of such factors would nevertheless give a jury some basis for forming a view, having seen and heard the particular witness, as to whether or not generalisations are of any assistance in understanding or forming a view as to the reliability of the evidence of that witness. His Honour then set out the principal focus of his paper. If, as was apparent from the decision in Condren, expert evidence on the topic is unlikely to be admissible, then it was nevertheless proper for the trial judge to give directions to the jury on the subject in appropriate circumstances. Justice Mildren explained: [87]

The purpose of the proposed direction is not to usurp the jury's function as the finders of fact, but to draw their attention to matters, which, in the court's experience may assist them in their function of evaluating the evidence.

1. The article then set out suggestions as to the nature and content of directions that might be given to a jury before First Nations witnesses are called, drawing attention to the main areas where misunderstandings may occur. The article also suggested control by trial judges over forms of advocacy that could operate unfairly to Aboriginal witnesses and accused persons. The substance of the directions suggested in the article became known as a 'Mildren direction'. The Mildren directions have subsequently gained fairly wide acceptance, including their adoption in the Aboriginal Benchbook for Western Australian Courts.[88]
2. In Hall v Police, Lander J considered an appeal against convictions arising from circumstances (comprehensively and colourfully described in his Honour's decision) involving testimony from First Nations people.[89] The decision is one of a good number of judgments that rely upon the published socio-linguistic expertise of the same Dr Eades. Lander J said:[90]

Some allowance has to be made in a review of Carmel Stapleton's evidence for the fact that she was a young Aboriginal girl giving evidence in a difficult and widely publicised case. The disadvantages that some Aboriginal people have in giving evidence have been well documented. The differences between cultures and usage of English have potential to create misunderstanding. Among them are the differences between standard English and Aboriginal English in expressing quantity and distance: Eades, D. "Aboriginal English and the Law" (1992) Continuing Legal Education Department of the Queensland Law Society at p29. Aboriginal culture makes it difficult for some Aboriginal people to answer multiple questions. (Ibid, p47). Furthermore, an agreement to a statement may not be a genuine agreement, but merely gratuitous concurrence.

1. Returning to the Mildren directions, so far as I could ascertain, the notion of a Mildren direction was first referred to in this jurisdiction by the Court of Criminal Appeal in Simon v The Queen where it was contended on an appeal against a conviction that the trial judge had erred by failing to give a Mildren direction prior to the prosecution leading evidence or upon directions being given to the jury.[91] The notion of a Mildren direction was not the subject of any substantive consideration on that occasion.
2. A similar issue of admissibility arose again in Jango v Northern Territory (Jango),[92] which dealt with a claim for compensation under the Native Title Act 1993 (Cth). The applicants in that case sought to tender a report by an expert in anthropology and linguistics. Objection to the report was taken under the provisions of the Evidence Act 1995 (Cth). Relevantly, Part 10 of that expert report included observations on difficulties of language and communication experienced by Aboriginal people. The claimed expertise extended to opinions on matters of cross-cultural communications. Sackville J said (citations omitted):[93]

The general principle is that the ultimate conclusion as to the credibility or truthfulness of a particular witness is a matter for the trier of fact and is not the proper subject of expert opinion. However, in Farrell v R the High Court held that an expert may give evidence as to the existence or possible existence of a disorder or disability affecting the capacity of a witness to give reliable evidence, provided the testimony goes beyond the ordinary experience of the trier of fact. Accordingly, evidence should have been admitted from a psychiatrist that the complainant suffered from mental disorders that may have caused memory impairment and a propensity to lie.

I was not taken in argument to Farrell v R, and thus I have not had the benefit of submissions as to whether the principle applied in that case extends to evidence concerning language or communications difficulties that might be experienced by Aboriginal witnesses. Nor was my attention drawn to any native title or similar cases in which evidence of this kind has been admitted.

I think it is at least arguable that an anthropologist with extensive experience in communicating with Aboriginal people on matters of traditional laws and customs can give evidence of language or communications difficulties that might have a bearing on the ability of Aboriginal witnesses to give reliable or complete evidence on important issues. In the absence of full argument on these issues, I think it appropriate to admit the general observations of Professor Sutton about language or communications difficulties likely to be experienced by Aboriginal witnesses. Some of these difficulties are well known and it may be that the points made by Professor Sutton could equally be made in submissions. Nonetheless, I think that the observations might be of some relevance and can be said to be the product of relevant training or experience.

In so far as Professor Sutton comments on particular passages of evidence given at the hearing, I do not think that his comments should be admitted into evidence. The evaluation of specific evidence is the task of the trier of fact. In discharging that task, the trier of fact will have to take account of many factors, of which the difficulty of cross-cultural communications is but one. I do not think that the relevant expertise of an anthropologist extends to the evaluation of specific evidence given by particular witnesses at the hearing.

Even if the proffered evidence evaluating the testimony of particular witnesses was within Professor Sutton's expertise, I would reject it pursuant to s 135(c) of the Evidence Act. To allow Professor Sutton to give evidence of this kind is to invite a collateral dispute, potentially involving lengthy cross-examination, on a matter that is quintessentially for the court to determine. The probative value of the evidence, if any, is substantially outweighed by the danger that the evidence will result in an undue waste of time.

1. I should note of course that there is no real equivalent in the Evidence Act 1906 (WA) to s 135 of the Evidence Act 1995 (Cth).
2. Very shortly after the decision in Jango, the Court of Criminal Appeal in this jurisdiction handed down the decision in Stack v The State of Western Australia in which it considered an appeal against conviction for unlawful wounding.[94] Evidence was given at trial by an eighteen-year-old Aboriginal man. The trial judge ruled that counsel for the accused was not permitted to cross examine the young man with leading questions. A ground of appeal was that the ruling denied the accused a fair trial and there was therefore a miscarriage of justice. The trial judge's opening remarks at trial were based on the directions suggested by Justice Mildren in the article referred to above.
3. Murray J discussed the article by Mildren J. His Honour also made reference to a work published by Dr Eades in 1992 titled 'Aboriginal English and the Law' and Dr Eades' reference in that work to the phenomenon of gratuitous concurrence.[95] Murray J went on to observe that:[96]

The way in which this application was argued makes it clear that this is not the occasion to consider in any detail the admissibility of evidence about the use of the English language by persons of Aboriginal descent and their understanding of what is meant by others who question them in English. I note that in R v Condren (1987) 28 A Crim R 261 the Queensland Court of Criminal Appeal held that such evidence would be inadmissible for at least two reasons. One was that the members of the Court doubted that there was a sufficiently specialised field of knowledge about the topic which would qualify a person as an expert, although for myself I would think it might be possible for a person to be qualified as a witness to give evidence of primary fact as to the manner of speech and the impact of cultural background on understanding. As I say, there is no occasion in the context of this application to give that question further consideration.

The other and potentially more fundamental objection to the admissibility of evidence of this kind taken by the court in Condren was that if it was generally possible to give such evidence it would be inadmissible because irrelevant to the characteristics, language and understanding of a particular individual, whether the accused person or not, who was a witness giving evidence in court or whose out of court statements were sought to be admitted in evidence. Again, I would not wish to foreclose the proposition that evidence of this kind might be given in a context where its relevance could be established.

In this case, however, no such evidence was or was sought to be led [...]

1. Steytler J referred to the decision in Anunga, the article by Mildren J and the reference to gratuitous concurrence by Lander J in Hall v Police and in the work of Dr Eades, noting that Dr Eades' work had been referred to with approval in a number of decisions. Steytler J then quoted at some length from Condren. Steytler J concluded:[97]

While I would not doubt that cultural and language issues might play a significant role in the giving of evidence by some Aboriginal persons (in common with persons of many other cultures) and while I accept that it might be appropriate, in a particular case, to alert the jury to the potential significance of those factors in circumstances in which the jury might otherwise not be aware of them, and even to regulate the form which cross-examination takes, in order to take account of those differences or difficulties, there is, in my respectful opinion, a need for great caution in this area. As with any group or culture, what is generally true may not be true in respect of individual members having different experiences or backgrounds (in this case all of the witnesses were suburban dwellers). I do not consider that any generalised assumption should be made in respect of particular witnesses in the absence of evidence that those factors are applicable to that witness. That is to say, it seems to me that the factors must ordinarily be apparent either from the evidence of the witness himself or herself or from the manner in which the evidence is given. Moreover, while the trial Judge has a discretion to control the form which cross-examination takes, in the end it is a matter for the jury to determine whether or not any general characteristics which might apply to one cultural group are applicable to the evidence of the particular witness concerned. I agree, in this respect, with what was said by the members of the Court in Condren.

1. In Bowles v The State of Western Australia the Court of Appeal considered an appeal against a conviction in which the evidence of a young Aboriginal female complainant was central.[98] The appellant's ground of appeal alleged unfairness in the trial judge's summing up to the jury. The trial judge made remarks which provided possible reasons for apparent inconsistencies in the complainant's evidence that related to the complainant's Aboriginality and gave the jury a Mildren direction. By doing so, the appellant submitted that the trial judge had rehabilitated the complainant's testimony and given her Honour's own explanations for inconsistencies in the evidence.
2. In rejecting the appeal, Hall J (with whom Buss and Murphy JJA agreed) said:[99]

In the case of Aboriginal witnesses it has been recognised that the reliability of answers may be suspect if given in answer to leading questions: Morgan v Western Australia [2011] WASCA 185. The willingness of some such witnesses to agree with a proposition put to them by a person in authority, regardless of whether they in fact agree, has been referred to as "gratuitous concurrence". The expression was used by K Libermann in an article titled "Ambiguity and Gratuitous Concurrence in Inter-Cultural Communication" (1980) 3(1) Human Studies 65. The phenomenon was also referred to in Stack v Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [114]. In that case, Steytler J at [59] referred to an article by Mildren J entitled "Redressing the Imbalance Against Aboriginals in the Criminal Justice System". It is from that article that the so-called Mildren direction has been drawn. See also Hall v Police [1999] SASC 197 [193] - [196].

The Aboriginal Benchbook refers to Mildren directions as being pro forma directions to the jury for cases involving Aboriginal witnesses to be given before the prosecution opens the case. It notes that such directions are designed to assist a jury in assessing the evidence of Aboriginal witnesses. This is said to be achieved by drawing the jury's attention to the possibility that socio-linguistic features of an Aboriginal witness' evidence may lead to misunderstandings. The Benchbook does not give a suggested form of directions, nor does it suggest that such directions are required in every case which involves Aboriginal witnesses.

It would be wrong to assume that such directions ought to be given in every case that involves a witness or an accused who happens to be Aboriginal. It would be wrong to think that simply because a person is of a particular race they will be labouring under some disability or should not be judged by the standards that might apply to other witnesses.

1. Later in his reasons, Hall J continued:[100]

[...] it does not seem to me to be helpful to attempt to define a category of cases where a Mildren direction will be appropriate and then to ask whether or not a case in question falls within that category. The relevant question will always be whether the directions given to the jury in a particular case appropriately addressed the issues raised in that case. Whether or not a jury will need directions to assist them in their approach to assessing the evidence of a vulnerable or disadvantaged witness will invariably depend upon the circumstances of the particular case. In this regard, a trial judge will need to consider factors such as the age, communication ability, level of sophistication, demeanour and other observable traits that it may be appropriate to point out to the jury.

1. In Aytugrul v R, Heydon J, delivering a separate but concurring judgment regarding the admissibility of certain DNA evidence said:[101]

So used, the material would have been similar to evidence admitted in the United States about the fallibility of eyewitness identification, the low rate of recidivism among those convicted of murder on a hearing to determine sentence, the relevance of "battered woman syndrome" to self-defence and the characteristics of abused children. And, so used, it would have been similar to evidence admitted in Australia about "infantile amnesia", the effect of mental impairment on a witness's powers of observation, recollection or expression, the language or communications difficulties bearing on the ability of Aboriginal witnesses to give reliable or complete evidence, the relevance of "battered woman syndrome" to duress, the incidence of recovered memory syndrome and the effects on children of separation from their parents.

(Emphasis added)

1. The proposition expounded by Sackville J in Jango and by Heydon J in Aytugrul v R is restated by J D Heydon in his well-known text, Cross on Evidence:[102]

Expert evidence is admissible to show that a witness's capacity to observe, recollect or to express is impaired by mental disorder, because it is relevant to the weight to be given to the witness's evidence, so long as the weight to be given to that evidence depends on expertise. This principle may extend to the expert evidence of an anthropologist about language or communication difficulties bearing on the ability of Aboriginal witnesses to give reliable or complete evidence.

1. In contending for the admissibility of Mr Bowen's report, counsel for Mr Murray placed some reliance on the decision of Hall J in State of Western Australia v Gibson.[103] Mr Gibson was charged with murder. Mr Gibson was a 21-year-old Aboriginal man who had lived most of his life in the isolated Kiwirrkurra community in the Gibson Desert. The case concerned Mr Gibson's application for a ruling that his police interviews were not admissible. Dr Eades was called to give evidence in support of the application. Hall J observed that Dr Eades' expertise in linguistics, especially English as spoken by Aboriginal people, was not in dispute. Dr Eades gave evidence as to her opinion on Mr Gibson's proficiency with English.
2. A police interview had been conducted with Mr Gibson without an interpreter. A detective explained to Mr Gibson his relevant legal rights. Dr Eades gave evidence as to whether Mr Gibson would have understood the explanation about his rights, in particular his right to silence. Dr Eades' evidence was that there were likely to have been serious communication problems, including answers given as a result of gratuitous concurrence as well as linguistic difficulties. Dr Eades' view was that the interview was beset with communication problems which would have made it impossible for Mr Gibson to understand his right to silence. Hall J accepted the evidence of Dr Eades that Mr Gibson was unlikely to have understood the caution he was given. Hall J set out the judgment of Forster J in Anunga at some length and concluded that Mr Gibson did not understand his right to silence. For that and other reasons, Hall J ruled that the police interview was not admissible.
3. In Wotton v Queensland,[104] Mortimer J considered an interlocutory application to adduce expert evidence from Dr Eades for the purpose of assisting with the credibility assessment of Aboriginal persons called as witnesses in a proceeding. Section 102 of the Evidence Act 1995 (Cth) sets out the 'credibility rule' and provides that credibility evidence about a witness is not admissible. The application was made under s 108C of the Evidence Act 1995 (Cth) which provides, in effect, that the credibility rule does not apply to evidence given by a relevant expert. Her Honour explained that, in her report, Dr Eades described a number of issues of language and culture which arise when interviewing or taking evidence from Aboriginal people. These include the use of question-and-answer format, a tendency in Aboriginal people to engage in gratuitous concurrence, the use of silence or pauses in the way that Aboriginal people respond to questions, the different responses often given by Aboriginal people to requests for specific information, and the different linguistic structure of spoken Aboriginal English.
4. Mortimer J said there was no difficulty with the expert evidence being admissible for the purpose of informing the court's assessment of the credibility of the evidence given by Aboriginal witnesses in the proceeding. However, the application went further and sought to have Dr Eades express orally her opinions about specific parts of the evidence of witnesses in an attempt to explain what might otherwise be seen as particular credibility issues with their evidence. Mortimer J ruled that Dr Eades' expert opinion was not admissible for that purpose, referring to the Jango decision where Sackville J had explained that the evaluation of specific evidence is the task of the trier of fact and that in discharging that task, the trier of fact will have to take account of many factors, of which the difficulty of cross-cultural communications is but one. Mortimer J explained further that Dr Eades was not in court when the witnesses gave evidence, and her opinion would not be proffered by reference to the same factual foundation and context as that in which the court must assess each witness. Mortimer J explained that her comments were not a criticism of Dr Eades. Rather, confusion was a likely outcome because of the proposed process of revisiting evidence already given in the proceeding.
5. Counsel for Mr Murray also relied on the decision of State of Western Australia v Liyanage[105] to support a submission that 'evidence of cultural practices, meaning of language and ways of communication can be led in a criminal trial.'[106] In that matter, the defence sought to lead evidence from a social worker about the impact of domestic violence on victims. The court at first instance ruled that evidence inadmissible. On appeal, although the Court of Appeal maintained that the evidence was not admissible, their Honours Martin CJ, Mazza and Mitchell JJA observed:[107]

Although not referenced by counsels' submissions, there is a significant body of academic literature which is supportive of the admission of 'social context evidence' in cases of the present kind.

1. The Court of Appeal then went on to say: [108]

Another example of potentially relevant contextual evidence, which might fairly be described as 'social context' evidence, would be features of the appellant's culture which may not otherwise be known to the jury. Suppose, for example, that there were particular cultural barriers in Sri Lankan society to a wife leaving her husband. An appreciation of those barriers may be relevant to an assessment of the options which the appellant would have believed to be open to her, and the reasonableness of her beliefs and response. Evidence about the relevant cultural impediments (which would not necessarily be expert evidence) could be received.

1. In EYO v The State of Western Australia,[109] the Court of Appeal endorsed the application of the Anunga guidelines as an indication of what is required to achieve fairness when a First Nations person is being questioned by the police. The Court of Appeal said of the Anunga guidelines:[110]

They do not have the force of law in Western Australia and are not absolute, but, in appropriate circumstances, they give a very good indication of what ordinarily would be regarded as a fair interrogation. The basic principles embodied in the Anunga guidelines remain as relevant today as when they were first formulated in 1976. However, the application of the guidelines must reflect changes in social conditions and values, and community standards and expectations.

1. In a somewhat different context, the Court of Appeal in Luo v The Queen,[111] considered an appeal against the appellant's conviction for importing a commercial quantity of methamphetamine. The grounds challenged the admission into evidence of the appellant's police interviews. The appellant was from Guangdong province in China. The interviews were conducted with the assistance of an interpreter. It was contended that the appellant did not understand the caution given at the interviews and they were not voluntarily given. The appellant contended that the Anunga principles should be applied in the assessment of fairness. In rejecting the appeal, the Court of Appeal made the following general observations in relation to interpretation:[112]

In assessing what is said in an interpreted interview, account must be taken of the nature of the interpretive task and the limitations in the capacity of an interpreter to convey the precise meaning of words spoken in one language into another language. Particularly when account is taken of differences in grammatical structure, the process of interpretation from one language to another cannot be expected to convey a sense and nuance identical to the original speech. The limitations in the capacity of an interpreter mean that the interpreted evidence should not be subject to microscopic examination for inconsistencies. This court has recognised these limitations in de la Espriella-Velasco v The Queen. The need to take account of those limitations seems to us to be particularly acute when examining the English interpretation of words spoken in Cantonese which were themselves an interpretation of words originally spoken in English.

1. In my view the following relevant principles that are germane to the relevance and admissibility of Mr Bowen's report, and the issues generally raised on this appeal, may be distilled from the review of the decisions referred to above:

(a) Courts have long been concerned about fairness to First Nations people in the justice system arising from difficulties in communication. These barriers to justice arise in many contexts, but particularly in the criminal justice system and in interaction with law enforcement agencies and in giving evidence in courts.

(b) Over time, a number of guidelines and directions that seek to ameliorate that unfairness have been developed and endorsed by the courts. One of these is a set of guidelines set out by Forster J in R v Anunga for police officers when questioning Indigenous people. Another is a set of directions devised by the Hon Justice Dean Mildren that may be necessary or appropriate to give a jury in its assessment of the evidence of an Indigenous witness. These have become known as Mildren directions. These guidelines and directions seek to ensure fairness by drawing attention to socio-linguistic features of the witness that may give rise to misunderstanding.

(c) It is not the law that Mildren directions, the Anunga guidelines, or their equivalents are required to be given whenever an Indigenous person gives evidence. They do not have the force of law. Nor is it appropriate to define a category of cases when such directions ought to be given. In each case it is a matter of ensuring whether fairness and the interests of justice require such directions, and the content of any directions. At the same time, those directions and guidelines are a fair signpost to what is required for a fair and just communication.

(d) The communication difficulties encountered by Indigenous people are the product of their cultural or traditional background and related social experience. It is neither appropriate nor helpful to assess those matters by reference to a person's genealogy, racial extraction or 'blood' levels. Such nomenclature ought now to be recognised as antiquated, at the very least.

(e) The socio-linguistic features of communities of Indigenous Australians ought now to be unambiguously recognised as a field of expertise. That includes features such as the propensity for gratuitous concurrence.

(f) The relevance of such expert evidence will likely, if not invariably depend upon expert evidence as to the extent to which the relevant person reflects the particular socio-linguistic features identified with the community the subject of the expert evidence.

(g) There is a tension between the understanding that ought fairly to be accorded to Indigenous people in the assessment of their evidence and straying into the repugnant territory of racial stereotyping. For that reason alone, evidence of socio-linguistic tendencies of a culture or community will ordinarily only have utility (and be admissible) if it is accompanied by an evaluation of the socio-linguistic features of the particular witness.

(h) Evidence based on socio-linguistic expertise may well assist a court in understanding the evidence of an Indigenous witness or facilitate an Indigenous person's fair and just communication with the justice system. That evidence may extend to an expert opinion on whether, in particular circumstances, a person had the capacity to understand a particular thing or to honestly articulate a particular thing. However, it is impermissible for expert evidence of that nature to stray into the territory of whether a witness is telling the truth as that is exclusively the domain of the trier of fact, be it a judge or jury.

(i) In addition, consistently with the approach in Jango and Wotton, post-facto expert socio-linguistic evidence that descends into a detailed evaluation of evidence given at a hearing, may well stray into the arena of credibility and is in any event unlikely to be of probative value.

(j) The limitations identified in cases such as Jango and Wotton apply with even greater force when dealing with evidence given through an interpreter. The limitations in the capacity of any interpreter mean that there is likely to be limited utility in subjecting the interpreted evidence to microscopic evaluation.

Conclusions as to the admissibility of Mr Bowen's report

1. In light of those principles, I return to the matter of Mr Bowen's report. I accept that it broadly satisfies the criteria set out at paragraph [77] above. Socio-linguistics generally, and the difficulties faced by First Nations people in communicating about legal matters, is a field of specialised knowledge in which Mr Bowen has both training and experience. His opinion is based on that training and is largely expressed in a manner that permits scrutiny.
2. The first section of Mr Bowen's report is a summary of the balance of the report. It therefore stands or falls with the balance. The reconstructed transcript satisfied the criteria for expert evidence and in any event was not the subject of any objection. Thus, the reconstructed transcript and those parts of Mr Bowen's report that provide an explanation of it (parts of the second and the fourth section), are admissible, and indeed valuable. The same may be said in respect of the third section of the report.
3. However, in my respectful view, notwithstanding Mr Bowen's undoubted expertise, the fifth section of his report presents considerable difficulty in terms of its admission as evidence in this appeal.
4. First, as I have already observed, a number of Mr Bowen's observations amount to conjecture, educated and intelligent though it no doubt is. As I noted above there is also at least one part of Mr Bowen's report where I cannot discern the rationale for his conclusion.
5. Further, it is clear that Mr Bowen's observations and conclusions are based in part on his view that there were some inadequacies in interpretation. Quite apart from the fact that the appellant has disavowed any reliance in this appeal on errors of interpretation, it is not at all clear how this aspect of Mr Bowen's expert report is to be received or understood given Mr Bowen's own disavowal of expertise in Kriol.
6. Moreover and more generally, in a number of respects Mr Bowen is commenting on the communication between Mr Murray and the interpreter and the impact of that communication on what Mr Bowen opines Mr Murray may have intended. Putting to one side the speculative nature of that conjecture, the analysis overlooks that the appeal is concerned with the magistrate's analysis of the interpreted words. Unless the appeal seeks to prise open errors or miscommunications between Mr Jenkins and Mr Murray, these issues are irrelevant to the appeal. Counsel for Mr Murray expressly disavowed any such element of the appeal.
7. Further, Mr Bowen was careful to explain that he read and listened only to the evidence of Mr Murray. He did not concern himself with any other evidence. Mr Bowen was also not present in court during that evidence. The evaluation of the evidence of Mr Murray in isolation from any other evidence, and without the benefit of observing Mr Murray in the witness stand, is of quite limited utility. The task of the magistrate was to evaluate the whole of the evidence, including but not limited to the evidence of Mr Murray. This is of particular importance in light of the fact that the magistrate accepted as honest and largely reliable, the evidence of Mr Harwood. To give but one example, the assessment of the evidence regarding the amount of time Mr Murray was at Mr Harwood's home, and his reference to time descriptors such as 'a little while' cannot be undertaken in isolation from all of the evidence, especially that of Mr Harwood. The magistrate's observation about the competing versions being 'chalk and cheese' cannot sensibly be analysed in the absence of Mr Harwood's evidence. In my view, the magistrate's assessment of the evidence as a whole cannot be faulted in that regard.
8. Perhaps most importantly, this section of the report trespasses on the exclusive domain of the court in the evaluation of the whole of the evidence including the evidence of Mr Murray. It amounts to post-facto expert socio-linguistic evidence that descends into a detailed evaluation of evidence given at a hearing that tends to stray into an assessment of credibility and fact-finding. To that extent it drifts into the task entrusted solely to the arbiter of fact, the magistrate. It is in any event of limited probative value.
9. Importantly, that role of the court is reflected in the relevant statute. Section 13 of the Magistrates Court Act 2004 (WA) provides that the court in exercising its jurisdiction is to decide all questions of fact and law.
10. In all the circumstances, I would not admit into evidence the fifth section of Mr Bowen's report. Even if I am wrong about that and the evidence ought to be admitted, I would accord it little weight.

1. I turn then to the grounds of appeal themselves.
2. Ground 1 asserts error on the basis that the magistrate failed to direct himself properly in accordance with the Mildren directions. As I have noted, the Mildren directions do not have the force of law. They have particular (but not exclusive) application where, unlike in this case, there is no interpreter. Moreover, Mildren directions are suggested directions to a jury by a judicial officer. Where the arbiter of fact is the judicial officer him or herself it is far from clear that error is demonstrated by the failure of the judicial officer to articulate out loud the sentiments expressed in the Mildren directions in the reasons for decision.
3. The absence of error in that regard is reinforced when one has regard to s 31 of the Magistrates Court Act which deals with the required content of judgments. It provides:

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

1. Moreover, the learned magistrate did make some express reference to the language difficulties encountered by Mr Murray. The magistrate made the following remarks in his ex tempore reasons:[113]

HIS HONOUR: ...It was clear that he had some difficulty in giving evidence on the basis of a number of factors, including that English was the second language for him so that at any time when an accused is giving evidence through an interpreter there are difficulties

I note also that he is from a culturally traditional background from Halls Creek and I take into account also in terms of making an assessment of any timeline or evidence in respect of sequence or sequences... that particular leeway should be given in terms of the evidence of Mr Murray and I have done so.

1. In the circumstances I do not consider that the magistrate erred by failing to direct himself properly in accordance with the Mildren directions.
2. However, as I noted above, the substantive complaint behind this ground lies not in any particular formulation of what the magistrate said in his reasons, but rather in the underlying unfairness to Mr Murray in the magistrate's approach. To the extent that the ground so understood relies upon the magistrate's alleged misunderstanding of Mr Murray's evidence, it relies largely on the analysis of Mr Bowen which I have ruled to be inadmissible. As I have also said, that analysis tends to usurp the role of the magistrate in the analysis of the facts and the assessment of credibility. I would not in any event find error or fault in the magistrate's analysis of the facts as they emerged in the trial. To the extent that the ground seeks to raise a broader notion of unfairness to Mr Murray by the magistrate's remarks and treatment of Mr Murray, that is an issue that is encompassed by Grounds 2 and 3.
3. For those reasons, I decline to grant leave in respect of Ground 1.

1. Ground 2 contends that a miscarriage of justice occurred by reason of the magistrate's ruling to the interpreter Mr Jenkins to stop interpreting portions of Mr Murray's evidence. The immediately obvious difficulty with this ground is the responsive conduct of the interpreter Mr Jenkins and Mr Murray's counsel, a relatively young lawyer form Legal Aid, Ms Laila Hughes. With admirable courage and to their great credit, Mr Jenkins and Ms Hughes politely but resolutely ignored the magistrate's ruling. The interpretation continued, unabated.
2. That, however, is not in my view the end of the matter. The fact that the interpretation continued does not of itself mean that the magistrate's remarks and treatment of Mr Murray was consistent with a fair and just hearing.
3. Before further consideration of that issue, it is convenient at this point to turn to Ground 3, which alleges error on the part of the magistrate in finding that Mr Murray was speaking ordinary English when in truth he was speaking Aboriginal English or Kriol. As noted, the respondent conceded the error. However, the respondent submitted that the court should nevertheless dismiss the appeal pursuant to s 14(2) of the Criminal Appeals Act as there was no substantial miscarriage of justice.
4. Thus, both Grounds 2 and 3 direct attention to the issue of a miscarriage of justice and what is meant by a fair trial. The assertion of unfairness is directed essentially to the conduct of the trial and particularly the remarks of the magistrate in respect of the socio-linguistic impediment encountered by Mr Murray.

1. It is convenient at this point to review the general principles that apply to interpretation services in ensuring a fair trial. The legal principles regarding the 'right' of an accused person in a criminal trial to adequate interpretation services were canvassed in this jurisdiction in the judgment of Roberts-Smith JA in De La Espriella-Velasco v The Queen.[114]
2. In summary, his Honour identified the following principles:

(a) The right to access interpretative services is not a stand-alone right, but rather an essential incident of the right to a fair trial;[115]

(b) Criminal trials must, except in exceptional circumstances, occur in the presence of the accused. The accused must understand the case put against them and must have the opportunity of answering it. In order to make good that requirement, an accused who is unable to adequately understand or give evidence in English must be given the assistance of a competent interpreter;[116]

(c) The denial of an interpreter to an accused who needs one may constitute an unfair trial;[117]

(d) The role of an interpreter is not to translate word-for-word, as it were, but rather to convey the meaning of words used and enable communication between the court and the accused;[118]

(e) In order to succeed as a ground of appeal, it must be shown that as a consequence of the deficiency of any interpretation, 'either alone or in combination with some other deficiency, the trial was unfair - and that it was so unfair as to constitute a miscarriage of justice'.[119]

1. The Judicial Council on Cultural Diversity describes the role of the interpreter as follows: [120]

The interpreter's role is to remove the language barrier so that the party can be made linguistically present at the proceedings and thereby be placed in the same position as an English-speaking person. This means that a party is entitled to participate in the proceedings in their own language. As such, the work of interpreters is essential to ensuring access to justice and procedural fairness for people with limited English proficiency in Australia's courts. Further, in the case of criminal proceedings, if an accused needs an interpreter, the trial cannot proceed unless and until an interpreter is provided.

1. In 2017, the Judicial Council on Cultural Diversity published their first edition of the 'Recommended National Standards for Working with Interpreters in Courts and Tribunals' (the Standards). The Standards include the following recommended standards for Judicial Officers: [121]

17.4 Except where a Qualified Interpreter has been engaged, judicial officers should ascertain the competence of an interpreter by reference to their certification status, qualifications and court experience, as well as whether they are members of AUSIT, ASLIA or other recognised State or Territory based association requiring adherence to a code of ethics and/or standards. If the judicial officer is concerned about any of these matters, they may raise this with the parties to ascertain whether another interpreter is available, and should consider adjourning the proceedings until one is available.

17.5 At the start of proceedings, and before an interpreter commences interpreting, judicial officers should introduce the interpreter and explain their role as an officer of the court or tribunal.

17.6. Judicial officers should confirm that the interpret has acknowledged the Court Interpreters Code of Conduct and understands their duties as an officer of the court or tribunal.

1. The Standards do not have the force of law; they are not binding on judicial officers; they are aspirational.

1. It is uncontroversial that Mr Murray was assisted throughout the trial by Mr Jenkins. Mr Jenkins was present during the whole trial and translated the evidence of the prosecution witnesses to Mr Murray while he was in court. I have also already observed that I cannot find fault with the learned magistrate's analysis of the facts on the evidence before him provided through Mr Jenkins the interpreter.
2. However, the conduct of Mr Murray's prosecution raises the three episodes of concern identified earlier in these reasons.
3. First and foremost was the learned magistrate's remark that Mr Murray was speaking English and the somewhat strident comments and ruling to Mr Jenkins to cease his interpretation of the portions of Mr Murray's evidence that the magistrate considered were spoken in English, and to Ms Hughes that the magistrate did not wish to hear her submission.
4. Secondly, as the passage of the transcript set out at paragraph [29] above shows, at the hearing on 21 July 2021 the magistrate said that Mr Murray 'speaks and understands English perfectly competently'. I have set out at paragraph [57] Mr Bowen's conclusions regarding Mr Murray's facility with English. I have also listened to the audio of Mr Murray's evidence carefully. Although I have no expertise in linguistics, no expertise was required for me to conclude that the magistrate's description was, on any objective assessment, wide of the mark.
5. Thirdly, as the passage of the transcript set out at paragraph [28] above shows, at the beginning of the trial the magistrate expressly declined to hear or record Mr Jenkins' name or qualifications or swear him in. In that regard at least, the magistrate's conduct undeniably fell well short of the Standards referred to at paragraph [148] above. That of itself is most unlikely to constitute grounds for appeal. However, the lack of consideration and respect it reflects for Mr Jenkins and the interpretation process, regrettably reinforces the difficulty that emerges from the other two matters.
6. The central question raised by Ground 2 is whether the conduct of the trial process involved a miscarriage of justice. The central question raised by Ground 3 is whether the magistrate's error led to a substantial miscarriage of justice. The State's answer to both those propositions is that no practical injustice occurred because Mr Murray had the benefit of a continued, competent, professional translation throughout his evidence and throughout the trial. There was no manifest error in the magistrate's analysis of the facts arising from the evidence. There was in practical reality no unjust barrier to communication or error in the assessment of the evidence.
7. The overarching question is whether these three matters in combination resulted in a miscarriage of justice by virtue of unfairness in the trial. That in turn directs attention to meaning and content of 'a fair trial'.
8. A fair trial is a central pillar and fundamental element of the criminal justice system.[122] There has been no judicial attempt to list exhaustively the attributes of a fair trial and it is not possible to formulate comprehensively the concept of a fair trial.[123]
9. The notion of a fair trial is distinct from a trial in accordance with law. The notion of fairness transcends the content of particularised legal rules and principles. Indeed, fairness provides the ultimate rationale and touchstone for the rules and principles.[124]
10. In Dietrich v R, Gaudron J said:[125]

It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The expression "fair trial according to law" is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness.

1. More recently, the Judicial Commission of New South Wales in its Handbook for Judicial Officers published a paper by her Honour Justice Helen Wood of the Supreme Court of Tasmania. The paper reviews some of the important principles that are relevant to this appeal. Her Honour concludes in that paper:[126]

In drawing from Dietrich, the principles provide a foundation for trial judges in accommodating the difficulties faced by culturally diverse litigants. The principles give centre stage to the obligation to provide a fair trial. There is power to prevent a miscarriage of justice. They recognise that the court's obligation in eliminating unfairness involves more than merely following rules of procedure and trial process.

Undoubtedly, the solutions to unfairness will arise from a focus on the individual in individual cases.

1. While the requirement of a fair trial has been long established, the practical content of the requirements of fairness may vary with changing social standards and circumstances. Many rights that we take for granted as fundamental were only recognised gradually by the common law.[127]
2. I am conscious that there is no clear precedent for the proposition that a trial in which a fulsome interpretation was provided was nevertheless fundamentally unfair in the way asserted in this case by Mr Murray. In Dietrich, members of the High Court reiterated that the requirement of fairness is not to be equated with idiosyncratic notions of what is fair and just.[128] Rather, fairness is to be determined by the traditional processes of legal reasoning by reference to earlier decisions and settled rules and practices. However, there will arise the rare case in which those processes of legal reasoning may not be wholly adequate in a developing area of the law, or in which a court concludes that the circumstances are such that it is obliged to reassess some rule or practice in the context of current social conditions, standards and demands. In such a case, direct reference will necessarily be made to the underlying notion of fairness and subjective values and perceptions may intrude into the judicial process. Notions of fairness are necessarily bound up with prevailing social values. This is an unavoidable concomitant of the judicial function if the law is not to lose contact with the social needs which justify its existence and which it exists to serve.[129]
3. A miscarriage of justice is a standard, not a rule.[130] It is a standard that does not lend itself to prescriptive definition. In Jago v District Court of New South Wales, Deane J said:[131]

A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law....

The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment.

1. The formula 'a miscarriage of justice' has been adopted in many criminal statutes in Australia, including the Criminal Appeals Act. Sections 8 and 14(2) both deploy the language of miscarriage of justice; the latter section includes the descriptor 'substantial'. That statutory language has been considered in a number of decisions in the context of equivalent or similar statutory provisions in other jurisdictions: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 (373), Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45], and more recently in Hofer v R [2021] HCA 36; (2021) 95 ALJR 937.
2. In his concurring judgment in Hofer v R, Gaegler J confirmed the continued applicability of the principle in Davies v The King [1937] HCA 27; (1937) 57 CLR 170 that required a court to set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. Gaegler J observed that: [132]

[I]t could meaningfully be said at a level of generality that a miscarriage of justice would arise whenever the accused has not had a fair trial according to law.

1. Notwithstanding some complexity in the history and proper construction and application of the statutory provisions the equivalent of s 14(2), it is clear from the High Court decisions referred to above that there will be an intolerable unfairness, and therefore a miscarriage of justice where something has occurred during the course of the trial which may be described as a fundamental irregularity, where the proceedings have so far miscarried as to hardly be a trial at all, or where the departure from the essential requirements goes to the root of the proceedings.[133] This has also been described as a failure to observe the requirements of the criminal process in a fundamental respect.[134] If that has happened then there has been a miscarriage of justice and there is no room for the proviso in s 14(2) of the Criminal Appeals Act or its equivalent in other jurisdictions. That is so even if the appellate court might otherwise be persuaded of the accused's guilt beyond reasonable doubt.[135]

1. The following principles may be distilled from those authorities:

(a) a fair trial is a central pillar and fundamental element of the criminal justice system;

(b) although a fair trial is ordinarily achieved by compliance with applicable legal rules and principles, the notion of a fair trial is broader than, and transcends, prescribed legal norms. A trial may be unfair even though conducted strictly in accordance with law;

(c) it is neither possible nor desirable to formulate exhaustively the content or the attributes of a fair trial. Evaluating the fairness of a trial must proceed on a case-by-case basis and is essentially a matter of intuitive judgment;

(d) fairness in a trial is not to be equated with populist or idiosyncratic notions of what is fair and just but rather is to be determined by reference to legal reasoning and precedent;

(e) at the same time, the practical content of a fair trial will vary with changing social standards, societal sensitivities and evolving knowledge. In isolated cases of such a nature, established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness;

(f) a fair trial is necessary to avoid a miscarriage of justice. It may be said at a level of generality that a miscarriage of justice will arise whenever the accused has not had a fair trial;

(g) a miscarriage of justice is a standard, not a rule;

(h) a substantial miscarriage of justice will have occurred if the trial involved a departure from the essential requirements of a criminal trial that goes to the root of the proceedings, or there was a failure to observe the requirements of the criminal process in a fundamental respect.[136] That is so even if the accused's guilt has been established beyond reasonable doubt.

1. The real question is therefore whether the difficulties in the conduct of the criminal process identified at paragraphs [152] - [154] above, notwithstanding the provision of a competent interpreter and the absence of error in the magistrate's factual analysis of the evidence, nevertheless represent a departure from the requirements of fairness that are fundamental and go to the root of the trial which Mr Murray was entitled to have.
2. In my view, the conduct of Mr Murray's criminal prosecution and conviction departed in a fundamental way from the requirements of fairness for two reasons.
3. The first was the error in the denial of Mr Murray's language and the consequential ruling and remarks of the learned magistrate.
4. At the core of the notion of a fair trial stands the dignity and integrity of the individual. That is why the fundamental prescript of the criminal law is that no person shall be convicted of a crime except after a fair trial according to law.[137] To deny the authenticity of a person's distinct linguistic identity or autonomy is to repudiate the authenticity of their cultural and perhaps spiritual essence; it is to impugn their sense of worth and value as a human being.[138] As has been observed in one study of the impact of language on public health outcomes in the Barngarla community, 'traditional languages are a key element of Indigenous peoples' identity, cultural expression, autonomy, and spiritual and intellectual sovereignty.'[139]
5. The enormity of the offence created by the repression or disparagement of cultural identity and belief may not always be readily apparent. Yet this is not some lofty social principle concocted in the quiet spaces of judicial isolation. The historic impact of this alienation speaks for itself in our society today; in our towns, our courts and most tragically in our prisons.[140] It may be true that the common law did not evolve with an instinctive or organic sensitivity for the ramifications of cultural repression that flowed with the tide of territorial dispossession. But the Judeo-Christian tradition from which the common law in part emanated, was never without the tools to identify and respond to that impact. Its own literature is replete with the tragic necessity to perceive the insult and shame of dispossession.[141] Like many other rights that have incrementally evolved from the deep reservoir of the common law, the issues reflected in this case have gradually emerged from the shadows over recent decades. The law of Australia is well able to accommodate the shifts in our conceptions of fairness that progress with our growing appreciation of systemic injustices that plague marginalised members of our society, including many First Nations people.
6. On 29 May 2023, the Chief Justice of Western Australia together with other heads of jurisdiction of Western Australian courts and tribunals launched, published and declared in a special sitting of the Supreme Court, a Reconciliation Statement. It included the following:

We acknowledge all Aboriginal and Torres Strait Islander people and their Elders, past, present and future. We respect and celebrate the diverse languages, cultures and spiritual connection to the land, seas, sky and waterways of all Aboriginal and Torres Strait Islander people. We acknowledge, with regret, that, over the course of our shared history, Aboriginal and Torres Strait Islander people have faced significant barriers to justice in our courts and tribunals, whether as parties to civil proceedings, witnesses, victims of crime or accused persons in criminal proceedings. We acknowledge, with regret, that Aboriginal and Torres Strait Islander people continue to be overrepresented in the criminal justice system and face obstacles in pursuing their rights in a variety of other ways in our justice system as a whole. We acknowledge, with regret, that negative experiences within our courts and tribunals on the part of Aboriginal and Torres Strait Islander people have contributed to mistrust and a lack of confidence in the justice system. We recognise that our justice system can only truly be said to be fair and just, when it is fair and just for all people. We accept that it is our responsibility to create and foster trust and confidence in our justice system on the part of everyone in our community.

1. The stark reality is this: a criminal prosecution of a Walmajarri man proceeded in the face of the court's express denial of the linguistic distinctiveness of the accused. Unintended though it was, this cannot be regarded as fair and just. The injustice is all the more troubling because the denial of linguistic identity relates to the language and culture that evolved from antiquity in our very own landscape. To resign with equanimity to such an outcome would reduce the Reconciliation Statement to tokenism and platitudinal humbug. If the court is to keep apace with community standards, it must apply the community standard reflected in the sentiments of the Reconciliation Statement to the concrete reality of the justice system.
2. The second reason arises from the manifest attitude of the magistrate towards Mr Murray. There seems to me to be no escape from the conclusion that magistrate was in substance expressing, in Mr Murray's presence, an erroneous view about the genuineness of Mr Murray's need for interpretation and therefore an erroneous view about the honesty of Mr Murray's approach to the giving of evidence generally. This occurred at the very beginning of Mr Murray's evidence. Objectively, the conduct had all the hallmarks of at least the impression of an unfair prejudgment of Mr Murray's character and the integrity of his testimony.
3. Judicial intervention during the examination of a witness, or the conduct of a judicial officer during a trial generally, may ground a reasonable apprehension of bias or prejudgment.[142] That is an issue that goes to the heart of the trial process.[143] A judicial officer, or jury as the case may be, must be and must appear to be impartial. That requirement is fundamental to fairness, and can be summarised in the adage that justice must be done and must be seen to be done. It is necessary that every person, and especially an accused person, is treated without bias or prejudgment, actual or apprehended. In Webb v The Queen, Deane J quoted from a 1975 paper by Lord Devlin, saying:[144]

This is why impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matter, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial. The judge who does not appear impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augurer who tampers with the entrails.

(Emphasis added)

1. It is not possible to determine what effect the magistrate's remarks had on Mr Murray. I note that Mr Bowen in his report observes:[145]

It is difficult to comment on how the Magistrate's ruling that the interpreter should not interpret answers in "English" affected Mr Murray's choices about how to give his evidence. The ruling was interpreted to Mr Murray. Before the ruling, Mr Murray speaks in Kriol. Immediately after the ruling, Mr Murray still uses Kriol but with more words from 'traditional' Aboriginal languages, which are more obviously distinct from English words.

1. Whatever might be made of those observations, it certainly cannot be said with any confidence that Mr Murray did not feel prejudged and denigrated by the magistrate's comments. It hardly needs to be said that erroneous remarks from the Bench reflecting adversely on the evidence of an accused as they begin to give their evidence is inconsistent with a fair trial. It is not difficult to imagine that the impact on an accused's capacity to give their evidence coherently in such circumstances might be severely compromised.
2. The magistrate's error was not, as one may have hoped, ameliorated by the rest of the accused's time on the witness stand or by further reflection with the passage of time. Two months after the trial, on 27 July, the learned magistrate again expressed the view that '[Mr Murray] speaks and understands English perfectly competently'.[146] The context of the remarks in that hearing compound the basis for concern and the unfairness - the magistrate expressed a view that Mr Murray did not need an interpreter during the course of pre-sentence psychiatric evaluation.
3. For those reasons, in my view the conduct of Mr Murray's prosecution and conviction embodied an unacceptable and fundamental departure from the required standard of a fair trial. That is so, notwithstanding that the interpretation by Mr Jenkins went ahead. The unfairness went to the root of the process. Even the calm and courageous professionalism of the interpreter, Mr Jenkins and the lawyer, Ms Hughes, could not redeem this trial from the consequences of the magistrate's unintended but irretrievably unfair treatment of Mr Murray.

1. The conclusions I have come to necessarily reflect the view that the learned magistrate erred. There is ample authority for the proposition that the Magistrates Court is an extremely busy court in which some latitude must be given for the pressures that attend the administration of justice in a high-volume and necessarily fast-paced environment.[147] On a previous occasion I have also expressed the view that the perch of appellate luxury makes for a comfortable and convenient position to make the sorts of observations contained in these reasons.[148] The stark reality is that I have had some months to consider matters that the learned magistrate was required to deal with on the spot. I have no doubt at all that the Magistrates Court generally, and the learned magistrate in particular, do not lack for an appreciation of, or sensitivity to, the issues I have discussed in these reasons. The practical reality is that in the pressured environment of a busy Magistrates Court, the considered and fulsome consideration and application of those issues is not always possible. It is important to appreciate that decisions of this court do not serve the function of admonition, and less still condemnation, of decisions the subject of appeal. Rather, they present the opportunity for the considered correction of error that will invariably occur from time to time in any environment, including the stressful and pressured atmosphere of the Magistrates Court. These reasons are therefore much less a criticism of the learned magistrate's conduct than they are a manifestation of the system working as it should in the interests of justice.

1. Accordingly, I would grant leave in respect of Grounds 2 and 3 and uphold the appeal. It follows that orders should be made for the setting aside of Mr Murray's conviction. I will hear further from the parties as to whether in all the circumstances a new trial should be ordered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 103 - 104.

[2] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 7 December 2021, 10.

[3] Para [28].

[4] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 60.

[5] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 64 - 65, 78.

[6] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 75.

[7] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 64.

[8] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 65.

[9] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 66.

[10] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 66.

[11] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 70 - 71.

[12] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 73.

[13] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 73.

[14] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 74.

[15] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 74 - 75.

[16] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 82.

[17] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 96.

[18] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 97.

[19] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 98.

[20] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 98.

[21] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 99.

[22] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 61 - 63.

[23] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 27 May 2021, 4 - 5.

[24] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 21 July 2021, 2.

[25] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 21 July 2021, 4.

[26] The transcript records that both Ms O'Neil and Ms Hughes appeared for Mr Murray at the hearing on 21 July 2021.

[27] Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186 [17]; Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[28] Hon Mildren J, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7. See also the paper published by the Law Reform Commission, Recognition of Aboriginal Customary Laws (1986).

[29] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 62 - 63.

[30] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 14.

[31] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 14.

[32] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 15.

[33] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 22.

[34] Interim Orders Allanson J (28 April 2022).

[35] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 12 December 2022, 51.

[46] Bowen Report, [205] - [208]. Mr Bowen's transcript uses the abbreviation 'Dfc' to mean defence counsel, 'Int' to mean the interpreter, Mr Jenkins, and 'Acc' to indicate the Accused.

[47] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 65, 70.

[53] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 99.

[66] Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 [86]; Lepoidevin v State of WA [2021] WASCA 19 [63].

[67] Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286 [27].

[68] Appellant's further supplementary submissions in support of appeal against conviction dated 21 November 2022, [7].

[69] R v Patrick Kenniff and James Kenniff [1903] St R Qd 17.

[70] R v Anunga [1905] ArgusLawRp 116; (1976) 11 ALR 412, 413 - 414.

[71] Magistrate Syddall T, 'Aboriginals and the Courts I and II' (Presented as part of the Australian Institute of Criminology's Aboriginal Criminal Justice Workshop in September 1983).

[72] R v Condren (1987) 28 A Crim R 261, 275.

[73] R v Condren (1987) 28 A Crim R 261, 275.

[74] R v Condren (1987) 28 A Crim R 261, 275.

[75] R v Condren (1987) 28 A Crim R 261, 276.

[76] In the following paragraphs I have set out sections of the judgment at some length. In my respectful view, that is necessary because it is important to an understanding of how the courts have dealt with these issues in the past.

[77] Condren v R (1987) 28 A Crim R 261, 267 - 268.

[78] Condren v R (1987) 28 A Crim R 261, 268 - 270.

[79] Condren v R (1987) 28 A Crim R 261, 297.

[80] Condren v R (1987) 28 A Crim R 261, 297 - 298.

[81] Condren v R (1987) 28 A Crim R 261, 298.

[82] See Caruana C, 'Kelvin Condren -- Trial by Endurance' [1989] AboriginalLawB 58; (1989) 1(41) Aboriginal Law Bulletin 4.

[83] R v Condren [1991] Qd R 574.

[84] R v Condren [1991] Qd R 574, 587.

[85] Hon Mildren J, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7, 7.

[86] Hon Mildren J, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7, 13.

[87] Hon Mildren J, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7, 14.

[88] Fryer-Smith S, Aboriginal Benchbook for Western Australian Courts (2nd ed, 2008) 7:9.

[89] Hall v Police [1999] SASC 197.

[90] Hall v Police [1999] SASC 197 [193].

[91] Simon v The Queen [2002] WASCA 329.

[92] Jango v Northern Territory (No 4) [2004] FCA 1539; 214 ALR 608.

[93] Jango v Northern Territory (No 4) [2004] FCA 1539; 214 ALR 608 [38] - [42].

[94] Stack v The State of Western Australia [2004] WASCA 300; 29 WAR 526.

[95] Eades D, Aboriginal English and the Law: Communicating with Aboriginal English Speaking Clients - A Handbook for Legal Practitioners (1992).

[96] Stack v The State of Western Australia [2004] WASCA 300; 29 WAR 526 [17] - [19].

[97] Stack v The State of Western Australia [2004] WASCA 300; 29 WAR 526 [117].

[98] Bowles v The State of Western Australia [2011] WASCA 191.

[99] Bowles v The State of Western Australia [2011] WASCA 191 [53] - [55].

[100] Bowles v The State of Western Australia [2011] WASCA 191 [69].

[101] Aytugrul v R [2012] HCA 15; (2012) 247 CLR 170 [69].

[102] Cross on Evidence (13th ed, 2021) 1126. It is perhaps to be hoped that in the next edition of that text, the proposition might be cast in more sensitive terms so as to omit the regrettable although no doubt unintended suggestion of a link between mental disorder and communication difficulties faced by Aboriginal witnesses.

[103] State of Western Australia v Gibson [2014] WASC 240.

[104] Wotton v Queensland [2015] FCA 1075; 333 ALR 466.

[105] State of Western Australia v Liyanage [2017] WASCA 112 (Liyanage).

[109] EYO v The State of Western Australia [2019] WASCA 129.

[110] EYO v The State of Western Australia [2019] WASCA 129 [54].

[111] Luo v The Queen [2020] WASCA 184.

[112] Luo v The Queen [2020] WASCA 184 [92].

[113] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 98.

[114] De La Espriella-Velasco v The Queen [2006] WASCA 31.

[115] De La Espriella-Velasco v The Queen [2006] WASCA 31 [46].

[116] De La Espriella-Velasco v The Queen [2006] WASCA 31 [50].

[117] De La Espriella-Velasco v The Queen [2006] WASCA 31 [43].

[118] De La Espriella-Velasco v The Queen [2006] WASCA 31 [52] - [54].

[119] De La Espriella-Velasco v The Queen [2006] WASCA 31 [76].

[120] Judicial Council on Cultural Diversity, 'Recommended National Standards for Working with Interpreters in Courts and Tribunals' (March 2022) 1.

[121] The Standards were re-published as a second edition in March 2022, which postdates the trial. The sections of the 2017 Standards were reproduced, verbatim, in the second edition.

[122] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 298 - 299.

[123] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 353.

[124] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 326.

[125] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 362.

[126] Hon Wood J, 'Cultural diversity: reflections on the role of the judge in ensuring a fair trial' (2021) Handbook for Judicial Officers 87, 97.

[127] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 328.

[128] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 329 and 364.

[129] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 410.

[130] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [111].

[131] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 56 - 57.

[132] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [110].

[133] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373.

[134] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [123]. See also cases in fn 167.

[135] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 375; Grey v R [2001] HCA 65; (2001) 184 ALR 593 [53].

[136] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [123]. See also cases in fn 167.

[137] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 326; Jago v The District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, 56.

[138] See Dr Rademaker L, Found in Translation (2018) 8. See also United Nations, State of the World's Indigenous Peoples (2009) 58

[139] Sivak L et. al, '"Language Breathes Life" - Barngala Community Perspectives on the Wellbeing Impact of Reclaiming a Dormant Australian Aboriginal Language' (2019) 16(20) International Journal of Environmental Research and Public Health, 3918, 3919.

[140] The Full Federal Court (Mortimer CJ, Katzmann, Charlesworth, Abraham and Kennett JJ) recently commented on the devastating impact of dispossession on the life expectancy of Indigenous men in Fisher v Commonwealth of Australia [2023] FCAFC 106 [142].

[141] See for example Lamentations Chp 5.

[142] Michael v R [2009] UKPC 41; [2010] 1 WLR 879 [34]; Galea v Galea (1990) 19 NSWLR 263, 281.

[143] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 57; Adacot v Sowle [2020] FamCAFC 215 [3].

[144] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 57 quoting from Lord Devlin, 'Judges and Lawmakers' (1975) 39 Modern Law Review 1, 4.

[146] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 21 July 2021, 4.

[147] Strahan v Brennan [2014] WASC 190 [89] - [90].

[148] Woodhouse v Leslie [2023] WASC 11 [33].