RICTOR -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 39 | Case summary | Zoe

WAWASCA

RICTOR -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 39 (19 March 2025)

[2025] WASCA 39

Court of Appeal (WA)|2025-03-19|Before: Buss P

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General information, not legal advice.

At a glance

Source facts

Court

Court of Appeal (WA)

Decision date

2025-03-19

Before

Buss P

Source

Original judgment source is linked above.

Judgment (198 paragraphs)

[1]

The appellant appeals against conviction.
The appellant was charged on an indictment which alleged that on or about 10 November 2019, near Boulder, the appellant murdered Marie Shelley Watson, contrary to s 279 of the Criminal Code (WA).
The appellant pleaded not guilty.
On 6 September 2023, after a trial before Vandongen J and a jury, the appellant was convicted of Ms Watson's murder.

[2]

The appellant is a traditional, initiated Aboriginal man from the Central Desert. He is the youngest member of the last known nomadic Aboriginal family in Australia. The appellant has spent most of his life in Coonana, Tjuntjuntjara or Kalgoorlie. His first language is Pitjantjatjara. He also speaks Ngaanyatjarra and Wongatha, as well as some English.
The appellant and Ms Watson had been in a domestic relationship. They had been married according to Aboriginal traditional law and lived together at the Tjuntjuntjara Aboriginal community. Tjuntjuntjara is in the Central Desert, about 700 km from Kalgoorlie.
After the appellant was charged with Ms Watson's murder, he was remanded in custody. During his time in custody the appellant had numerous telephone conversations in the Pitjantjatjara language with his older brother, William Rictor (also known as Noley), and other people apparently from the Tjuntjuntjara Aboriginal community. The conversations were primarily between the appellant and William Rictor. All of the conversations were recorded.

[3]

An overview of the State's case at the trial is as follows.
When Ms Watson was killed she was aged 35 years. The appellant was aged 37.
In November 2019, the appellant and Ms Watson were living at Tjuntjuntjara.
On 9 November 2019, the appellant and Ms Watson drove from Tjuntjuntjara to Boulder Camp in the appellant's vehicle. They arrived late in the afternoon. The appellant and Ms Watson then socialised and drank alcohol with other people at Boulder Camp. The other people with whom the appellant and Ms Watson socialised and drank alcohol included William Rictor and William's wife, Katie Brown. William Rictor and Katie Brown had been living at Boulder Camp for some time. They were interested in returning to Tjuntjuntjara.
During the evening of 9 November 2019, periodic arguments developed between the appellant and Ms Watson.
Later that night, numerous people at Boulder Camp became increasingly intoxicated and went to sleep. William Rictor and Katie Brown camped at Boulder Camp that night. However, the appellant and Ms Watson drove from Boulder Camp in the appellant's vehicle. The appellant was the driver. They intended to camp at another location. Precisely where they went or what happened between them is unknown.
Early the next morning, after sunrise, the appellant returned to Boulder Camp in his vehicle. Ms Watson was not with him. The State alleged that the appellant spoke with William Rictor and told him that he had killed Ms Watson. The appellant asked William Rictor to come with him so that he could show him the location of the body.
The appellant and William Rictor drove to a remote bush location, known as Lakewood, about 7.5 km from Boulder Camp. The appellant pointed, from a distance, to a bush area to indicate where he had left Ms Watson. The appellant and William Rictor did not approach the body or alight from the vehicle. William Rictor did not directly see nor handle the body.
The appellant then drove William Rictor towards Boulder Camp. William Rictor left the vehicle some distance from Boulder Camp. The appellant told him to tell others about Ms Watson's death.
William Rictor informed people at Boulder Camp about Ms Watson's death. Police were called and went to Boulder Camp. William Rictor travelled with police to the bush location at Lakewood and pointed out where the appellant had indicated he had left Ms Watson. Police found Ms Watson lying on her back and wrapped in bedding material under a small shrub. She was dead.
On 17 November 2019, police arrested the appellant at Tjuntjuntjara and conveyed him to Perth. He exercised his right to silence. Subsequently, the appellant was charged with Ms Watson's murder.
The State's case was that after the appellant and Ms Watson left Boulder Camp on the night of 9 November 2019 the appellant had assaulted her severely with a weapon.
A postmortem examination of Ms Watson's body revealed more than 98 injuries. Ms Watson had bruises, abrasions and lacerations over her body. She had a fractured skull. Her left forearm and several of her ribs were broken. Ms Watson had internal injuries including to her stomach and spine. She had also suffered injuries to her genitals, including a hole in the wall of her upper vagina which entered her abdominal cavity. The State alleged that the appellant had forced an object into her vagina. It was likely that this occurred at about the time of Ms Watson's death.
The forensic pathologist who carried out the postmortem examination concluded that Ms Watson's cause of death was 'bronchopneumonia complicating multiple injuries in a woman with acute alcohol effect'. Ultimately, Ms Watson died from a bacterial infection. On the State's case, she suffered that infection because the appellant had assaulted her severely.

[11]

[Redacted by order of the Court of Appeal made 9 April 2025.]

M: [Redacted by order of the Court of Appeal made 9 April 2025.] For your own sake, you should not have done it. You should have listened to me. You alone did it. She would still be around, she would have taken care of me. You even burnt the car. You now, you alone did the damage. Mutuka tilinu nyura kutjungku You alone set the car on fire.

D: Ngayunya walangku miri pungkunytjaku. Miritja puwa. Pungkunytja rapa mununa wangkanyi rapa pungkunytjaku nganana. panya ngayulu. Well hurry up and murder me then. Kill me then. I'm not scared of being killed. I said I am not frightened of being killed. [Note D says at the end nganana, referring to 'us' rather than 'I' so he may be referring to 'We are not scared of being killed.']

M: No you got frightened and then you broke the car. You're the one who did it.

[Redacted by order of the Court of Appeal made 9 April 2025.]

M: Wati tjutangku ninti. Nyura kutjungku. Nyura kutju. Nyura kutju. (INDISTINCT WORD OR TWO) Nyura kutju. The men know. It was you and you alone who did it. You alone did. [Mate is saying 'nyura' meaning 'you plural' rather than 'nyuntu', 'you singular'.]

D: Uwa. Uwa mantu. Yes. Yes, definitely. [Mantu gves [sic] emphasis, it means obviously, certainly, definitely. Pitjantjatjara/Yankunytjatjara to English dictionary.]

M: Nyura kutjungku. You [plural] alone did it.

D: Uwa. Uwa ngayulu kutju mantu. Yes. Yes, definitely I did it alone. [Mantu gves [sic] emphasis, it means obviously, certainly, definitely. Pitjantjatjara/Yankunytjatjara to English dictionary.]

M: [Largely indistinct, but Mate mentions two or three brothers]

D: Uwa palu... Yes but...

M: The other 2 or 3 who were there, the brothers they are ok. They were just taken in just for questioning and were released.

D: Ngananya? Who?

M: You told the truth and told them to go on that road. You directed them and told them to go into that area and they did. One of the men is standing here and listening to you now. You did the damage.

D: Yes, look after those men. [Redacted by order of the Court of Appeal made 9 April 2025.]

[Redacted by order of the Court of Appeal made 9 April 2025.]

M: You alone did it. [REMAINDER INDISTINCT]

D: [Continues to talk over Mate and swear at all the men in Tjuntjuntjara and to his mate who was on the phone. [Redacted by order of the Court of Appeal made 9 April 2025.] D. uses some other words that I am unfamiliar with, more than likely secret men's business.]

M: You poor person. You alone did it. You talked and talked...

I, LINDA RIVE, CERTIFY THAT THIS IS A TRUE AND ACCURATE TRANSLATION OF THE SOURCE LANGUAGE INTO THE ENGLISH LANGUAGE.

25 OCTOBER 2022 (underlining added)

[22]

PREAMBLE:

KEY: D = DAMIEN [sic] RICTOR

A = ALEX DONEGAN

W = WILLIAM RICTOR

OPERATOR: You are about to receive a phone call from a prisoner at Hakea Prison. Your conversation will be recorded. If you do not wish to receive this call, please hang up now. Go ahead please.

D: Hello.

A: Hello, it's me, Alex.

D: Yeah. OK.

A: Merry Christmas, yeah.

D: Merry Christmas. Yeah, good.

A: Yeah, what?

D: Nothing, where are Noelie (William) and them? Are they at home?

A: They are all over there. Noelie and Katie are at my house.

D: Yeah, yeah. Are there a lot of people there?

A: Kumanal (Katie) and Noelie are there.

D: Yeah, yeah. Noalie and Kumana [person with no name].

A: I will call them there. OK listen to this one.

D: Hello?

W: Hello, yeah ....

D: What are they doing there?

W: Mmm, we are sitting down here.

D: OK, at Alex's house?

W: Yeah.

D: Uhh. It was cold but it has now become a bit warmer. Then it went cold again.

W: What?

D: It's cold now.

W: Cold is it?

A: Mmm. I'm at Kathleen's house waiting.

W: Yeah, I'm at home, sitting down.

D: Yeah. Can you put Alex on? Alex.

W: Aha, yeah, Alex is here.

A: Yeah, what do you want? What is it?

D: Hey, yeah, nothing, I was going to ask you something regarding what you saw.

A: Ok.

D: Did you see a man, is that true?

A: No, I saw a dog sitting and barking.

D: Aye?

A: A dog, there are lots of dogs barking.

D: Yeah, yeah.

A: He was barking and barking. I was scared of being bitten. [PARTIALLY INDISTINCT]

D: I was in Ilkulka wasn't I? It's true, I was in Ilkulka?

A: You were in Ilkulka?

D: Yeah, at night time.

A: Yeah, it was night time and the dog was barking.

D: Yeah.

A: [Inaudible] ....... because there was no heat. It might have been Fabien sitting in the bush.

D: Yeah, I think those two were sitting down in the bush there.

A: Yeah, what they were doing was wrong.

D: Yeah, now listen here, it never happened in Kalgoorlie, it happened in that place. Those men did the damage [can mean murder - culturally sensitive to use the word murder] there at Tjuntjuntjara. The men did something wrong there, in that place. It happened right there. The invisible man/men [spiritual cultural belief] did the bad thing right there in that particular place.

A: Yeah, yeah.

D: And the men, then they followed me. You see that happened after the loss. They followed me for nothing. They followed me for nothing. I got scared for nothing. I went there for nothing.

A: Yeah, yeah. The men made a mess.

D: I know it. I know the story behind it all. I know the full story.

A: Yeah, yeah, I know the story too.

D: Yeah, listen, ok? Take me for example: If a man takes me aside and puts me to death, they [the invisible men] will then put objects in my body and bring me to life again. You see that's what happened in that place [to her]. You see when I went to Kalgoorlie, I didn't know all this had taken place. On my return I took that road to Yakaduna. I was heading towards Rawlinna and the radiator boiled over in the car. I didn't get any water before I left so the container was empty. I then went and sat under the shade because it was hot as it was in the late afternoon. I went to feel the container again and to my surprise the container was full of water. It may be that the "spirit men" supplied me with water because they were guilty.

A: Yeah.

D: Yeah.

A: Yeah, they were hanging around there.

D: Is she on her own?

A: Looks like Cindy is at the office.

D: Aye?

A: That woman Cindy, with the ugly face?

D: Yeah, yeah, that woman, she lives in Kalgoorlie, the Cindy I know.

A: What happened to Curtis? Cindy messed up.

D: Kim saw it, Kim did. Kim said a man was following me. I was laying down with my dog, it was nighttime, near the rubbish tip. It was towards morning that I heard the dog barking. I woke up in the early morning and I saw a man was standing there. He passed by quickly.

A: Yeah, Katie was waiting until it was time to get the money. That dog was waiting for his mummy. Tjutata is the dog's name.

D: Mm. Yeah, that's the name she gave him, yeah.

A: Yeah, that's the one I'm talking about. She should have given it another name. Yeah, that's the one I'm talking about.

D: Yeah, I was drinking, then he was laughing at me. He was laughing at me, Apika's partner. He was laughing a lot. I saw him and then my thoughts turned to anger, after I sat for a while my thoughts started to change.

A: Mm, yeah.

D: They drank a lot. They sat down and drank a lot. When he was drinking, he laughed. They add other things into their drink. The stuff that they use to shoot up in their arms.

A: Mmm, yeah.

D: Tell Tungku [Ian Baird, Debbie's husband] and Kunda's partner. Then you and Byron go and speak to the lawyer and tell him the story. Tell them it was a man [a spirit man] and tell Nana too and Debbie's family.

A: Well nephew, I have to go.

D: Did you hear me?

W: Hey.

D: Hey.

W: Yeah.

D: Yeah.

D: I will tell him to tell everyone to write a letter and you can talk to Debbie's family, Kunda's partner, Byron and all of them, for them to tell the true story, ok? To tell them straight, what they know for themselves. It's closing time, I'll call later.

W: Yeah, yeah.

I, LINDA RIVE, CERTIFY THAT THIS IS A TRUE AND ACCURATE TRANSLATION OF THE SOURCE LANGUAGE INTO THE ENGLISH LANGUAGE.

9 MARCH 2022

[32]

Ms Yorkshire‑Selby accepted that to be a certified provisional interpreter, a candidate is required to pass both an ethical competency and an intercultural competency test. She initially said that she was aware that a certified provisional interpreter needed to be recertified every three years, but later admitted that she was not aware of that requirement. She said that she could not remember when she last got recertified (ts 391).
Ms Yorkshire‑Selby did not think that her NAATI certification had lapsed (ts 392). However, she did not know that she did not appear as a certified provisional interpreter or a recognised practising interpreter on the NAATI website, which suggested that her NAATI certification was not current (ts 393).
Ms Yorkshire‑Selby was not sure whether there were any levels that could be obtained within a NAATI certification (ts 394).
Ms Yorkshire‑Selby '[did] not have any formal translation certification', in the sense that she could only conduct translations in spoken form and not written form. She estimated that she could write the languages at about 'five out of ten' and was still being taught. She said that Ms Benson‑DeRose had far greater skill than her (ts 395).
Ms Yorkshire‑Selby said that what she wrote in her witness statement, namely that she was able to perform her work independently and accurately and that before she accepted or rejected any job she conducted an internal screening process, was correct. She said that the internal screening process was self‑administered (ts 396 ‑ 397).
Ms Yorkshire‑Selby accepted that she was bound by the Australian Institute of Interpreters and Translators Code of Ethics and Code of Conduct (AUSIT Code), as it regulated the professional conduct of members (ts 396 ‑ 398). The AUSIT Code includes requirements that she maintain confidentiality, privacy, independence and impartiality, and that her work is straight to the point (ts 398).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires the disclosure of any conflict of interest or any matter that may compromise impartiality (ts 399). In relation to this, she accepted the following propositions (ts 399 ‑ 400):

[36]

Ms Yorkshire‑Selby accepted that she did not act on this conflict of interest when Detective Sergeant Robert Martin asked her to translate the prison calls. This was because there was no other interpreter in or around the AIWA office at the time to complete this urgent job. She did not remember if she declared this conflict of interest to Detective Martin, if she knew that the prison calls had previously been interpreted at the Kalgoorlie Goldfields Language Centre, or if Detective Martin had told her that (ts 404 ‑ 405). She did not think it was wise to inform Detective Martin about the conflict of interest at the time because 'they wanted an urgent job done ... and I was there to do it, so I did it' (ts 405).
Ms Yorkshire‑Selby later said that when Detective Martin initially requested her to review the prison calls in June 2021, she mentioned that she did not feel comfortable with engaging in that job because she had a conflict of interest. She asked someone else to do the job as she felt she was too close to both sides of the family. She did not want to continue the job. She could not recall him saying anything in response (ts 415 ‑ 416).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires impartiality in all professional contexts (ts 405). She accepted that she was not impartial when she said to the two prosecutors that the accused killed her granddaughter, but said that she thought that interview was a personal interview (ts 406).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires translators not to show bias towards the author of the source text or the intended reader of the translation. She accepted that the intended reader was the court, and the translation would be used by the prosecution in aid of evidence against the accused for the murder of the deceased (ts 406).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires translators to use their best professional judgment in remaining faithful to the meaning of text and messages, and to achieve accuracy in the form of optimal and complete message transfer into the target language, preserving the content and intent of the source text or message without omission or distortion. She accepted that in this case, this was to translate text in either the Pitjantjatjara or Ngaanyatjarra languages into the English language, without omitting any words, even if they were culturally offensive to her. She said that in this case she refused to translate some words as they were culturally inappropriate (ts 407 ‑ 409).
Ms Yorkshire‑Selby said that in the past she had refused to interpret, for a court, words that were culturally inappropriate, both from witnesses or from accused people. When that happened, she would inform the judge, who would accept this explanation. In relation to the prison calls, she refused to translate words that were culturally inappropriate 'a few times' or 'a couple of times' (ts 409).
Ms Yorkshire‑Selby said that it was appropriate to make the decision to refuse to translate culturally inappropriate words if she did not want to hear anything relating only to men. Instead, a male interpreter should be used (ts 409 ‑ 410).
Ms Yorkshire‑Selby said that she dealt with Detective Martin a few times, 'not a lot', in the course of the investigation. She accepted that she spent close to 30 hours with Detective Martin between July and August 2021 listening to prison calls, but said that this was not 'that long' as she spent that time listening to the calls and was busy translating what was being said (ts 410).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires translators to maintain clear boundaries between their task of message transfer and any task undertaken by other parties involved, such as advocacy, guidance or advice. She agreed that she was bound by this when she was asked to translate the prison calls (ts 410 ‑ 411).
Ms Yorkshire‑Selby said that her role with the prison calls was to translate the conversations, and that she did not review the conversations to identify those of interest to the Homicide Squad. Her role was to repeat the prison calls in English to Detective Martin (ts 411 ‑ 414). She understood the calls to be for the police and for future reference in court, but she was not told anything specific about what they wanted (ts 414 ‑ 415). She rejected the proposition that she told Detective Martin that particular prison calls were interesting and said that the identification of the prison calls of interest was done by Detective Martin (ts 415).
Ms Yorkshire‑Selby said that Ms Benson‑DeRose was the primary translator of the prison calls. Both of them handwrote the English translations, which were given to Ms Giglia to be typed up (ts 416 ‑ 417, 425 ‑ 426). They were not asked to also write out what was said in the prison calls in the Pitjantjatjara and Ngaanyatjarra languages (ts 421). Hypothetically, if Ms Yorkshire‑Selby had been asked to do that, she would not have been able to fully do that as her writing skills were not as good as those of Ms Benson‑DeRose (ts 422).
Ms Yorkshire‑Selby said that the preferred translation method for AIWA was the consensus method, which involved two people. She thought that Ms Benson‑DeRose should be the primary translator of the prison calls because she was more skilled and less closely connected with the families involved (ts 422 ‑ 423).
Ms Yorkshire‑Selby was unable to recall which of the prison call translations were done independently by her or Ms Benson‑DeRose, and which were done together, as she did not keep notes (ts 424 ‑ 426). She remembered some occasions when they had points of contention, but there were 'not very many' (ts 426 ‑ 428). She could not produce any notes of when such points of contention occurred as anything she wrote was given to Ms Giglia (ts 428 ‑ 429).
Ms Yorkshire‑Selby said that the process was for a translator to check through another's translation after it was done. She rejected the proposition that there were many arguments or disagreements on the translations of some of the tapes, but rather that they were reading it over again to make changes (ts 429 ‑ 430).
Ms Yorkshire‑Selby then accepted that her witness statement was incorrect as she did make notes while listening to the prison call recordings, to be used by Ms Giglia to type up the translations (ts 431).
Ms Yorkshire‑Selby identified the prison call translations and said that the translations were a composite of the work of Ms Benson‑DeRose, Ms Giglia and herself (ts 434 ‑ 435).
Ms Yorkshire‑Selby accepted that she spent about 30 hours listening to the prison calls with Detective Martin in July and August 2021, before the prison calls were required to be translated. She accepted that she had a notebook with her, but did not know where it was. Ms Yorkshire‑Selby rejected the suggestion that she wrote down the time she spent with Detective Martin in the notebook. She did not understand the AIWA invoicing system. Ms Giglia kept track of the time (ts 438 ‑ 439).
Ms Yorkshire‑Selby said that on 1 September 2021 she commenced the translation work with Ms Giglia. She would translate the contents of the prison calls and tell Ms Giglia what to type, then repeat it. She did not check at the initial stage if what Ms Giglia typed was accurate as she was listening to the prison calls and talking to Ms Giglia at the same time (ts 440 ‑ 441). She could not say if final checks were done of the translations of the prison calls, because she had not seen that version before (ts 442).
Ms Yorkshire‑Selby was shown the translation of tape 6. She accepted that there were many words in both the Pitjantjatjara and Ngaanyatjarra languages that were not capable of literal translation into the English language (ts 444). She said that when she encountered such words, she would note them, but she was not sure if they were in the translations of the prison calls (ts 444 ‑ 445).
Ms Yorkshire‑Selby accepted that she declined to translate some culturally inappropriate words spoken in either the Pitjantjatjara or the Ngaanyatjarra languages (ts 442 ‑ 444). In the translation, there were portions in brackets that said 'culturally sensitive, swearing continues'. At those points of the source text there were culturally sensitive words, alongside swearing (ts 444 ‑ 446). She did not say those exact words to Ms Giglia, so Ms Benson‑DeRose must have (ts 448).
At that point, Ms Yorkshire‑Selby said to Ms Giglia that it was inappropriate for her to continue the translation, and that a man needed to translate those portions. She rejected the proposition that in her professional capacity, she could not decide what should be translated and what should not, because of her culture (ts 447).
Ms Yorkshire‑Selby rejected the proposition that an omission about what is actually being discussed changes the context of the conversation (ts 449).
Ms Yorkshire‑Selby did not see Ms Benson‑DeRose type but said that Ms Benson‑DeRose might have typed when she (Ms Yorkshire‑Selby) was not in the office (ts 450 ‑ 451).
Ms Yorkshire‑Selby accepted that her translation of tape 6 was not an accurate record of the conversation, because there was a substantial part of the conversation between the accused and 'Mate' that was not present. That part of the conversation related to Mate arguing over 'payback' for the accused killing the deceased (ts 457 ‑ 458).
Ms Yorkshire‑Selby said that there was no word for 'murder' or 'kill' in both the Pitjantjatjara and Ngaanyatjarra languages (ts 458). In the translation of tape 6, where the words 'killed' and 'murdered' were used, the literal translation into English would have been '[y]ou did that', but the meaning was that the accused murdered or killed the deceased (ts 459 ‑ 461). She rejected the proposition that she inserted the words 'killed' and 'murdered' because she knew the accused was charged with murder. She also said that it was not her, but Ms Giglia or Ms Benson‑DeRose, who wrote that part of the translation (ts 462).
Ms Yorkshire‑Selby accepted the following propositions:

[37]

(a) In the translation of tape 6, there was a culturally sensitive part of the conversation towards the end that was not translated, [Redacted by order of the Court of Appeal made 9 April 2025.] (ts 462 ‑ 463).

(b) In the translation of tape 7, the preamble identifying Kim Coleman as part of the conversation was incorrect and this was her mistake (ts 463).

(c) In the translation of tape 7, there was an exchange which referred to a 'her'. There was no reference to the identity of 'her' during the conversation, but there was, in brackets, a comment referring to the 'death of his wife'. It was inappropriate for a translator to provide commentary on the source text (ts 464 ‑ 465). This commentary in tape 7 was not hers (ts 465).

(d) In the translation of tape 9, there was, in brackets, a comment referring to 'his wife' following a monologue by the accused. There was nothing in the context of the translation that suggested that the accused was referring to his wife. It was inappropriate for a translator to provide commentary on the source text (ts 464 ‑ 466). This commentary in tape 9 was not hers (ts 466).

(e) The translation of tape 10 was stated to consist of the full seven minutes 15 seconds of the call, but the translation consisted of only three pages. The translation should have been longer if it contained the full contents of the call. She did not know whether a decision had been made not to translate the full tape 10 (ts 471 ‑ 472).

(f) In the translation of tape 10, there was, in brackets, a comment 'murder' following a sentence referring to 'damage' (ts 472). Ms Yorkshire‑Selby said that the word katanangngu was a mix of the Pitjantjatjara and Ngaanyatjarra languages, and in different contexts could mean to break, to damage, or to make a mess. It did not have the meaning of 'murder' or 'kill' (ts 470). This commentary was an error and was not hers (ts 472 ‑ 473).

(g) The translation of tape 11 was not complete as there were voices that were not translated (ts 477).

(h) In the translation of tape 11, there was an exchange including sentences that read, '[t]hose men did the murder there at Tjuntjuntjara', and '[t]he invisible man then (spiritual cultural belief) did the bad thing, the murder' (ts 474, 478). The use of the word 'murder' in both sentences was inaccurate and these translations were not hers (ts 478).

[39]

Ms Yorkshire‑Selby accepted that some of the translations shown to her were inaccurate. She believed that the translations shown to her were not the final product, because these errors would have been corrected when final checks were done of the accuracy of each translation by another translator (ts 481 ‑ 482).
Ms Yorkshire‑Selby said that she did not do the final check and did not do a final listen to the prison calls to compare them with what had been typed in the translations. Ms Benson‑DeRose went through the translations after her (ts 482).
Ms Yorkshire‑Selby said that she did not type up her own handwritten notes and did not check the final typed work prepared based on her handwritten notes, because Ms Giglia was more professional than she was. She accepted that Ms Giglia could have made a mistake in what was typed (ts 482 ‑ 483).
Ms Yorkshire‑Selby accepted that there were omissions from the translations. Not every minute of the prison calls was translated, but all portions identified to be of interest were translated (ts 483 ‑ 484). Some omissions were due to culturally sensitive material. In that case, mention would be made in the translation that someone was speaking in a culturally sensitive way, but no details would be included (ts 483 ‑ 485).
Ms Yorkshire‑Selby identified the voice of Mate in tape 6 as Byron Brooks (ts 485 ‑ 486).
Ms Yorkshire‑Selby said that translating the Pitjantjatjara and Ngaanyatjarra languages into the English language was not a literal word‑for‑word process. Some words in one language do not regularly convert into the other (ts 486).
Ms Yorkshire‑Selby said that between June and August 2021, she reviewed a large number of prison calls with Detective Martin in the AIWA office in North Fremantle. She was the only interpreter used for those calls and Detective Martin was present when she listened to the calls. She would listen to the calls and translate their contents into English. Detective Martin would make notes and Ms Giglia would type the notes for him. She thought that Detective Martin was the one who identified the calls to be formally translated (ts 486 ‑ 487).
Ms Yorkshire‑Selby did not recall Detective Martin being present when the calls were being translated together by Ms Yorkshire‑Selby and Ms Benson‑DeRose. However, Detective Martin was present for 'some of' the process when she or Ms Benson‑DeRose was working alone. She was not sure what he did, but she thought that he might have 'wrote a lot of it down' (ts 487 ‑ 488).
Ms Yorkshire‑Selby accepted that she had agreed, in her evidence‑in‑chief, that she said the accused killed her granddaughter during her meeting with the two prosecutors. She referred to the deceased as her granddaughter even though they had no blood relationship (ts 488 ‑ 489).
Ms Yorkshire‑Selby said that she was related to the accused through her husband and would consider him her nephew and also her brother‑in‑law (ts 489).
Ms Yorkshire‑Selby accepted that she had agreed, in her cross‑examination, that she felt she was too close to both the accused and the deceased. She said that she had previously declined other jobs because she felt that she was too close to the people involved, but did not give an example when asked (ts 489 ‑ 490).
Ms Yorkshire‑Selby said the following in relation to her work (ts 490):

[45]

Ms Benson‑DeRose's evidence‑in‑chief in the voir dire on 26 October 2022 was to the following effect.
In Blackstone, two of the languages that people spoke were the Pitjantjatjara and Ngaanyatjarra languages. Elders also spoke a third language, the Ngaatjatjarra language, which is an older version of the Ngaanyatjarra language (ts 824 ‑ 825).
The Pitjantjatjara and Ngaanyatjarra languages are similar. However, some words are different, and the two languages have different accents so the pronunciation of words is different. A person who spoke the Pitjantjatjara language could understand a person who spoke the Ngaanyatjarra language (ts 825).
Ms Benson‑DeRose grew up speaking the Ngaanyatjarra language, but would speak the Pitjantjatjara language when she went to visit her mother's family in South Australia. She considered both languages her mother tongues. She only learned to speak the English language when she went to school in Warburton (ts 826 ‑ 827).
The Pitjantjatjara and Ngaanyatjarra languages were oral languages, but could be written down and read like any other language. Ms Benson‑DeRose learned to read and write the Ngaanyatjarra language at after‑school classes, and learned to do so in the Pitjantjatjara language as the spellings for both languages are similar (ts 827 ‑ 828).
Ms Benson‑DeRose had been working as an interpreter or translator in both the Pitjantjatjara and Ngaanyatjarra languages since the 1970s (ts 828). She took part in major projects such as the translation and proof‑reading of the Ngaanyatjarra bible, and the Ngaanyatjarra and Ngaatjatjarra to English dictionary. The Ngaanyatjarra and Ngaatjatjarra languages are very similar (ts 829).
Ms Benson‑DeRose did interpreting work with Ms Yorkshire‑Selby for AIWA in its North Fremantle office. In the present case, she was asked to formally translate portions or the whole of the recorded conversations. The translations were typed. Ms Benson‑DeRose typed the translations of the recordings that she listened to on her own. She said that she was good at typing. She did not do all the typing of all the translations. She did not see Ms Yorkshire‑Selby type any translations, as Ms Giglia typed for her (ts 830 ‑ 831, 833).
For that project, Ms Benson‑DeRose worked together with Ms Yorkshire‑Selby (ts 831). She also worked with Ms Giglia, who 'got the hard copy together'. She also worked with Deanne Lightfoot, the general manager or chief executive officer of AIWA, who did the final check with her and Ms Yorkshire‑Selby (ts 832).
During the final checking process, Ms Lightfoot, Ms Yorkshire‑Selby and Ms Benson‑DeRose looked through the translation alongside the recordings and checked and came to agreement about the meaning of the source text. Ms Benson‑DeRose did not think that Ms Lightfoot spoke the Pitjantjatjara and Ngaanyatjarra languages, but Ms Lightfoot was involved in correcting the English wording and punctuation of the translation (ts 832). Ms Giglia was also involved in the final checking process as she was typing and handling the papers (ts 833).
Ms Benson‑DeRose and Ms Yorkshire‑Selby conducted a final listen to all the recordings and compared them to the typed translations. This included the recordings done by Ms Yorkshire‑Selby alone and typed by Ms Giglia. There were no substantive or major disagreements between them about what was being said or the substantive meaning of what was being said. They conducted a 'back‑translation' where they would translate the English translation back into the original language (ts 833 ‑ 834).
During the final checking process, Ms Benson‑DeRose and Ms Yorkshire‑Selby were the only ones involved in the discussion of the translation. They listened to some tapes more than once, and sometimes three to four times, where it was difficult to translate. The volume of the speakers was hard to hear sometimes and when that would happen they would get better headphones to better hear the conversations (ts 834).
In the recordings, the accused, William Rictor and most of the other people spoke the Pitjantjatjara language, with a little bit of the Ngaanyatjarra language mixed in (ts 835).
Ms Benson‑DeRose knew the accused and had met him in person when he resided in Blackstone. The accused also had family members living in Blackstone. Although she had 'skin name' relation to the accused, and would call him 'nephew' when they saw each other, they were not related by blood. She did not know him well (ts 835 ‑ 836).
Ms Benson‑DeRose knew the accused's brother, William Rictor, better than she knew the accused. Although she had skin name relation to William Rictor, and would call him 'nephew' when they saw each other, they were not related by blood (ts 836).
Ms Benson‑DeRose did not personally know the deceased (ts 836).
Ms Benson‑DeRose had kept her translation work in this matter confidential. She felt that her personal knowledge and relationship with both the accused and William Rictor affected her work, as it was a very sensitive issue. She understood that she needed to do her work independently, honestly, accurately, equitably and truthfully. She would only insert her personal opinion into the translations if there were words that needed to be further understood, and in those cases she would put those opinions in brackets (ts 836 ‑ 839).
Ms Benson‑DeRose was aware that Ms Yorkshire‑Selby knew the accused, William Rictor and the deceased, but Ms Yorkshire‑Selby's relationships with those people did not affect Ms Benson‑DeRose's work (ts 838).
Ms Benson‑DeRose translated the calls completely and fully, except for the sensitive language and swearing. It was culturally inappropriate for her to translate or talk about it (ts 839).
Ms Benson‑DeRose did not identify and did not know when the prison calls were identified as being relevant (ts 839 ‑ 840).
Ms Benson‑DeRose had been working as the manager of the KM Language Aboriginal language division since 2020. Sally Sage, her business relations manager, is the primary contact person who arranges jobs for her and handles administration and logistics (ts 840 ‑ 841).
Ms Benson‑DeRose completed a Diploma of Interpreting with TAFE South Australia in 2011, in 'Nyaanyatjarra, LOTE and English'. LOTE stands for 'Language other than English'. The Diploma did not state what languages those were, but she did her training in the Pitjantjatjara and Ngaanyatjarra languages. She completed the diploma course online and gave a presentation in Adelaide. The diploma course included both interpreting and translating, involving oral and written language (ts 842).
Ms Benson‑DeRose was not, at the time of the voir dire, accredited through NAATI as either an interpreter or translator, but NAATI was reviewing her application to become accredited (ts 843).
Ms Benson‑DeRose did not remember if she signed the final versions of the translations after completing the final checks, but said Ms Yorkshire‑Selby and Ms Lightfoot did (ts 846 ‑ 847).
In February 2022, Ms Benson‑DeRose met Detective Martin and the prosecutor for the first time. Detective Martin and the prosecutor asked her to listen to the recordings again and review the translations. She was asked to focus on portions of the translations that were highlighted. She made 'a few' but 'not that much' handwritten changes (ts 847 ‑ 848). Ms Benson‑DeRose identified the handwritten changes made and also her and Detective Martin's signatures on that document (ts 849 ‑ 851).
Ms Benson‑DeRose identified the voices of the accused, William Rictor, William Rictor's wife Katie Brown, and Alex Donegan in her final version of the translations, as she knew their voices. William Rictor's voice was softer than the accused's (ts 852 ‑ 853). Otherwise, she was not able, with certainty, to identify other voices in the recordings, and relied on the speakers identifying themselves or the identification of others (ts 853).
Ms Benson‑DeRose identified 'Mate' in tape 6 as being an elder in the Aboriginal community, due to his voice, the type of words he used and the things he said. This person also said that he was a grandfather in some of the recordings. She believed Mate sounded like a man named Mr Walker but she could not be sure (ts 854 ‑ 855).
Ms Benson‑DeRose said that Mate directly asserted to the accused that the accused had killed his wife. This type of direct assertion was only done by a person in a higher position and a leader of the community. This type of direct assertion would not refer to the deceased directly by name, but by their relationship. It would not directly use the words 'murder' or 'kill', but would use other words that meant the same thing but in a more sensitive way (ts 855 ‑ 856).
When talking about a person who has passed away, Central Desert people tended to 'talk sideways or almost in riddles', such as by using a family member's name, or animals, especially kangaroos, to mean the deceased. This is to talk openly without causing offence (ts 856 ‑ 857).
Ms Benson‑DeRose identified a portion of her translation of tape 9. In the final version that she had worked on with Ms Yorkshire‑Selby, she had translated its meaning, incorporating cultural concepts and knowledge of how Central Desert people spoke about a death (ts 860 ‑ 861). She also provided a handwritten translation, during the review meeting with Detective Martin and the prosecutor, of the literal translation of the words used in the conversation. The literal translation had no direct reference to a female, but instead included a reference to killing a kangaroo, which meant 'putting something to a death' (ts 862). The literal translation of what the accused said also does not refer to a female person, but the accused referred to paluru having 'no blood'. Paluru is a general word to describe a person of either gender or an animal (ts 862 ‑ 864).
Paluru and palunya were both non‑gendered words used to refer to another person. When Ms Benson‑DeRose translated those words into 'he' or 'she' in the English language, she would do so based on the subject of conversation and her cultural understanding (ts 864 ‑ 869).
There was a belief amongst many Central Desert people that living Aboriginal men could turn into spirits or invisible men who were able to travel great distances quickly and cause harm to people (ts 869).
The word ilutanu is a word in the Pitjantjatjara language meaning 'kill' or 'murder'. There are also other ways to say 'kill' or 'murder' more politely (ts 869).
Ms Benson‑DeRose had listened to the recordings again and had no further changes to make to the translations (ts 870).

[55]

Ms Benson‑DeRose said that she had to listen to the prison calls multiple times because there were times when the speakers were too soft, too fast, speaking over each other, not pronouncing words properly, or because there were dogs barking in the background (ts 881 ‑ 882).
Ms Benson‑DeRose accepted that she listened to and translated some prison calls together with Ms Yorkshire‑Selby, while some others were done alone by one of them and then back‑translated by the other. She did not keep records and could not remember which calls were done together and which were done alone (ts 882 ‑ 883).
Ms Benson‑DeRose typed up her translations and gave those typed translations to Ms Giglia, while Ms Yorkshire‑Selby gave handwritten translations to Ms Giglia (ts 884 ‑ 885).
Ms Benson‑DeRose said that there were no other words, apart from 'dog' or 'lightning', that caused disagreement or discussion between her and Ms Yorkshire‑Selby, as they both knew the language (ts 886, 888). Any contention between them was about the audio of the prison calls, where some parts were inaudible or almost inaudible. They would listen to it together and use better headphones to hear the words (ts 887 ‑ 888).
Ms Benson‑DeRose said, contrary to what Ms Yorkshire‑Selby said, that there were equivalents for 'murder' and 'kill' in the Pitjantjatjara language. A direct translation was iluntankutja while another equivalent was wiyanu, meaning something that is finished (ts 888 ‑ 890).
Ms Benson‑DeRose accepted that she was mistaken in her witness statement when she said that the accused never used the word 'murder' or 'kill' in tape 6, and that she recalled the accused using those words (ts 891 ‑ 892).
Ms Benson‑DeRose accepted that as a general cultural principle relating to death, people would 'talk sideways or almost in riddles' regardless of the cause of death (ts 893).
After Ms Yorkshire‑Selby gave evidence in February 2022, Ms Benson‑DeRose was asked to review the prison calls and the translations, especially the highlighted parts, again, for accuracy and completeness (ts 894). Ms Benson‑DeRose, Detective Martin and the prosecutor listened to all of the calls again in the same room. She was the only person in the room with the skill to translate the recordings, but the other two asked questions, especially about the highlighted parts of the translations. After that was done, she understood that Ms Rive did the final back-translation of her work. She knew Ms Rive who had married into her family, but she was 'not that close' to Ms Rive (ts 895).
Ms Benson‑DeRose accepted the final document did not go back to Ms Yorkshire‑Selby for a final check (ts 896).

[60]

Ms Rive's evidence‑in‑chief in the voir dire on 10 November 2022 was to the following effect.
Ms Rive is a white woman. She was born in the United Kingdom and moved to Australia in 1974. She commenced learning Aboriginal languages in Adelaide in 1978. She only worked with the Western Desert language, starting with the Yankunytjatjara dialect, before moving to the Pitjantjatjara dialect (ts 908 ‑ 909).
While some refer to the dialects as languages, they are dialects of the Western Desert language. Another dialect is the Ngaanyatjarra dialect. Ms Benson‑DeRose is fluent in the Ngaanyatjarra dialect as that is her first language, but she can also speak the Pitjantjatjara dialect (ts 909 ‑ 910).
The Pitjantjatjara and Ngaanyatjarra dialects sound 'very similar' but there are 'quite dramatic differences' between the two, such that locals can quickly differentiate between them. While locals could easily understand both, Ms Rive cannot understand the Ngaanyatjarra dialect easily and has no qualifications in the Ngaanyatjarra dialect. Ms Rive gave the broad analogy of the difference between English in London compared to deep in Ireland (ts 910 ‑ 911).
From listening to the prison calls, the accused mainly spoke the Pitjantjatjara dialect but on occasion used two words distinctly from the Ngaanyatjarra dialect (ts 911).
Ms Rive has worked with Aboriginal languages or recording Aboriginal history and culture since around 1979 to 1980, and gained fluency in the Pitjantjatjara dialect in around 1981. Since then, she has been involved in translating and transcribing spoken voices to written text for various mediums. Her preferred dialect is the Pitjantjatjara dialect but she has done translations and transcriptions in other dialects, such as the Ngaanyatjarra dialect (ts 912 ‑ 914). She primarily does translations using digital sound recordings but also, occasionally, from handwritten text. She has also done interpretation work in a court once but did not enjoy it. Otherwise, she has done a lot of interpretation work at conferences (ts 914 ‑ 915).
Ms Rive had a current NAATI certification. On the NAATI website, she was displayed as a 'certified provisional interpreter' in the Pitjantjatjara dialect and the English language. She was not 'provisional' and was a 'recognised practising interpreter/translator'. The website showed everyone to be 'provisional'. She had obtained the certification in the 1990s and had kept it up‑to‑date with recertification 'every couple of years' (ts 916 ‑ 918).
Due to difficulties with accessing certification courses in remote areas, there are eight NAATI-accredited interpreters in the Pitjantjatjara dialect, but there are more people without NAATI accreditation who are competent interpreters or translators (ts 918 ‑ 920).
In February 2022, Ms Rive was asked by staff from the Office of the Director of Public Prosecutions for Western Australia to do the translation job, involving prison call recordings between the accused and others. She did not know that the accused had been charged with murder. She did not know the accused, the deceased or William Rictor, but had heard of and had general knowledge of the Rictor family due to their close connection with the family that she had married into and her work. This did not affect the impartiality or accuracy of her work (ts 921 ‑ 923).
Ms Rive was told that Ms Benson‑DeRose had translated the prison calls and she was asked to check their accuracy. She was advised that some portions of the recordings contained culturally sensitive material. This was present in tape 6 as well as other tapes. She did not tell anyone she was translating such material and did it privately (ts 923 ‑ 924).
Ms Rive was instructed to do the following as part of her task:

[62]

Ms Rive remembered the instructions as to her task, but did not remember receiving the letter containing these instructions with other information, including the allegations and the issues at trial (ts 932 ‑ 933).
Ms Rive listened to the Priority 1 tapes between two and four times to ensure she got the appropriate context. She listened to these tapes on a MacBook Pro computer with inbuilt speakers, and used Bose noise‑cancelling headphones to hear the recordings properly when there was background noise on the recordings, and when the people speaking had muffled or low voices (ts 934).
Ms Rive did not identify the voices on the recordings and relied on the identifications made by Ms Benson‑DeRose. However, she could tell when different voices were speaking. William Rictor spoke more clearly than some of the other voices on the recordings (ts 934 ‑ 935).
Ms Rive used software to set up 'hotkeys' to assist with the task, which allowed her to pause, rewind, change the speed and change the volume of the recordings easily. This allowed her to type her translations herself. She amended and added to some of the translations done by Ms Benson‑DeRose, but did not amend some others at all. She also had a Pitjantjatjara dictionary on hand while completing the task (ts 935 ‑ 936).
The accused was a good, fluent speaker of the Pitjantjatjara dialect. Ms Rive thought that he could have used the English language for a lot of things, but chose to speak the Pitjantjatjara dialect (ts 936).
Ms Rive accepted that Ms Benson‑DeRose's translations were of a 'very high standard' with 'accurate meaning transferred from the source language into the English language'. The only things were the culturally sensitive material which Ms Benson‑DeRose did not do or elaborate on, and her translations into English being slightly 'clunky'. However, none of the translations were wrong (ts 936 ‑ 937).
Ms Rive identified photographs of the word muntu in the Pitjantjatjara/Yankunytjatjara to English dictionary, which is translated to 'obviously', 'certainly' and 'definitely'. Where the word muntu appeared in the translation, Ms Rive provided an explanation in square brackets and italicised text as an additional comment (ts 938 ‑ 940).
Ms Rive identified photographs of the pages in the Pitjantjatjara/Yankunytjatjara to English dictionary explaining the differences in pronouns. The words paluru and palunya are non‑gendered pronouns primarily used to refer to people, but may also be used to refer to other living or non‑living things. Palunya is used when the person or thing is having something done to them, while paluru is used for the person doing the thing (ts 940 ‑ 942). Whether paluru or palunya refers to 'he', 'she' or 'it' depends on the context of the conversation and may require inference or the use of language markers. If one is unsure, then the translation should be 'he/she' or 'him/her' (ts 941 ‑ 944).
Ms Rive identified her translation of a portion of tape 6, which read: 'You got into trouble. You alone did that. [You (singular) alone created that trouble]'. Pitjantjatjara speakers used the English word 'trouble' as there is no Pitjantjatjara word for it. In the Pitjantjatjara dialect, there were also differences in 'you' when used in the singular and the plural context (ts 945 ‑ 946).
Ms Rive wished to confer with Ms Benson‑DeRose on that topic, but had not conferred or consulted with her nor any other persons pursuant to the instructions given to her. She completed the task herself (ts 946 ‑ 947).
Ms Rive had listened to the recording of tape 6 more than once, and listened again shortly before she gave evidence. She said that the sensitive language used by the accused was 'deeply, deeply, deeply offensive' and 'horrific', and that one could 'get killed for this'. Ms Rive rejected the suggestion that Mate was aggressive and overbearing in his tone towards the accused during tape 6, instead saying that the accused had 'got it all over Mate' in the conversation and was 'provocative, aggressive and being deeply, deeply hurtful'. Instead, Mate was 'impotent' to do anything about it and was 'begging' the accused to stop (ts 947).
Ms Rive identified her addition to the translation of tape 9. She added some source language to the translation to prove what the accused said, but otherwise did not make any changes to the translation that had originally been prepared by Ms Benson‑DeRose and considered it to be substantially accurate. The only substantive changes were made to tape 6 (ts 949).
Ms Rive identified a copy of her further review and amendment of the translation of tape 6, completed on or around 25 October 2022. She made changes to five sentences of the conversation between the accused and Mate, which were repetitive and overlapping (ts 950 ‑ 951).
Ms Rive corrected a copy‑paste error and changed the order of a sentence to reflect the actual sequence (ts 953, 960). Initially, the translation was that the accused said, '[y]ou lot said it before. Do it now in your invisible ways', to which Mate said, '[y]ou alone did it. You killed. You're the one who murdered her'. Instead, Mate actually said, '[s]top referring to that. Stop it' (ts 951 ‑ 953). Then, the accused said '[w]ell, hurry up and hit/kill me', and only then does Mate make the accusation that the accused killed 'her' (ts 960 ‑ 961). There were no other changes made to the translation of tape 6 (ts 962).
Ms Rive said the following about her translation of tape 6 (ts 954 ‑ 956):

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Ms Rive described the experience as 'disappointing', rather than 'traumatic'. She rejected the proposition that she had the emotional response due to her family's circumstances, but said that she was 'grieving ... for the people and the ... shocking loss of culture'. However, she said that she 'remained clear-headed and impartial over all this' (ts 997).
Ms Rive accepted that the AUSIT Code required her to disclose any conflict of interest and that she did disclose her connection to the Rictor family (ts 998). She said that the AUSIT Code did not discuss situations where there were small pools of qualified, experienced interpreters and translators with conflicts of interest, but someone with a connection 'but not super-close' can 'get away with it' (ts 999).
Ms Rive accepted that the AUSIT Code required her to observe impartiality towards the author of the source text or the intended readers of the translation. She rejected the propositions that when she sent the 17 February 2022 email, she was emotional and no longer objective, and it was no longer appropriate for her to be involved in the matter. She said that she was busy on other tasks and would quickly forget, and not retain the emotion because she was concentrating on the sentences being spoken (ts 1000).
Ms Rive accepted that in the 17 February 2022 email, she wrote, 'I don't know what it is the defence can complain about'. She accepted that this referred to the defence having raised an issue in relation to bias and the reliability of the translations. She did not find anything wrong with the translations, aside from one issue that she was uncertain about and that she wished to ask Ms Benson‑DeRose about (ts 1001 ‑ 1002).
Ms Rive said that she was related to both Ms Yorkshire‑Selby and Ms Benson‑DeRose through marriage and kinship. She did not know Ms Yorkshire‑Selby well, but she had known Ms Benson‑DeRose for many years and had a close friendship with her (ts 1003). This was not a conflict of interest, because in the small pool of interpreters and translators they were always having to check each other's work (ts 1004).
Ms Rive accepted that on 25 February 2022 she had a two hour 17 minute telephone call with the prosecutor. She believed they were talking about the material but could not remember what they talked about (ts 1006 ‑ 1007, 1009).
Ms Rive accepted that the AUSIT Code required translators to maintain clear boundaries between their task of message transfer and any task undertaken by other parties involved, such as advocacy, guidance or advice. She said that she overstepped the boundary by being too personal and sharing too much about her culture in the 17 February 2022 email (ts 1010 ‑ 1011).
Ms Rive said that her translation of '[y]es, definitely. I did it alone' in tape 6 was accurate (ts 1011 ‑ 1012).

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(a) Subject to replacing any gender‑specific pronouns with non‑gender‑specific pronouns, his Honour found, on the basis of Ms Rive's evidence, that the most recent translations of the telephone calls were 'sufficiently accurate and reliable'. The translations 'are now complete, and the jury will be able to rely upon them to determine whether they contain admissions made by [the appellant]' [2].

(b) Ms Yorkshire‑Selby had an obvious conflict of interest due to the nature of her relationship with Ms Watson and the nature of her husband's relationship with the appellant. She should therefore never have been involved in the translation of the telephone calls [3].

(c) Ms Rive was able to translate 'culturally sensitive material' because she was not constrained in the same way as Ms Yorkshire‑Selby and Ms Benson‑DeRose [4].

(d) Ms Benson‑DeRose did not have a conflict of interest 'of the kind that would preclude her from being able to be impartial and provide an independent translation of the telephone calls'. Her cultural connection, including to the appellant, 'is not such as to amount to a conflict of interest that would preclude her from being able to provide an impartial translation of the calls', in circumstances where there is 'no suggestion that there is any friction between her and [the appellant], or anyone else in [his] family, or that [Ms Benson‑DeRose] favours anyone else in [the appellant's] family'. There is nothing that would affect the reliability of her translations [6] ‑ [7].

(e) Ms Benson‑DeRose approached her task 'in an independent way, that is, impartially, and did her best to translate the meaning of the contents of the telephone calls' [6].

(f) There was nothing in the relationship which Ms Rive's deceased husband had had with the Rictor family that would preclude Ms Rive from being able to provide an independent, impartial interpretation [8].

(g) As to the email which Ms Rive sent to the prosecutor expressing 'horror and dismay' at the language used by the appellant during the tape 6 call, Ms Rive acknowledged that she had experienced an emotional reaction and explained why she had commented on the appellant's 'loss of culture in behaving in that way'. His Honour accepted that Ms Rive expressed some regret for having reacted in that way and an understanding that she would need to contain her emotions in future if confronted by this sort of situation [8] ‑ [9].

(h) As to the comments in the email, 'I don't know what it is that the defence can complain about' and 'I hope that sheds a little bit of light but is there a specific question you want an answer to, something I need to look for?', Ms Rive explained that what she had meant was that her review indicated that the translations that had already been done were, in her opinion, accurate. It was in that context that Ms Rive was querying what it was that the defence might regard as a problem. Having regard to her evidence, and the work that Ms Rive did, as demonstrated by her notes and the progression in relation to calls 6, 9 and 11, Ms Rive approached her task 'in an impartial way, endeavouring to do her best to attribute the correct meaning to the words or phrases that were used in the telephone calls ... by [the appellant] and the other person on the telephone on each occasion' [10].

(i) Some of the more recent amendments to the translations, particularly in relation to call 6, tended to put the language in a way that was more favourable to the appellant, in the sense that it did not necessarily indicate that he was accepting responsibility for having done the acts that were attributed to him alone, apart from one place where he was specifically said to have used the words '[y]es. It was me alone'. Ms Rive drew to the attention of the court and the parties that the pronoun 'you' that was used by the speaker referred to as 'Mate' in tape 6, when the accusations were being put to the appellant, was in fact used in the plural sense, which might be translated as 'you lot' or 'your mob'. This was an example of Ms Rive endeavouring to be more precise about the language that was used, when there had been no challenge to the text in the translation previously during cross‑examination of the other translators [11] ‑ [12].

(j) Having carefully listened to Ms Rive give her evidence 'and having formed the view that [Ms Rive] was articulate, obviously very intelligent in her ability to understand the issues that were being raised, and very thoughtful in her approach to her answers', his Honour was satisfied that Ms Rive was honest and doing her best to answer questions, which reflected honesty in her approach to her translations [13].

(k) As to the accuracy, reliability and completeness of the translations, his Honour said [14] ‑ [16]:

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(a) Her cultural background (28 August suppressed ts 3 ‑ 4).

(b) The cultural background of the people in the Central Desert area (28 August suppressed ts 4 ‑ 5).

(c) The characteristics of the Pitjantjatjara and Ngaanyatjarra languages (28 August suppressed ts 5 ‑ 7).

(d) Her work with KM Language and AIWA (28 August suppressed ts 7 ‑ 8, 22).

(e) Her experience and qualifications in the Pitjantjatjara and Ngaanyatjarra languages, including her Diploma of Translating and Interpreting from TAFE in South Australia, and her application for NAATI certification (28 August suppressed ts 8 ‑ 13).

(f) How she came to translate the prison calls for AIWA (28 August suppressed ts 14 ‑ 15).

(g) The process of translating the prison calls when she was doing it by herself (28 August suppressed ts 15 ‑ 16, 18 ‑ 19).

(h) The process of translating the prison calls when she was doing it together with Ms Yorkshire‑Selby (28 August suppressed ts 15 ‑ 16, 18 ‑ 19).

(i) The process of the final check (28 August suppressed ts 15 ‑ 17).

(j) The use of literal translation and meaning transfer in the translations of the prison calls (28 August suppressed ts 17 ‑ 18).

(k) Not translating the culturally sensitive words in the prison calls, but including some comment about them (28 August suppressed ts 19, 58, 60 ‑ 62).

(l) Her relationship with the accused, William Rictor and the deceased (28 August suppressed ts 20 ‑ 21).

(m) How she came to conduct a review of the translation work previously prepared through AIWA with Detective Martin and the prosecutor (28 August suppressed ts 21 ‑ 22).

(n) The process of conducting the review (28 August suppressed ts 22 ‑ 24).

(o) The identification and characteristics of the voices heard on the prison calls, including of the accused, William Rictor and Mate (28 August suppressed ts 24 ‑ 27).

(p) How Central Desert people spoke to each other about a dead person, a killing or a murder (28 August suppressed ts 28 ‑ 30, 34).

(q) The use of the words for 'murder' or 'kill' in the Pitjantjatjara language in the prison calls (28 August suppressed ts 34).

(r) The use of words in square brackets to provide cultural meaning in the final translations provided on 11 February 2022 (28 August suppressed ts 35, 70).

(s) The non‑existence of gendered pronouns in the Pitjantjatjara language (28 August suppressed ts 40 ‑ 42).

[92]

Ms Benson‑DeRose accepted that she had never been to Tjuntjuntjara. She said that Ms Yorkshire‑Selby had a connection to Tjuntjuntjara and had cultural knowledge of that community, but the cultural practices there were the same as those in the Central Desert (28 August suppressed ts 74).
Ms Benson‑DeRose accepted that the challenge of translation is attempting to capture meaning from the source language to the target language, and sometimes there may not be identical words in both languages. She rejected the proposition that there can be a loss of meaning when that happens and said that this meaning can be explained in brackets. She accepted that she did not speak to the people on the recordings, but said that she was able to translate the literal meaning of what was said (28 August suppressed ts 76 ‑ 77; 29 August morning suppressed ts 4 ‑ 6). She rejected the proposition that she used the context that the calls were related to a prosecution of murder to assist in her translation (28 August suppressed ts 77).
Ms Benson‑DeRose said that she did not think Ms Lightfoot spoke or wrote the Pitjantjatjara language, but accepted that Ms Lightfoot was involved in making corrections during the final checking process to the translations done by Ms Yorkshire‑Selby and herself. She did not take notes of what changes Ms Lightfoot made (29 August morning suppressed ts 7 ‑ 12).
Ms Benson‑DeRose said that she did not make any handwritten notes while she was translating the prison calls. She accepted that she gave evidence in the voir dire to the effect that when she was doing the translations on her own, she made handwritten notes before she typed up her translation, then destroyed the handwritten notes. She then said that they must have been handwritten notes about spellings of particular words in the Pitjantjatjara language, and not of the recordings, and these notes were not given to AIWA (29 August morning suppressed ts 12 ‑ 13).
Ms Benson‑DeRose identified a draft version of the translations marked up by Ms Lightfoot. She accepted the proposition that while she said that she did 'most of the work' in her evidence, Ms Yorkshire‑Selby and Ms Lightfoot also made a 'significant contribution' to the final translation document (29 August morning suppressed ts 14 ‑ 15).
Ms Benson‑DeRose accepted that she identified the voice of Mate on tape 6 as Mr Walker but said that she was not certain and could not comment if the voice of Mate was actually that of Mr Brooks (29 August morning suppressed ts 18).
Ms Benson‑DeRose said that she did not know the status of the voices on the prison calls and could not comment on the cultural meanings specific to initiated and uninitiated men. She could still provide information on the general cultural meanings of words, such as on 'spirit men', 'witch doctors' and 'black magic sticks' (29 August morning suppressed ts 19 ‑ 26).

[119]

In this case, the defence have challenged the opinions that were given by the two translators; so Ms Benson and Ms Rive. They were the two translators called by the prosecution to give expert opinions about what was said by [the appellant] and the others in a series of telephone calls that took place while [the appellant] was in custody awaiting trial.

The purpose of those challenges, and the challenges that were made to Ms Benson's evidence in particular, was to suggest that the translations are unreliable. In that regard, the defence suggest in relation to Ms Benson that her translations are not all her own work, as other people were involved in the process of translation. Three other people were mentioned: a Dee Lightfoot, a Gail Yorkshire‑Selby, and someone called Tina. However, the extent to which they were involved and exactly how the translations were finalised is unclear, which the defence suggest gives rise to concerns about the accuracy and reliability of Ms Benson's translations.

So these are the arguments put by [defence counsel] on behalf of [the appellant]. The cross‑examination of Ms Benson also appeared to suggest that because she had never been to Tjuntjuntjara, she may not have been aware of important differences in the [Pitjantjatjara] language used at that community, and an example was given that she was not aware that people in Tjuntjuntjara have a different word for 'dog', for example.

The defence also challenged Ms Benson on the basis that she had never spoken to any of the people whose voices were recorded in the prison calls, and therefore she was not able to say what they intended to mean by the words that they used. Her role was simply to translate what she heard they were saying into English. The defence also points out that some of the calls were between initiated men, and so she may not have been able to properly understand what they were saying because she was not familiar with all of their ways of talking.

The defence also challenged Ms Rive's evidence. Amongst other things, they suggested in the cross‑examination that there were conflicts of interest in her position because she was related through marriage to the Rictor family. It was suggested that she was under time pressure when she came to do the translations, and that that may have affected the reliability of what she did.

It was suggested particularly in relation to tape 6, which is one of the calls which is principally relied upon by the State, that she may have lost objectivity because she became emotional in response to listening to that call, and you heard about her being cross‑examined about an email that she sent to [the prosecutor], expressing her emotional response to that call. And it was also suggested that she may have been pre‑conditioned to reaching a certain opinion because she already had Ms Benson's translations.

The defence challenged the accuracy and reliability of both of the translators because they suggested that they have approached their translations with what might be called confirmation bias ‑ in other words, it's suggested because they were told what their task related to ‑ that is, the prosecution for a murder ‑ and that [the appellant] was a suspect to the murder, and at least in Ms Rive's case she was asked to look for specific admissions, that they subconsciously favoured an interpretation that supported what they had already been told about the case.

And also, it was suggested that the accuracy and the reliability of the translations might be affected because Ms Rive and Ms Benson were friends with each other, and they had been camping together. Where there has been a challenge to the evidence of an expert witness, you assess the evidence in essentially the same way that you would do with any other witness. You are more than capable of deciding whether you accept some, part or all of an expert's evidence in the same way that you do for any other witness. So there's no magic in it, it's exactly the same task.

[125]

Counsel for the appellant submitted that Ms Yorkshire‑Selby, Ms Benson‑DeRose and Ms Rive lacked independence.
Ms Yorkshire‑Selby knew both Ms Watson and the Rictor family well. She had a very close relationship with Ms Watson. Ms Yorkshire‑Selby recognised the difficulties with her interpreting the telephone calls, but nevertheless was involved significantly in the original interpretations provided to and relied upon by the police and the prosecution.
Ms Benson‑DeRose said that her personal knowledge of and relationship with the appellant and William Rictor had affected her work (ts 837). Later, she qualified this evidence by stating that she did her work equitably, honestly and truthfully (ts 838 ‑ 839). However, during cross‑examination, Ms Benson‑DeRose agreed that, culturally, she had a conflict of interest (ts 877). When she ascertained that William Rictor was the godfather of a member of her family, she became concerned about her position (ts 878).
Ms Rive gave evidence that she had known Ms Benson‑DeRose for many years. They had worked, travelled and camped together and had a friendship (ts 1003). Ms Rive's work involved carrying out an independent review of Ms Benson‑DeRose's translations. Ms Rive had married a Pitjantjatjara man 'with fairly close connections to the Rictors' (ts 991). Her husband was deceased (ts 922). Ms Rive disclosed her connection to the Rictor family (ts 998). However, she decided that she did not have a conflict of interest and that otherwise the work would not be done because there was only a small pool of translators (ts 999).
Ms Yorkshire‑Selby believed that the appellant had killed Ms Watson. Although at one stage Ms Yorkshire‑Selby said her belief did not affect her impartiality, she later accepted that she was biased. According to Ms Benson‑DeRose, Ms Yorkshire‑Selby had told her that she believed that the appellant had killed Ms Watson, but she was too 'far' into her work (ts 878).
Ms Rive's translation of tape 6 was challenged on the basis that she had lost her objectivity and become emotional as a result of listening to that conversation. Counsel submitted that Ms Rive's lack of impartiality was demonstrated by the email that she had sent to the prosecutor in which she expressed her emotional response to the conversation recorded on tape 6 (ts 996). The email read, relevantly:

[133]

Ms Benson‑DeRose's inability to translate culturally sensitive material affected the contextual accuracy of her translation of tape 6. She did not translate parts of tape 6 because they were sensitive and involved men's business (ts 996). Ms Rive filled this gap by translating the parts of tape 6 that were culturally sensitive. She filled the gap despite her evidence that when she listened to tape 6, she was appalled to hear the appellant speaking 'like that' repetitively and her evidence that there was 'something clearly wrong' with the appellant (ts 996).
Ms Rive said that, apart from tape 6, there were numerous references to 'deep culture' in other tapes (ts 924). It was submitted that, consequently, when tape 6 was marked by culturally sensitive material, it was important that the translator be permitted to translate the information. It was submitted that this context would have informed the jury about whether there was an implied admission or an attempt at appeasement by a younger man (that is, the appellant) in response to an admonishment by a community elder.
Ms Benson‑DeRose admitted that she had never been to Tjuntjuntjara (28 August suppressed ts 5, 74). According to counsel for the appellant, this meant that Ms Benson‑DeRose may not have been aware of important differences in the Pitjantjatjara language that are used in that community. For example, Ms Benson‑DeRose was not aware that people in Tjuntjuntjara have a different word for 'dog' (29 August morning suppressed ts 36 ‑ 37). Further, Ms Benson‑DeRose did not have access to their cultural practices when she was asked about tape 7 (29 August morning suppressed ts 26).
It was submitted that Ms Yorkshire‑Selby's evidence raised issues about the accuracy and completeness of some of the crucial recorded conversations.
There were disputes about the proper translation of some of the conversations when the original translations were prepared by AIWA.
Ms Yorkshire‑Selby had disagreements with Ms Benson‑DeRose about the correct translation of some of the conversations that were prepared by AIWA. In particular:

[135]

Ms Benson‑DeRose gave evidence that the conversations were translated by a combination of meaning and literal translations (ts 880). Ms Rive gave evidence referring to the meaning translation in tape 9 (ts 982) as well as the prosecutor's request that she conduct literal translations (ts 929). Where no literal translation was possible, Ms Rive provided meaning translations that were indicated by the use of parentheses (ts 929).
Counsel for the appellant asserted, by way of example, that female translators were not qualified to speak on culturally sensitive parts of the conversations. A meaning translation had to be provided of a conversation between two initiated men who were discussing culturally sensitive issues. However, none of Ms Yorkshire‑Selby, Ms Benson‑DeRose and Ms Rive would have heard such a conversation previously.
Ms Rive said that she was under time pressure when she prepared her translations. She said that not being able to translate the whole of the recordings meant that this was a 'patchy job' done out of necessity because she was too busy (ts 987 ‑ 988). Ms Rive agreed that she was asked to concentrate on matters that were pointed out under the direction of the prosecutor (ts 989).
It was submitted that where expert witnesses are giving evidence, they should be appropriately qualified, impartial and independent. That was not the case with Ms Yorkshire‑Selby, Ms Benson‑DeRose and Ms Rive.
Counsel stressed that it was not for the defence to obtain their own translations of the calls. The calls were part of the State's case. The State sought to rely on the calls to prove beyond reasonable doubt that the appellant was guilty of murder.
Even if the translations were largely accurate, significant parts of the calls were translated in circumstances where there were real issues about whether the translators were properly qualified and experienced to carry out that work.
The lack of impartiality and independence would have raised 'a real question in a fair‑minded bystander about whether that affected the meaning attributed to conversations of real significance in the case'. That was especially so with witnesses who had formed a view about the appellant's guilt.
Counsel noted that, in his closing address at the trial, defence counsel dealt with the recorded conversations as follows:

[143]

As to the qualifications of the translators to translate culturally sensitive material, counsel for the State submitted that the appellant's argument that the translators were not qualified to translate culturally sensitive material was misconceived.
It was submitted that, in the present case, the requirement that an expert be sufficiently qualified related to the ability of the translators to understand the words spoken in the Pitjantjatjara and Ngaanyatjarra languages and to translate those words accurately into English. If the translations were in fact accurate, the resulting evidence was not inadmissible and should not have been excluded by judicial discretion merely because the translators were not permitted by customary law to listen to or translate the conversations.
Counsel noted that Ms Yorkshire‑Selby and Ms Benson‑DeRose did not translate the culturally sensitive material for cultural reasons. However, there was nothing to suggest that they were incapable of translating the culturally sensitive material because of an inability to understand the language. Ms Rive was aware of the cultural sensitivity but did not feel constrained in relation to the translation of the culturally sensitive material in the same manner as Ms Yorkshire‑Selby and Ms Benson‑DeRose. Ms Rive produced a translation of the culturally sensitive material.
It was submitted that the appellant's assertion that it was important for a translator to be permitted to translate the culturally sensitive material because there may have been a cultural context which was unknown to Ms Rive, and that this cultural context would have informed the jury whether the appellant was in fact making an admission of guilt or was merely speaking in a manner intended to appease a community elder, was speculative. In any event, so it was submitted, if the translator in the present case had been an initiated male, the male translator could only have produced his own translation of what the appellant had said in the conversations. The male translator would not have been entitled to speculate about the appellant's motivation or state of mind. The male translator could not have given evidence of his opinion about what the appellant meant to convey by the words he spoke.
Counsel submitted that, in the absence of evidence that there were inaccuracies in Ms Rive's translation of the culturally sensitive material, her translations were admissible and there was no basis on which the translations could have been excluded in the exercise of judicial discretion.
It was never put to Ms Rive in cross‑examination that the words used by the appellant had or may have had a different meaning from the translation provided by her on the basis that she was not an initiated Aboriginal male. Ms Benson‑DeRose's decision not to translate the culturally sensitive material does not indicate that Ms Rive's translation of that material was inaccurate.
As to the allegations of bias and conflict, counsel for the State noted that there were two aspects to the appellant's argument. First, the translators were conflicted and not impartial. Secondly, the alleged conflict and lack of impartiality rendered their translations inadmissible, even if the translations were in fact accurate.
It was submitted that Fiannaca J found, correctly, that neither Ms Benson‑DeRose nor Ms Rive was relevantly conflicted and his Honour was also correct to find that they were impartial and their translations were not affected by bias.
Counsel contended that, in any event, bias or lack of impartiality is not, of itself, a basis for excluding expert evidence. Bias or lack of impartiality does not render expert evidence inadmissible, but bias or lack of impartiality may be taken into account by a judge who is required to decide whether expert evidence should be excluded on discretionary grounds.
Counsel noted that, in the present case, the appellant relies upon the Christie discretion; that is, the appellant argues that the probative value of the translation evidence was outweighed by the risk of prejudice to the appellant. It was submitted that evidence is not prejudicial merely because it tends to prove an accused's guilt. Prejudice arises from the risk of improper use of the evidence. Evidence will be prejudicial only when the jury is likely to give the evidence more weight than it deserves or when the content or nature of the evidence may inflame the jury or divert the jurors from their task. It was submitted that, in the present case, the evidence of the translations was plainly probative and was not prejudicial in the relevant sense. If the translations were sufficiently accurate and reliable, there is no reason in principle why the evidence of the statements made by the appellant during the telephone conversations should be treated differently, merely because the appellant expressed himself in Pitjantjatjara or Ngaanyatjarra rather than in English. If the translations were accurate, the evidence is no less probative merely because the appellant did not express himself in English.
It was submitted that the fact that Ms Rive had an emotional response to some of the material which she heard did not mean that she was incapable of complying with her obligation as a translator to provide an accurate and impartial translation of the recordings. Ms Rive drew her emotional reaction to the attention of the prosecutor and this was disclosed to the defence and the court. It is plain from her evidence and the translations which she produced that Ms Rive did put her emotional reaction aside and provided honest and impartial translations.
Counsel contended that it was open to Fiannaca J to accept Ms Rive's evidence. His Honour also had regard to the work which Ms Rive undertook and to the manner in which she approached her task. Ms Rive did her best to attribute the correct meaning to the words and phrases that were used in the telephone conversations.
It was submitted that it was plainly open to his Honour to find that Ms Rive was an honest witness and to conclude that her honesty in answering questions reflected her honesty in carrying out the translation work.
As to the translation process, counsel for the State submitted that, whatever the position may have been in relation to the original translations, Ms Benson‑DeRose separately reviewed all of them by listening to the recorded conversations afresh and checking and, where necessary, amending the original translations. Ms Benson‑DeRose's work was then reviewed by Ms Rive, who listened to the recorded conversations and checked the translations. Ms Rive translated the culturally sensitive material which Ms Benson‑DeRose had not translated. Ms Rive reviewed Ms Benson‑DeRose's work and made a small number of alterations.
It was submitted that the mere fact that Ms Benson‑DeRose and Ms Rive are friends and that Ms Rive did not carry out a fresh translation of all of the telephone conversations without reference to Ms Benson‑DeRose's work does not demonstrate that any of the translations are in any material respect inaccurate.
It was also submitted that there is no substance in the appellant's complaint that there is uncertainty about which translator worked on which telephone conversation as part of the preparation of the original translations. Ms Benson‑DeRose subsequently reviewed and amended the original translations and Ms Rive then separately reviewed Ms Benson‑DeRose's work. Accordingly, so it was submitted, Ms Benson‑DeRose and Ms Rive separately undertook reviews and verified the translations which they produced. In the absence of any evidence that the final translations contained errors resulting from the previous involvement of Ms Yorkshire‑Selby and others, there was no proper basis on which the final translations could have been excluded in the exercise of judicial discretion. The prior involvement of others neither reduced the probative value of the final translations nor resulted in the admission of the final translations occasioning any real prejudice to the appellant.
As to the completeness and accuracy of the translations, counsel for the State submitted that although Ms Rive was subject to time constraints early in the translation process, those constraints were removed when the original trial dates were vacated. Ultimately, Ms Rive began her work in February 2022 and signed her final translations on 25 October 2022.
It was submitted that, having regard to all of the evidence adduced at the voir dire, it was open to Fiannaca J to find that the translations were sufficiently accurate and reliable to be adduced in evidence.
Counsel contended that the appellant had failed to establish a proper basis on which Fiannaca J should have excluded the translations in exercise of the Christie discretion. Further, counsel contended that, in the absence of evidence that the translations were in fact materially inaccurate, the admission of admissible and probative evidence against the appellant cannot have resulted in a miscarriage of justice.
The State's written submissions assumed that the House v The King standard of appellate review was applicable. However, at the hearing of the appeal, counsel for the State appeared to resile from that position. Counsel said that he was 'not going to really try to persuade the court not to proceed on the basis of correctness' and that in his submission it was 'at least arguable ... that correctness is the correct approach' (appeal ts 52).

[150]

The function of translation in a curial or administrative setting is interpretation of communications as accurately and completely as possible. The process of interpretation involves comprehension of words spoken or written in a source language, conversion to a target language, and delivery in a manner faithful both to the content of the words and to the register and style of the speaker or writer (Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017) at 78 ‑ 83). That, at least, is the ideal.

Long past is the time when an interpreter might have been thought to be appropriately described as a 'translating machine' or 'bilingual transmitter' performing a function 'not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance' (Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419 at 430 ‑ 431. See also at 429, 432 ‑ 433). More accurate is to conceive of an interpreter as a 'bilingual mediating agent between monolingual communication participants in two different language communities' (Bell, Translation and Translating: Theory and Practice (1991) at 15, quoting House, A Model for Translation Quality Assessment (1977) at 1) and to recognise that 'total equivalence' between words spoken or written in a source language and words translated into a target language is a 'chimera' (Bell, Translation and Translating: Theory and Practice (1991) at 6). Translation is not a 'simple word‑matching exercise' (Hale, Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: A National Survey (2011) at 2) but 'a difficult and sophisticated art' which, '[t]o be done well', 'requires not only linguistic sophistication and sensitivity to "minor" linguistic details (which may be correlated with vast differences in conceptualization), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organization of the relevant countries, and of the world‑views and life styles reflected in the linguistic structure' (Dixon, Hogan and Wierzbicka, 'Interpreters: Some basic problems' (1980) 5 Legal Service Bulletin 162 at 163).

Professor Wigmore noted the 'peculiarity' of language that 'the most perfect system of signs, the most richly developed language, leads only to a partial comprehension ... whose degree of completeness depends upon the nature of the subject treated, and the acquaintance of the hearer with the mental and moral character of the speaker' (Wigmore, The Science of Judicial Proof, 3rd ed (1937) at 569-571, quoting Whitney, Language and the Study of Language, 4th ed (1869) at 111). Imperfections in communication arising out of mistranslation of words spoken or written in one language into another language are inherent in the human condition, as are imperfections in communication arising out of misuse or misunderstanding of words spoken or written in a common language. 'Perfect interpretations' simply 'do not exist' (Shulman, 'No Hablo Inglés: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants' (1993) 46 Vanderbilt Law Review 175 at 177, quoted in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 18 [26]).

[155]

A question arises as to whether the applicable standard of appellate review in the present case is the correctness standard or the House v The King standard. If the correctness standard is applicable, this court must determine for itself the correct outcome while making due allowance for such 'advantages' as Fiannaca J may have had in conducting the voir dire. If the House v The King standard applies, intervention by this court is confined to circumstances where Fiannaca J, in conducting the voir dire, acted upon a wrong principle; allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust.
In Steven Moore (a pseudonym) v The King,[21] the High Court considered the applicable standard of appellate review in the context of s 137 of the Evidence Act 2008 (Vic). Section 137 provides that '[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused'.
In Steven Moore, the appellant was to be tried in the County Court of Victoria for six offences. The trial judge admitted certain evidence under provisions of the Victorian Evidence Act concerned with an exception to the 'hearsay rule' in criminal proceedings. The trial judge declined to exclude the evidence under s 137. One of the issues before the High Court was whether the Court of Appeal of Victoria, on an interlocutory appeal from the trial judge's refusal to exclude the evidence under s 137, erred by applying the House v The King standard of appellate review. Although the Court of Appeal applied the House v The King standard, the Court of Appeal also found for completeness that the trial judge's refusal was correct.
Gageler CJ, Edelman, Steward, Gleeson and Beech‑Jones JJ enunciated the test to be applied in determining the applicable standard of review [15]:

[162]

In our opinion, the recorded telephone conversations to which the appellant was a party had probative value in relation to whether the appellant had killed Ms Watson. The most important of the conversations were those recorded on tapes 6, 9 and 11. The conversation recorded on tape 6 was critical.
Ms Watson was killed on or about 10 November 2019.
The conversations recorded on tapes 1 to 13 comprised telephone calls made while the appellant was in custody on remand. The calls occurred between 13 December 2019 and 31 December 2019. The calls were made shortly after the appellant was arrested on 17 November 2019 and charged with Ms Watson's murder. Apart from the conversations recorded on tapes 1 to 13, the appellant exercised his right to silence.
It is apparent from the conversations recorded on tapes 1 to 13, considered as a whole and in the context of Ms Benson‑DeRose's evidence and Ms Rive's evidence, that the events of the weekend of 9 and 10 November 2019 and their aftermath, including the death of Ms Watson, were significant topics of discussion. During the conversations the appellant provided his version of the events that had occurred on the weekend of 9 and 10 November 2019 and their aftermath. He gave his version of events to his brother, William Rictor, and to other people who appear to have been members of the Tjuntjuntjara Aboriginal community. None of the participants appears to have been in a position of material advantage or disadvantage in the conversations. None of the participants was a police officer or other person in authority. All of the participants appear to have been Indigenous and capable of speaking and understanding Western Desert languages.
Ms Rive's final translation of the conversation recorded on tape 6 is materially different from Ms Benson‑DeRose's translations (as reviewed and checked by Ms Rive) of the conversations recorded on the other tapes. The appellant merely provided his version of events in the conversations recorded on the other tapes. However, on tape 6 the person identified as 'Mate', who was apparently a community elder, appears on several occasions to accuse the appellant of killing Ms Watson.
On the State's case, there were various express and implied admissions by the appellant, in the course of his interaction with Mate, that he had killed Ms Watson.
On our evaluation of Ms Rive's final translation of the conversation recorded on tape 6 in the relevant context, the appellant did expressly and impliedly admit in substance that he had killed Ms Watson. We refer, in particular, to the passages in Ms Rive's final translation that we have underlined. See [34] above. We have concluded that the appellant made admissions against interest on tape 6, having regard to the text of Ms Rive's final translation of tape 6; the text of Ms Benson‑DeRose's translations (as reviewed and checked by Ms Rive) of the other tapes; and the evidence of Ms Benson‑DeRose and Ms Rive about cultural issues that may affect the actual meaning of what was said during the conversations. The State had a strong case against the appellant, including on the crucial issue of identity, without the admissions recorded on tape 6. However, the admissions on tape 6, if true, substantially strengthened the State's case.
We are satisfied that Ms Benson‑DeRose was appropriately qualified to translate the conversations recorded on tapes 1 to 13. Ms Benson‑DeRose had worked as an interpreter and translator in the Western Desert languages since the 1970s. She had lived most of her life in the Central Desert. It is true that Ms Benson‑DeRose was not NAATI certified. However, she had a combined Diploma of Translating and Interpreting in the relevant Western Desert languages from TAFE. Ms Benson‑DeRose has previously acted as a court interpreter.
Similarly, we are satisfied that Ms Rive was appropriately qualified to translate the conversations recorded on tapes 1 to 13. Ms Rive held NAATI qualifications in the relevant Western Desert languages. She began learning those languages in about 1978. She has had an extensive employment history involving the translation of the Western Desert languages.
Further, we are satisfied that Ms Rive had the requisite skill and ability to understand and translate the culturally sensitive material in the conversations. Unlike Ms Yorkshire‑Selby and Ms Benson‑DeRose, Ms Rive did not regard herself as precluded from translating the culturally sensitive material. It is not apparent that there were any material inaccuracies in Ms Rive's translation of the culturally sensitive material. In particular, there was no evidence that there were any material inaccuracies in Ms Rive's translation of the culturally sensitive material recorded on tape 6. The existence of a prohibition under Aboriginal traditional law against a woman translating culturally sensitive material did not, of itself, render Ms Rive's translation inadmissible and did not, of itself, require the exclusion of the translation in the exercise of the judicial discretion. There was no evidence that statements made by the appellant during the conversations had or may have had a different meaning from Ms Rive's translation as a consequence of her not being an initiated Aboriginal male. Indeed, it was not put to Ms Rive in cross‑examination that the appellant's statements had or may have had a different meaning from Ms Rive's translation as a consequence of her not being an initiated Aboriginal male.
Fiannaca J expressly found that Ms Rive was an honest witness. His Honour said that Ms Rive was articulate, very intelligent in her ability to understand the issues that were raised with her in evidence, and very thoughtful in her approach to her answers. His Honour also found that Ms Rive's approach to her translations was honest [13]. His Honour had a significant advantage (which this court does not have) in seeing and hearing Ms Rive give evidence. At the hearing of the appeal, counsel for the appellant informed the court that the court should proceed on the basis that Ms Rive (and Ms Benson‑DeRose) gave honest evidence (appeal ts 33 ‑ 34). We accept that the court should proceed on that basis.
In criminal proceedings it is important that an interpreter who translates conversations made in a language other than English be independent and objective, especially where the conversations to be translated contain or may contain information that is adverse to the accused (for example, alleged admissions against interest). The qualities of independence and objectivity are important for the purpose of ensuring that the translations are accurate and reliable. If the translations are not accurate and reliable, the accused may not receive a fair trial.
In the present case, Ms Benson‑DeRose knew the appellant and William Rictor. William Rictor was the godfather of a member of her family. Ms Rive's deceased husband had 'fairly close connections' to the Rictor family. Ms Benson‑DeRose and Ms Rive had known each other for many years. They had worked, travelled and camped together and had a friendship.
However, we are satisfied, having regard to:

[175]

It is true that Ms Rive was subject to constraints upon her availability to carry out the translation work at an early stage of the process. However, the constraints on her time were removed when the original dates for the appellant's trial were vacated. Ms Rive began her work in February 2022 and verified her final translations on 25 October 2022.
We are satisfied that Fiannaca J was correct in deciding that the translation should not be excluded in the exercise of the judicial discretion. In particular, we are satisfied that counsel for the appellant's complaints about the reliability and accuracy of the translations (in particular, Ms Rive's final translations) and about the qualifications, impartiality and independence of the translators (in particular, the qualifications, impartiality and independence of Ms Rive) have not been made out. We are satisfied that Ms Rive's final translations were impartial, accurate, reliable, complete and without bias.
As we have mentioned, the conversations had probative value in relation to whether the appellant had killed Ms Watson. The appellant made admissions against interest on tape 6. The admissions on tape 6, if true, substantially strengthened the State's case.
Although we are satisfied that Ms Rive's final translations were impartial, accurate, reliable, complete and without bias, it must be acknowledged that translation is 'a difficult and sophisticated art' and that 'perfect interpretations' simply 'do not exist'. See DVO16 [5] ‑ [6].
However, we are of the opinion that any relevant prejudice arising from counsel for the appellant's complaints about the translations and the translators does not outweigh the probative value of the final translations that were undertaken and certified by Ms Benson‑DeRose and Ms Rive and that were tendered at the trial.
There was no reasonable possibility that the jury was likely to give the translation evidence more weight than it deserved or to use the translations for inadmissible purposes. Further, there was no reasonable possibility that the nature or content of the translations may have inflamed the jury or diverted the jurors from their task. The trial judge's directions to the jury in his summing up ensured that there was no reasonable possibility that the translations may have caused the jury to reason incorrectly to a conclusion of guilt.
The ground of appeal fails.