JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MURRAY -v- FEAST [2023] WASC 273
CORAM: SOLOMON J
HEARD: 12 DECEMBER 2022 WITH ADDITIONAL MATERIAL FILED ON 30 DECEMBER 2022 AND 3 JANUARY 2023
DELIVERED : 27 JULY 2023
PUBLISHED : 27 JULY 2023
FILE NO/S: SJA 1001 of 2022
BETWEEN: ANTONIO MURRAY
Appellant
AND
ADRIAN MATTHEW FEAST
Respondent
ON APPEAL FROM:
For File No: SJA 1001 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G MACLEAN
File Number : KH 2527 of 2020
Catchwords:
Criminal law - Single judge appeal - Appeal against conviction - Aggravated assault - Appellant gave evidence in his own defence - Appellant speaks Walmajarri and Kriol - Interpreter was provided - Magistrate found that appellant spoke English - Where magistrate made comments to interpreter and counsel that interpretation was not necessary - Communication barriers for First Nations people in the justice system - Linguistic and cultural autonomy in court proceedings - Whether the magistrate's comments could cause reasonable apprehension of prejudgement - Whether substantial miscarriage of justice - Turns on own facts
Criminal law - Admissibility of evidence - Report provided by expert in socio-linguistics - Whether socio-linguistics a recognised field of expertise - Whether expert evidence trespassed the ultimate issue
Legislation:
Criminal Appeals Act 2004 (WA) s 7, s 8, s 9, s 14, s 14(2)
Criminal Code (WA) s 221, s 313(1)(a), s 338B(b)
Evidence Act 1906 (WA)
Evidence Act 1995 (Cth) s 102, s 108C, s 135
Magistrates Court Act 2004 (WA) s 13, s 31
Native Title Act 1993 (Cth)
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
| Appellant | : | Ms J Solliss |
| Respondent | : | Ms R Panetta |
Solicitors:
| Appellant | : | Legal Aid - South Hedland |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Adacot v Sowle [2020] FamCAFC 215
Aytugrul v R [2012] HCA 15; (2012) 247 CLR 170
Bowles v The State of Western Australia [2011] WASCA 191
De La Espriella-Velasco v The Queen [2006] WASCA 31
Dietrich v R (1992) 177 CLR 292
EYO v The State of Western Australia [2019] WASCA 129
Farrell v The Queen (1998) 194 CLR 286
Fisher v Commonwealth of Australia [2023] FCAFC 106
Galea v Galea (1990) 19 NSWLR 263
Grey v R [2001] HCA 65; (2001) 184 ALR 593
Hofer v R [2021] HCA 36; (2021) 95 ALJR 937
Jago v District Court of New South Wales (1989) 168 CLR 23
Lepoidevin v State of WA [2021] WASCA 19
Luo v The Queen [2020] WASCA 184
Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Michael v R [2009] UKPC 41; [2010] 1 WLR 879
Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186
R v Anunga (1976) 11 ALR 412
R v Condren (1987) 28 A Crim R 261
R v Condren [1991] Qd R 574
R v Patrick Kenniff and James Kenniff [1903] St R Qd 17
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Simon v The Queen [2002] WASCA 329
Stack v The State of Western Australia [2004] WASCA 300; 29 WAR 526
State of Western Australia v Gibson [2014] WASC 240
State of Western Australia v Liyanage [2017] WASCA 112
Strahan v Brennan [2014] WASC 190
Webb v The Queen (1994) 181 CLR 41
Weiss v The Queen (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
Texts referred to in decision:
Caruana C, 'Kelvin Condren -- Trial by Endurance' (1989) 1(41) Aboriginal Law Bulletin 4
Eades D, Aboriginal English and the Law: Communicating with Aboriginal English Speaking Clients ‑ A Handbook for Legal Practitioners (1992)
Fryer-Smith S, Aboriginal Benchbook for Western Australian Courts (2nd ed, 2008)
Heydon D, Cross on Evidence (13th ed, 2021)
Judicial Council on Cultural Diversity, 'Recommended National Standards for Working with Interpreters in Courts and Tribunals' (March 2022)
Law Reform Commission, Recognition of Aboriginal Customary Laws (1986)
Hon Mildren J, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7
Dr Rademaker L, Found in Translation (2018)
Sivak L et. al, '"Language Breathes Life" – Barngala Community Perspectives on the Wellbeing Impact of Reclaiming a Dormant Australian Aboriginal Language' (2019) 16(20) International Journal of Environmental Research and Public Health, 3918
Magistrate Syddall T, 'Aboriginals and the Courts I and II' (Presented as part of the Australian Institute of Criminology's Aboriginal Criminal Justice Workshop in September 1983
United Nations, State of the World's Indigenous Peoples (2009)
Hon Wood J, 'Cultural diversity: reflections on the role of the judge in ensuring a fair trial' (2021) Handbook for Judicial Officers 87
SOLOMON J:
On 28 May 2021, after a two-day trial in the Magistrates Court at Karratha, the appellant, Mr Murray, was convicted of one charge of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA). Mr Murray was acquitted of one charge of threatening to unlawfully injure, contrary to s 338B(b) of the Criminal Code.[1] These reasons relate to Mr Murray's appeal against the conviction.
[1] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 103 - 104.
On 7 December 2021, the learned magistrate sentenced Mr Murray to 10 months' imprisonment, suspended for 12 months.[2] Due to some complexity associated with the issues raised by the appeal, by the time the matter was heard by me, Mr Murray had completed his sentence. The appeal may therefore be thought to be of lesser consequence. However, if the appeal succeeds, Mr Murray will be entitled to have his conviction quashed. In addition, Mr Murray's appeal raises important matters that have warranted careful consideration and elaboration in these reasons.
[2] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 7 December 2021, 10.
Background and the trial in the Magistrates Court
On the night of Saturday, 3 October and the early morning of Sunday, 4 October 2020, Mr Colin Harwood was the victim of a serious assault in his home in Millars Well, a suburb of Karratha. Mr Harwood was 70 years old at the time. As will be explained, he was quite severely beaten by a woman named Pamela. I shall refer in these reasons to her simply as 'Pamela' without intending any disrespect, because that is largely how she is identified in the transcript of the proceedings in the Magistrates Court. During the same incident, Mr Murray was alleged to have kicked Mr Harwood in the testicles. It was also alleged that Mr Murray's foot made contact with Mr Harwood's head while Mr Harwood lay on the floor in what was described as a kick or a brushing.
Mr Murray was charged with common assault under s 313(1)(a) of the Criminal Code. By reason of s 221, an offence is committed in circumstances of aggravation if the victim is aged 60 years or older. As Mr Harwood was 70 years old at the time of the commission of the offence, the offence was alleged to have been perpetrated in circumstances of aggravation.
The prosecution case in the Magistrates Court comprised the evidence of the victim Mr Harwood, as well as a Mr Robert Truarn who was a friend of the victim, First Constable Samuel Smith, Constable Don Justin, and Senior Constable Matthew Pink. There were a handful of exhibits tendered, including relevantly the bodycam footage captured by Constables Smith and Justin.
In broad terms, Mr Harwood gave evidence to the following effect. At about 4 or 5 o'clock in the afternoon of 3 October 2020 he was at home with Pamela, with whom he was in some form of relationship. Mr Harwood had been drinking beer. Mr Murray was with them. Mr Harwood did not know Mr Murray, and he told Pamela and Mr Murray that Mr Murray could not stay at the house and had to leave. Mr Murray did not leave. This led to an argument between Mr Harwood on the one hand, and Pamela and Mr Murray on the other. Mr Harwood then left and went to the house of Rob Truarn, a five‑minute walk away. At Rob's house, Mr Harwood had a beer with Rob and called the police to complain about Mr Murray's presence in his home. It appears by this time it was around 1.00 am on Sunday morning, 4 October 2020. The police said they would be another two hours. Mr Harwood did not wish to wait that long, so he returned home where he told Pamela and Mr Murray to leave and that the police were coming. An argument erupted, and Pamela assaulted Mr Harwood first with a slap and then by beating him on the head and other parts of his body with a metal broomstick. Mr Murray then kicked Mr Harwood in the testicles. As a result of the assault Mr Harwood was quite severely injured and hospitalised.
The accused elected to give evidence on his own behalf. He did so with the aid of an interpreter, Mr Donovan Jenkins. As will become apparent, the learned magistrate declined to receive information regarding Mr Jenkins' qualifications.[3] However it is uncontroversial that Mr Jenkins is accredited by the National Accreditation Authority for Translators and Interpreters. Mr Jenkins was present from the beginning of the trial to interpret the proceedings for Mr Murray, a matter to which I will return.
[3] Para [28].
Mr Murray gave evidence that he is a Walmajarri man who grew up in Fitzroy Crossing in the Bayulu community. Mr Murray also gave evidence that he speaks mainly Walmajarri, but also Mardok, Manjaderra, and 'mixed languages'.[4]
[4] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 60.
In broad terms, Mr Murray's evidence was that he was out looking for a 'young fella' by the name of Chris but could not locate him (later in his evidence, Mr Murray said Chris was Pamela's son).[5] He then arrived at Mr Harwood's house. Mr Harwood was already on the ground, having been assaulted by Pamela and had 'blood all around him'.[6] In short, Mr Murray's version of events was that the whole assault had already taken place before he arrived at Mr Harwood's home, and he had nothing to do with it.
[5] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 64 - 65, 78.
[6] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 75.
There were certain elements of Mr Murray's evidence that ultimately featured in the learned magistrate's assessment and reasoning and were the subject of emphasis in the submission on behalf of Mr Murray. I summarise these below.
Mr Murray gave evidence that when he arrived at Mr Harwood's house he sat down and did nothing, thinking Mr Harwood was asleep. Mr Murray said he was drunk at the time. His evidence was that the police arrived and 'picked him up for nothing'.[7] When asked how long he was sitting on the lounge, Mr Murray said 'maybe five or six minutes, something like that. A good while. A little bit. And then the policemen came'.[8]
[7] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 64.
[8] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 65.
Mr Murray denied kicking Mr Harwood in the testicles. When asked if he spoke with Pamela while at the house, Mr Murray said 'No, no. She went mad. She was going mad'.[9] When asked what she was doing to make him think she had gone mad, Mr Murray said he did not know as 'I had just come'.[10]
[9] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 66.
[10] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 66.
Mr Murray denied kicking Mr Harwood when he made his way out of the house at the request of the police. At the conclusion of Mr Murray's evidence in chief, the learned magistrate sought to clarify how long Mr Murray was at the house, sitting on the couch, before the police arrived. The following exchange then took place:[11]
[11] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 70 - 71.
HUGHES, MS: How long were you sitting on the lounge chair for?
MURRAY, MR: It was a little while.
INTERPRETER: A little while.
HIS HONOUR: So, when he was talking about five or - - -
INTERPRETER: But I don't know time.
HIS HONOUR: When he was talking about five or six minutes – I'm not going to hold him to five or six minutes because he also said a good while, was he talking about, you know, from when he first got there or was he talking about from when he got there, walked outside and then came back inside?
INTERPRETER: Around about.
HUGHES, MS: How long would you say you were at that old man's house in total that night?
MURRAY, MR: Five – five or six minutes (indistinct)
INTERPRETER: Five or six minutes or something like that.
HIS HONOUR: All right. Well, you see - - -
HUGHES, MS: Is that - - -
HIS HONOUR: - - - he's talking about the whole kit and caboodle then.
HUGHES, MS: Well, actually I think I asked that in a confusing way.
INTERPRETER: Because the doctor - - -
HIS HONOUR: That was okay.
INTERPRETER: - - - came after this was done.
MURRAY, MR: Policeman.
INTERPRETER: Policeman and that, the doctor came.
HUGHES, MS: I think because I said "at the house".
INTERPRETER: Policeman first and then the doctor.
HUGHES, MS: I should clarify inside. How long were you inside the house for?
INTERPRETER: I don't know. I don't know the time.
HUGHES, MS: Was it a little while or a long while?
INTERPRETER: A little while. A little while.
HIS HONOUR: A little while. And the other thing I wasn't too sure about. Did he see – he saw the old man on the floor and that's it? He only saw the old man on the floor?
HUGHES, MS: Did you see Pamela hitting the old man or is that just what you think happened?
MURRAY, MR: No. I never see.
INTERPRETER: No. I didn't see. I hadn't seen it. Negative. No.
In cross examination, Mr Murray said that when he got to the house, Pamela was sitting on the lounge chair and did not speak. Mr Murray was then asked to explain why he perceived Pamela was 'going mad' if she was silent. Mr Murray explained that Pamela was 'chucking things… plates and things'.[12] Mr Murray said that Pamela was doing that 'in the - around the kitchen'.[13] It was put to Mr Murray that his evidence of Pamela throwing plates in the kitchen was different from his evidence that she was sitting on the couch. Mr Murray then made reference to having walked out, then back inside, at which point Pamela was 'going mad'.[14]
[12] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 73.
[13] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 73.
[14] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 74.
Mr Murray then gave evidence that when he saw Mr Harwood was bleeding, he was frightened.[15]
[15] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 74 - 75.
Mr Murray repeated through his evidence that he was not at Mr Harwood's home earlier on Saturday and only arrived after Mr Harwood was already lying on the ground and bleeding. The cross examiner then challenged Mr Murray with an apparent inconsistency in his evidence. Mr Murray had said that he had not spoken to Mr Harwood but then said he had spoken to him 'a little bit'. Mr Murray explained that when he answered that he had spoken 'a little bit', he thought the question was about speaking to Pamela. He denied speaking to Mr Harwood at all.[16]
Magistrate's verdict and reasons
[16] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 82.
The learned magistrate gave his verdict accompanied by reasons given ex tempore. The salient points of the magistrate's reasons in convicting Mr Murray were as follows:
(a)The evidence largely boiled down to a contest between the competing versions of events given by Mr Harwood and Mr Murray;
(b)Mr Harwood's evidence was 'compelling in terms of an assessment of the honesty of the complainant';[17]
(c)Although his recollection of the events was not perfect, Mr Harwood was 'emphatically clear that [Mr Murray] at one point kicked him to the testicles';[18]
(d)It was clear that Mr Murray had some difficulty giving evidence due to a number of factors 'including that English was a second language for him' and there are always difficulties giving evidence through an interpreter. The magistrate said that he 'took those difficulties into account when making an assessment of the evidence of Mr Murray'.[19] The magistrate added that he gave particular leeway in assessing Mr Murray's evidence as he was 'from a culturally traditional background from Halls Creek';[20]
(e)The prosecution bore the burden of proof in displacing the presumption of innocence. The prosecution case needed to be assessed on its own merits even if the magistrate rejected the evidence of Mr Murray;
(f)Mr Harwood's evidence was emphatically clear. In contrast, the learned magistrate had concerns about the reliability of Mr Murray's evidence.
[17] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 96.
[18] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 97.
[19] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 98.
[20] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 98.
The magistrate gave several reasons for that concern, which related to the features of Mr Murray's evidence that are summarised above.
First, the magistrate observed that Mr Murray's evidence was that when he arrived at the house, he thought Mr Harwood was asleep on the floor. That evidence did not sit well with Mr Murray's evidence that shortly afterward he observed Pamela to be going crazy throwing plates from the kitchen. In that context the magistrate also referred to Mr Murray's evidence that Pamela didn't say anything. The magistrate appeared to be saying that it was difficult to reconcile various aspects of Mr Murray's evidence; evidence that within a short time Mr Murray observed Mr Harwood on the floor and thought he was asleep; Pamela was going crazy and at one point was throwing objects from the kitchen; and Pamela did not say anything. Presumably, the magistrate was also troubled by the suggestion that upon or shortly after Mr Murray's arrival Pamela was going crazy with Mr Harwood motionless on the floor and yet Pamela did not say anything.
Secondly, the magistrate referred to the discrepancy between Mr Murray's evidence that he was at the house for a little while, and Mr Harwood's evidence that Mr Murray was there for a long time and was there before Mr Harwood left to go to his friend Rob's house, which was some two hours before Mr Harwood returned to the house. The magistrate characterised the difference between the time duration of the competing versions as 'chalk and cheese'.[21] Although the magistrate said (twice) that he would not hold Mr Murray to his evidence of five to six minutes, Mr Murray's evidence was necessarily inconsistent with Mr Harwood's evidence of the duration of Mr Murray's stay at his house. In that context, the magistrate observed that Mr Harwood's evidence had 'an aspect of credibility to it'; it was a clear account, and it was clear something had upset him and caused him to go to Rob's house and call the police.
[21] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 99.
Thirdly, the learned magistrate observed that Mr Murray's account that he simply assumed Mr Harwood was asleep stretched credulity in circumstances where Mr Harwood was lying in the middle of the floor and obviously bleeding. It was also difficult to accept that in those circumstances Mr Murray, while claiming to be frightened, simply sat down, got up and came back in again, and did not speak to anyone.
Finally, the magistrate added that Mr Murray's evidence that he did not speak to anyone was later contradicted by his evidence that he spoke to Mr Harwood 'in English for a little bit'. The magistrate did not accept as plausible Mr Murray's explanation for that contradiction that he thought the question was directed to whether he spoke to Pamela, not Mr Harwood.
The magistrate expressly disavowed founding his conclusion solely on his views as to the unreliability of Mr Murray's evidence. He accepted Mr Harwood's evidence as forthright, honest, plausible and convincing.
Having convicted Mr Murray of the assault charge for kicking Mr Harwood in the groin and kicking or brushing his head with his foot on his way out of the house, the learned magistrate deferred sentencing for the purpose of obtaining a pre-sentence report.
Overview of appeal
Broadly speaking, the appeal relates to the way the magistrate dealt with Mr Murray's language and socio-linguistic difficulties in giving evidence. The appeal primarily concerns what occurred at the commencement of Mr Murray's evidence when his counsel, Ms Hughes, began to elicit his testimony in examination in chief. Before setting out the grounds of appeal, it is convenient to reproduce the extract of the transcript which forms the central plank of the appellant's complaint. As noted, this occurred at the beginning of Mr Murray's evidence:[22]
[22] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 61 - 63.
HUGHES, MS: Thank you. We're at court today to talk about the old man that you saw yesterday in court. Can you please tell the court your story about that?
MURRAY, MR: Yes.
INTERPRETER: Yes.
HUGHES, MS: Please tell the story.
MURRAY, MR: Well, the first part - - -
INTERPRETER: Well, in the first part, the beginning - - -
MURRAY, MR: --- I walk from the other house – other street. I walk (indistinct)
INTERPRETER: I walked from the other house in the street ---
MURRAY, MR: (indistinct) that old man ---
HIS HONOUR: That's okay. If it's in English, that's all right. We can just hear him.
MURRAY, MR: That old man ---
HUGHES, MS: Sorry, your Honour. I ---
INTERPRETER: Sorry, your Honour. May I clarify one thing? He's not talking in English. He's talking Aboriginal English and Creole.
HIS HONOUR: Yes. But he's talking English. We could hear him. I heard what he said.
MURRAY, MR: Creole.
INTERPRETER: Yes, but ---
HIS HONOUR: So, if it's a – if he gives a sentence, and it's in English, when it's also Creole, then we don't – we just don't need it interpreted.
INTERPRETER: Sure.
HUGHES, MS: Your Honour ---
INTERPRETER: But I'm required to interpret everything, your Honour, and if he ---
HIS HONOUR: No. You're required to interpret what I ask you to interpret. If he gives a sentence in English, I just don't need you to say it again.
INTERPRETER: Yes. But he's giving a sentence in Aboriginal ---
HIS HONOUR: No, no. I've made my ruling.
INTERPRETER: Sure.
HIS HONOUR: If he says it in English, I don't need to hear it twice.
INTERPRETER: Sure.
HUGHES, MS: With respect, your Honour, if I could just make a quick submission, my understanding is that a word in Creole, whilst it might sound like English, could actually have a different ---
HIS HONOUR: I don't need to hear this. If he says it in English, then I don't need to hear it twice. Because what we have by way of interpretation was the same sentence. So let's just say it means something else in Creole, he just said the same words twice. I don't need any further submissions. If you want to tell us something in English, I don't need someone else telling me what he said. But you say it in whatever language you want. Right. Use whatever language you want, but, if you do use a sentence that's in English, then I can understand what you're saying because I happen to speak English.
A further version of the transcript is set out below. It is not the official transcript published by the court. Rather, it is based on a reconstructed transcript produced by an expert procured by the appellant (edited and formatted for legibility). The background to the expert's reconstruction of the transcript will be explained below. It suffices to observe at this point that it was agreed by counsel for both parties that the expert's reconstructed transcript was accurate and helpful. The square brackets indicate where two speakers are speaking over each other and are taken from the transcript prepared by the expert. Mr Murray's direct speech as transcribed phonetically by the expert appears in black. For contrast, his evidence as transcribed in the original Magistrates Court transcript appears in red:
HUGHES, MS: we're at court today, to talk about, the old man, that you saw yesterday? [in court?]
INTERPRETER: [Interpreting/Speaking Walmajarri]
HUGHES, MS: [can you pl-]
INTERPRETER: [Interpreting/Speaking Walmajarri]
HUGHES, MS: can you please tell, the court [your story, about that?]
INTERPRETER: [Interpreting/Speaking Walmajarri]
MURRAY, MR: yep / Yes.
INTERPRETER: … yeah / Yes.
HUGHES, MS: please tell the story.
INTERPRETER: [Interpreting/Speaking Walmajarri]
MURRAY, MR: wul du firs pard, / Well, the first part ---
INTERPRETER: well, in the fi- f- in the first part, in the beginning
MURRAY, MR: ie bin worg brom det uthu hous, uthu street. Ie worg deye lu dat hous iebin fiendim, / --- I walk from the other house – other street. I walk (indistinct)
INTERPRETER: I walk from the other house [in the street]
MURRAY, MR: [fiendim det oalman] / (indistinct) that old man ---
HIS HONOUR: [That]s ok, if it's] in English that's all right. We can just hear him
MURRAY, MR: det oalman, [um] / That old man ---
HUGHES, MS: [sorry your honour, I th- ]
INTERPRETER: sorry your honour, may I clarify one thing, he's not talking English he's talking Aboriginal English and Kriol.
HIS HONOUR: yeah but, he's talking English we can hear him, I heard what he said
MURRAY, MR: [indistict] / Creole
INTERPRETER: [yeah, but]
HIS HONOUR: [so if it,] if it, if it's a, if it gives a sentence that's in English whether it's also Kriol, then we don't, we just don't need it interpreted.
INTERPRETER: sure, but [it, b- but I'm required to] re-interpret
HUGHES, MS: [you honour, [indistinct]]
INTERPRETER: everything you honour? [indistinct]
HIS HONOUR: [you're] entire, you're, you you're required to interpret what I ask you to interpret. If he gives a sentence in English, I just, I just don't need you to say it again
INTERPRETER: Yeah but, he's giving a sentence [in, Aboriginal English.]
HIS HONOUR: [no, I've made] my ruling, if he says it in English, I don't need to hear it twice
INTERPRETER: sure
HUGHES, MS: wi- , with respect your Honour, if I could just make a quick submission,
INTERPRETER: [Interpreting/Speaking Walmajarri]
HUGHES, MS: [my understanding] is that a word in Kriol,
INTERPRETER: [Interpreting/Speaking Walmajarri]
HUGHES, MS: [whilst it might sound like English can actually]
INTERPRETER: [Interpreting/Speaking Walmajarri]
HIS HONOUR: [I- I- I don't need to] hear this, if he says it in [English,] then I don't need to hear it twice
INTERPRETER: [Interpreting/Speaking Walmajarri]
HIS HONOUR: [cause what we had, by way of] interpretation was the same sentence,
INTERPRETER: [Interpreting/Speaking Walmajarri]
HIS HONOUR: [so let's] just say it means something else in Kriol,
HIS HONOUR: [he just said the same,] the same words [twice I don't need any further submissions.]
INTERPRETER: [Interpreting/Speaking Walmajarri]
HIS HONOUR: you wanna tell us something in English, I don't need someone else telling me what he said.
INTERPRETER: [Interpreting/Speaking Walmajarri]
MURRAY, MR: [indistinct]
HIS HONOUR: You – you [say it] whatever language you want right,
INTERPRETER: [Interpreting/Speaking Walmajarri]
INTERPRETER: [Interpreting/Speaking Walmajarri]
HIS HONOUR: you s- use [whatever language you want]
HIS HONOUR: But if you do [use a sentence that's in English then I can understand what you're saying because I happen to speak English]
INTERPRETER: [Interpreting/Speaking Walmajarri]
In addition to reviewing both the official court transcript and the linguistically informed reconstructed transcript, I have carefully listened to the audio recording of Mr Murray's evidence a number of times. I am satisfied that the transcripts accurately reflect what occurred. Furthermore, in my respectful assessment the learned magistrate's tone was fairly dismissive, particularly when he responded to Mr Jenkins by saying 'no, you're required to interpret what I ask you to interpret', and became somewhat strident when, in response to Mr Jenkins seeking to explain his position, the magistrate interjected and said 'no, I've made my ruling.' The tone became more strident in the magistrate's response to Mr Murray's counsel, Ms Hughes, when she sought to make 'a quick submission'. The learned magistrate effectively cut off Ms Hughes and told her that he did not 'need to hear' what she had to say. The magistrate's remarks in that context concluded with an element of sarcasm that he 'happened to speak English'.
There are two other parts of the transcript that, while not referred to expressly in the grounds of appeal, are relevant to the appeal. The first relates to the introduction of Mr Jenkins as the interpreter at the very beginning of the trial. As the trial commenced, the following occurred:[23]
HUGHES, MS: Perhaps for the benefit of the transcript, we do have an interpreter present, speaking Walmajarri and Creole.
INTERPRETER: Yes, your Honour. Did you – sorry, your Honour. Did you want to take down my name - - -
HIS HONOUR: No, thank you.
INTERPRETER: - - - qualifications, swear me in?
HIS HONOUR: No, thank you. I'm okay.
INTERPRETER: Should I be sworn in?
HIS HONOUR: No, I'm all right. Thank you.
INTERPRETER: Okay. Thank you.
[23] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 27 May 2021, 4 - 5.
As noted above, the magistrate deferred Mr Murray's sentencing pending the receipt of a pre-sentence report. The matter returned before the learned magistrate on 21 July 2021, but the report had not yet been prepared as Mr Murray had needed to travel to Fitzroy Crossing 'for sorry business for some funerals'.[24] The exchange relevant to this appeal took place during that hearing between the magistrate and counsel for Mr Murray:[25]
HUGHES, MS: I know. Sorry, your Honour. I was just questioning that FASD because I know it takes multiple – its not just one doctor that comes, so it will take, thinking in my mind, a lot longer than three months. The practicalities of having interpreters there for multi different things – different doctors and specialists.
HIS HONOUR: Well if it's a term that an interpreter is needed, which it isn't. Then it might make it more complicated. Sometimes interpreters make things more complicated.
O'NEIL, MS:[26] I won't respond to that, your Honour. Because we have a significantly different view in relation to this matter in relation to the necessity of interpreters and it would be my - - -
HIS HONOUR: Not interpreters generally. Just an interpreter specifically, at this particular matter.
O'NEIL, MS: It's certainly Mr Murray's – it's our position that an interpreter is required.
HIS HONOUR: Yes. I know what the official position is. I also know he speaks and understands English perfectly competently. But – so a written pre-sentence report, Foetal Alcohol Spectrum Disorder being the focus of that enquiry. But you have also got to do – you have got to do a sit-down meeting with them for the pre-sentence report for the normal bits of it, you know, and you didn't do it last time. So you have got another opportunity, but you have got to keep your appointments. You know, you have got to do what you can to keep up with these things, to put yourself in the best possible light. Right. So we're off to 13 October, I will extend bail through to that date.
(Emphasis added)
[24] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 21 July 2021, 2.
[25] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 21 July 2021, 4.
[26] The transcript records that both Ms O'Neil and Ms Hughes appeared for Mr Murray at the hearing on 21 July 2021.
Grounds of appeal
Section 7 of the Criminal Appeals Act 2004 (WA) provides that a person who is aggrieved by a decision of the Magistrates Court may appeal to the Supreme Court against the decision. Section 8 provides that an appeal may be made on the ground, inter alia, that the Magistrates Court made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice. Under s 9 of the Criminal Appeals Act, leave of the Supreme Court is required for each ground of appeal. The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. This means that the ground is required to have a real, rational, and logical prospect of succeeding.[27]
[27] Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186 [17]; Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Under s 14, even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Mr Murray initially advanced five grounds of appeal, including an appeal against his sentence. Ultimately, three grounds of appeal were maintained, as follows:
Ground 1
The learned magistrate erred in law in failing to properly direct himself in accordance with the Mildren direction.
Ground 2
There was a miscarriage of justice because the learned magistrate's direction to the interpreter to stop interpreting portions of the appellant's evidence resulted in an unfair trial.
Ground 3
The learned magistrate erred in law and fact by finding that the appellant was speaking ordinary English during portions of the appellant's evidence.
Particulars
The learned magistrate had no regard for the expert opinion of the interpreter that the appellant was speaking Aboriginal English and Kriol.
The learned magistrate erred in assuming that words spoken in Aboriginal English and Kriol have the same meaning in ordinary English.
It is convenient first to provide an overview of the grounds of appeal.
Ground 1 concerns Mildren directions. The term 'Mildren directions' emanates from an article by the Hon Justice Mildren, then of the Supreme Court of the Northern Territory published in 1997 titled 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System'.[28] The article refers to directions and guidance that it may be necessary or appropriate to give to the trier of fact (ordinarily a jury) in assessing the evidence of an Aboriginal witness. The object of the directions is to ensure fairness to a witness by drawing attention to socio-linguistic features of the witness that may give rise to misunderstanding. The nature and status of Mildren directions will be discussed later in these reasons.
[28] Hon Mildren J, 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System' (1997) 21 Criminal Law Journal 7. See also the paper published by the Law Reform Commission, Recognition of Aboriginal Customary Laws (1986).
Ground 1 was framed as a failure of the learned magistrate to 'direct himself'. In substance, the ground as argued was directed to the application of the substantive principles underlying the Mildren directions in a manner that ensured fairness to Mr Murray in the assessment of his evidence. The essential complaint inherent in this ground was that the magistrate failed to accord fairness to Mr Murray in the assessment of his evidence because the magistrate failed adequately to take account of the special socio-linguistic features of Mr Murray's circumstances as a traditional Walmajarri man. This failure was said to be especially significant because it was apparent from the magistrate's reasons that his decision turned on the assessment of the competing evidence of the two protagonists: Mr Murray and Mr Harwood.
Ground 2 was directed to the remarks of the learned magistrate to Mr Jenkins, the interpreter, and Ms Hughes, Mr Murray's counsel at the trial, in the passage set out at paragraphs [25] and [26] above. Mr Murray's counsel in this appeal characterised the magistrate's remarks as a 'ruling' to Mr Jenkins not to interpret Mr Murray's evidence where that evidence was given in apparent English that the magistrate considered he was able to understand without the aid of an interpreter. Counsel for Mr Murray contended that the ruling resulted in an unfair trial and therefore a miscarriage of justice.
Ground 3 was directed to the same remarks of the learned magistrate. It focussed particularly on the magistrate's observation that the witness was speaking English. Ground 3 contended that this was a plain error because, as Mr Jenkins and Ms Hughes explained to the magistrate, Mr Murray was speaking Kriol, not English.[29]
[29] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 62 - 63.
Ground 3 was conceded by the respondent. That is, the State accepted that the magistrate's statement that Mr Murray was speaking English was an error. However, the State contended that in the circumstances it was not an error that led to a substantial miscarriage of justice. That was principally because, as is evident from the transcript, both Mr Jenkins and Mr Murray's counsel ignored the magistrate's statement and continued with Mr Murray's evidence through the use of Mr Jenkins as interpreter. The learned magistrate appears not to have subsequently sought to enforce his 'ruling' or otherwise inhibit Mr Jenkins' interpretation for the balance of Mr Murray's evidence.
Expert evidence orders
The appeal came on for hearing before Allanson J on 28 April 2022. In written and oral submissions before Allanson J, counsel for Mr Murray submitted that the magistrate's failure adequately to apply the Mildren directions and the learned magistrate's view that Mr Murray was speaking English led to an unfair trial. That was said to be because the magistrate failed to assess the reliability of Mr Murray's evidence with due regard to the allowances that should have been made for the particular socio-linguistic features of Mr Murray's evidence. Counsel for Mr Murray drew attention to parts of Mr Murray's evidence and the magistrate's negative assessment of that evidence, contending that the magistrate's approach had failed to make proper allowance for Mr Murray's language and communication style, and had led to a misunderstanding of Mr Murray's evidence.
In his exchange with Mr Murray's counsel, Allanson J expressed concern that there was no evidence of the miscommunication in the sense that was being advanced on Mr Murray's behalf. There was no evidence before the court of 'any circumstance where any answer has been given in English or Kriol by Mr Murray, it has been interpreted by the interpreter, there is a difference, and the magistrate could have been mistaken'.[30] Allanson J went on to observe that the magistrate's error was not apparent, and then said to counsel for Mr Murray, 'but if there are occasions where there is an answer that has been given in English - has been given in a materially different way by the interpreter in English and you can show that that is material to the way in which his Honour arrived at the decision, then you may be able to establish your point'.[31] Allanson J and counsel for Mr Murray discussed the possibility of an adjournment of the proceeding to allow Mr Murray to procure expert evidence relating to miscommunication or misunderstanding. Allanson J continued:[32]
I have at least made clear my preliminary view that, without that evidence, it is difficult to show that the error, which, I say, is conceded by the State, is material to the outcome, because it is not possible to point to anything that was said, and either not translated or mistranslated which then has an effect on the outcome ….
[30] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 14.
[31] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 14.
[32] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 15.
Allanson J adjourned the matter to allow Mr Murray to obtain the evidence the subject of his Honour's comments, and to exchange with counsel for the State a transcript of Mr Murray's evidence prepared by someone with relevant expertise by reference to the audio recording. Towards the conclusion of the hearing on that day, counsel for the State confirmed her understanding that 'what we're looking at in the transcript that may then be produced is whether there was something that was not translated or mistranslated'.[33] Counsel for the State then raised the prospect of a new ground of appeal relating to a deficiency in Mr Jenkin's interpretation. Allanson J responded saying he did not understand there to be a complaint in the appeal relating to the deficiency in interpretation and if that were to be advanced it would require an application to add a new ground. No further ground was subsequently sought.
[33] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 28 April 2022, 22.
The relevant order of Allanson J was the grant of leave to Mr Murray 'to file further evidence relating to the issue raised in both Ground 2 and Ground 3'.[34] Although the order was not expressed in terms of expert evidence, it is plain that the order was intended to include expert evidence. In addition, although the order was framed so as to relate to Grounds 2 and 3, it was common cause between counsel at the hearing on 12 December 2022 that Mr Bowen's report and reconstructed transcript was equally relevant to Ground 1.[35]
[34] Interim Orders Allanson J (28 April 2022).
[35] Transcript, Antonio Murray v Adrian Matthew Feast, Supreme Court of Western Australia, 12 December 2022, 51.
Before turning to the detail of the expert evidence that was sought to be tendered on behalf of Mr Murray, it is necessary to consider the manner in which it relates to the grounds of appeal. As I have noted, the appeal did not include any complaint about the quality or accuracy of Mr Jenkins' interpretation. Rather, the grounds of appeal are broadly directed to the injustice of failing to recognise Mr Murray's difficulties with English and the failure to assess his evidence by taking into account and making special allowance for the features of his evidence that relate to Mr Murray's traditional background and circumstances. The relevance of the expert evidence was therefore in demonstrating Mr Murray's infelicity with English and the prospect of error in the assessment of Mr Murray's evidence that arose due to the failure to make allowance for Mr Murray's traditional background.
Expert report of Mr Bowen
Mr Murray's lawyers produced a report by Mr Alex Bowen on 7 September 2022 (Bowen Report). Following the filing of the Bowen Report, on 3 October 2022 and by consent, Allanson J made an order for the exchange of submissions in relation to the report. Those submissions ultimately reflected disagreement between the parties as to the utility and admissibility of Mr Bowen's report. By that time, in light of Allanson J's pending retirement, the matter was referred to me.
The Bowen Report totalled 152 pages and comprised a covering affidavit, a 60-page report entitled Transcription and Sociolinguistic Analysis of Miscommunication, the reconstructed transcript of the accused's evidence before the learned magistrate referred to above (Appendix 1), a document entitled Outline of Kimberley Kriol Orthography (Appendix 2), and a document entitled Western Australian Language Services Policy 2020: Policy statement and guidelines (Appendix 3).
Mr Bowen is a trained lawyer and a linguist. He has attained a Master of General and Applied Linguistics which focussed on explaining the right to silence to Aboriginal people in the Northern Territory. Mr Bowen is a PhD candidate in the School of Languages and Linguistics at the University of Melbourne. Mr Bowen practiced commercial law in Melbourne and criminal law in the Northern Territory. In the latter capacity, he worked with interpreters as a daily part of his practice. Mr Bowen has various other relevant qualifications and relevant experience. However, Mr Bowen made clear in his report that he is not an expert in, or indeed a speaker of, Kriol, and he is not a qualified interpreter. Mr Bowen explained that in preparing the Bowen Report, he did not:
(a)read the court transcript of Mr Murray's evidence; or
(b)speak to the interpreter; or
(c)read the transcript of any of the evidence other than the evidence of Mr Murray.[36]
[36] Bowen Report, [55].
In light of the emphasis placed by Mr Murray's counsel on the Bowen Report and the efforts expended in its preparation, it is appropriate that it be given detailed consideration.
The Bowen Report is divided broadly into five sections. It begins with a summary of Mr Bowen's findings and conclusions, including a summary of his analysis of four aspects of Mr Murray's evidence which the learned magistrate rejected. These four aspects relate to the elements of Mr Murray's evidence that I have summarised above at paragraphs [11] - [16]. Mr Bowen's analysis led him to the conclusion that the learned magistrate's rejection of those parts of Mr Murray's evidence resulted 'partly from misunderstandings of language, and from the complexity of the way evidence was received in this trial'.[37] I will return to this aspect of Mr Bowen's report later in these reasons. At this point, it is important to note again that the grounds of appeal did not allege any error or problem with the interpretation. Indeed, counsel for Mr Murray expressly confirmed that Mr Murray's appeal did not include any complaint about Mr Jenkins' interpretation.
[37] Bowen Report, [11].
The second section of the Bowen Report explained the nature and function of the report. It indicated that Mr Bowen was asked to do two things. One was to prepare a 'linguistically informed' transcript of Mr Murray's evidence.[38] This was done with a team of native speakers and professional interpreters.
[38] Bowen Report, [33].
The reconstructed transcript is attached as an appendix to Mr Bowen's report. The extract set out at paragraph [26] above is based on that transcript. This first aspect of Mr Bowen's report was not the subject of controversy. The production of a linguistically informed transcript of Mr Murray's evidence was consistent with what was anticipated by the discussion before Allanson J on 28 April 2022 and was agreed by counsel for both parties to be an accurate and helpful document.
The second task entrusted to Mr Bowen was to identify 'if there are any significant differences in meaning between the answers and the interpretation of those answers or the way those answers might be understood by a court whose language is standard Australian English'.[39] In his report, Mr Bowen described the 'primary question' he was asked in the following terms: 'whether it is likely that any of the Magistrate's reasons for rejecting Mr Murray's evidence were affected by miscommunication or misunderstanding'.[40] In fulfilling this second task, Mr Bowen's analysis, and section 5 in particular, was directed to this 'primary question'. That aspect of Mr Bowen's report was largely objected to by the State as will be explained.
[39] Bowen Report, [36].
[40] Bowen Report, [39].
In the third section of his report Mr Bowen sets out and explains relevant 'linguistic methods, principles and findings'. This section addressed problems associated generally with communicating across different languages, cultures and contexts and particularly in the context of Kriol and Aboriginal English. I did not understand objection to have been taken to this part of the report. Mr Bowen is well qualified to make the observations which constitute a helpful and insightful overview of the potential challenges. Although lengthy, that part of the report warrants citing (largely) in full:[41]
[41] Bowen Report, [67] - [82].
Differences in language relevantly cause miscommunication when two people are not native speakers of the same language, so that at least one is a partial speaker of the language in use. Each speaker may be unaware of ways that the other uses English, so that sometimes they understand the same language differently. Differences between languages (or dialects) that can cause miscommunication include:
Differences in pronunciation/accent, which can cause words to be misidentified.
Differences in word meaning. A widely-known example is the word kill, which in Kriol/Aboriginal Englishes often means 'hit', but can also mean 'kill dead'. The meaning of words can vary between varieties of English or even between communities. There are many other differences which are less widely recognised, or not known at all.
Differences in sentence structure (grammar). For example, a Kriol speaker using English may mix up he and she, because Kriol has one gender-neutral pronoun ee. This can lead to misidentification of who is being talked about.
Differences in ways of seeking and sharing information, and ways of constructing and telling stories, narratives, arguments and other discourses.
Differences in ways of managing conversation and the ways that speakers negotiate who is speaking when, and about what.
People can learn languages or dialects partially. People can acquire partial understandings of words and the meanings they describe. Partial speakers of languages use partial language ability every day to communicate, interact and get things done.
Sometimes Aboriginal people do not realise that misunderstanding has occurred, and sometimes non-Aboriginal people are unaware of a misunderstanding. In particular, when Kriol, Aboriginal English and/or standard Australian English are involved, both Aboriginal and non-Aboriginal speakers may be unaware of or underestimate differences between these languages.
Aboriginal people who are not rushed often take the opportunity to explain what they have said. This can bring to light that a word or expression has not been initially understood, and can often clarify otherwise unrecognised misunderstanding. It is effective and efficient to elicit evidence in ways that are appropriate for each witness than to try to understand confusing evidence later, as this report attempts to do.
Even when fully understood, language alone never fully expresses what someone means. People always interpret language in combination with context (other ideas and information they have access to). To understand Aboriginal people speaking English or other Aboriginal languages, it is often necessary to understand aspects of Aboriginal societies, like kinship. Context also includes understandings of things said earlier in a conversation, knowledge about events, people and places and so on. When a piece of language is heard in a different context, its meaning often changes.
It is also important to take into account the social conditions in which people use language. Many Aboriginal people communicate with conventions that differ from those found in non-Aboriginal institutions like courts. For example, avoiding eye contact may be intended a sign of respect rather than evasiveness.
Aboriginal people vary in how familiar they are with non-Aboriginal expectations about communication. Some Aboriginal people are bi-cultural and able to function very effectively in settings like courts. On other occasions, people may be unaware about differing expectations and this can lead to discomfort or miscommunication.
Kriol and Aboriginal English
This section explains the terms Kriol and Aboriginal English […]
Aboriginal English describes varieties of English spoken by Aboriginal people, which differ, often in subtle ways, from Standard Australian English ('SAE').
Kriol shares some features with English, as well as traditional languages, but is a separate language. Kriol is the fastest growing Aboriginal language in Australia and it is a lingua franca for Aboriginal people from a wide range of traditional language backgrounds. Linguists estimate that it is the first language of up to 30,000 Aboriginal people across Northern Australia (excluding Arnhem Land) from western Cape York (Qld) to Broome (WA) and south to Tennant Creek (NT) (Meakins 2014: 379).
While Kriol is historically related to English, as well as to traditional languages, it is considered a separate language by linguists. One key reason for this is that Kriol speakers and English speakers cannot properly understand each other (unless one of them knows both languages). However, many people, including many Kriol speakers, call it English. There is considerable overlap between Kriol and Aboriginal English.
In contrast to English, there is no standard Kriol and no standard Aboriginal English. Linguistically there appears to be a continuum so that it can be hard to distinguish between "heavy" Aboriginal English and "light" Kriol.
Even though we often refer to 'Kimberly Kriol', there is significant variation in Kriol across the Kimberley between each town or traditional language group. Many Kriol speakers use words from local Aboriginal languages (in this case, at least Walmajarri and Martu) in their Kriol. When they speak to someone from a different region, they may use a 'lighter' Kriol that is more similar to English. When they speak to non-Aboriginal people they often speak in ways that are closer to English.
There are standard ways of using Aboriginal English. Speakers tend to converge towards more standard ways of speaking English particularly on formal occasions. Variation in speech is further reduced when English is written (or transcribed). Speakers of all languages vary their speech at different times depending on who they are speaking to, among other factors. Each speaker has a small or large range of ways they are comfortable using Kriol and/or English. Toward the ends of someone's range, their proficiency is often reduced. Speakers vary their language, for example, when they speak to someone whose language is different, someone who has a different accent, is from a different age or social group or is a partial speaker of the language being used. Linguists call this adjustment accommodation.
It has been frequently observed that Aboriginal speakers of Kriol or Aboriginal English try to speak more like standard English when they interact with non-Aboriginal people and especially figures of authority. In some cases this can involve an Aboriginal speaker using a kind of English that they do not have a full grasp of, leading to reduced understanding and reduced ability to express their ideas. However, accommodation can also create the appearance that an Aboriginal person speaks English (well) when in fact their main language might be Kriol (or another language).
Speakers are often not aware of differences between Kriol and English unless they are highly proficient or educated in both, or have experience of professional language work. Speakers who use Kriol or English in a variety of settings are often unaware of ways their language could be misunderstood. This is seen when Kriol speakers use more standard versions of English but sometimes use an English word intending to express a meaning that word has in Kriol.
Mr Bowen then went on to explain inherent cultural features of Aboriginal society that may create obstacles and difficulties for the giving of evidence by First Nations witnesses and the analysis of such evidence by the trier of fact. Mr Bowen explained:[42]
[42] Bowen Report, [92] - [95].
Interviews are not typically found in Aboriginal societies. Many Aboriginal people have ways of seeking and sharing information which differ significantly from the question-answer format exemplified by courtroom examination. This means that question-answer methods of seeking and sharing information are unfamiliar for some Aboriginal people.
Cultural differences relating to questioning have been summarised by Eades (2003:1127-8) who observed (among other things, but focusing on aspects relevant for this case) that Western institutions may assume that:
(a)"Conflicting answers in an interview are a sure clue to a speaker's dishonest and untrustworthy character.
(b)The most effective way to find out many things is to ask many questions.
(c)The best way to test a person's truthfulness is to put conflicting propositions to her and see what she agrees to."
Contrasting assumptions may be prevalent in Aboriginal societies, including:
(a)"If you want to find out whether a person is honest and trustworthy, you need to take time to get to know her; don't rush her, and don't talk all the time when you are with her.
(b)Interrupting a person's story with questions makes it harder for her to be accurate and consistent.
(c)Asking many questions is rude, and it is a very ineffective way of finding things out."
Some witnesses are disadvantaged by the requirement to tell their story through answers to specific questions. Courts are disadvantaged in receiving evidence from some witnesses in question-answer formats. These difficulties may not be limited to Aboriginal witnesses.
Various kinds of direct questions have been documented to cause additional risks of inaccuracy in eliciting evidence from Aboriginal witnesses (eg Eades 1992), for example either-or questions and questions seeking quantification. Aboriginal people use direct questions at times, depending on the social context and the information being requested.
Later, in the same section, Mr Bowen commented:[43]
There are also difficulties with some questions beyond understanding their 'propositional' meaning. This is another area which causes difficulties for some Aboriginal witnesses and for interpreters.
For example, 'direct' questions (including many questions typical of cross-examination) can be understood as rude by some Aboriginal people and may be experienced as intimidating or embarrassing. Sometimes Aboriginal witnesses give answers to such questions which seem evasive but are more accurately understood as commenting on the discomfort or pressure created by the question. There may be little an interpreter can do to manage ambiguous problems like this.
There are published guides relating to hearing evidence from Aboriginal witnesses (eg Eades 1992). Of course, a key step is to work with interpreters where appropriate. Some courts have disallowed leading questions in some circumstances with Aboriginal witnesses. There are many other steps that could be taken to facilitate receiving more accurate evidence from Aboriginal witnesses, while some problems remain complicated to address.
[43] Bowen Report, [103] - [105].
Much of Mr Bowen's commentary was directed to how these problems may be overcome by the framing of questions in court and by the appropriate use of an interpreter. While they are not directly relevant to or concerned with the grounds of appeal, they are insightful and useful to a general understanding of the issues raised on appeal and they serve as background to the analysis of Mr Murray's evidence presented later in the report.
The fourth section of Mr Bowen's report described the method and process by which Mr Bowen together with others produced the linguistically informed transcript of Mr Murray's evidence. No objection was taken by the State in respect of Mr Bowen's reliance on the work of other experts in the preparation of the reconstructed transcript.
After listening to the audio of Mr Murray's evidence, Mr Bowen recorded the following conclusions (which, as he is not a Kriol speaker, he appears to have formulated with the assistance of the professional team referred to in the report):[44]
[44] Bowen Report, [130] - [132].
In my opinion, in this recording Mr Murray mainly speaks Kriol, which in his case includes some words from other languages (including Martu and Walmajarri).
In my opinion, Mr Murray is a speaker of Kriol and to some extent other Aboriginal languages, with limited English proficiency. As this proficiency is significantly less than a native speaker of English, he is a partial speaker of English.
Below are some examples of features of Mr Murray's language which identify it as Kriol, also showing some differences with the interpreters renditions of the answers in English:
(a)ee is the Kriol gender-neutral third person singular pronoun ('he or she'). Mr Murray uses it frequently, for example, "en ee bin start goan mad" (line 1235) meaning 'and she started going mad'. Mr Murray also uses other Kriol pronouns not found in English, such as demtoobulu (line 1728) ('those two').
(b)bin is a Kriol past tense marker and Mr Murray uses it frequently. For example, "ie bin worg brom det uthu hous .. ." (line 213) meaning 'I walked from the other house ... '.
(c)-im suffix is used to mark verbs as transitive. For example, "eebin taikim outsied" (line 1464), interpreted as "took me outside" (line 1466).
(d)-but suffix is used to mean that an action is continuous or repeated. For example, "ie don yoosimbut xx", (line 1685), interpreted as "I don't use a, weapons". Here, -but indicates a claim that Mr Murray habitually does not use weapons, rather than a once-off claim.
(e)nebu often has a meaning like English 'didn't'. For example "ie nebu see" meaning "No I didn't see" (line 1007).
(f)Preposition meaning in Kriol can be different from English. For example "yoo torkin for oalman" (line 1962), interpreted as "you're talking about the old man". Here, for does not mean that the old man is the beneficiary of the talk, but that he is the topic of the talk.
(g)Other words in Kriol differ in subtle or significant ways from similar words in English. For example, Mr Murray uses stand up like English 'stand': "iebin x, stand up outsied" (line 638) (interpreted as "and I went, outside, myself'). In English, stand up describes a move from sitting or lying down to standing up.
(h)Kriol thing is frequently used like English 'what dya callit', but can also stand in for verbs to mean 'do something'. For example, "wun plais eebin thing" interpreted as "in one place he stayed" (line 1024).
(i)but as a conjunction used in Kriol to introduce additional information, for example: "sidoun, toobulu lounj tjeye ... but ie thord ee wos sleep" (lines 651-656), interpreted as "sat down back on the lounge chair ... I thought he was asleep". In English, but introduces information which contradicts an expectation created by the preceding statement. But there is no apparent contradiction between sitting down and thinking the old man was asleep; but here introduces some additional information.
(Emphasis added)
Mr Bowen makes some important observations regarding Mr Murray's use of language. They are instructive and reflect the complexity of the issues surrounding Mr Murray's use of language:[45]
It is notable that Mr Murray named four languages and none of them was Kriol. There could be several reasons for this:
(a)Aboriginal people sometimes name their language(s) of identity, or the language of the country they are from. Kriol is not a 'traditional' language and may not link with country or identity in the way other languages do.
(b)Many people who speak Kriol are not strongly aware of it, noting that Kriol has been categorised (and devalued) as 'broken English' or 'pidgin' historically and presently. Many people who speak Kriol call it English, and they are entitled to do so. However this does not mean their language is similar to SAE, and sometimes causes them to be disadvantaged when communication challenges are unrecognised.
(c)Standard Australian English (or 'High English') is seen by some people as a more prestigious language. Some Kriol speakers, whether they consider their language to be English or Kriol, may believe they will be treated better if they try to speak 'High English'.
On a few occasions in the recording, Mr Murray's speech is closer to English than Kriol. For example, "I wasn't there I came after'' (line 1584) is consistent with SAE grammar (though a SAE speaker might say 'afterwards'). On numerous other occasions Mr Murray said "ie bin kum arftu" (eg line 668), meaning 'I came after'. Isolated examples of English-like grammar are consistent with a Kriol speaker stretching to use more standard English on occasions.
[45] Bowen Report, [137] - [138].
This section of Mr Bowen's report, together with the report as a whole, confirmed the error of the learned magistrate, properly conceded by the State, the subject of Ground 3. It was plainly an error for the magistrate to conclude that Mr Murray was speaking English.
Section 5 of the Bowen Report was where Mr Bowen set out his analysis of what he perceived to be the magistrate's misunderstandings of Mr Murray's evidence. Mr Bowen undertook a very detailed line-by-line and, in some instances, word-by-word analysis, of Mr Murray's evidence. The report contains considered and insightful observations of potential difficulties that may have infected Mr Murray's understanding of the questions being asked and the magistrate's assessment of what was said in evidence. Many of these difficulties were said by Mr Bowen to have arisen due to the cultural differences between the language of standard Australian English in a courtroom environment and Mr Murray's traditional background. I shall give one example. At section 5.3.1 Mr Bowen made the following observations:[46]
[46] Bowen Report, [205] - [208]. Mr Bowen's transcript uses the abbreviation 'Dfc' to mean defence counsel, 'Int' to mean the interpreter, Mr Jenkins, and 'Acc' to indicate the Accused.
In this example, Mr Murray's answer is inappropriate because the question is intended as a request for him to tell his story. (7:44)
203 Dfc can you please tell, the court [your story, about that?]
204 Int [……………….]…….
205
206 Acc yep
207 Int …yeah
208 (1.1)
209 Dfc please tell the story.
The likely problem with this question is the word can, which has a literal meaning about ability, but in this question is a conventionally polite way to ask someone to do something. This question would not be ambiguous for a SAE speaker because it includes "please", which can only indicate this is a request to do something. The follow up request "please tell the story" is less ambiguous and more direct.
This example shows that Mr Murray may misunderstand even apparently basic and common ways of using English.
Mr Murray answers after the interpreter has finished, but this does not always reveal whether he listened to the interpreter.
This and other such observations in Mr Bowen's report are doubtless the product of a great deal of thought, skill and experience. However, with respect, they are of limited utility on this appeal. Rather than explanations as to how the failure to take account of Mr Murray's traditional background led to an error in understanding his evidence, these observations are in substance well informed conjecture about potential problems that may have arisen in Mr Murray's understanding of the question asked of him through the interpreter Mr Jenkins. The observations do not of themselves demonstrate that the learned magistrate assessed Mr Murray's evidence in a manner that perpetrated an injustice.
At section 5.4 of the Bowen Report, Mr Bowen gave a number of specific examples of what he considered to be the magistrate's wrongful assessment of Mr Murray's evidence by reason of the failure to take account of Mr Murray's cultural background and circumstances. Those observations focussed on four aspects of the magistrate's ex tempore reasons for rejecting Mr Murray's evidence which I have summarised at paragraph [17] above.
First, Mr Bowen analysed Mr Murray's evidence about the duration of time he was at Mr Harwood's house, which Mr Murray described variously as 'five or six minutes', 'a little while', and 'a good while, a little bit'.[47] Mr Bowen undertook a lengthy analysis of Mr Murray's evidence concerning this issue. He prefaced that analysis with the comment: 'Confusion about time and chronology is central to understanding (and/or disbelieving) Mr Murray's story, and this issue highlights some of the difficulties of communication in this case'.[48] Mr Bowen's analysis placed some emphasis on Mr Murray's reference to 'five or six minutes', concluding that it was unlikely to be accurate. Mr Bowen opined that on the basis of his experience this appearance of precision in Aboriginal witnesses 'can be highly misleading'.[49] Mr Bowen acknowledged that the magistrate expressly disavowed reliance on the evidence of 'five or six minutes', however Mr Bowen's view was nevertheless 'those answers are part of the evidence about the way Mr Murray answers questions about time'.[50] That is, even though the magistrate did not rely on that aspect of the evidence, Mr Murray's evidence of 'five or six minutes' demonstrated that his evidence about time periods could not be relied upon. Mr Bowen concluded:[51]
My opinion is that of the answers Mr Murray gave about how long he was in the house, those most likely to be reliable are that he does not know. This is based on previously observed patterns in the way Aboriginal witnesses sometimes answer questions asking for quantification.
[47] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 65, 70.
[48] Bowen Report, [221].
[49] Bowen Report, [226].
[50] Bowen Report, [225].
[51] Bowen Report, [240].
I should observe that although at one point Mr Murray said in his evidence 'I don't know time', he did not give evidence that 'he does not know' how long he was in the house.
Ultimately, Mr Bowen concluded:[52]
The Magistrate found that Mr Murray's evidence "a little while" was "chalk and cheese contradictory of the explanation given by Mr Harwood", that Mr Murray was there for "a long time" or "a couple of hours" (pp 99-100). In my opinion, what Mr Murray said (leaving aside the five or six minutes) is so vague that, while it is not the same as what Mr Harwood apparently said, it is not clearly contradictory.
[52] Bowen Report, [243].
The import of Mr Bowen's evidence appears to be that the magistrate was wrong in his conclusion that Mr Murray's evidence and Mr Harwood's evidence about the time Mr Murray spent at Mr Harwood's house was 'chalk and cheese'.[53] It was wrong because the magistrate failed to appreciate that, having regard to Mr Murray's traditional background, his evidence about how long he was at Mr Harwood's house was, in fact, that he did not know. Therefore, it was not clearly contradictory with Mr Harwood's evidence. Mr Bowen felt able to reach that conclusion even though he did not review the evidence of Mr Harwood.
[53] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 28 May 2021, 99.
The second issue relates to the magistrate's adverse comment regarding an inconsistency in Mr Murray's evidence that Pamela was going crazy, yet Pamela did not say anything. Before turning to the detail of Mr Bowen's comment, in my view the magistrate's concern was wider than that. The inconsistency or, as the magistrate put it, 'not sitting well', related not only to Pamela going crazy yet not saying anything, but primarily the notion that Mr Harwood would be motionless on the floor looking like he was asleep, yet Pamela was going crazy.
Mr Bowen undertook a detailed analysis of Mr Murray's evidence on this matter. He concluded that 'it is unlikely that Mr Murray intended to make a broad claim that Pamela did not speak'.[54] Mr Bowen appears to reach that conclusion by some conjecture as to what Mr Murray intended by various answers and included an opinion that at one point, Mr Jenkins' interpretation was inaccurate.[55] Mr Bowen drew the following conclusions:[56]
I am not able to clearly reconcile the claims that Pamela started going mad when Mr Murray returned, and that Mr Murray was sitting on the lounge when she was going mad. Perhaps Mr Murray's answers above mean that when he entered the house for the second time, Pamela was going crazy and Mr Murray sat down.
In any event, there would not be an inconsistency if the claim is that Pamela was sitting on the couch and going mad at different times. This is one likely interpretation of what was said.
The Magistrate's reasoning depends involves (sic) an understanding that Pamela was going crazy shortly after Mr Murray arrived:
when he has come to the house ... he saw the old man on the floor and he thought he was asleep.
That evidence or that account, in my view, doesn't sit particularly well with the explanation also that shortly thereafter she – that is Pamela – was going crazy (p 99)
As explained in section 5.4.1, I consider that Mr Murray's answers about how long he was in the house are unlikely to be meaningful, so the events he describes may not have taken place in a short space of time.
[54] Bowen Report, [257].
[55] Bowen Report, [248].
[56] Bowen Report, [266] - [269].
Mr Bowen then addressed the magistrate's remark that it 'does stretch credulity' that Mr Murray thought Mr Harwood was just asleep when he was lying in the middle of the floor and bleeding. Mr Bowen undertook a detailed dissection of what he considered to be the relevant extract of Mr Murray's evidence. Mr Bowen remarked that 'it is difficult to follow how the interpreter renders the answers' and opined that because Mr Murray's evidence was separated by interpreting, the link Mr Murray was making between sleep and 'bleed' did not come across clearly.[57] This is one of a number of instances where Mr Bowen undertook an assessment on the basis of both Mr Murray's direct speech and the interpreter's words in order to raise the possibility that Mr Murray may have meant something other than that which the magistrate appears to have understood.
[57] Bowen Report, [275].
Mr Bowen concluded that 'it is likely that Mr Murray meant something more like my first thought was that he was asleep but then I observed he was bleeding'.[58] I raised with counsel my inability to understand the process by which Mr Bowen arrived at that conclusion. I remain unable to discern the reasoning justifying Mr Bowen's view about this matter.
[58] Bowen Report, [278].
Next, Mr Bowen turned to the magistrate's concern that Mr Murray's evidence that Mr Harwood was asleep did not sit well with his evidence that Pamela was going crazy. Mr Bowen considered that the inconsistency was likely to have been overstated by the magistrate because it is possible that Mr Murray was speaking of different times.
Mr Bowen then turned to further aspects of Mr Murray's evidence that were the subject of adverse comment by the magistrate. In respect of an inconsistency between Mr Murray's evidence that he did not speak to Mr Harwood and his evidence that he spoke to him 'a little bit' in English, Mr Bowen wrote 'I am unable to suggest a clear explanation', other than to suggest there was some level of confusion in the relevant questioning which in Mr Bowen's view created 'a material risk of miscommunication'.[59] Mr Bowen then referred to the possible confusion noted by the learned magistrate where Mr Murray said he thought the question related to Pamela and not Mr Harwood, which would provide an explanation of why Mr Murray said that he did speak 'a little bit'. Mr Bowen opined that 'there is a clear mechanism for confusion' because in Kriol, third person singular pronouns are gender neutral and 'the interpreter may not have separately specified gender in these questions'.[60] Mr Bowen went on to provide further analysis of Mr Murray's evidence concluding that although it is 'apparent that Mr Murray did not understand' the relevant question, 'it is not obvious why Mr Murray would interpret this question as being about Pamela'.[61]
[59] Bowen Report, [291], [299].
[60] Bowen Report, [301].
[61] Bowen Report, [307].
In addressing what the learned magistrate said was a contradiction for which Mr Murray had no explanation, after a further analysis and dissection of the evidence, Mr Bowen said of the apparent contradiction:[62]
This could be, as the magistrate concluded, because he was at a loss to explain a contradiction in his evidence. However, it could also be that his confusing sequence of repeated questions is where Mr Murray thinks the Sergeant is talking about Pamela'.
[62] Bowen Report, [314].
In further analysis of Mr Murray's evidence to explain the apparent contradiction, Mr Bowen again suggested that there was some inadequacy in the interpretation, observing 'we did not hear the interpreter use any word for 'man' until the end of the sequence…. The interpreter might not have realised that gender was the problem until Mr Murray described his confusion'.[63] Mr Bowen went on to suggest that the interpreter may have misjudged the source of Mr Murray's apparent confusion and to suggest that an inadequacy in translation of the word 'wangka' may also have created confusion. Mr Bowen concluded that this aspect of Mr Murray's evidence was 'affected by confusion and may not be reliable evidence'.[64]
[63] Bowen Report, [320].
[64] Bowen Report, [326].
Mr Bowen went on to comment on Mr Murray's evidence about being worried or scared about the blood he saw. The magistrate commented on the difficulty in accepting evidence that Mr Murray was worried or scared yet simply walked past Mr Harwood and sat down. After analysing the relevant evidence, Mr Bowen concluded:[65]
The meaning of language is never separate from its context, which includes cultural context, life experiences and knowledge of people who use language (see section 3). In my opinion, a significant possible understanding of Mr Murray's answer does not seem to have been considered, namely that he was frightened for himself, frightened that he might become implicated in the conflict or be blamed for being present at the scene of the old man's injury (or even death).
This meaning could be different from being "worried about that individual" (as the Magistrate said) or 'frightened of the blood'.
[65] Bowen Report, [332] - [333].
The Bowen Report (other than the reconstructed transcript and other uncontroversial observations I have set out above) was the subject of objection by the State. The objections appeared to me to be directed particularly to section 5. It is necessary then to consider the admissibility of the Bowen Report, particularly section 5. As will be apparent, that consideration gives rise to broader issues relating to the experience and treatment of First Nations peoples in the Australian justice system, particularly in regard to linguistic and cultural barriers, and the status of professed expertise on that subject.
Admissibility of Mr Bowen's report
It is appropriate to begin with the requirements for the admissibility of expert opinion evidence. They include the following:
(a)it must be demonstrated that there is a field of specialised
knowledge;(b)there must be an identified aspect of that field in which the
witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;(c)the opinion proffered must be substantially based on the witness's expert knowledge; and
(d)the process by which an opinion is reached must be expressed in a manner that permits the conclusion to be scrutinised and a judgment made as to its reliability.[66]
Ultimate issue
[66] Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 [86]; Lepoidevin v State of WA [2021] WASCA 19 [63].
Before turning to a consideration of matters such as the scope of expertise, it is important to note that the admissibility of evidence such as that given by Mr Bowen in this matter and by other experts in the cases discussed below, can give rise to an issue generally referred to as the, or an, 'ultimate issue'; that is, a determinative matter that it is the exclusive function of the court (the judge or the jury as the case may be) to decide. For example, whether a witness is telling the truth is a matter for the trier of fact, be that judge or jury. It is important to safeguard that function and ensure that a professed expert opinion does not stray into this exclusive domain of the court. Evidence as to the socio-linguistic propensity of a witness that exists as a product of his or her learning or life experience within a particular culture, cannot extend to the proffering of an expert opinion as to whether the witness is telling the truth.
In Farrell v The Queen, Kirby J explained:[67]
The problem confronted by the Court in a case of this kind is that of reconciling two rules of evidence liable to come into conflict. The first is that the assessment of credibility is a matter for the tribunal of fact (here the jury). In the present state of science it may not be usurped by technology (such as polygraphs). Nor may it be assumed by witnesses, including expert witnesses, offering their opinion on the accuracy, consistency and believability of the testimony in question, however derived. On the other hand, the study of human behaviour, including psychology, is an accepted scientific discipline. It is one upon which the frontiers of expert knowledge are constantly expanding. If it were necessary in every trial to confine the tender of psychological and psychiatric evidence to cases where a physiological injury could be objectively demonstrated, decision-makers (including juries) might be deprived of relevant evidence. In particular, where established patterns of human behaviour have been studied, analysed and scientifically described, it is appropriate that evidence about them should be available to the decision-maker. It is not then admitted to usurp the decision-maker's ultimate assessment of the credibility of the witness. Principle, and a recognition of the imperfections of the science, deny that consequence. For every pattern of human behaviour, there will be exceptions.
[67] Farrell v The Queen (1998) 194 CLR 286 [27].
I will return to this issue later in these reasons. I discuss below a number of cases relating to the communication difficulties encountered in the legal system by First Nations people. As will be seen, those cases explore this 'ultimate issue' question as it pertains to that topic.
Field of specialised knowledge
Turning now to the question of the scope and field of Mr Bowen's expertise, Mr Bowen's field of expertise is socio-linguistics. In his report, Mr Bowen explained the following in relation to that field of knowledge:
Linguistics is the scientific study of language in general and of specific languages, based on the comprehensive and systematic analysis of empirical language evidence.
Sociolinguistics is the social science which studies language use as a social activity, focusing on how speakers communicate in context, within and between social groups. A basic understanding in sociolinguistics is that when people use language, they do not merely exchange information; rather language use is a social activity with consequences for relationships and identities. Understanding social structures, patterns and relationships allows sociolinguistic analysis to investigate aspects of language use which are not readily explained when language alone is considered as evidence.
However, as I noted above, the substantive complaint behind this ground lies not in any particular formulation of what the magistrate said in his reasons, but rather in the underlying unfairness to Mr Murray in the magistrate's approach. To the extent that the ground so understood relies upon the magistrate's alleged misunderstanding of Mr Murray's evidence, it relies largely on the analysis of Mr Bowen which I have ruled to be inadmissible. As I have also said, that analysis tends to usurp the role of the magistrate in the analysis of the facts and the assessment of credibility. I would not in any event find error or fault in the magistrate's analysis of the facts as they emerged in the trial. To the extent that the ground seeks to raise a broader notion of unfairness to Mr Murray by the magistrate's remarks and treatment of Mr Murray, that is an issue that is encompassed by Grounds 2 and 3.
For those reasons, I decline to grant leave in respect of Ground 1.
Consideration of Grounds 2 and 3
Ground 2 contends that a miscarriage of justice occurred by reason of the magistrate's ruling to the interpreter Mr Jenkins to stop interpreting portions of Mr Murray's evidence. The immediately obvious difficulty with this ground is the responsive conduct of the interpreter Mr Jenkins and Mr Murray's counsel, a relatively young lawyer form Legal Aid, Ms Laila Hughes. With admirable courage and to their great credit, Mr Jenkins and Ms Hughes politely but resolutely ignored the magistrate's ruling. The interpretation continued, unabated.
That, however, is not in my view the end of the matter. The fact that the interpretation continued does not of itself mean that the magistrate's remarks and treatment of Mr Murray was consistent with a fair and just hearing.
Before further consideration of that issue, it is convenient at this point to turn to Ground 3, which alleges error on the part of the magistrate in finding that Mr Murray was speaking ordinary English when in truth he was speaking Aboriginal English or Kriol. As noted, the respondent conceded the error. However, the respondent submitted that the court should nevertheless dismiss the appeal pursuant to s 14(2) of the Criminal Appeals Act as there was no substantial miscarriage of justice.
Thus, both Grounds 2 and 3 direct attention to the issue of a miscarriage of justice and what is meant by a fair trial. The assertion of unfairness is directed essentially to the conduct of the trial and particularly the remarks of the magistrate in respect of the socio-linguistic impediment encountered by Mr Murray.
The role of interpretation
It is convenient at this point to review the general principles that apply to interpretation services in ensuring a fair trial. The legal principles regarding the 'right' of an accused person in a criminal trial to adequate interpretation services were canvassed in this jurisdiction in the judgment of Roberts-Smith JA in De La Espriella-Velasco v The Queen.[114]
[114] De La Espriella-Velasco v The Queen [2006] WASCA 31.
In summary, his Honour identified the following principles:
(a)The right to access interpretative services is not a stand-alone right, but rather an essential incident of the right to a fair trial;[115]
(b)Criminal trials must, except in exceptional circumstances, occur in the presence of the accused. The accused must understand the case put against them and must have the opportunity of answering it. In order to make good that requirement, an accused who is unable to adequately understand or give evidence in English must be given the assistance of a competent interpreter;[116]
(c)The denial of an interpreter to an accused who needs one may constitute an unfair trial;[117]
(d)The role of an interpreter is not to translate word-for-word, as it were, but rather to convey the meaning of words used and enable communication between the court and the accused;[118]
(e)In order to succeed as a ground of appeal, it must be shown that as a consequence of the deficiency of any interpretation, 'either alone or in combination with some other deficiency, the trial was unfair - and that it was so unfair as to constitute a miscarriage of justice'.[119]
[115] De La Espriella-Velasco v The Queen [2006] WASCA 31 [46].
[116] De La Espriella-Velasco v The Queen [2006] WASCA 31 [50].
[117] De La Espriella-Velasco v The Queen [2006] WASCA 31 [43].
[118] De La Espriella-Velasco v The Queen [2006] WASCA 31 [52] - [54].
[119] De La Espriella-Velasco v The Queen [2006] WASCA 31 [76].
The Judicial Council on Cultural Diversity describes the role of the interpreter as follows: [120]
The interpreter's role is to remove the language barrier so that the party can be made linguistically present at the proceedings and thereby be placed in the same position as an English-speaking person. This means that a party is entitled to participate in the proceedings in their own language. As such, the work of interpreters is essential to ensuring access to justice and procedural fairness for people with limited English proficiency in Australia's courts. Further, in the case of criminal proceedings, if an accused needs an interpreter, the trial cannot proceed unless and until an interpreter is provided.
[120] Judicial Council on Cultural Diversity, 'Recommended National Standards for Working with Interpreters in Courts and Tribunals' (March 2022) 1.
In 2017, the Judicial Council on Cultural Diversity published their first edition of the 'Recommended National Standards for Working with Interpreters in Courts and Tribunals' (the Standards). The Standards include the following recommended standards for Judicial Officers: [121]
17.4 Except where a Qualified Interpreter has been engaged, judicial officers should ascertain the competence of an interpreter by reference to their certification status, qualifications and court experience, as well as whether they are members of AUSIT, ASLIA or other recognised State or Territory based association requiring adherence to a code of ethics and/or standards. If the judicial officer is concerned about any of these matters, they may raise this with the parties to ascertain whether another interpreter is available, and should consider adjourning the proceedings until one is available.
17.5 At the start of proceedings, and before an interpreter commences interpreting, judicial officers should introduce the interpreter and explain their role as an officer of the court or tribunal.
17.6.Judicial officers should confirm that the interpret has acknowledged the Court Interpreters Code of Conduct and understands their duties as an officer of the court or tribunal.
[121] The Standards were re-published as a second edition in March 2022, which postdates the trial. The sections of the 2017 Standards were reproduced, verbatim, in the second edition.
The Standards do not have the force of law; they are not binding on judicial officers; they are aspirational.
Fairness and justice
It is uncontroversial that Mr Murray was assisted throughout the trial by Mr Jenkins. Mr Jenkins was present during the whole trial and translated the evidence of the prosecution witnesses to Mr Murray while he was in court. I have also already observed that I cannot find fault with the learned magistrate's analysis of the facts on the evidence before him provided through Mr Jenkins the interpreter.
However, the conduct of Mr Murray's prosecution raises the three episodes of concern identified earlier in these reasons.
First and foremost was the learned magistrate's remark that Mr Murray was speaking English and the somewhat strident comments and ruling to Mr Jenkins to cease his interpretation of the portions of Mr Murray's evidence that the magistrate considered were spoken in English, and to Ms Hughes that the magistrate did not wish to hear her submission.
Secondly, as the passage of the transcript set out at paragraph [29] above shows, at the hearing on 21 July 2021 the magistrate said that Mr Murray 'speaks and understands English perfectly competently'. I have set out at paragraph [57] Mr Bowen's conclusions regarding Mr Murray's facility with English. I have also listened to the audio of Mr Murray's evidence carefully. Although I have no expertise in linguistics, no expertise was required for me to conclude that the magistrate's description was, on any objective assessment, wide of the mark.
Thirdly, as the passage of the transcript set out at paragraph [28] above shows, at the beginning of the trial the magistrate expressly declined to hear or record Mr Jenkins' name or qualifications or swear him in. In that regard at least, the magistrate's conduct undeniably fell well short of the Standards referred to at paragraph [148] above. That of itself is most unlikely to constitute grounds for appeal. However, the lack of consideration and respect it reflects for Mr Jenkins and the interpretation process, regrettably reinforces the difficulty that emerges from the other two matters.
The central question raised by Ground 2 is whether the conduct of the trial process involved a miscarriage of justice. The central question raised by Ground 3 is whether the magistrate's error led to a substantial miscarriage of justice. The State's answer to both those propositions is that no practical injustice occurred because Mr Murray had the benefit of a continued, competent, professional translation throughout his evidence and throughout the trial. There was no manifest error in the magistrate's analysis of the facts arising from the evidence. There was in practical reality no unjust barrier to communication or error in the assessment of the evidence.
The overarching question is whether these three matters in combination resulted in a miscarriage of justice by virtue of unfairness in the trial. That in turn directs attention to meaning and content of 'a fair trial'.
A fair trial is a central pillar and fundamental element of the criminal justice system.[122] There has been no judicial attempt to list exhaustively the attributes of a fair trial and it is not possible to formulate comprehensively the concept of a fair trial.[123]
[122] Dietrich v R (1992) 177 CLR 292, 298 - 299.
[123] Dietrich v R (1992) 177 CLR 292, 353.
The notion of a fair trial is distinct from a trial in accordance with law. The notion of fairness transcends the content of particularised legal rules and principles. Indeed, fairness provides the ultimate rationale and touchstone for the rules and principles.[124]
[124] Dietrich v R (1992) 177 CLR 292, 326.
In Dietrich v R, Gaudron J said:[125]
It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The expression "fair trial according to law" is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness.
[125] Dietrich v R (1992) 177 CLR 292, 362.
More recently, the Judicial Commission of New South Wales in its Handbook for Judicial Officers published a paper by her Honour Justice Helen Wood of the Supreme Court of Tasmania. The paper reviews some of the important principles that are relevant to this appeal. Her Honour concludes in that paper:[126]
In drawing from Dietrich, the principles provide a foundation for trial judges in accommodating the difficulties faced by culturally diverse litigants. The principles give centre stage to the obligation to provide a fair trial. There is power to prevent a miscarriage of justice. They recognise that the court's obligation in eliminating unfairness involves more than merely following rules of procedure and trial process.
Undoubtedly, the solutions to unfairness will arise from a focus on the individual in individual cases.
[126] Hon Wood J, 'Cultural diversity: reflections on the role of the judge in ensuring a fair trial' (2021) Handbook for Judicial Officers 87, 97.
While the requirement of a fair trial has been long established, the practical content of the requirements of fairness may vary with changing social standards and circumstances. Many rights that we take for granted as fundamental were only recognised gradually by the common law.[127]
[127] Dietrich v R (1992) 177 CLR 292, 328.
I am conscious that there is no clear precedent for the proposition that a trial in which a fulsome interpretation was provided was nevertheless fundamentally unfair in the way asserted in this case by Mr Murray. In Dietrich, members of the High Court reiterated that the requirement of fairness is not to be equated with idiosyncratic notions of what is fair and just.[128] Rather, fairness is to be determined by the traditional processes of legal reasoning by reference to earlier decisions and settled rules and practices. However, there will arise the rare case in which those processes of legal reasoning may not be wholly adequate in a developing area of the law, or in which a court concludes that the circumstances are such that it is obliged to reassess some rule or practice in the context of current social conditions, standards and demands. In such a case, direct reference will necessarily be made to the underlying notion of fairness and subjective values and perceptions may intrude into the judicial process. Notions of fairness are necessarily bound up with prevailing social values. This is an unavoidable concomitant of the judicial function if the law is not to lose contact with the social needs which justify its existence and which it exists to serve.[129]
[128] Dietrich v R (1992) 177 CLR 292, 329 and 364.
[129] Dietrich v R (1992) 177 CLR 292, 410.
A miscarriage of justice is a standard, not a rule.[130] It is a standard that does not lend itself to prescriptive definition. In Jago v District Court of New South Wales, Deane J said:[131]
A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law….
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment.
[130] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [111].
[131] Jago v District Court of New South Wales(1989) 168 CLR 23, 56 - 57.
The formula 'a miscarriage of justice' has been adopted in many criminal statutes in Australia, including the Criminal Appeals Act. Sections 8 and 14(2) both deploy the language of miscarriage of justice; the latter section includes the descriptor 'substantial'. That statutory language has been considered in a number of decisions in the context of equivalent or similar statutory provisions in other jurisdictions: Wilde v The Queen (1988) 164 CLR 365 (373), Weiss v The Queen (2005) 224 CLR 300 [45], and more recently in Hofer v R (2021) 95 ALJR 937.
In his concurring judgment in Hofer v R, Gaegler J confirmed the continued applicability of the principle in Davies v The King (1937) 57 CLR 170 that required a court to set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. Gaegler J observed that: [132]
[I]t could meaningfully be said at a level of generality that a miscarriage of justice would arise whenever the accused has not had a fair trial according to law.
[132] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [110].
Notwithstanding some complexity in the history and proper construction and application of the statutory provisions the equivalent of s 14(2), it is clear from the High Court decisions referred to above that there will be an intolerable unfairness, and therefore a miscarriage of justice where something has occurred during the course of the trial which may be described as a fundamental irregularity, where the proceedings have so far miscarried as to hardly be a trial at all, or where the departure from the essential requirements goes to the root of the proceedings.[133] This has also been described as a failure to observe the requirements of the criminal process in a fundamental respect.[134] If that has happened then there has been a miscarriage of justice and there is no room for the proviso in s 14(2) of the Criminal Appeals Act or its equivalent in other jurisdictions. That is so even if the appellate court might otherwise be persuaded of the accused's guilt beyond reasonable doubt.[135]
Summary of principles
[133] Wilde v The Queen (1988) 164 CLR 365, 373.
[134] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [123]. See also cases in fn 167.
[135] Wilde v The Queen (1988) 164 CLR 365, 375; Grey v R [2001] HCA 65; (2001) 184 ALR 593 [53].
The following principles may be distilled from those authorities:
(a)a fair trial is a central pillar and fundamental element of the criminal justice system;
(b)although a fair trial is ordinarily achieved by compliance with applicable legal rules and principles, the notion of a fair trial is broader than, and transcends, prescribed legal norms. A trial may be unfair even though conducted strictly in accordance with law;
(c)it is neither possible nor desirable to formulate exhaustively the content or the attributes of a fair trial. Evaluating the fairness of a trial must proceed on a case-by-case basis and is essentially a matter of intuitive judgment;
(d)fairness in a trial is not to be equated with populist or idiosyncratic notions of what is fair and just but rather is to be determined by reference to legal reasoning and precedent;
(e)at the same time, the practical content of a fair trial will vary with changing social standards, societal sensitivities and evolving knowledge. In isolated cases of such a nature, established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness;
(f)a fair trial is necessary to avoid a miscarriage of justice. It may be said at a level of generality that a miscarriage of justice will arise whenever the accused has not had a fair trial;
(g)a miscarriage of justice is a standard, not a rule;
(h)a substantial miscarriage of justice will have occurred if the trial involved a departure from the essential requirements of a criminal trial that goes to the root of the proceedings, or there was a failure to observe the requirements of the criminal process in a fundamental respect.[136] That is so even if the accused's guilt has been established beyond reasonable doubt.
[136] Hofer v R [2021] HCA 36; (2021) 95 ALJR 937 [123]. See also cases in fn 167.
The real question is therefore whether the difficulties in the conduct of the criminal process identified at paragraphs [152] - [154] above, notwithstanding the provision of a competent interpreter and the absence of error in the magistrate's factual analysis of the evidence, nevertheless represent a departure from the requirements of fairness that are fundamental and go to the root of the trial which Mr Murray was entitled to have.
In my view, the conduct of Mr Murray's criminal prosecution and conviction departed in a fundamental way from the requirements of fairness for two reasons.
The first was the error in the denial of Mr Murray's language and the consequential ruling and remarks of the learned magistrate.
At the core of the notion of a fair trial stands the dignity and integrity of the individual. That is why the fundamental prescript of the criminal law is that no person shall be convicted of a crime except after a fair trial according to law.[137] To deny the authenticity of a person's distinct linguistic identity or autonomy is to repudiate the authenticity of their cultural and perhaps spiritual essence; it is to impugn their sense of worth and value as a human being.[138] As has been observed in one study of the impact of language on public health outcomes in the Barngarla community, 'traditional languages are a key element of Indigenous peoples' identity, cultural expression, autonomy, and spiritual and intellectual sovereignty.'[139]
[137] Dietrich v R (1992) 177 CLR 292, 326; Jago v The District Court of NSW (1989) 168 CLR 23, 56.
[138] See Dr Rademaker L, Found in Translation (2018) 8. See also United Nations, State of the World's Indigenous Peoples (2009) 58
[139] Sivak L et. al, '"Language Breathes Life" – Barngala Community Perspectives on the Wellbeing Impact of Reclaiming a Dormant Australian Aboriginal Language' (2019) 16(20) International Journal of Environmental Research and Public Health, 3918, 3919.
The enormity of the offence created by the repression or disparagement of cultural identity and belief may not always be readily apparent. Yet this is not some lofty social principle concocted in the quiet spaces of judicial isolation. The historic impact of this alienation speaks for itself in our society today; in our towns, our courts and most tragically in our prisons.[140] It may be true that the common law did not evolve with an instinctive or organic sensitivity for the ramifications of cultural repression that flowed with the tide of territorial dispossession. But the Judeo-Christian tradition from which the common law in part emanated, was never without the tools to identify and respond to that impact. Its own literature is replete with the tragic necessity to perceive the insult and shame of dispossession.[141] Like many other rights that have incrementally evolved from the deep reservoir of the common law, the issues reflected in this case have gradually emerged from the shadows over recent decades. The law of Australia is well able to accommodate the shifts in our conceptions of fairness that progress with our growing appreciation of systemic injustices that plague marginalised members of our society, including many First Nations people.
[140] The Full Federal Court (Mortimer CJ, Katzmann, Charlesworth, Abraham and Kennett JJ) recently commented on the devastating impact of dispossession on the life expectancy of Indigenous men in Fisher v Commonwealth of Australia [2023] FCAFC 106 [142].
[141] See for example Lamentations Chp 5.
On 29 May 2023, the Chief Justice of Western Australia together with other heads of jurisdiction of Western Australian courts and tribunals launched, published and declared in a special sitting of the Supreme Court, a Reconciliation Statement. It included the following:
We acknowledge all Aboriginal and Torres Strait Islander people and their Elders, past, present and future. We respect and celebrate the diverse languages, cultures and spiritual connection to the land, seas, sky and waterways of all Aboriginal and Torres Strait Islander people. We acknowledge, with regret, that, over the course of our shared history, Aboriginal and Torres Strait Islander people have faced significant barriers to justice in our courts and tribunals, whether as parties to civil proceedings, witnesses, victims of crime or accused persons in criminal proceedings. We acknowledge, with regret, that Aboriginal and Torres Strait Islander people continue to be overrepresented in the criminal justice system and face obstacles in pursuing their rights in a variety of other ways in our justice system as a whole. We acknowledge, with regret, that negative experiences within our courts and tribunals on the part of Aboriginal and Torres Strait Islander people have contributed to mistrust and a lack of confidence in the justice system. We recognise that our justice system can only truly be said to be fair and just, when it is fair and just for all people. We accept that it is our responsibility to create and foster trust and confidence in our justice system on the part of everyone in our community.
The stark reality is this: a criminal prosecution of a Walmajarri man proceeded in the face of the court's express denial of the linguistic distinctiveness of the accused. Unintended though it was, this cannot be regarded as fair and just. The injustice is all the more troubling because the denial of linguistic identity relates to the language and culture that evolved from antiquity in our very own landscape. To resign with equanimity to such an outcome would reduce the Reconciliation Statement to tokenism and platitudinal humbug. If the court is to keep apace with community standards, it must apply the community standard reflected in the sentiments of the Reconciliation Statement to the concrete reality of the justice system.
The second reason arises from the manifest attitude of the magistrate towards Mr Murray. There seems to me to be no escape from the conclusion that magistrate was in substance expressing, in Mr Murray's presence, an erroneous view about the genuineness of Mr Murray's need for interpretation and therefore an erroneous view about the honesty of Mr Murray's approach to the giving of evidence generally. This occurred at the very beginning of Mr Murray's evidence. Objectively, the conduct had all the hallmarks of at least the impression of an unfair prejudgment of Mr Murray's character and the integrity of his testimony.
Judicial intervention during the examination of a witness, or the conduct of a judicial officer during a trial generally, may ground a reasonable apprehension of bias or prejudgment.[142] That is an issue that goes to the heart of the trial process.[143] A judicial officer, or jury as the case may be, must be and must appear to be impartial. That requirement is fundamental to fairness, and can be summarised in the adage that justice must be done and must be seen to be done. It is necessary that every person, and especially an accused person, is treated without bias or prejudgment, actual or apprehended. In Webb v The Queen, Deane J quoted from a 1975 paper by Lord Devlin, saying:[144]
This is why impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matter, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial. The judge who does not appear impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augurer who tampers with the entrails.
(Emphasis added)
[142] Michael v R [2009] UKPC 41; [2010] 1 WLR 879 [34]; Galea v Galea (1990) 19 NSWLR 263, 281.
[143] Webb v The Queen (1994) 181 CLR 41, 57; Adacot v Sowle [2020] FamCAFC 215 [3].
[144] Webb v The Queen (1994) 181 CLR 41, 57 quoting from Lord Devlin, 'Judges and Lawmakers' (1975) 39 Modern Law Review 1, 4.
It is not possible to determine what effect the magistrate's remarks had on Mr Murray. I note that Mr Bowen in his report observes:[145]
It is difficult to comment on how the Magistrate's ruling that the interpreter should not interpret answers in "English" affected Mr Murray's choices about how to give his evidence. The ruling was interpreted to Mr Murray. Before the ruling, Mr Murray speaks in Kriol. Immediately after the ruling, Mr Murray still uses Kriol but with more words from 'traditional' Aboriginal languages, which are more obviously distinct from English words.
[145] Bowen Report, [142].
Whatever might be made of those observations, it certainly cannot be said with any confidence that Mr Murray did not feel prejudged and denigrated by the magistrate's comments. It hardly needs to be said that erroneous remarks from the Bench reflecting adversely on the evidence of an accused as they begin to give their evidence is inconsistent with a fair trial. It is not difficult to imagine that the impact on an accused's capacity to give their evidence coherently in such circumstances might be severely compromised.
The magistrate's error was not, as one may have hoped, ameliorated by the rest of the accused's time on the witness stand or by further reflection with the passage of time. Two months after the trial, on 27 July, the learned magistrate again expressed the view that '[Mr Murray] speaks and understands English perfectly competently'.[146] The context of the remarks in that hearing compound the basis for concern and the unfairness - the magistrate expressed a view that Mr Murray did not need an interpreter during the course of pre-sentence psychiatric evaluation.
[146] Transcript, Western Australia Police v Antonio Murray, Perth Magistrates Court, 21 July 2021, 4.
For those reasons, in my view the conduct of Mr Murray's prosecution and conviction embodied an unacceptable and fundamental departure from the required standard of a fair trial. That is so, notwithstanding that the interpretation by Mr Jenkins went ahead. The unfairness went to the root of the process. Even the calm and courageous professionalism of the interpreter, Mr Jenkins and the lawyer, Ms Hughes, could not redeem this trial from the consequences of the magistrate's unintended but irretrievably unfair treatment of Mr Murray.
Appeals from the Magistrates Court
The conclusions I have come to necessarily reflect the view that the learned magistrate erred. There is ample authority for the proposition that the Magistrates Court is an extremely busy court in which some latitude must be given for the pressures that attend the administration of justice in a high-volume and necessarily fast-paced environment.[147] On a previous occasion I have also expressed the view that the perch of appellate luxury makes for a comfortable and convenient position to make the sorts of observations contained in these reasons.[148] The stark reality is that I have had some months to consider matters that the learned magistrate was required to deal with on the spot. I have no doubt at all that the Magistrates Court generally, and the learned magistrate in particular, do not lack for an appreciation of, or sensitivity to, the issues I have discussed in these reasons. The practical reality is that in the pressured environment of a busy Magistrates Court, the considered and fulsome consideration and application of those issues is not always possible. It is important to appreciate that decisions of this court do not serve the function of admonition, and less still condemnation, of decisions the subject of appeal. Rather, they present the opportunity for the considered correction of error that will invariably occur from time to time in any environment, including the stressful and pressured atmosphere of the Magistrates Court. These reasons are therefore much less a criticism of the learned magistrate's conduct than they are a manifestation of the system working as it should in the interests of justice.
[147] Strahan v Brennan [2014] WASC 190 [89] - [90].
[148] Woodhouse v Leslie [2023] WASC 11 [33].
Conclusion
Accordingly, I would grant leave in respect of Grounds 2 and 3 and uphold the appeal. It follows that orders should be made for the setting aside of Mr Murray's conviction. I will hear further from the parties as to whether in all the circumstances a new trial should be ordered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
27 JULY 2023
- AGLC
- Murray v Feast [2023] WASC 273
- Case
- [2023] WASC 273
- Decision Date
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