Rictor v The State of Western Australia

[2025] HCATrans 57

[2025] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P8 of 2025

B e t w e e n -

DAMIAN RICTOR

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GAGELER CJ
GORDON J
EDELMAN J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT PERTH AND BY VIDEO CONNECTION

ON THURSDAY, 14 AUGUST 2025, AT 9.30 AM

Copyright in the High Court of Australia

GAGELER CJ:   This is a hybrid hearing.  In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR C.K. WAREHAM appears with MR J.R. MURPHY remotely and with MS C.P. BRENNAN at the Bar table for the applicant.  (instructed by Aboriginal Legal Service (WA))

MR L.M. FOX, SC appears with MS N.R. SINTON at the Bar table for the respondent.  (instructed by Director of Public Prosecutions (WA))

GAGELER CJ:   Mr Wareham.

MR WAREHAM:   Good morning, your Honour.  May it please the Court, this is application for special leave in respect of – we have raised two questions relating to the evidence of expert witnesses relating to the translation of telephone calls.

The questions relate to whether the translator purported to give expert evidence that the issues relating to actual apprehended bias are enlivened and, in respect of the second part, whether one of the witnesses had sufficient expertise in order to give opinion evidence – well, the opinion evidence that she gave in the court below, it was submitted through the rubric or the prism of section – through the Christie discretion, and . . . . . said that the evidence ought not to have been admitted.

It is submitted, in this case, there was a substantial miscarriage of justice, that the evidence of Ms Rive on the translations that she gave exceeded her area of expertise and that, in addition to that, there was actual bias.

GAGELER CJ:   On whose part?

MR WAREHAM:   On whose part was the actual bias, your Honour?

GAGELER CJ:   Yes, that is my question.

MR WAREHAM:   I am sorry, your Honour.  Yes, so the actual bias relates to Ms Rive herself, and that is in three ways.  She has a relationship, through her deceased husband, to the applicant and the purported alternative suspect, Mr William Rictor, who was an alternative suspect on the defence case at trial.  She also had had an email communication with the police in respect of – or the prosecutor, rather, in respect of observations that she made about the accused man.

Also, she was using documents in her work that were produced by two people who themselves had significant conflicts of interest.  The conflict of interest in respect of those other two translators, Ms Yorkshire‑Selby and Ms Benson‑DeRose, are important because ultimately Ms Yorkshire‑Selby is not called by the Crown, but she produces the first lot of documents, and Ms Benson‑DeRose then takes over and does some work on the translations.

There are parts where, in her evidence at trial, Ms Rive defers to Ms Benson‑DeRose’s translation where she cannot hear things.  There is a submission made below that an independent review is done by Ms Rive and that is, in our submission, not really correct.  She merely reviews material that is produced by people who themselves have a conflict of interest.  That conflict of interest then ‑ ‑ ‑

BEECH-JONES J:   Mr Wareham, could I just ask this question. 

MR WAREHAM:   Yes, your Honour. 

BEECH-JONES J:   Am I right in understanding that the sole basis for exclusion that was argued in the Court of Appeal was what is described as the Christie discretion?  That is, the prejudicial value outweighs the probative effect.  Is that correct?

MR WAREHAM:   The short answer is yes.  The answer is slightly more nuanced than that.  It was argued through a Christie prism and your Honours will see that in the transcript – I think it is page 2, Mr Gullaci makes that submission at the very beginning – but the case was in fact argued a bit more broadly, in that issues raised did relate to the qualification of Ms Rive in order to give evidence.  And the court ‑ ‑ ‑

EDELMAN J:   Mr Wareham, you are really then talking about the administration of justice, are you not?  That these matters of bias and lack of independence are concerned with the impartial administration of justice. 

MR WAREHAM:   Yes, that is correct, your Honour, in part. 

EDELMAN J:   If one has to put a label on that – and this is one of the great difficulties in putting labels like R v Christie on discretions, but the label would probably be more appropriately described as the Bunning v Cross discretion, would it not? 

MR WAREHAM:   Yes, your Honour.  That is correct, and we have had in recent times considered that and, perhaps, the Dunstall residual discretion.  There were breaches of the code of conduct in respect of this, and our submission is that interpreters and translators occupy a unique and important role in the criminal justice system.  They must be impartial and unbiased and, critically, must be seen to be so.  In this case there are real issues with that, both in terms of actual bias but also in respect of the apprehended bias.

We accept that those two limbs of bias are different, and we must be on guard not to conflate them, but we say that, particularly in respect of the apprehended bias argument, we might need to make the concession that it probably does not fit as squarely within Christie as the actual bias.  I think we would have to make that concession.  I think that we would have to make the concession that our proposed special leave question 1 perhaps does not fully encompass the qualification argument of that.

What we do say is that we have referred in our reply to what the New South Wales Court of Appeal had said in Sydney South West Area Health Service v Stamoulis, where the court in that case had made reference to whether expert witnesses owe a duty to the court, perhaps akin or similar to lawyers.  Then, the State has made reference in their material to Wood v The Queen, where the Chief Judge at common law, at paragraph 729, raises the issue that breaches of the expert code of conduct may be remedied by exclusion in that jurisdiction under section 135 and 137 of the Evidence Act.  So, yes, your Honour, that is a long‑winded way of saying there is that kind of issue at par.

GAGELER CJ:   Mr Wareham, can I be clear about what findings of fact you rely upon, and what findings of fact, if any, you would be challenging in an appeal to this Court.

MR WAREHAM:   Well, certainly the findings of fact that related to whether the witness was sufficiently qualified in her experience to render an opinion about matters.  Particularly the interpretation of telephone call number 6, which was particularly critical in the case – and your Honours see that the Court of Appeal judgement deals with that call quite a lot – that she had sufficient experience to give opinion about what was broadly‑termed “secret men’s business”, because the underpinning facts in this case is that it is not merely just translation and interpretation, it is the specific meanings of particular words.  They have particular words at particular criticality in this case, and her capacity to give – I am sorry, your Honour, you ‑ ‑ ‑

GAGELER CJ:   All right.  I understand, broadly, what you are saying there.  What about the bias point?

MR WAREHAM:   In terms of ‑ ‑ ‑

GAGELER CJ:   I am not sure you have a finding in your favour there, if you want to run actual bias.  You do not have a finding of actual bias, do you?

MR WAREHAM:   Ms Rive discovers, or she makes a – I think, in part of the transcript, that she thinks that she was at least conflicted, and she ultimately says:  well, I did my best – and the judge finds that she was honest.  We would say that a finding that she was honest is not the end of the inquiry.  Subconscious bias is as bad as actual bias, in that that a person would not change their mind if confronted ‑ ‑ ‑

GAGELER CJ:   Mr Wareham, I am really trying to get some precision here about whether you would be wanting us to engage in fact‑finding, and what the facts are that you would be asking us to find that have not been found below.

GORDON J:   Can I ask you to go to application book 249, Mr Wareham.  At paragraph 345 of that book, the principle is set out by the court where it says:

In criminal proceedings it is important that an interpreter who translates conversations made in a language other than English be independent and objective, especially where –

there are:

admissions against interest).

Then it says:

The qualities of independence and objectivity are important for the purpose of ensuring –

reliability and accuracy.  As I understand, you challenge that second sentence because it is too narrow.  And then the facts which the Chief Justice is asking you about, are those the ones set out in 346?

MR WAREHAM:   Could your Honour just bear with me one moment, please.  Yes, your Honour.  We do have ‑ ‑ ‑

GORDON J:   And then you take issue with 347.

MR WAREHAM:   Yes, his Honour’s finding that she was an honest witness.  Yes, your Honour.  In answer to the Chief Justice’s question earlier, there is a finding of fact of actual bias or conflict in which those terms were used interchangeably in the proceeding below, in respect of Ms Yorkshire‑Selby, and while she was not a witness that was called in the trial, her work product is an important part of the evidence that ultimately goes before the jury.  Does that answer your Honour’s question?

GAGELER CJ:   I thought that you told me that there was actual bias on the part of Ms Rive.

MR WAREHAM:   The submission that we make is that in circumstances of her conflicted position in respect of the relationship that she had through her late husband with the accused man and his brother, also the communication where she benches an opinion to the prosecutor in an email, that they were, we would say – demonstrate actual bias.

JAGOT J:   Can I just ask one question, which is both your special leave questions assume no difference, that an interpreter or translator – whatever you wish to call it – is to be wholly assimilated to every other expert.  Some of your oral submissions suggest you are saying more than that, but it is not reflected in the special leave questions, at least as I read them.  Are the special leave questions reflective of what you are really trying to put or not?

MR WAREHAM:   I think they are, your Honour.  What we are saying is that – I am trying not to make it too broad, but we say that translators and interpreters, specifically, have an important role to play.  There might be a difference between translators and interpreters that are in‑court interpreters, that being an interpreter or a translator who is sitting in the dock, for example, with the witness translating, and a witness who – similar to this, where they translate material.

There might be a difference in the way that those two categories of translators are dealt with, but our submission under the special leave questions really are directed to what we are ‑ ‑ ‑

EDELMAN J:   Ultimately, it seems that all of your submissions are focusing very heavily on the question of what is sometimes described as high public policy, about the integrity of the trial, and so on.  You have not descended at all to questions of the probative value of the evidence, or anything like that, but at the higher level – which might be the anterior question before one gets to the so‑called Christie discretion – you put both the producers of the drafts together with Ms Rive’s evidence to look at the administration of justice in the round.  Is that right?

MR WAREHAM:   Yes, your Honour, that is correct.  In terms of the probative value issue, we do say that the probative value of the – in terms of the actual bias issue, the probative value is reduced in circumstances where there are issues of confirmation bias and the like, and that where there are issues relating to subconscious bias, it is a difficult matter to clearly articulate through cross‑examination and it is very difficult to – in part, that is where the unfair prejudice lies, that it is not necessarily ‑ ‑ ‑

BEECH-JONES J:   Mr Wareham, did not your senior counsel in the Court of Appeal concede it was of significant probative value?  Was that not conceded?

MR WAREHAM:   There was . . . . . speaking, your Honour, I cannot – as I said to you, I do not recall that ‑ ‑ ‑

BEECH-JONES J:   If you look at it, I think it is – well, it is front and centre of your opponent’s submissions, but at page 305 of the book, point 1.

MR WAREHAM:   To the extent that that concession was made, save that there are issues that undermine the probative value of the evidence, there was a . . . . .

BEECH-JONES J:   In terms of prejudice, can you tell me what the risk of misuse of the evidence was?

MR WAREHAM:   Particularly in terms of where there are issues relating to the qualifications of the witnesses, where they are cloaked in the authority to give expert evidence relating to the opinions, so far as they qualified, where they have strayed beyond that, there is a real risk that the jury has misused – a real risk that the jury might misuse or place additional weights, or undue weight, on the evidence that they give.  In terms of the bias argument, there is a real risk that, even if ‑ ‑ ‑

BEECH-JONES J:   If they are significantly probative of an admission to murder, the only relevant – is not the risk the jury will use them as evidence probative of murder?  What is the other possible use?

MR WAREHAM:   Yes, particularly in circumstances where there is a dispute about whether they are in fact admissions – implied admissions.

EDELMAN J:   I must say, Mr Wareham, from my perspective, it just seems to me you are running together quite a number of different arguments, some of which might have more force than others, but at least when one is talking about “bias” and “apprehended bias” in, apparently, impartial witnesses, then – at least at the moment – it seems to me that the starting point ought to be just the broader question of administration of justice, independently of questions of the probative force of the evidence, but it is a matter for you how you want to put your argument.

MR WAREHAM:   I hear what your Honour is saying, and I accept that that might be really the issue.  We do say that the broad principle of the administration of justice is central in this case.  If it were the case that this Court had a difficulty in granting special leave on the construction of the ground as it is currently formed, so that that can be remedied by the drafting

or additional precision around that ground of appeal, we would say that there is no ‑ ‑ ‑ 

EDELMAN J:   The ground, as presently formulated, suggests that it is a substantial miscarriage of justice by reference, basically, to all the circumstances.

MR WAREHAM:   Yes, and perhaps some further precision about the qualification – sorry, might I complete that thought?

GAGELER CJ:   Finish the proposition, please.

MR WAREHAM:   Thank you, your Honour.  If it were the case that – it might be case that we need to articulate that answer and that question a bit more succinctly in respect of the qualification and how the bias has infected the administration of justice in a more general sense, your Honour.

GAGELER CJ:   Is that something you are proffering now, Mr Wareham?

MR WAREHAM:   If the Court was minded to grant us an opportunity to amend the ground in such a way, we would seek that leave.

GAGELER CJ:   Thank you.  Mr Fox.

MR FOX:   Your Honours, before I commence with the proposed first special leave question, can I turn to the issue as to what was the precise exclusionary rule that was relied upon by the applicants before the Court of Appeal.  With respect, the applicant did nail their colours to the mast to the Christie discretion.

It was not contended before the Court of Appeal that bias, actual or apprehended, was of itself a feature that disqualified the interpreters in the sense that bias, actual, apprehended or conflict of interest is not a rule of evidence that rules otherwise valid expert evidence inadmissible.  Nor was it contended of anything of the nature of, as your Honour Justice Edelman outlined, a Bunning v Cross‑type exclusion. 

The respondent’s submission, that could have no application to the features of this case because, whatever may be said about any alleged or purported defects in the quality of the translation, it is not the product of any misconduct or trickery or wrongdoing on the part ‑ ‑ ‑ 

EDELMAN J:   Bunning v Cross was never confined to misconduct or trickery.  It is a broad public policy discretion that is concerned with the integrity of the legal process.  Examples of it are trickery and unlawful conduct and improper conduct, but they are just instances of the broader discretion.

MR FOX:   But, in my respectful submission, the underlying policy argument that underpins Bunning v Cross is not the private interests of the accused in question, it is the broad policy of ensuring – I am grossly paraphrasing – that those entrusted with enforcing the law do not breach it.  That is not the policy issue that we are faced with here, but ‑ ‑ ‑ 

EDELMAN J:   And it was never argued in those terms on the voir dire or before the Court of Criminal Appeal.

MR FOX:   That is correct, your Honour, and nor what was not argued in either of those two forums was what the reliance upon which my friend made in oral submissions for the first time today.  So, their reliance upon what my friend articulated as the residual discretion of that in Dunstall; a residual unfairness discretion.  Even if such a discretion exists, of which five of the six members of the Court in that case left the question opened, that point has not been developed in the lower courts.

One example of why that may become relevant is the point that, in their written submissions, the applicant says “critically” – the applicant’s word – against the respondent is the notion that the respondent never made a point of there being no other interpreters available, a feature of the evidence that can be inferred from Ms Rive to the effect of, if she did not do the translation of the culturally sensitive material, nobody would, in circumstances the two other translators had already declined to do so.

Why that becomes important is because the lack of any other available translators has no role to play in the application of the Christie discretion, because the lack of anyone else to do this task tells you nothing about how the jury made reason correctly to guilt.  It also tells one nothing about how the jury may reason incorrectly to guilt.

GORDON J:   It raises two prior questions though, the anterior question that Justice Edelman identified to your opponent, and that assumes that the evidence would go in.  The question is whether it should have gone in.  The question is whether or not the translations were available to go in.  I do not know about this idea that there is no one else available, because there was an interpreter at the trial.

MR FOX:   And that interpreter herself took issue with the translation of the material during the course of the trial itself, desiring not to be even present in the court room when that material was to be adduced before the jury.

EDELMAN J:   So, is your point, well, if they had run Bunning v Cross at any point, we could have adduced evidence about a much wider group of circumstances that would lead simply to a Christie discretion.

MR FOX:   Precisely your Honour.  I have simply articulated one in response to the – this is the first occasion in which Dunstall has been put against the respondent.  I confess there may be others, but the respondent has not studied that point closely because this is the first occasion when the Dunstall residual discretion has been played against us.

EDELMAN J:   Just putting aside the Dunstall residual discretion and just focusing, then, on the broader public policy discretion, if that had been run – or even raised independently by the court – as part of the court’s concern with protection of the integrity or its processes, one argument, as I understand you say you would have made, is necessity.

MR FOX:   Yes.

EDELMAN J:   Was there any agreement between the parties, or any actual finding other than Ms Rive’s evidence, as to whether or not there was nobody else that could have given this evidence, or would that had been something that would have been the subject of evidence or challenge?

MR FOX:   The evidence in the record went no further than what was said by Ms Rive and is reproduced in the judgment.  Whether it had gone further, had the point been raised, is, with respect, a hypothetical question that I am in no position to answer, but there is certainly no agreement – sorry.

GORDON J:   No, I interrupted, and I apologise.  So, on the voir dire, the question of the independence of these translators was raised?

MR FOX:   Squarely, yes.

GORDON J:   Squarely raised before the voir dire, and the voir dire judge did not say:  go away and find somebody else – and the answer came back:  there is no one else available.  That was not the subject of submission?

MR FOX:   No, your Honour.

GORDON J:   Thank you.

MR FOX:   It went no further than what was effectively a – can I put it this way:  the evidence volunteered by Ms Rive as to no one else being available to do it was effectively a response to the application of bias and lack of qualification to interpret the cultural sensitive material.  That produced a response from her that I am grossly paraphrasing, but to the effect that:  if I did not do this, then no one else would.

EDELMAN J:   Are there other points that would or could have been made in response to a broader argument about public policy that was sort of, at best, put tangentially, as I understand your submission, just through the prism of saying, well, there was a lack of independence.

MR FOX:   There is no other evidence that immediately comes to mind that could have been attained, but with respect to the applicant, that is problem with the nature of this point being raised in this forum.  The respondent’s hands are tied in terms of the evidential foundation for any submissions that it makes in response to that.

Further, with respect to the Christie discretion being the only exclusionary rule relied upon by the applicant at first instance, it is also an answer to the applicant’s complaint about the alleged failure of the Court of Appeal to grapple with the distinction between actual bias and apprehension of bias, because the case was not argued before the Court of Appeal in a way that is similar to administrative law notions such that we see no reference to the double might test and things of that nature, because it is not the way the case was argued.

GORDON J:   Put against you, they were put in terms of conflict of interest ‑ ‑ ‑

MR FOX:   Yes, your Honour.

GORDON J:   ‑ ‑ ‑ as being a stand‑in label for that kind of analysis.  Is that right?

MR FOX:   It was, your Honour, yes.  But no matter what exclusionary rule does or does not apply in this case, there is always, of course, in the respondent’s submission, the other side of the ledger which I need, with respect, go no further than the appropriate concessions that were made before the Court of Appeal, to the effect that the translations were substantially accurate and they held significant probative value.

The other factor which minimises any risk of a miscarriage of justice in this case, be it the Christie discretion or some other rule, was the particular directions that were given by the trial judge who directed the jury that they were to treat the – the ordinary expert evidence directions to the effect that they were to treat the expert witnesses as no different to any other witness when it came to assessing the credibility, but there was an additional protection that was contained in the judge’s charge.

Now, with respect to the trial judge and with respect to the prosecutor at first instance, this further direction may have been unduly favourable to the applicant.  The prosecution’s case was primarily circumstantial, but as is accepted by all concerned, the admissions – not just the translator’s ones – contained significant and probative value. 

The jury were directed, in effect, that they had to accept the truthfulness accuracy and reliability of the admissions beyond reasonable doubt before they can employ it in their reasoning process.  The purpose of that direction was not, of course, to militate against the risk of prejudice in the way that it ordinarily would in the Christie discretion, but, nonetheless, that is the effect that it had.

BEECH-JONES J:   Mr Fox, can you just tell me what page of the book we have the summing‑up, if you know?  If you do not, please do not interrupt your argument, but if you do ‑ ‑ ‑

MR FOX:   Regrettably, your Honours, the parties do not have the application books to which your ‑ ‑ ‑

BEECH-JONES J:   I see.  Maybe your junior can just tell me, at some point, the page of the summing‑up.

MR FOX:   The relevant direction, insofar as the treat the expert witnesses including the translators no different than any other, is at pages 2747 to 2748 of the transcript, and that passage is helpfully reproduced at paragraph 254 of the judgment below, and 2759 for the accept the admissions beyond reasonable doubt direction.  That direction does not appear to be reproduced in the judgment below.

Perhaps I can deal briefly with the anthropological cultural authority point.  The complaint – this is in the aspect of the second special leave question – before the Full Court of Appeal was never advanced to the effect that the impugned expert evidence was anthropological rather than translational or linguistic.

That admission is significant because if the evidence fell outside the scope of the expertise of Ms Rive or Ms Benson‑DeRose, and with respect to my friend, Ms Yorkshire‑Selby can be put to one side.  At the voir dire, she was clearly the least qualified of the three interpreters who gave evidence on the voir dire, and she did not give evidence at the trial. 

But if Ms Rive and Ms Benson‑DeRose were truly not properly qualified, then it is the ordinary rules of expert evidence that would have applied and should have been argued to exclude their evidence, not, in my respectful submission, shoehorning it into the second limb of the Christie discretion.  In any event, with respect to the cultural authority point, Ms Rive never gave evidence that she could not understand what was being said.

Indeed, the fact that she could understand what was being said appears to be what has disturbed her so, which is now put against the respondent by way of a contention of actual bias, because while she could understand what was being said, what particularly – to use my word – horrified her was not so much the fact that it was culturally sensitive material that was being discussed, but it was the manner in which the applicant himself – the way in which he was talking about that material. 

Given it is redacted, I will not take your Honours to the actual words that were used, but it is utterly apparent from even just the reading of the transcript itself that in talking about these sensitive cultural practices, the applicant himself was demonstrating nothing other than utter contempt towards the individual who he was talking to.

That individual has never been identified, but it is common ground that he was an elder of the community.  That is what has triggered not just the material itself but the utter disdain and disrespect with which the applicant was dealing with in that material which, in my respectful submission, has triggered Ms Rive’s response in and beyond the fact that is, to use my friend’s phrase, not just secret men’s business.

It is not unusual for jurors now to be exposed to emotionally challenging material, albeit of a very different nature and in a very different context.  That itself does not make out actual bias.  With respect to the other limb of actual bias being said to be her connection with the people concerned, while she had by marriage a family relationship with the accused, the accused’s brother and the deceased, she did not know any of the people involved.

She certainly had a connection by way of marriage, but she did not know the people concerned, which again, to the extent that bear the Christie discretion, the Dunstall residual discretion or otherwise, these are the factors, in my respectful submission, that lie on the other side of the ledger.

EDELMAN J:   I mean, there is an indirect connection in that Ms Rive knew and had a very close friendship with one of the coproducers of the transcripts, who in turn had friendships and relationships with the accused.

MR FOX:   Indeed, yes.  Again, none of this was hidden before the jury.  There is no risk of a hidden danger causing a miscarriage of justice in this case.  The bias, the interest, the conflict, the lack of qualifications, all those points were argued not just at the voir dire but before the trial themselves.

There is no reason to presume that the jury, given the directions that were given about treating – the two directions I have already referred to, accept the admissions are beyond reasonable doubt before utilising them, and treat the experts as no different than any other witnesses, militates against any risk of a miscarriage of justice in this case.  May it please the Court.

GAGELER CJ:   Thank you.  Mr Wareham.

MR WAREHAM:   Your Honours, just a couple of matters.  In terms of the issue my learned friend raised about substantially accurate, that was a concession that was made by Mr Gullaci, as said below, but it is important that we understand the context in which that is made.

There are 13 tapes that are recorded and transcribed.  Four of those tapes take some prominence in the trial, and one of those – tape 6 – is said by the court to be particularly critical as a contested matter between the parties.  Much of the other recorded material that is translated is unobjectionable and run‑of‑the‑mill, and it is accurate to say or truthful to say that it was accurate.

But in circumstances where there were parts of the evidence that was contested, he made that concession by reference to his written submissions in the Court of Appeal, which identified issues relating to the witness’ qualification.  So, it is not an unqualified acceptance that they were substantially accurate or largely accurate.  Some of them were, but there were particular issues that issue was taken with.

In terms of Ms Yorkshire‑Selby being put to one side, with respect, her work product is what flows through all of the material.  As your Honour Justice Edelman has raised, Ms Rive did have a relationship with Ms Benson‑DeRose and it is Ms Benson‑DeRose who Ms Rive at times defers to, and it is Ms Yorkshire‑Selby’s version of the transcript with which Ms Benson‑DeRose is working from and reviewing.  So, it is not simply a matter of just putting her evidence to one side and saying, well, she was not in trial, therefore you can ignore what she has to say.

In terms of issues raised about Dunstall, as I recall – Dunstall and Bunning v Cross – those were issues that were raised by my learned friend’s predecessor in the Court of Appeal.  So, it is not as though they are caught by surprise with this.  That was a matter that was squarely in their submissions.  So, unless your Honours ‑ ‑ ‑

EDELMAN J:   Mr Wareham, in the voir dire or in the Court of Appeal, is it right that there was no substantial contest or submissions that were made

about the necessity rule or any aspect of the necessity rule that might feed into the exercise of a discretion?

MR WAREHAM:   Your Honour, I do not recall that being an issue.

EDELMAN J:   Thank you.

MR WAREHAM:   Do your Honours have any other questions of me?

GAGELER CJ:   Thank you, Mr Wareham.  We will adjourn momentarily to consider the course we will take in this matter.

AT 10.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.17 AM:

GAGELER CJ:   The applicant seeks special leave to appeal from the judgment of the Court of Appeal on the sole ground that it failed to conclude that the admission into evidence of translated telephone calls in the Pitjantjatjara language caused a substantial miscarriage of justice by reason of issues as to the reliability and accuracy of the translations and the qualifications, impartiality and independence of the translators.

The sole basis upon which the applicant argued before the Court of Appeal that the evidence should have been excluded was that its probative value was outweighed by the risk that it would cause prejudice to the applicant, such as to require its exclusion in accordance with the principle associated with R v Christie.  We see no error of principle in the manner in which the Court of Appeal addressed that argument, in particular given the way in which the case had been put to the judge on the voir dire.

Given the basis upon which the applicant’s case was conducted in the courts below, this is not an appropriate vehicle to consider the important question of principle of whether a translation obtained from a translator who is not independent or to be excluded for reasons of public policy, including the interest of the administration of justice or an accused’s right to a fair trial.  Special leave to appeal is refused.

The Court will now adjourn until 10.00 am on Tuesday, 2 September in Brisbane.

AT 10.19 AM THE MATTER WAS CONCLUDED