Rictor v The State of Western Australia - [2025] WASCA 39

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   RICTOR -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 39
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   15 NOVEMBER 2024
DELIVERED          :   19 MARCH 2025
FILE NO/S:   CACR 139 of 2023
BETWEEN:   DAMIAN RICTOR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   VANDONGEN J
File Number            :   INS 83 of 2020

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of murder - The State proposed to tender at the trial English translations of recorded telephone conversations on the basis that in the conversations the appellant had made admissions against interest - Telephone conversations conducted in the Pitjantjatjara language - A judge ruled after conducting a voir dire before trial that the translations were admissible - The State tendered the English translations at the trial - Whether the translations should have been excluded, in the exercise of the judicial discretion, because of issues about the reliability and accuracy of the translations and issues about the qualifications, impartiality and independence of the translators

Legislation:

Criminal Code (WA), s 279

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	J Gullaci SC & C P Brennan
Respondent	:	B M Murray

Solicitors:

Appellant	:	Aboriginal Legal Service of WA Ltd
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177
Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
House v The King [1936] HCA 40; (1936) 55 CLR 499
Le-Ta v The State of Western Australia [2020] WASCA 14
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
R v Bonython (1984) 38 SASR 45
R v Carusi (1997) 92 A Crim R 52
R v Christie [1914] AC 545
R v Duke (1979) 22 SASR 46
R v Edelsten (1990) 21 NSWLR 542
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Tugaga (1994) 74 A Crim R 190
Scott v The Queen [1989] AC 1242
Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
The State of Western Australia v Rictor [2022] WASC 478

JUDGMENT OF THE COURT:

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

The critical issue in the appeal

The appellant is a traditional, initiated Aboriginal man from the Central Desert. He is the youngest member of the last known nomadic Aboriginal family in Australia. The appellant has spent most of his life in Coonana, Tjuntjuntjara or Kalgoorlie. His first language is Pitjantjatjara. He also speaks Ngaanyatjarra and Wongatha, as well as some English.
The appellant and Ms Watson had been in a domestic relationship. They had been married according to Aboriginal traditional law and lived together at the Tjuntjuntjara Aboriginal community. Tjuntjuntjara is in the Central Desert, about 700 km from Kalgoorlie.
After the appellant was charged with Ms Watson's murder, he was remanded in custody. During his time in custody the appellant had numerous telephone conversations in the Pitjantjatjara language with his older brother, William Rictor (also known as Noley), and other people apparently from the Tjuntjuntjara Aboriginal community. The conversations were primarily between the appellant and William Rictor. All of the conversations were recorded.
The State proposed to tender at the trial English translations of 13 of the recorded telephone conversations on the basis that in the conversations the appellant had made admissions against interest. Prior to the commencement of the trial, the appellant objected to the State tendering the translations.
On 2 February 2022 and 10 and 11 November 2022, a voir dire was conducted before Fiannaca J to determine the admissibility of the translations.
After conducting the voir dire, Fiannaca J ruled that the translations were sufficiently accurate, reliable and complete for a jury to be able to rely upon the translations for the purpose of determining whether the appellant had made any admissions against interest in the telephone conversations.
At the trial, the State tendered the translations of the 13 recorded telephone conversations.
The ground of appeal alleges, in essence, that the translations should have been excluded, in the exercise of the judicial discretion, because of issues about the reliability and accuracy of the translations, and issues about the qualifications, impartiality and independence of the translators.
At the hearing of the appeal, counsel for the appellant informed the court that the ground of appeal relied solely upon the Christie discretion (R v Christie[1]) (appeal ts 2 ‑ 3).
[1] R v Christie [1914] AC 545.
Leave to appeal should be granted, but the appeal must be dismissed.

Overview of the State's case at the trial

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

Overview of the appellant's case at the trial

The appellant elected not to give or adduce evidence at the trial (ts 2548).
The appellant's case, as advanced by defence counsel, was that there was at least a reasonable possibility that William Rictor had killed Ms Watson. The State had not proved beyond reasonable doubt that the appellant had killed her.

The English translations of the recorded telephone conversations on tapes 6, 9 and 11

As we have mentioned, the State tendered at trial the English translations of 13 of the recorded telephone conversations that occurred while the appellant was remanded in custody. The State alleged that during the conversations the appellant had made admissions against interest. The alleged admissions supported other items of evidence that pointed to the appellant's guilt.
On appeal, the parties were agreed that the most important telephone conversations were those recorded on tapes 6, 9 and 11. The conversation recorded on tape 6 was critical. The conversation the subject of tape 6 occurred on 21 December 2019; the conversation the subject of tape 9 occurred on 27 December 2019; and the conversation the subject of tape 11 occurred on 28 December 2019.
We have read and considered the transcripts of the recorded conversations that were tendered at the trial. It is unnecessary to reproduce all of the transcripts in these reasons. It is sufficient to reproduce transcripts of the final translations of the conversations on tapes 6, 9 and 11 that were certified by Linda Rozelle Rive.
Ms Rive's final translation of tape 6 is dated 25 October 2022 and reads:
PREAMBLE:
KEY:         D     =     DAMIEN [sic] RICTOR
W    =     WILLIAM RICTOR
M    =     'MATE' (A COMMUNITY ELDER)
[Damien [sic] and William talking initially and William then passes phone to [M]ate]
TRANSLATION STARTS BELOW AT 4:00 MINS
D:Hey, it's me talking.
M:Hey, where from?
D:Hey, I'm talking from jail.
M:Yeah.
D:Hey?
M:What?
D:Have you forgotten me? You have all forgotten about me.
M:Yes, what?
D:You have forgotten me. You've all forgotten about me. My mother died and you've all forgotten about me.
M:Nyuntumpa marutju It's your mate [marutju is a man's brother in law] here, and you got into trouble, you alone. Nyuntu kutjungku You and you alone. [You are the only one. Kutju = one, singly -ngku = word ending denoting something was done that affected someone/thing else] You alone made a mess of things.
D:No, you all forgot about me.
M:Nyuntu kuntjungku trouble nyaanu You got into trouble, you alone did that. [You (singular) alone created that trouble] Nyuntu kutjungku You and you alone.
D:And you all forgot me.
M:It's alright that I may not remember you, I'm not going to think for you. I'm not going to agree with what you are saying.
[Redacted by order of the Court of Appeal made 9 April 2025.]

[Redacted by order of the Court of Appeal made 9 April 2025.]
M:Nyura kutjungku nyaanu. Nyura iluntanu. Nyura kutjungku iluntanu. Nyura trouble palyanu. Nyura kutjungku.
You [plural] are the only one[s] who [has] made this mess.
You [plural] killed/murdered.
Only you [plural] killed/murdered.
You [plural] caused this trouble.
You [plural] only.
[Redacted by order of the Court of Appeal made 9 April 2025.]
M:[Redacted by order of the Court of Appeal made 9 April 2025.] For your own sake, you should not have done it. You should have listened to me. You alone did it. She would still be around, she would have taken care of me. You even burnt the car. You now, you alone did the damage. Mutuka tilinu nyura kutjungku You alone set the car on fire.
D:Ngayunya walangku miri pungkunytjaku. Miritja puwa. Pungkunytja rapa mununa wangkanyi rapa pungkunytjaku nganana. panya ngayulu. Well hurry up and murder me then. Kill me then. I'm not scared of being killed. I said I am not frightened of being killed. [Note D says at the end nganana, referring to 'us' rather than 'I' so he may be referring to 'We are not scared of being killed.']
M:No you got frightened and then you broke the car. You're the one who did it.
[Redacted by order of the Court of Appeal made 9 April 2025.]
M:Wati tjutangku ninti. Nyura kutjungku. Nyura kutju. Nyura kutju. (INDISTINCT WORD OR TWO) Nyura kutju. The men know. It was you and you alone who did it. You alone did. [Mate is saying 'nyura' meaning 'you plural' rather than 'nyuntu', 'you singular'.]
D:Uwa. Uwa mantu. Yes. Yes, definitely. [Mantu gves [sic] emphasis, it means obviously, certainly, definitely. Pitjantjatjara/Yankunytjatjara to English dictionary.]
M:Nyura kutjungku. You [plural] alone did it.
D:Uwa. Uwa ngayulu kutju mantu. Yes. Yes, definitely I did it alone. [Mantu gves [sic] emphasis, it means obviously, certainly, definitely. Pitjantjatjara/Yankunytjatjara to English dictionary.]
M:[Largely indistinct, but Mate mentions two or three brothers]
D:Uwa palu... Yes but...
M:The other 2 or 3 who were there, the brothers they are ok. They were just taken in just for questioning and were released.
D:Ngananya? Who?
M:You told the truth and told them to go on that road. You directed them and told them to go into that area and they did. One of the men is standing here and listening to you now. You did the damage.
D:Yes, look after those men. [Redacted by order of the Court of Appeal made 9 April 2025.]
[Redacted by order of the Court of Appeal made 9 April 2025.]
M:You alone did it. [REMAINDER INDISTINCT]
D:[Continues to talk over Mate and swear at all the men in Tjuntjuntjara and to his mate who was on the phone. [Redacted by order of the Court of Appeal made 9 April 2025.] D. uses some other words that I am unfamiliar with, more than likely secret men's business.]
M:You poor person. You alone did it. You talked and talked...

I, LINDA RIVE, CERTIFY THAT THIS IS A TRUE AND ACCURATE TRANSLATION OF THE SOURCE LANGUAGE INTO THE ENGLISH LANGUAGE.
25 OCTOBER 2022 (underlining added)

Ms Rive's final translation of tape 9 is dated 9 March 2022 and reads:
PREAMBLE:
KEY:D          =        DAMIEN [sic] RICTOR
W=        WILLIAM RICTOR
KP=        KANTA'S PARTNER
OPERATOR:      You are about to receive a phone call from a prisoner at Hakea Prison. Your conversation will be recorded. If you do not wish to receive this call, please hang up now. Go ahead please.
W:Hello.
D:OK, I want to talk to Kanta's partner. He wants to hear what I have to tell him.
W:Aye?
D:I want to talk to him. Take this phone and give it to him.
KP:Hi.
D:Hi, yeah.
KP:Yeah.
D:Yeah, OK. About the sleep?
KP:[INAUDIBLE - speaking very softly].
D:Louder. Speak up louder.
KP:[INAUDIBLE].
D:Yeah.
KP:[INAUDIBLE - still speaking softly].
D:I was asleep. Maybe I was sung [means putting a spell on a person] to make me feel sleepy that night and so I then went off to sleep. A man may have put me to sleep.
KP:Aye?
D:Watingku tjinguru ngayunya kunkuntjinganu. A man may have put me to sleep. Are you listening?
KP:Yeah yeah.
D:And I was asleep. As I was laying asleep, my head felt strange. Because of that I got sleepy and went off to sleep.
KP:Did you wake up early in the morning?
D:Yeah, I woke up early in the morning.
KP:OK.
D:Listen, you know that time when I went to Ilkulka?
KP:OK, when you went away?
D:Yes, and Alex saw a lot of men there. All the men were hanging around near Mick's house. There were a lot of men.
KP:OK. Maybe they saw that.
D:Yes, listen now. You listen to me now. You know that time I left for Ilkulka? When I got there, I camped there. There was myself, Jay and Justin (Elvina's son). The three of us went there and slept. It was us three. I was in front of them because I was driving the front-end loader. I got to Ilkulka first so I waited for them and looked out for them but they were nowhere to be seen.
They came later as they had a flat tyre half way. After changing the tyre they continued their journey. Listen, it got dark, it was night time. It was during that time that I was finding it hard to get to sleep there at Ilkulka. Then I saw that the other two had gone off to sleep. They must have been "sung" to sleep. But I stayed awake all night and it was at daybreak that I got to sleep. It may have been that a man was nearby watching me.
The other two, Jay and the other one, were fast asleep at Ilkulka. I tried going off to sleep but I wasn't sleepy. It was only towards morning that I got off to sleep.
After all that, we were there for a little while and then left for Tjuntjuntjara. And listen, it was during that same night when I was at Ilkulka, that all the men came to Tjuntjuntjara, in my absence. They came to that place, Tjuntjuntjara.
It was that same night, only that night something happened at Tjuntjuntjara when I was at Ilkulka. For instance, take me as an example, if all the men came in and did something to me and choked me. And without my knowledge, we then travelled to Kalgoorlie. The damage was already done.
KP:[Inaudible - speaking softly].
D:And when I got to Kalgoorlie my head started to feel strange.
KP:[Inaudible].
D:Yeah. When we got in at night, we were drinking. Elvina's son laughed at me when I went to get the grog from him and drank it. However, it wasn't him laughing, it was someone else who laughed through him. It was another man. Are you hearing me clearly?
KP:Yeah, OK.
D:Then I said, we were going over there to the camp to have a sleep.
KP:OK.
D:I told Katie and her partner [William] that I was going to sleep not far from them and then we left.
KP:Yeah, OK.
D:And you see, take me for example. I have no blood, no bleeding whatsoever. Then after that I went off to a deep sleep. And after waking up and to my surprise after killing a kangaroo there was no blood that came out. No blood whatsoever. After that I turned and faced the other way I got to sleep and waking up, there still was no blood. Maybe I'll have blood but the other didn't. There was no bleeding.
KP:Yeah.
D:There was only an open wound but no blood. You listening, it was in that place (Tjuntjuntjara) that the men did the damage.
KP:[Inaudible].
D:It was Alec, he was the only one who saw it.
KP:[Inaudible].
D:What? The men did the damage there, it was a trap that I came to Kalgoorlie. When I came to Kalgoorlie, I then returned back to Tjuntjuntjara without a wife. I then went through Yakatunya. I took that road and went through Rawlinna and when I turned towards Tjuntjuntjara, the radiator was boiling. This was at night. When I went to get water, there was nothing in the water container. There was no water.
Then I went to sit down in the car for a while and I had few drinks and then I went around again to feel the water container and to my amazement the container now had water in it. But as you can see, I wasn't travelling by myself, the men were following me. We were travelling together. When I got into the Community, the men went straight through, turning into a wind and they continued onto their destination. Are you listening?
KP:OK.
D:It was the men who did the damage, that time I went to Ilkulka. It was during that time, in my absence. It was in that place where everything happened.
KP:OK, then.
D:I'll call you back in the afternoon.
I, LINDA RIVE, CERTIFY THAT THIS IS A TRUE AND ACCURATE TRANSIATION OF THE SOURCE LANGUAGE INTO THE ENGLISH LANGUAGE.
9 MARCH 2022

Ms Rive's final translation of tape 11 is dated 9 March 2022 and reads:
PREAMBLE:
KEY:        D    =     DAMIEN [sic] RICTOR
A    =     ALEX DONEGAN
W   =     WILLIAM RICTOR
OPERATOR:      You are about to receive a phone call from a prisoner at Hakea Prison. Your conversation will be recorded. If you do not wish to receive this call, please hang up now. Go ahead please.
D:Hello.
A:Hello, it's me, Alex.
D:Yeah. OK.
A:Merry Christmas, yeah.
D:Merry Christmas. Yeah, good.
A:Yeah, what?
D:Nothing, where are Noelie (William) and them? Are they at home?
A:They are all over there. Noelie and Katie are at my house.
D:Yeah, yeah. Are there a lot of people there?
A:Kumanal (Katie) and Noelie are there.
D:Yeah, yeah. Noalie and Kumana [person with no name].
A:I will call them there. OK listen to this one.
D:Hello?
W:Hello, yeah ....
D:What are they doing there?
W:Mmm, we are sitting down here.
D:OK, at Alex's house?
W:Yeah.
D:Uhh. It was cold but it has now become a bit warmer. Then it went cold again.
W:What?
D:It's cold now.
W:Cold is it?
A:Mmm. I'm at Kathleen's house waiting.
W:Yeah, I'm at home, sitting down.
D:Yeah. Can you put Alex on? Alex.
W:Aha, yeah, Alex is here.
A:Yeah, what do you want? What is it?
D:Hey, yeah, nothing, I was going to ask you something regarding what you saw.
A:Ok.
D:Did you see a man, is that true?
A:No, I saw a dog sitting and barking.
D:Aye?
A:A dog, there are lots of dogs barking.
D:Yeah, yeah.
A:He was barking and barking. I was scared of being bitten. [PARTIALLY INDISTINCT]
D:I was in Ilkulka wasn't I? It's true, I was in Ilkulka?
A:You were in Ilkulka?
D:Yeah, at night time.
A:Yeah, it was night time and the dog was barking.
D:Yeah.
A:[Inaudible] ....... because there was no heat. It might have been Fabien sitting in the bush.
D:Yeah, I think those two were sitting down in the bush there.
A:Yeah, what they were doing was wrong.
D:Yeah, now listen here, it never happened in Kalgoorlie, it happened in that place. Those men did the damage [can mean murder - culturally sensitive to use the word murder] there at Tjuntjuntjara. The men did something wrong there, in that place. It happened right there. The invisible man/men [spiritual cultural belief] did the bad thing right there in that particular place.
A:Yeah, yeah.
D:And the men, then they followed me. You see that happened after the loss. They followed me for nothing. They followed me for nothing. I got scared for nothing. I went there for nothing.
A:Yeah, yeah. The men made a mess.
D:I know it. I know the story behind it all. I know the full story.
A:Yeah, yeah, I know the story too.
D:Yeah, listen, ok? Take me for example: If a man takes me aside and puts me to death, they [the invisible men] will then put objects in my body and bring me to life again. You see that's what happened in that place [to her]. You see when I went to Kalgoorlie, I didn't know all this had taken place. On my return I took that road to Yakaduna. I was heading towards Rawlinna and the radiator boiled over in the car. I didn't get any water before I left so the container was empty. I then went and sat under the shade because it was hot as it was in the late afternoon. I went to feel the container again and to my surprise the container was full of water. It may be that the "spirit men" supplied me with water because they were guilty.
A:Yeah.
D:Yeah.
A:Yeah, they were hanging around there.
D:Is she on her own?
A:Looks like Cindy is at the office.
D:Aye?
A:That woman Cindy, with the ugly face?
D:Yeah, yeah, that woman, she lives in Kalgoorlie, the Cindy I know.
A:What happened to Curtis? Cindy messed up.
D:Kim saw it, Kim did. Kim said a man was following me. I was laying down with my dog, it was nighttime, near the rubbish tip. It was towards morning that I heard the dog barking. I woke up in the early morning and I saw a man was standing there. He passed by quickly.
A:Yeah, Katie was waiting until it was time to get the money. That dog was waiting for his mummy. Tjutata is the dog's name.
D:Mm. Yeah, that's the name she gave him, yeah.
A:Yeah, that's the one I'm talking about. She should have given it another name. Yeah, that's the one I'm talking about.
D:Yeah, I was drinking, then he was laughing at me. He was laughing at me, Apika's partner. He was laughing a lot. I saw him and then my thoughts turned to anger, after I sat for a while my thoughts started to change.
A:Mm, yeah.
D:They drank a lot. They sat down and drank a lot. When he was drinking, he laughed. They add other things into their drink. The stuff that they use to shoot up in their arms.
A:Mmm, yeah.
D:Tell Tungku [Ian Baird, Debbie's husband] and Kunda's partner. Then you and Byron go and speak to the lawyer and tell him the story. Tell them it was a man [a spirit man] and tell Nana too and Debbie's family.
A:Well nephew, I have to go.
D:Did you hear me?
W:Hey.
D:Hey.
W:Yeah.
D:Yeah.
D:I will tell him to tell everyone to write a letter and you can talk to Debbie's family, Kunda's partner, Byron and all of them, for them to tell the true story, ok? To tell them straight, what they know for themselves. It's closing time, I'll call later.
W:Yeah, yeah.
I, LINDA RIVE, CERTIFY THAT THIS IS A TRUE AND ACCURATE TRANSLATION OF THE SOURCE LANGUAGE INTO THE ENGLISH LANGUAGE.
9 MARCH 2022

The translators who gave evidence in the voir dire before Fiannaca J

The translations were the work of three people at different stages, namely:
(a)Gail Yorkshire‑Selby;
(b)Sylvia Ebony Benson‑DeRose; and
(c)Ms Rive.
Each of Ms Yorkshire‑Selby, Ms Benson‑DeRose and Ms Rive gave evidence in the voir dire before Fiannaca J.

Ms Yorkshire-Selby's evidence in the voir dire before Fiannaca J

Examination-in-chief

Ms Yorkshire‑Selby's evidence‑in‑chief in the voir dire on 2 February 2022 was to the following effect.
Ms Yorkshire‑Selby worked for Aboriginal Interpreting Western Australia (AIWA) as an interpreter (ts 379). She conducted translations of written text or recorded calls from Aboriginal languages into English. In particular, she was fluent in the English, Pitjantjatjara and Ngaanyatjarra languages (ts 380).
On 28 January 2022, Ms Yorkshire‑Selby met the prosecutor, Mr Nicholls, and another prosecutor, at the AIWA Office in North Fremantle (ts 380). She had never met nor communicated with them prior to that date (ts 381).
On 31 January 2022, Ms Yorkshire‑Selby met the two prosecutors again and signed a witness statement. The witness statement was tendered and relied upon as part of her evidence‑in‑chief in the voir dire (ts 381).
During both meetings, Ms Yorkshire‑Selby discussed with the two prosecutors her relationship with people involved in the trial, including the accused, William Rictor and the deceased. She understood the accused and William Rictor to be related by blood, either as uncle and nephew, or brothers. She knew the deceased personally (ts 381 ‑ 382).

Cross‑examination

Ms Yorkshire‑Selby had worked for AIWA for about six to seven years (ts 383). She had an office email address but had never used that email address and could not remember it. Tina Giglia was one of the main workers at AIWA. When Ms Giglia had a job for Ms Yorkshire‑Selby, she would communicate with Ms Yorkshire‑Selby in person or by telephone and not through email (ts 383 ‑ 384).
Ms Giglia was one of the translation coordinators at AIWA. She did not have skills in the Pitjantjatjara and Ngaanyatjarra languages (ts 388).
Ms Yorkshire‑Selby accepted the following propositions (ts 388):
(a)English is her mother tongue.
(b)She spoke the Pitjantjatjara and Ngaanyatjarra languages fluently.
(c)She learned to speak both the Pitjantjatjara and Ngaanyatjarra languages when she was around 11 or 12 years of age.
(d)Like many Aboriginal languages, the Pitjantjatjara and Ngaanyatjarra languages are oral languages.
Ms Yorkshire‑Selby said the following:
(a)The Pitjantjatjara and Ngaanyatjarra languages are separate languages, but are used together nowadays (ts 388).
(b)There are words and concepts in both languages that are incapable of literal translation into the English language (ts 389).
(c)She has a current National Accreditation Authority for Translators and Interpreters (NAATI) certification in interpreting both languages (ts 389 ‑ 390).
(d)Before she was a qualified interpreter, she was also interpreting both languages (ts 390).
(e)She has ethical competency and intercultural competency certification with NAATI (ts 390).
(f)She was not aware that NAATI has a certification distinction between a certified provisional interpreter and a recognised practising interpreter (ts 390).
(g)She is both a certified provisional interpreter and a recognised practising interpreter (ts 390).
Ms Yorkshire‑Selby accepted that to be a certified provisional interpreter, a candidate is required to pass both an ethical competency and an intercultural competency test. She initially said that she was aware that a certified provisional interpreter needed to be recertified every three years, but later admitted that she was not aware of that requirement. She said that she could not remember when she last got recertified (ts 391).
Ms Yorkshire‑Selby did not think that her NAATI certification had lapsed (ts 392). However, she did not know that she did not appear as a certified provisional interpreter or a recognised practising interpreter on the NAATI website, which suggested that her NAATI certification was not current (ts 393).
Ms Yorkshire‑Selby was not sure whether there were any levels that could be obtained within a NAATI certification (ts 394).
Ms Yorkshire‑Selby '[did] not have any formal translation certification', in the sense that she could only conduct translations in spoken form and not written form. She estimated that she could write the languages at about 'five out of ten' and was still being taught. She said that Ms Benson‑DeRose had far greater skill than her (ts 395).
Ms Yorkshire‑Selby said that what she wrote in her witness statement, namely that she was able to perform her work independently and accurately and that before she accepted or rejected any job she conducted an internal screening process, was correct. She said that the internal screening process was self‑administered (ts 396 ‑ 397).
Ms Yorkshire‑Selby accepted that she was bound by the Australian Institute of Interpreters and Translators Code of Ethics and Code of Conduct (AUSIT Code), as it regulated the professional conduct of members (ts 396 ‑ 398). The AUSIT Code includes requirements that she maintain confidentiality, privacy, independence and impartiality, and that her work is straight to the point (ts 398).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires the disclosure of any conflict of interest or any matter that may compromise impartiality (ts 399). In relation to this, she accepted the following propositions (ts 399 ‑ 400):
(a)She took the requirement seriously and abided by it.
(b)She knew the accused.
(c)She knew the deceased for all of the deceased's life.
(d)Ms Yorkshire‑Selby and the deceased called each other 'Nana'.
(e)While the deceased was not her granddaughter, she would sometimes describe the deceased as such.
(f)She had a very close relationship with the deceased.
(g)She believed that the accused killed the deceased.
Ms Yorkshire‑Selby rejected the proposition that her belief that the accused killed the deceased impacted on her ability to be objective with the prison calls. She said that despite her belief that the accused killed the deceased, she maintained her impartiality as she was the interpreter and the job needed to be done (ts 400 ‑ 401).
Ms Yorkshire‑Selby accepted that on 28 January 2022, during her meeting with the two prosecutors, she said at one point, '[h]e killed my granddaughter', referring to the accused (ts 401).
Ms Yorkshire‑Selby accepted the following propositions (ts 403):
(a)She felt that she had a conflict of interest in this matter due to her relationship with both the accused and the deceased.
(b)She said this to the police on 11 November 2019 when they asked her to be the interpreter for William Rictor.
(c)At the time, William Rictor had just been arrested for the murder of the deceased and was about to be interviewed by the police.
(d)The police interview was stopped after her concern was raised.
Ms Yorkshire‑Selby accepted that she did not act on this conflict of interest when Detective Sergeant Robert Martin asked her to translate the prison calls. This was because there was no other interpreter in or around the AIWA office at the time to complete this urgent job. She did not remember if she declared this conflict of interest to Detective Martin, if she knew that the prison calls had previously been interpreted at the Kalgoorlie Goldfields Language Centre, or if Detective Martin had told her that (ts 404 ‑ 405). She did not think it was wise to inform Detective Martin about the conflict of interest at the time because 'they wanted an urgent job done … and I was there to do it, so I did it' (ts 405).
Ms Yorkshire‑Selby later said that when Detective Martin initially requested her to review the prison calls in June 2021, she mentioned that she did not feel comfortable with engaging in that job because she had a conflict of interest. She asked someone else to do the job as she felt she was too close to both sides of the family. She did not want to continue the job. She could not recall him saying anything in response (ts 415 ‑ 416).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires impartiality in all professional contexts (ts 405). She accepted that she was not impartial when she said to the two prosecutors that the accused killed her granddaughter, but said that she thought that interview was a personal interview (ts 406).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires translators not to show bias towards the author of the source text or the intended reader of the translation. She accepted that the intended reader was the court, and the translation would be used by the prosecution in aid of evidence against the accused for the murder of the deceased (ts 406).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires translators to use their best professional judgment in remaining faithful to the meaning of text and messages, and to achieve accuracy in the form of optimal and complete message transfer into the target language, preserving the content and intent of the source text or message without omission or distortion. She accepted that in this case, this was to translate text in either the Pitjantjatjara or Ngaanyatjarra languages into the English language, without omitting any words, even if they were culturally offensive to her. She said that in this case she refused to translate some words as they were culturally inappropriate (ts 407 ‑ 409).
Ms Yorkshire‑Selby said that in the past she had refused to interpret, for a court, words that were culturally inappropriate, both from witnesses or from accused people. When that happened, she would inform the judge, who would accept this explanation. In relation to the prison calls, she refused to translate words that were culturally inappropriate 'a few times' or 'a couple of times' (ts 409).
Ms Yorkshire‑Selby said that it was appropriate to make the decision to refuse to translate culturally inappropriate words if she did not want to hear anything relating only to men. Instead, a male interpreter should be used (ts 409 ‑ 410).
Ms Yorkshire‑Selby said that she dealt with Detective Martin a few times, 'not a lot', in the course of the investigation. She accepted that she spent close to 30 hours with Detective Martin between July and August 2021 listening to prison calls, but said that this was not 'that long' as she spent that time listening to the calls and was busy translating what was being said (ts 410).
Ms Yorkshire‑Selby accepted that the AUSIT Code requires translators to maintain clear boundaries between their task of message transfer and any task undertaken by other parties involved, such as advocacy, guidance or advice. She agreed that she was bound by this when she was asked to translate the prison calls (ts 410 ‑ 411).
Ms Yorkshire‑Selby said that her role with the prison calls was to translate the conversations, and that she did not review the conversations to identify those of interest to the Homicide Squad. Her role was to repeat the prison calls in English to Detective Martin (ts 411 ‑ 414). She understood the calls to be for the police and for future reference in court, but she was not told anything specific about what they wanted (ts 414 ‑ 415). She rejected the proposition that she told Detective Martin that particular prison calls were interesting and said that the identification of the prison calls of interest was done by Detective Martin (ts 415).
Ms Yorkshire‑Selby said that Ms Benson‑DeRose was the primary translator of the prison calls. Both of them handwrote the English translations, which were given to Ms Giglia to be typed up (ts 416 ‑ 417, 425 ‑ 426). They were not asked to also write out what was said in the prison calls in the Pitjantjatjara and Ngaanyatjarra languages (ts 421). Hypothetically, if Ms Yorkshire‑Selby had been asked to do that, she would not have been able to fully do that as her writing skills were not as good as those of Ms Benson‑DeRose (ts 422).
Ms Yorkshire‑Selby said that the preferred translation method for AIWA was the consensus method, which involved two people. She thought that Ms Benson‑DeRose should be the primary translator of the prison calls because she was more skilled and less closely connected with the families involved (ts 422 ‑ 423).
Ms Yorkshire‑Selby was unable to recall which of the prison call translations were done independently by her or Ms Benson‑DeRose, and which were done together, as she did not keep notes (ts 424 ‑ 426). She remembered some occasions when they had points of contention, but there were 'not very many' (ts 426 ‑ 428). She could not produce any notes of when such points of contention occurred as anything she wrote was given to Ms Giglia (ts 428 ‑ 429).
Ms Yorkshire‑Selby said that the process was for a translator to check through another's translation after it was done. She rejected the proposition that there were many arguments or disagreements on the translations of some of the tapes, but rather that they were reading it over again to make changes (ts 429 ‑ 430).
Ms Yorkshire‑Selby then accepted that her witness statement was incorrect as she did make notes while listening to the prison call recordings, to be used by Ms Giglia to type up the translations (ts 431).
Ms Yorkshire‑Selby identified the prison call translations and said that the translations were a composite of the work of Ms Benson‑DeRose, Ms Giglia and herself (ts 434 ‑ 435).
Ms Yorkshire‑Selby accepted that she spent about 30 hours listening to the prison calls with Detective Martin in July and August 2021, before the prison calls were required to be translated. She accepted that she had a notebook with her, but did not know where it was. Ms Yorkshire‑Selby rejected the suggestion that she wrote down the time she spent with Detective Martin in the notebook. She did not understand the AIWA invoicing system. Ms Giglia kept track of the time (ts 438 ‑ 439).

Ms Yorkshire‑Selby said that on 1 September 2021 she commenced the translation work with Ms Giglia. She would translate the contents of the prison calls and tell Ms Giglia what to type, then repeat it. She did not check at the initial stage if what Ms Giglia typed was accurate as she was listening to the prison calls and talking to Ms Giglia at the same time (ts 440 ‑ 441). She could not say if final checks were done of the translations of the prison calls, because she had not seen that version before (ts 442).
Ms Yorkshire‑Selby was shown the translation of tape 6. She accepted that there were many words in both the Pitjantjatjara and Ngaanyatjarra languages that were not capable of literal translation into the English language (ts 444). She said that when she encountered such words, she would note them, but she was not sure if they were in the translations of the prison calls (ts 444 ‑ 445).
Ms Yorkshire‑Selby accepted that she declined to translate some culturally inappropriate words spoken in either the Pitjantjatjara or the Ngaanyatjarra languages (ts 442 ‑ 444). In the translation, there were portions in brackets that said 'culturally sensitive, swearing continues'. At those points of the source text there were culturally sensitive words, alongside swearing (ts 444 ‑ 446). She did not say those exact words to Ms Giglia, so Ms Benson‑DeRose must have (ts 448).
At that point, Ms Yorkshire‑Selby said to Ms Giglia that it was inappropriate for her to continue the translation, and that a man needed to translate those portions. She rejected the proposition that in her professional capacity, she could not decide what should be translated and what should not, because of her culture (ts 447).
Ms Yorkshire‑Selby rejected the proposition that an omission about what is actually being discussed changes the context of the conversation (ts 449).
Ms Yorkshire‑Selby did not see Ms Benson‑DeRose type but said that Ms Benson‑DeRose might have typed when she (Ms Yorkshire‑Selby) was not in the office (ts 450 ‑ 451).
Ms Yorkshire‑Selby accepted that her translation of tape 6 was not an accurate record of the conversation, because there was a substantial part of the conversation between the accused and 'Mate' that was not present. That part of the conversation related to Mate arguing over 'payback' for the accused killing the deceased (ts 457 ‑ 458).
Ms Yorkshire‑Selby said that there was no word for 'murder' or 'kill' in both the Pitjantjatjara and Ngaanyatjarra languages (ts 458). In the translation of tape 6, where the words 'killed' and 'murdered' were used, the literal translation into English would have been '[y]ou did that', but the meaning was that the accused murdered or killed the deceased (ts 459 ‑ 461). She rejected the proposition that she inserted the words 'killed' and 'murdered' because she knew the accused was charged with murder. She also said that it was not her, but Ms Giglia or Ms Benson‑DeRose, who wrote that part of the translation (ts 462).
Ms Yorkshire‑Selby accepted the following propositions:
(a)In the translation of tape 6, there was a culturally sensitive part of the conversation towards the end that was not translated, [Redacted by order of the Court of Appeal made 9 April 2025.] (ts 462 ‑ 463).
(b)In the translation of tape 7, the preamble identifying Kim Coleman as part of the conversation was incorrect and this was her mistake (ts 463).
(c)In the translation of tape 7, there was an exchange which referred to a 'her'. There was no reference to the identity of 'her' during the conversation, but there was, in brackets, a comment referring to the 'death of his wife'. It was inappropriate for a translator to provide commentary on the source text (ts 464 ‑ 465). This commentary in tape 7 was not hers (ts 465).
(d)In the translation of tape 9, there was, in brackets, a comment referring to 'his wife' following a monologue by the accused. There was nothing in the context of the translation that suggested that the accused was referring to his wife. It was inappropriate for a translator to provide commentary on the source text (ts 464 ‑ 466). This commentary in tape 9 was not hers (ts 466).
(e)The translation of tape 10 was stated to consist of the full seven minutes 15 seconds of the call, but the translation consisted of only three pages. The translation should have been longer if it contained the full contents of the call. She did not know whether a decision had been made not to translate the full tape 10 (ts 471 ‑ 472).
(f)In the translation of tape 10, there was, in brackets, a comment 'murder' following a sentence referring to 'damage' (ts 472). Ms Yorkshire‑Selby said that the word katanangngu was a mix of the Pitjantjatjara and Ngaanyatjarra languages, and in different contexts could mean to break, to damage, or to make a mess. It did not have the meaning of 'murder' or 'kill' (ts 470). This commentary was an error and was not hers (ts 472 ‑ 473).
(g)The translation of tape 11 was not complete as there were voices that were not translated (ts 477).
(h)In the translation of tape 11, there was an exchange including sentences that read, '[t]hose men did the murder there at Tjuntjuntjara', and '[t]he invisible man then (spiritual cultural belief) did the bad thing, the murder' (ts 474, 478). The use of the word 'murder' in both sentences was inaccurate and these translations were not hers (ts 478).
Ms Yorkshire‑Selby said that she was involved in proofing the witnesses Katie Brown, William Rictor and Walter Young by providing translations to them. This was done by telephone and not in person (ts 479 ‑ 480).

Re‑examination

Ms Yorkshire‑Selby accepted that some of the translations shown to her were inaccurate. She believed that the translations shown to her were not the final product, because these errors would have been corrected when final checks were done of the accuracy of each translation by another translator (ts 481 ‑ 482).
Ms Yorkshire‑Selby said that she did not do the final check and did not do a final listen to the prison calls to compare them with what had been typed in the translations. Ms Benson‑DeRose went through the translations after her (ts 482).
Ms Yorkshire‑Selby said that she did not type up her own handwritten notes and did not check the final typed work prepared based on her handwritten notes, because Ms Giglia was more professional than she was. She accepted that Ms Giglia could have made a mistake in what was typed (ts 482 ‑ 483).
Ms Yorkshire‑Selby accepted that there were omissions from the translations. Not every minute of the prison calls was translated, but all portions identified to be of interest were translated (ts 483 ‑ 484). Some omissions were due to culturally sensitive material. In that case, mention would be made in the translation that someone was speaking in a culturally sensitive way, but no details would be included (ts 483 ‑ 485).
Ms Yorkshire‑Selby identified the voice of Mate in tape 6 as Byron Brooks (ts 485 ‑ 486).
Ms Yorkshire‑Selby said that translating the Pitjantjatjara and Ngaanyatjarra languages into the English language was not a literal word‑for‑word process. Some words in one language do not regularly convert into the other (ts 486).
Ms Yorkshire‑Selby said that between June and August 2021, she reviewed a large number of prison calls with Detective Martin in the AIWA office in North Fremantle. She was the only interpreter used for those calls and Detective Martin was present when she listened to the calls. She would listen to the calls and translate their contents into English. Detective Martin would make notes and Ms Giglia would type the notes for him. She thought that Detective Martin was the one who identified the calls to be formally translated (ts 486 ‑ 487).
Ms Yorkshire‑Selby did not recall Detective Martin being present when the calls were being translated together by Ms Yorkshire‑Selby and Ms Benson‑DeRose. However, Detective Martin was present for 'some of' the process when she or Ms Benson‑DeRose was working alone. She was not sure what he did, but she thought that he might have 'wrote a lot of it down' (ts 487 ‑ 488).
Ms Yorkshire‑Selby accepted that she had agreed, in her evidence‑in‑chief, that she said the accused killed her granddaughter during her meeting with the two prosecutors. She referred to the deceased as her granddaughter even though they had no blood relationship (ts 488 ‑ 489).
Ms Yorkshire‑Selby said that she was related to the accused through her husband and would consider him her nephew and also her brother‑in‑law (ts 489).
Ms Yorkshire‑Selby accepted that she had agreed, in her cross‑examination, that she felt she was too close to both the accused and the deceased. She said that she had previously declined other jobs because she felt that she was too close to the people involved, but did not give an example when asked (ts 489 ‑ 490).
Ms Yorkshire‑Selby said the following in relation to her work (ts 490):
(a)Her personal relationships with any of the people in this matter did not affect her translation work.
(b)It did not affect her review of the prison calls with Detective Martin as there was no other interpreter to do the job.
(c)It did not affect the professionalism or independence of her work.
Ms Yorkshire‑Selby said the following in relation to the Yankunytjatjara community (ts 491):
(a)Around 300 to 400 people lived in the community.
(b)She personally knew the majority of the people in the community.
(c)She has previously acted as a court or police interpreter for people she knew from the community.
(d)She was personally related to some of these people in the kinship relationship sense, but not in a blood relationship sense.
Ms Yorkshire‑Selby said that she knew of three other court interpreters or translators in the Pitjantjatjara and Ngaanyatjarra languages based in Western Australia (ts 492).

Ms Benson‑DeRose's evidence in the voir dire before Fiannaca J

Examination‑in‑chief

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

Paluru and palunya were both non‑gendered words used to refer to another person. When Ms Benson‑DeRose translated those words into 'he' or 'she' in the English language, she would do so based on the subject of conversation and her cultural understanding (ts 864 ‑ 869).
There was a belief amongst many Central Desert people that living Aboriginal men could turn into spirits or invisible men who were able to travel great distances quickly and cause harm to people (ts 869).
The word ilutanu is a word in the Pitjantjatjara language meaning 'kill' or 'murder'. There are also other ways to say 'kill' or 'murder' more politely (ts 869).
Ms Benson‑DeRose had listened to the recordings again and had no further changes to make to the translations (ts 870).

Cross‑examination

Ms Benson‑DeRose said the following about how she came to work on translating the prison calls:
(a) AIWA requested that she do this translation work (ts 870).
(b)AIWA told her that the task was sensitive and was for her to translate police recordings from the Pitjantjatjara language into the English language (ts 871).
(c)AIWA told her that the prison calls were in relation to a murder investigation (ts 872).
(d)AIWA told her that the person who was charged with murder was the accused (ts 875).
(e)She was not given any other details, such as the identity of the deceased or the circumstances of the murder (ts 872, 875).
(f)The task was technically not just translation in the sense of written text to written text, because she had to listen and then put it to written text (ts 871).
(g)This was the first time that she had been asked to listen to, interpret and translate police recordings (ts 871).
Ms Benson‑DeRose said the following about the process of translating the prison calls:
(a)She worked with Ms Lightfoot and Ms Giglia for this task (ts 871).
(b)She worked on the task with Ms Yorkshire‑Selby, but at times she did the recordings on her own in a separate room (ts 872).
(c)She made handwritten notes for herself to type, but destroyed those notes once the translations were typed (ts 872).
(d)She also made notes at the end of the entire process, which were in the working files (exhibit 9) (ts 873).
(e)She completed a work record so that she could be paid by AIWA (ts 873).
Ms Benson‑DeRose said that if she is interpreting for people she knows, she approaches them in a friendly way and lets them know that she is not taking a side. If she has a conflict of interest, she will not partake in the work and would explain that to the people. When Ms Sage assisted Ms Benson‑DeRose in getting work, she would check for a conflict of interest (ts 873 ‑ 874).
Ms Benson‑DeRose accepted that she had some independent knowledge of the murder from others. She knew that the accused was alleged to have committed the murder against his partner, the deceased (ts 875). She knew of the accused because he had resided in Blackstone for a short period and she had seen him in the community and heard about him from others, but she had never spoken to him and did not know him very well. At the time, she did not know that he had been to prison before (ts 876).
Ms Benson‑DeRose knew the accused's brother, William Rictor, pretty well. William Rictor was social in the community, and she had spoken to him before. She knew him before the deceased was killed (ts 876).
When Ms Benson‑DeRose commenced the task, she told AIWA that she knew both the accused and William Rictor. Initially, she did not consider there to be a conflict of interest because she was not related to them by blood (ts 877). However, at some point during the task she was told by a family member that William Rictor was a godfather of one of her family members and this made her concerned that she had a cultural conflict of interest (ts 877 ‑ 878).
Ms Benson‑DeRose accepted the following propositions on her work with Ms Yorkshire‑Selby:
(a)Ms Yorkshire‑Selby told Ms Benson‑DeRose during the task that she knew the deceased (ts 878).
(b)Ms Yorkshire‑Selby told Ms Benson‑DeRose at one point of her belief that the accused had killed the deceased, but Ms Benson‑DeRose 'didn't really take it on board' as she was 'still in the work' (ts 878 ‑ 879).
(c)The project was a joint project between the two of them (ts 879).
(d)Over the months on the project, Ms Yorkshire‑Selby and Ms Benson‑DeRose listened to and discussed the prison calls (ts 879).
(e)On occasion, they disagreed with each other, but would talk things over to find the accurate meaning and literal words (ts 879).
Ms Benson‑DeRose accepted the following propositions about her translations:
(a)'Literal words' mean what she actually heard (ts 879).
(b)'Meaning transfer' is different as it is an opinion as to what the literal words may mean (ts 880).
(c)It was not her role to ask the participants of the prison calls what they meant (ts 881).
(d)She was concerned with getting the correct literal translation as a first step (ts 881).
Ms Benson‑DeRose said that she had to listen to the prison calls multiple times because there were times when the speakers were too soft, too fast, speaking over each other, not pronouncing words properly, or because there were dogs barking in the background (ts 881 ‑ 882).
Ms Benson‑DeRose accepted that she listened to and translated some prison calls together with Ms Yorkshire‑Selby, while some others were done alone by one of them and then back‑translated by the other. She did not keep records and could not remember which calls were done together and which were done alone (ts 882 ‑ 883).
Ms Benson‑DeRose typed up her translations and gave those typed translations to Ms Giglia, while Ms Yorkshire‑Selby gave handwritten translations to Ms Giglia (ts 884 ‑ 885).
Ms Benson‑DeRose said that there were no other words, apart from 'dog' or 'lightning', that caused disagreement or discussion between her and Ms Yorkshire‑Selby, as they both knew the language (ts 886, 888). Any contention between them was about the audio of the prison calls, where some parts were inaudible or almost inaudible. They would listen to it together and use better headphones to hear the words (ts 887 ‑ 888).
Ms Benson‑DeRose said, contrary to what Ms Yorkshire‑Selby said, that there were equivalents for 'murder' and 'kill' in the Pitjantjatjara language. A direct translation was iluntankutja while another equivalent was wiyanu, meaning something that is finished (ts 888 ‑ 890).
Ms Benson‑DeRose accepted that she was mistaken in her witness statement when she said that the accused never used the word 'murder' or 'kill' in tape 6, and that she recalled the accused using those words (ts 891 ‑ 892).
Ms Benson‑DeRose accepted that as a general cultural principle relating to death, people would 'talk sideways or almost in riddles' regardless of the cause of death (ts 893).
After Ms Yorkshire‑Selby gave evidence in February 2022, Ms Benson‑DeRose was asked to review the prison calls and the translations, especially the highlighted parts, again, for accuracy and completeness (ts 894). Ms Benson‑DeRose, Detective Martin and the prosecutor listened to all of the calls again in the same room. She was the only person in the room with the skill to translate the recordings, but the other two asked questions, especially about the highlighted parts of the translations. After that was done, she understood that Ms Rive did the final back-translation of her work. She knew Ms Rive who had married into her family, but she was 'not that close' to Ms Rive (ts 895).
Ms Benson‑DeRose accepted the final document did not go back to Ms Yorkshire‑Selby for a final check (ts 896).

Re‑examination

Ms Benson‑DeRose said the following about words in the Pitjantjatjara language (ts 896 ‑ 899):
(a)The words iluntanu and iluntankunytjak mean 'murder' or 'kill'.
(b)The word ilunytjaku means 'to die'.
(c)The word puwa, with something else at the end, could mean 'to hit' or 'to kill' in different contexts.
(d)The word liri refers to the neck or the throat.
(e)The word pungu means 'to hit', and pungu ilunytjaku means 'you hit and you kill'.
(f)The word wiyanu means 'to finish off'.
(g)She had never heard of the word kukumanu.
The Pitjantjatjara language was a spoken language. Ms Benson‑DeRose said that Ms Yorkshire‑Selby was a good speaker, but she did not think Ms Yorkshire‑Selby could read and write in the Pitjantjatjara language as she had not seen her do so (ts 899).
Ms Benson‑DeRose was the only one who typed up the translations of the prison calls that she listened to alone (ts 900). Her typed translations were in the same format as the ones in her working file and in the final translations (ts 901).
Ms Benson‑DeRose last had contact with the accused around 2006 in Blackstone. She last had contact with William Rictor in 2022 in Blackstone (ts 900).

Ms Rive's evidence in the voir dire before Fiannaca J

Examination‑in‑chief

Ms Rive's evidence‑in‑chief in the voir dire on 10 November 2022 was to the following effect.
Ms Rive is a white woman. She was born in the United Kingdom and moved to Australia in 1974. She commenced learning Aboriginal languages in Adelaide in 1978. She only worked with the Western Desert language, starting with the Yankunytjatjara dialect, before moving to the Pitjantjatjara dialect (ts 908 ‑ 909).
While some refer to the dialects as languages, they are dialects of the Western Desert language. Another dialect is the Ngaanyatjarra dialect. Ms Benson‑DeRose is fluent in the Ngaanyatjarra dialect as that is her first language, but she can also speak the Pitjantjatjara dialect (ts 909 ‑ 910).
The Pitjantjatjara and Ngaanyatjarra dialects sound 'very similar' but there are 'quite dramatic differences' between the two, such that locals can quickly differentiate between them. While locals could easily understand both, Ms Rive cannot understand the Ngaanyatjarra dialect easily and has no qualifications in the Ngaanyatjarra dialect. Ms Rive gave the broad analogy of the difference between English in London compared to deep in Ireland (ts 910 ‑ 911).
From listening to the prison calls, the accused mainly spoke the Pitjantjatjara dialect but on occasion used two words distinctly from the Ngaanyatjarra dialect (ts 911).
Ms Rive has worked with Aboriginal languages or recording Aboriginal history and culture since around 1979 to 1980, and gained fluency in the Pitjantjatjara dialect in around 1981. Since then, she has been involved in translating and transcribing spoken voices to written text for various mediums. Her preferred dialect is the Pitjantjatjara dialect but she has done translations and transcriptions in other dialects, such as the Ngaanyatjarra dialect (ts 912 ‑ 914). She primarily does translations using digital sound recordings but also, occasionally, from handwritten text. She has also done interpretation work in a court once but did not enjoy it. Otherwise, she has done a lot of interpretation work at conferences (ts 914 ‑ 915).
Ms Rive had a current NAATI certification. On the NAATI website, she was displayed as a 'certified provisional interpreter' in the Pitjantjatjara dialect and the English language. She was not 'provisional' and was a 'recognised practising interpreter/translator'. The website showed everyone to be 'provisional'. She had obtained the certification in the 1990s and had kept it up‑to‑date with recertification 'every couple of years' (ts 916 ‑ 918).
Due to difficulties with accessing certification courses in remote areas, there are eight NAATI-accredited interpreters in the Pitjantjatjara dialect, but there are more people without NAATI accreditation who are competent interpreters or translators (ts 918 ‑ 920).
In February 2022, Ms Rive was asked by staff from the Office of the Director of Public Prosecutions for Western Australia to do the translation job, involving prison call recordings between the accused and others. She did not know that the accused had been charged with murder. She did not know the accused, the deceased or William Rictor, but had heard of and had general knowledge of the Rictor family due to their close connection with the family that she had married into and her work. This did not affect the impartiality or accuracy of her work (ts 921 ‑ 923).
Ms Rive was told that Ms Benson‑DeRose had translated the prison calls and she was asked to check their accuracy. She was advised that some portions of the recordings contained culturally sensitive material. This was present in tape 6 as well as other tapes. She did not tell anyone she was translating such material and did it privately (ts 923 ‑ 924).
Ms Rive was instructed to do the following as part of her task:
(a)Due to her anticipated limited availability, she was asked to prioritise review of tapes 6, 9 and 11 (Priority 1), followed by tapes 7, 8 and 10 (Priority 2), followed by tapes 1 to 5 (Priority 3), followed by tapes 12 to 13 (Priority 4). Ultimately, she reviewed all the tapes (ts 927 ‑ 928).
(b)To keep all drafts, working notes, comments and material prepared as part of the task (ts 928).
(c)To mark any inaudible or indistinct parts as such in parentheses (ts 929).
(d)To provide the literal translations of what was being said by the speakers (ts 929).
(e)If there were words in the Pitjantjatjara dialect with specific cultural meanings or connotations requiring explanation to English speakers, to provide those explanations in parentheses after the literal translation (ts 929).
Ms Rive remembered the instructions as to her task, but did not remember receiving the letter containing these instructions with other information, including the allegations and the issues at trial (ts 932 ‑ 933).
Ms Rive listened to the Priority 1 tapes between two and four times to ensure she got the appropriate context. She listened to these tapes on a MacBook Pro computer with inbuilt speakers, and used Bose noise‑cancelling headphones to hear the recordings properly when there was background noise on the recordings, and when the people speaking had muffled or low voices (ts 934).
Ms Rive did not identify the voices on the recordings and relied on the identifications made by Ms Benson‑DeRose. However, she could tell when different voices were speaking. William Rictor spoke more clearly than some of the other voices on the recordings (ts 934 ‑ 935).
Ms Rive used software to set up 'hotkeys' to assist with the task, which allowed her to pause, rewind, change the speed and change the volume of the recordings easily. This allowed her to type her translations herself. She amended and added to some of the translations done by Ms Benson‑DeRose, but did not amend some others at all. She also had a Pitjantjatjara dictionary on hand while completing the task (ts 935 ‑ 936).
The accused was a good, fluent speaker of the Pitjantjatjara dialect. Ms Rive thought that he could have used the English language for a lot of things, but chose to speak the Pitjantjatjara dialect (ts 936).
Ms Rive accepted that Ms Benson‑DeRose's translations were of a 'very high standard' with 'accurate meaning transferred from the source language into the English language'. The only things were the culturally sensitive material which Ms Benson‑DeRose did not do or elaborate on, and her translations into English being slightly 'clunky'. However, none of the translations were wrong (ts 936 ‑ 937).
Ms Rive identified photographs of the word muntu in the Pitjantjatjara/Yankunytjatjara to English dictionary, which is translated to 'obviously', 'certainly' and 'definitely'. Where the word muntu appeared in the translation, Ms Rive provided an explanation in square brackets and italicised text as an additional comment (ts 938 ‑ 940).
Ms Rive identified photographs of the pages in the Pitjantjatjara/Yankunytjatjara to English dictionary explaining the differences in pronouns. The words paluru and palunya are non‑gendered pronouns primarily used to refer to people, but may also be used to refer to other living or non‑living things. Palunya is used when the person or thing is having something done to them, while paluru is used for the person doing the thing (ts 940 ‑ 942). Whether paluru or palunya refers to 'he', 'she' or 'it' depends on the context of the conversation and may require inference or the use of language markers. If one is unsure, then the translation should be 'he/she' or 'him/her' (ts 941 ‑ 944).
Ms Rive identified her translation of a portion of tape 6, which read: 'You got into trouble. You alone did that. [You (singular) alone created that trouble]'. Pitjantjatjara speakers used the English word 'trouble' as there is no Pitjantjatjara word for it. In the Pitjantjatjara dialect, there were also differences in 'you' when used in the singular and the plural context (ts 945 ‑ 946).
Ms Rive wished to confer with Ms Benson‑DeRose on that topic, but had not conferred or consulted with her nor any other persons pursuant to the instructions given to her. She completed the task herself (ts 946 ‑ 947).
Ms Rive had listened to the recording of tape 6 more than once, and listened again shortly before she gave evidence. She said that the sensitive language used by the accused was 'deeply, deeply, deeply offensive' and 'horrific', and that one could 'get killed for this'. Ms Rive rejected the suggestion that Mate was aggressive and overbearing in his tone towards the accused during tape 6, instead saying that the accused had 'got it all over Mate' in the conversation and was 'provocative, aggressive and being deeply, deeply hurtful'. Instead, Mate was 'impotent' to do anything about it and was 'begging' the accused to stop (ts 947).
Ms Rive identified her addition to the translation of tape 9. She added some source language to the translation to prove what the accused said, but otherwise did not make any changes to the translation that had originally been prepared by Ms Benson‑DeRose and considered it to be substantially accurate. The only substantive changes were made to tape 6 (ts 949).
Ms Rive identified a copy of her further review and amendment of the translation of tape 6, completed on or around 25 October 2022. She made changes to five sentences of the conversation between the accused and Mate, which were repetitive and overlapping (ts 950 ‑ 951).
Ms Rive corrected a copy‑paste error and changed the order of a sentence to reflect the actual sequence (ts 953, 960). Initially, the translation was that the accused said, '[y]ou lot said it before. Do it now in your invisible ways', to which Mate said, '[y]ou alone did it. You killed. You're the one who murdered her'. Instead, Mate actually said, '[s]top referring to that. Stop it' (ts 951 ‑ 953). Then, the accused said '[w]ell, hurry up and hit/kill me', and only then does Mate make the accusation that the accused killed 'her' (ts 960 ‑ 961). There were no other changes made to the translation of tape 6 (ts 962).
Ms Rive said the following about her translation of tape 6 (ts 954 ‑ 956):
(a)The word congnku means 'the only one'.
(b)The word nyanu means a plural 'you'.
(c)Mate said: 'Nyanu iluntanu'. The word iluntanu is a horrific word meaning 'murdered' or 'killed'.
(d)Mate said: 'Nyur[a] congnku iluntanu'. This means '[y]ou are the only ones. You mob are responsible. You killed'.
(e)Other words such as bilmu, puwa and pungu mean 'to hit', and could mean 'murder' or 'kill'.
(f)The word iluntanu is not used in the context of killing an animal for food consumption. In that context, the word is wakarnu.
Ms Rive said the following about her translation of tape 6 compared to Ms Benson-DeRose's (ts 956 ‑ 957, 969):
(a)Her translation of tape 6 is slightly different, but still substantially the same, as the translation by Ms Benson-DeRose.
(b)The pronoun 'her' appears in Ms Benson-DeRose's translation but not in hers. She left that pronoun off because it was inferred.
(c)There are no gender-specific pronouns in the Pitjantjatjara dialect.
(d)In some circumstances, Pitjantjatjara speakers will omit pronouns altogether. This is something significant, to be polite or to deal with difficult subjects. Difficult subjects include the death of another person, where there is extra sensitivity about mentioning their name or even referring to them using pronouns.

The ground of appeal: the applicable standard of appellate review

A question arises as to whether the applicable standard of appellate review in the present case is the correctness standard or the House v The King standard. If the correctness standard is applicable, this court must determine for itself the correct outcome while making due allowance for such 'advantages' as Fiannaca J may have had in conducting the voir dire. If the House v The King standard applies, intervention by this court is confined to circumstances where Fiannaca J, in conducting the voir dire, acted upon a wrong principle; allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust.
In Steven Moore (a pseudonym) v The King,[21] the High Court considered the applicable standard of appellate review in the context of s 137 of the Evidence Act 2008 (Vic). Section 137 provides that '[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused'.
[21] Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119.
In Steven Moore, the appellant was to be tried in the County Court of Victoria for six offences. The trial judge admitted certain evidence under provisions of the Victorian Evidence Act concerned with an exception to the 'hearsay rule' in criminal proceedings. The trial judge declined to exclude the evidence under s 137. One of the issues before the High Court was whether the Court of Appeal of Victoria, on an interlocutory appeal from the trial judge's refusal to exclude the evidence under s 137, erred by applying the House v The King standard of appellate review. Although the Court of Appeal applied the House v The King standard, the Court of Appeal also found for completeness that the trial judge's refusal was correct.
Gageler CJ, Edelman, Steward, Gleeson and Beech‑Jones JJ enunciated the test to be applied in determining the applicable standard of review [15]:
A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied 'demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies' (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [49]; 92 ALJR 713; see also GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [15]).
The High Court concluded that the standard of review to be applied to a ruling under s 137 on an interlocutory appeal was the correctness standard. Their Honours' reasoning was as follows [18]:
Section 137 of the Evidence Act provides that '[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused'. The application of s 137 requires the making of three evaluative assessments, namely the weight of the probative value of the evidence, the extent of any danger of unfair prejudice, and then a comparison of one with the other (IMM v The Queen (2016) 257 CLR 300 at [109]; 90 ALJR 529). The first two assessments are no different in substance to the assessment of 'significant probative value' referred to in Bauer, and neither is the comparison between the two. There can only be one correct answer resulting from this process. It follows that the relevant standard to be applied by an appellate court in considering an appeal from a ruling as to whether or not evidence should be excluded under s 137 is the correctness standard.
In our opinion, the application of the Christie discretion requires a judge to make three evaluative assessments. First, the judge must consider and weigh the probative value of the evidence. Secondly, the judge must consider and weigh the risk of relevant prejudice to the accused from the evidence. Thirdly, the judge must compare the probative value of the evidence with the relevant prejudicial effect of the evidence and determine whether the probative value of the evidence is outweighed by the risk of relevant prejudice to the accused. The process involved in the making of these three evaluative assessments can yield only one correct answer. We are therefore of the opinion that the standard of appellate intervention to be applied by this court in deciding an appeal from a ruling in relation to the application of the Christie discretion is the correctness standard.

The ground of appeal: its merits

In the present case, the crucial issue of fact in the prosecution of the appellant was identity. The appellant did not dispute that Ms Watson had been unlawfully assaulted with a weapon. However, the appellant maintained that he was not the person who had carried out the unlawful assault which caused Ms Watson's death.
We have read:
(a)the oral and documentary evidence that was adduced before Fiannaca J at the voir dire;
(b)Fiannaca J's reasons in relation to the voir dire;
(c)the relevant evidence that was adduced at the trial, including Ms Benson‑DeRose's evidence, Ms Rive's evidence and the translations; and
(d)the trial judge's directions and comments in relation to Ms Benson‑DeRose's evidence, Ms Rive's evidence and the translations.
In our opinion, the recorded telephone conversations to which the appellant was a party had probative value in relation to whether the appellant had killed Ms Watson. The most important of the conversations were those recorded on tapes 6, 9 and 11. The conversation recorded on tape 6 was critical.
Ms Watson was killed on or about 10 November 2019.
The conversations recorded on tapes 1 to 13 comprised telephone calls made while the appellant was in custody on remand. The calls occurred between 13 December 2019 and 31 December 2019. The calls were made shortly after the appellant was arrested on 17 November 2019 and charged with Ms Watson's murder. Apart from the conversations recorded on tapes 1 to 13, the appellant exercised his right to silence.
It is apparent from the conversations recorded on tapes 1 to 13, considered as a whole and in the context of Ms Benson‑DeRose's evidence and Ms Rive's evidence, that the events of the weekend of 9 and 10 November 2019 and their aftermath, including the death of Ms Watson, were significant topics of discussion. During the conversations the appellant provided his version of the events that had occurred on the weekend of 9 and 10 November 2019 and their aftermath. He gave his version of events to his brother, William Rictor, and to other people who appear to have been members of the Tjuntjuntjara Aboriginal community. None of the participants appears to have been in a position of material advantage or disadvantage in the conversations. None of the participants was a police officer or other person in authority. All of the participants appear to have been Indigenous and capable of speaking and understanding Western Desert languages.
Ms Rive's final translation of the conversation recorded on tape 6 is materially different from Ms Benson‑DeRose's translations (as reviewed and checked by Ms Rive) of the conversations recorded on the other tapes. The appellant merely provided his version of events in the conversations recorded on the other tapes. However, on tape 6 the person identified as 'Mate', who was apparently a community elder, appears on several occasions to accuse the appellant of killing Ms Watson.
On the State's case, there were various express and implied admissions by the appellant, in the course of his interaction with Mate, that he had killed Ms Watson.
On our evaluation of Ms Rive's final translation of the conversation recorded on tape 6 in the relevant context, the appellant did expressly and impliedly admit in substance that he had killed Ms Watson. We refer, in particular, to the passages in Ms Rive's final translation that we have underlined. See [34] above. We have concluded that the appellant made admissions against interest on tape 6, having regard to the text of Ms Rive's final translation of tape 6; the text of Ms Benson‑DeRose's translations (as reviewed and checked by Ms Rive) of the other tapes; and the evidence of Ms Benson‑DeRose and Ms Rive about cultural issues that may affect the actual meaning of what was said during the conversations. The State had a strong case against the appellant, including on the crucial issue of identity, without the admissions recorded on tape 6. However, the admissions on tape 6, if true, substantially strengthened the State's case.
We are satisfied that Ms Benson‑DeRose was appropriately qualified to translate the conversations recorded on tapes 1 to 13. Ms Benson‑DeRose had worked as an interpreter and translator in the Western Desert languages since the 1970s. She had lived most of her life in the Central Desert. It is true that Ms Benson‑DeRose was not NAATI certified. However, she had a combined Diploma of Translating and Interpreting in the relevant Western Desert languages from TAFE. Ms Benson‑DeRose has previously acted as a court interpreter.
Similarly, we are satisfied that Ms Rive was appropriately qualified to translate the conversations recorded on tapes 1 to 13. Ms Rive held NAATI qualifications in the relevant Western Desert languages. She began learning those languages in about 1978. She has had an extensive employment history involving the translation of the Western Desert languages.
Further, we are satisfied that Ms Rive had the requisite skill and ability to understand and translate the culturally sensitive material in the conversations. Unlike Ms Yorkshire‑Selby and Ms Benson‑DeRose, Ms Rive did not regard herself as precluded from translating the culturally sensitive material. It is not apparent that there were any material inaccuracies in Ms Rive's translation of the culturally sensitive material. In particular, there was no evidence that there were any material inaccuracies in Ms Rive's translation of the culturally sensitive material recorded on tape 6. The existence of a prohibition under Aboriginal traditional law against a woman translating culturally sensitive material did not, of itself, render Ms Rive's translation inadmissible and did not, of itself, require the exclusion of the translation in the exercise of the judicial discretion. There was no evidence that statements made by the appellant during the conversations had or may have had a different meaning from Ms Rive's translation as a consequence of her not being an initiated Aboriginal male. Indeed, it was not put to Ms Rive in cross‑examination that the appellant's statements had or may have had a different meaning from Ms Rive's translation as a consequence of her not being an initiated Aboriginal male.
Fiannaca J expressly found that Ms Rive was an honest witness. His Honour said that Ms Rive was articulate, very intelligent in her ability to understand the issues that were raised with her in evidence, and very thoughtful in her approach to her answers. His Honour also found that Ms Rive's approach to her translations was honest [13]. His Honour had a significant advantage (which this court does not have) in seeing and hearing Ms Rive give evidence. At the hearing of the appeal, counsel for the appellant informed the court that the court should proceed on the basis that Ms Rive (and Ms Benson‑DeRose) gave honest evidence (appeal ts 33 ‑ 34). We accept that the court should proceed on that basis.
In criminal proceedings it is important that an interpreter who translates conversations made in a language other than English be independent and objective, especially where the conversations to be translated contain or may contain information that is adverse to the accused (for example, alleged admissions against interest). The qualities of independence and objectivity are important for the purpose of ensuring that the translations are accurate and reliable. If the translations are not accurate and reliable, the accused may not receive a fair trial.
In the present case, Ms Benson‑DeRose knew the appellant and William Rictor. William Rictor was the godfather of a member of her family. Ms Rive's deceased husband had 'fairly close connections' to the Rictor family. Ms Benson‑DeRose and Ms Rive had known each other for many years. They had worked, travelled and camped together and had a friendship.
However, we are satisfied, having regard to:
(a)Fiannaca J's findings that Ms Rive was an honest witness; that Ms Rive understood the issues that were raised with her in evidence at the voir dire; and that Ms Rive's approach to her translations was honest (based upon his Honour's significant advantage in having seen and heard Ms Rive give her evidence); and
(b)our assessment of Ms Rive's evidence, including her understanding of the issues raised with her in evidence and her approach to her translations (based upon our reading of the transcript),
that the nature and extent of the relationship between Ms Rive, on the one hand, and Ms Benson‑DeRose and the Rictor family, on the other, did not preclude Ms Rive from translating or inhibit her in translating the telephone calls impartially, accurately and without bias.
It is true that Ms Rive had an emotional response to some of the statements made by the appellant in the conversations. In particular, on 17 February 2022 Ms Rive sent an email to the prosecutor in which she referred to her 'horror and dismay' at some of the appellant's language during the conversation recorded on tape 6. Ms Rive's emotional response was explored with her in evidence. She acknowledged that she had experienced an emotional reaction to some of the appellant's language on tape 6. Fiannaca J accepted that Ms Rive expressed some regret for having reacted emotionally.
We are satisfied, having regard to Fiannaca J's findings that we have noted at [347(a)] above and having regard to our assessment of Ms Rive's evidence that we have noted at [347(b)] above, that Ms Rive's emotional reaction to some of the statements made by the appellant during the conversation recorded on tape 6 did not preclude Ms Rive from translating or inhibit her in translating the telephone calls impartially, accurately and without bias. Her evidence and her translations indicate that Ms Rive's emotional reaction did not interfere with or compromise the integrity of her work.
In the email she sent to the prosecutor, Ms Rive commented:
(a)'I don't know what it is that the defence can complain about'; and
(b)'I hope that sheds a little bit of light, but is there a specific question you want an answer to, something I need to look for?'.
Fiannaca J accepted Ms Rive's explanation in evidence that what she meant by those comments was that her review indicated that the translations that had already been done were, in her opinion, accurate. His Honour found that it was in that context that Ms Rive was querying with the prosecutor what it was that the defence might regard as a problem.
We are satisfied, having regard to:
(a)Fiannaca J's findings that we have noted at [347(a)] above;
(b)our assessment of Ms Rive's evidence that we have noted at [347(b)] above; and
(c)Fiannaca J's acceptance of Ms Rive's explanation about the comments in the email including the context in which she was querying what it was that the defence might regard as a problem (based upon his Honour's significant advantage in having seen and heard Ms Rive give her evidence),
that the nature and content of Ms Rive's comments did not preclude Ms Rive from translating or inhibit her in translating the telephone calls impartially, accurately and without bias.
In our opinion, there is no merit in counsel for the appellant's complaint about:
(a)Ms Benson‑DeRose having reviewed all of the original translations by listening to the recorded conversations afresh and checking and, where necessary, amending the original translations; and
(b)Ms Rive then having reviewed Ms Benson‑DeRose's work by listening to the recorded conversations afresh and checking Ms Benson‑DeRose's work, including by making a small number of alterations.
It was not necessary for each of Ms Benson‑DeRose and Ms Rive to carry out fresh translations of all of the conversations without reference to translation work that had previously been carried out. The approach adopted by Ms Benson‑DeRose and Ms Rive was not inconsistent with the production of translations by each of them that were impartial, accurate and without bias. The previous involvement of other people did not diminish the integrity of the work that each of Ms Benson‑DeRose and Ms Rive performed.
Similarly, we are of the opinion that counsel for the appellant's complaint concerning uncertainty about which translator worked on which telephone conversation, as part of the preparation of the original translations, is without merit. As we have mentioned, Ms Benson‑DeRose reviewed and amended the original translations after having listened to the recorded conversations and Ms Rive then reviewed Ms Benson‑DeRose's work after listening to the recorded conversations. It is apparent that each of Ms Benson‑DeRose and Ms Rive separately listened to all of the conversations and each of them separately verified the translations she produced. Ms Rive translated the culturally sensitive material which Ms Benson‑DeRose had not translated. The approach of each of Ms Benson‑DeRose and Ms Rive in separately listening to all of the conversations and separately verifying the translations she produced avoided any risk that Ms Yorkshire‑Selby's conflict of interest, as found by Fiannaca J, may have tainted Ms Benson‑DeRose and Ms Rive's work.
We consider that:
(a)Ms Yorkshire‑Selby's conflict of interest;
(b)Ms Rive's friendship with Ms Benson‑DeRose; and
(c)Ms Rive's failure to carry out a fresh translation of all of the telephone conversations without reference to Ms Benson‑DeRose's previous work,
does not impugn the integrity of Ms Rive's work or give rise to a suspicion that Ms Rive's final translations may not have been impartial, accurate, reliable, complete and without bias.
It is true that Ms Rive was subject to constraints upon her availability to carry out the translation work at an early stage of the process. However, the constraints on her time were removed when the original dates for the appellant's trial were vacated. Ms Rive began her work in February 2022 and verified her final translations on 25 October 2022.
We are satisfied that Fiannaca J was correct in deciding that the translation should not be excluded in the exercise of the judicial discretion. In particular, we are satisfied that counsel for the appellant's complaints about the reliability and accuracy of the translations (in particular, Ms Rive's final translations) and about the qualifications, impartiality and independence of the translators (in particular, the qualifications, impartiality and independence of Ms Rive) have not been made out. We are satisfied that Ms Rive's final translations were impartial, accurate, reliable, complete and without bias.
As we have mentioned, the conversations had probative value in relation to whether the appellant had killed Ms Watson. The appellant made admissions against interest on tape 6. The admissions on tape 6, if true, substantially strengthened the State's case.
Although we are satisfied that Ms Rive's final translations were impartial, accurate, reliable, complete and without bias, it must be acknowledged that translation is 'a difficult and sophisticated art' and that 'perfect interpretations' simply 'do not exist'. See DVO16 [5] ‑ [6].

However, we are of the opinion that any relevant prejudice arising from counsel for the appellant's complaints about the translations and the translators does not outweigh the probative value of the final translations that were undertaken and certified by Ms Benson‑DeRose and Ms Rive and that were tendered at the trial.
There was no reasonable possibility that the jury was likely to give the translation evidence more weight than it deserved or to use the translations for inadmissible purposes. Further, there was no reasonable possibility that the nature or content of the translations may have inflamed the jury or diverted the jurors from their task. The trial judge's directions to the jury in his summing up ensured that there was no reasonable possibility that the translations may have caused the jury to reason incorrectly to a conclusion of guilt.
The ground of appeal fails.

Conclusion

We would grant leave to appeal. However, the ground has not been made out and the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SRH
Secretary
14 APRIL 2025