Background
This case relates to an appeal from the Magistrates Court. The Appellant, Mr Murray, was convicted of one charge of aggravated common assault in the Magistrates Court at Karratha in 2021. At trial, Mr Murray gave evidence that he is a Walmajarri man who mainly speaks Walmajarri, as well as Mardok, Manjaderra, and ‘mixed languages’. Mr Murray gave evidence with the assistance of an interpreter. However, at the beginning of Mr Murray’s evidence, the Magistrate instructed the interpreter not to interpret portions of Mr Murray’s evidence that appeared to the magistrate to be in English. Both the interpreter and Mr Murray’s counsel attempted to inform the Magistrate that whilst Mr Murray might appear to be speaking in English, he was actually speaking in Aboriginal English and Kriol, and that interpretation was necessary because the meaning of words and phrases can differ between the languages. Despite this, the magistrate reiterated his instructions:
If he says it in English, then I don’t need to hear it twice. Because what we have by way of interpretation was the same sentence. So let’s just say it means something else in [Kriol], he just said the same words twice. I don’t need any further submissions. If you want to tell us something in English, I don’t need someone else telling me what he said… if you do use a sentence that’s in English, then I can understand what you’re saying because I happen to speak English.
The Appeal
The appellant argued three grounds of appeal (at [32]):
Ground 1: The learned magistrate erred in law in failing to properly direct himself in accordance with the Mildren direction.
Ground 2: There was a miscarriage of justice because the learned magistrate’s direction to the interpreter to stop interpreting portions of the appellant’s evidence resulted in an unfair trial.
Ground 3: The learned magistrate erred in law and fact by finding that the appellant was speaking ordinary English during portions of the appellant’s evidence.
Particulars: The learned magistrate had no regard for the expert opinion of the interpreter that the appellant was speaking Aboriginal English and Kriol. The learned magistrate erred in assuming that words spoken in Aboriginal English and Kriol have the same meaning in ordinary English.
The State conceded the third ground of appeal. However, the State argued that this error did not lead to a substantial miscarriage of justice because Mr Murray’s counsel and the interpreter ‘ignored’ the magistrate and continued with Mr Murray’s evidence through the use of the interpreter (at [38]).
Ultimately, Solomon J of the Supreme Court upheld the appeal and set aside the appellant’s conviction.
Ground 1
As to the first Ground of appeal, Solomon J found that the magistrate did not err by failing to give himself a Mildren direction. The Mildren direction seeks to ‘ensure fairness by drawing attention to socio-linguistic features of [a First Nations] witness that may give rise to misunderstanding’ (at [123]). Mildren directions have gained ‘fairly wide acceptance’ and have been adopted in the Aboriginal Benchbook for Western Australian Courts (at [102]). However, Solomon J concluded that
Mildren directions do not have the force of law. They have particular (but not exclusive) application where, unlike in this case, there is no interpreter. Moreover, Mildren directions are suggested directions to a jury by a judicial officer. Where the arbiter of fact is the judicial officer him or herself it is far from clear that error is demonstrated by the failure of the judicial officer to articulate out loud the sentiments expressed in the Mildren directions in the reasons for decision. (at [135])
Further, the magistrate did in fact refer to some matters relevant to Mildren directions in his ex tempore reasons, including that English was not Mr Murray’s first language, that Mr Murray was from a ‘culturally traditional background from Halls Creek’, and noting that ‘particular leeway should be given in terms of the evidence of Mr Murray and I have done so’ (at [137]).
Grounds 2 and 3
Justice Solomon dealt with the other two grounds together, noting that both related to the issue of a miscarriage of justice, a fair trial, and the conduct of the magistrate in relation to Mr Murray’s socio-linguistic circumstances (at [144]).
In relation to the State’s assertion that no substantial miscarriage of justice occurred because Mr Murray continued to give evidence with the assistance of the interpreter, Solomon J said ‘does not of itself mean that the magistrate’s remarks and treatment of Mr Murray was consistent with a fair and just hearing’ (at [142]).
Justice Solomon provided a helpful summary of principles relevant to a fair trial (at [167]):
(a) a fair trial is a central pillar and fundamental element of the criminal justice system;
(b) although a fair trial is ordinarily achieved by compliance with applicable legal rules and principles, the notion of a fair trial is broader than, and transcends, prescribed legal norms. A trial may be unfair even though conducted strictly in accordance with law;
(c) it is neither possible nor desirable to formulate exhaustively the content or the attributes of a fair trial. Evaluating the fairness of a trial must proceed on a case-by-case basis and is essentially a matter of intuitive judgment;
(d) fairness in a trial is not to be equated with populist or idiosyncratic notions of what is fair and just but rather is to be determined by reference to legal reasoning and precedent;
(e) at the same time, the practical content of a fair trial will vary with changing social standards, societal sensitivities and evolving knowledge. In isolated cases of such a nature, established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness;
(f) a fair trial is necessary to avoid a miscarriage of justice. It may be said at a level of generality that a miscarriage of justice will arise whenever the accused has not had a fair trial;
(g) a miscarriage of justice is a standard, not a rule;
(h) a substantial miscarriage of justice will have occurred if the trial involved a departure from the essential requirements of a criminal trial that goes to the root of the proceedings, or there was a failure to observe the requirements of the criminal process in a fundamental respect. That is so even if the accused’s guilt has been established beyond reasonable doubt.
Applying those principles to the present case, Solomon J found that Mr Murray’s trial departed in a fundamental way from the requirements of a fair trial for two reasons. First (and most notably), because of the denial of Mr Murray’s language, and second, because the magistrate’s attitude towards Mr Murray ‘had all the hallmarks of at least the impression of an unfair prejudgment of Mr Murray’s character and the integrity of his testimony’ (at [175]).
Denial of linguistic distinctiveness
Justice Solomon’s first reason for finding that the trial was unfair is novel and represents some significant development of the law in relation to a fair trial – a point his Honour made himself in the judgment:
I am conscious that there is no clear precedent for the proposition that a trial in which a fulsome interpretation was provided was nevertheless fundamentally unfair in the way asserted in this case by Mr Murray. (at [162])
Indeed, as Solomon J noted in the summary of relevant principles, ‘established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness’ and it is necessary to consider each trial ‘on a case-by-case basis’(at [167]). Thus, in appropriate cases, novel developments are necessary. Ultimately, Solomon J was unequivocal in deciding that this was one such appropriate case – that the denial of an Aboriginal person’s linguistic distinctiveness, in the context of all the relevant circumstances and social realities, contributed to an unfairness which went to the root of the process
The stark reality is this: a criminal prosecution of a Walmajarri man proceeded in the face of the court’s express denial of the linguistic distinctiveness of the accused. Unintended though it was, this cannot be regarded as fair and just. The injustice is all the more troubling because the denial of linguistic identity relates to the language and culture that evolved from antiquity in our very own landscape… If the court is to keep apace with community standards, it must apply the community standard reflected in the sentiments of the [Supreme Court’s] Reconciliation Statement to the concrete reality of the justice system. (at [174])
Appearance of prejudgment
Whilst equally pertinent, Solomon J’s second reason for finding that the trial was unfair is not so novel – it relates to well-established principles about reasonable apprehension of bias and prejudgment. Justice Solomon found that the magistrate’s attitude was not consistent with requirements for an appearance of impartiality:
There seems to me to be no escape from the conclusion that magistrate was in substance expressing, in Mr Murray’s presence, an erroneous view about the genuineness of Mr Murray’s need for interpretation and therefore an erroneous view about the honesty of Mr Murray’s approach to the giving of evidence generally. (at [175])
…it certainly cannot be said with any confidence that Mr Murray did not feel prejudged and denigrated by the magistrate’s comments. It hardly needs to be said that erroneous remarks from the Bench reflecting adversely on the evidence of an accused as they begin to give their evidence is inconsistent with a fair trial. It is not difficult to imagine that the impact on an accused’s capacity to give their evidence coherently in such circumstances might be severely compromised. (at [178])
Accordingly, Solomon J concluded that the trial represented ‘an unacceptable and fundamental departure from the required standard of a fair trial’ and that this unfairness ‘went to the root of the process’. The unfairness was not ameliorated by the interpreter continuing to interpret after the magistrate’s comments – Solomon J noted that it ‘could not redeem this trial from the consequences of the magistrate’s unintended but irretrievably unfair treatment of Mr Murray’ (at [180]). Justice Solomon set aside Mr Murray’s conviction and noted that submissions would be sought from the parties as to whether a retrial should be ordered (at [182]).
Other Matters
Appeals from the Magistrates Court
After finding that Mr Murray’s trial was unfair, Solomon J was careful not to lay blame or undue criticism on the particular magistrate or the Magistrates Court generally. As put eloquently in the judgment:
… the Magistrates Court is an extremely busy court in which some latitude must be given for the pressures that attend the administration of justice in a high-volume and necessarily fast-paced environment… the perch of appellate luxury makes for a comfortable and convenient position to make the sorts of observations contained in these reasons. The stark reality is that I have had some months to consider matters that the learned magistrate was required to deal with on the spot. I have no doubt at all that the Magistrates Court generally, and the learned magistrate in particular, do not lack for an appreciation of, or sensitivity to, the issues I have discussed in these reasons… It is important to appreciate that decisions of this court do not serve the function of admonition, and less still condemnation, of decisions the subject of appeal. Rather, they present the opportunity for the considered correction of error that will invariably occur from time to time in any environment, including the stressful and pressured atmosphere of the Magistrates Court. These reasons are therefore much less a criticism of the learned magistrate’s conduct than they are a manifestation of the system working as it should in the interests of justice. (at [181])
In the context of the particular issues raised by this trial, it is perhaps also relevant to note (although it was not noted in Solomon J’s judgment) that the learned Magistrate Gavin MacLean, who presided over Mr Murray’s trial in the Magistrates Court at Karratha, is himself an Aboriginal man.
Expert evidence
As a final point, a significant portion of the judgment concerned the admissibility of an expert report relating to socio-linguistics. Justice Solomon provided a handy summary of principles relevant to the admissibility of this kind of evidence at [123]. Whilst most of the report was admissible for various purposes, Solomon J found that the final part of the report was not admissible. As described in the judgment, that part
was where [the expert] set out his analysis of what he perceived to be the magistrate’s misunderstandings of Mr Murray’s evidence. [The expert] undertook a very detailed line-by-line and, in some instances, word-by-word analysis, of Mr Murray’s evidence. The report contains considered and insightful observations of potential difficulties that may have infected Mr Murray’s understanding of the questions being asked and the magistrate’s assessment of what was said in evidence. (at [60])
However, Solomon J found that the expert’s observations in the final part of the report were not particularly helpful in the appeal:
Rather than explanations as to how the failure to take account of Mr Murray’s traditional background led to an error in understanding his evidence, these observations are in substance well informed conjecture about potential problems that may have arisen in Mr Murray’s understanding of the question asked of him through the interpreter Mr Jenkins. The observations do not of themselves demonstrate that the learned magistrate assessed Mr Murray’s evidence in a manner that perpetrated an injustice. (at [61])
Ultimately, Solomon J decided that the final part of the report should not be admitted because it concerned an ‘ultimate issue’ – the assessment of Mr Murray’s credibility – which is for the Court itself to determine. Justice Solomon cited several leading authorities to arrive at this conclusion (including Farrell v The Queen (1998) 194 CLR 286, Jango v Northern Territory (No 4) [2004] FCA 1539, and Wotton v Queensland [2015] FCA 1075). These authorities (and other related cases) can be difficult to apply, creating a fine line between admissible and inadmissible expert opinion as to credibility (this matter has relevance beyond the specific context of First Nations witnesses, and has been an issue of particular interest for me for some time). In summary, these authorities establish that:
- An ultimate conclusion about to the credibility or truthfulness of a particular witness is a matter for the fact finder and is, therefore, not a proper subject for expert opinion.
- However, an expert may opine as to the existence of a condition, disability, or disorder which affects a witness’ capacity to give reliable evidence (so long as the opinion goes beyond matters of ordinary experience);
- Similarly, an expert may give evidence on the language and communication difficulties and differences which are likely to be experienced by an Aboriginal witness.
- Despite points 2 and 3, expert comments on particular parts or passages of evidence given by a witness at trial are likely to usurp the role of the fact finder. That is, those comments typically relate directly to the evaluation of testimony, which is an ultimate issue for the Court.
You can access Murray v Feast [2023] WASC 273, which was delivered on 27 July 2023, here.
Evidence Law in Western Australia 