Miscarriage due to magistrate’s intransigence on accused’s language … Need for an interpreter … Strident views from the bench … Other meanings … Appeal … Role of WA courts’ Reconciliation Statement … Magistrate’s “demonstrated level of Aboriginal cultural competency” … From our Ringside Reporter
The appellant spoke Walmajarri and Kriol and an interpreter, Mr Jenkins, was provided at trial. However, Magistrate Gavin Maclean claimed that Murray “speaks and understands English perfectly competently” – and that interpretation was unnecessary.
Jenkins insisted that Murray was speaking in Aboriginal English and Kriol and that he is “required to interpret everything”.
He also cut off Murray’s legal aid counsel, as she tried to explain that what might sound like English could have different meanings.
Maclean pointedly, at the beginning of the trial, declined to hear or record Jenkins’ name, his qualifications, and refused to swear him in.
To that extent, the magistrate fell below the requirements set out in the “recommended national standards for working with interpreters in courts and tribunals”, published by the Judicial Council on Cultural Diversity.
Justice Solomon found that the magistrate’s tone was dismissive, strident and sarcastic – giving rise to a substantial miscarriage of justice.
Communication barriers for First Nations people in the justice system, are a long-running vexed issue. Justice Solomon, who is also an orthodox rabbi, went into detail about socio-linguistic problems for First Nations people in court, referring to a report on Kimberley kriol orthography and an analysis of Murray’s evidence prepared by Alex Bowen, a lawyer and specialist linguist.
Bowen concluded that the magistrate’s rejection of parts of Murray’s evidence resulted from “misunderstandings of language, and from the complexity of the way evidence was received in this trial”.
In May 2023, the heads of jurisdiction in Western Australia published and declared a Reconciliation Statement, which included:
“We acknowledge all Aboriginal and Torres Strait Islander people and their Elders, past, present and future. We respect and celebrate the diverse language, cultures and spiritual connection to the land, seas, sky and waterways of all Aboriginal and Torres Strait Islander people. We acknowledge, with regret, that over the course of our shared history, Aboriginal and Torres Strait Islander people have faced significant barriers to justice in out courts and tribunals, whether as parties to civil proceedings, witnesses, victims of crime or accused persons in criminal proceedings.
We acknowledge, with regret that Aboriginal and Torres Strait Islander people continue to be overrepresented in the criminal justice system and face obstacles in pursuing their rights in a variety of other ways in our justice system as a whole …”
It’s worth quoting a slab of Solomon’s reasons:
The root of the problem was Maclean’s attitude towards the accused:
“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 … Objectively, the conduct had all the hallmarks of at least the impression of an unfair prejudgment of Mr Murray’s character and the integrity of his testimony …
Even the calm and courageous professionalism of the interpreter, Mr Jenkins and the lawyer, Ms Hughes, could not redeem this trial from the consequences of the magistrate’s unintended but irretrievably unfair treatment of Mr Murray.”
The elaboration of Maclean’s errors was softened somewhat by acknowledgement that magistrates’ courts are busy places, while appeal judges have the time to consider matters more thoroughly.
“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.”
In fact, Maclean is an Indigenous judicial officer, appointed in August 2018. He worked for the Aboriginal Legal Service from 1998 to 2001 and represented litigants in matters concerning the Stolen Generation and Inheritance Act claims.
The WA Law Society pointed out that Maclean has a “demonstrated level of Aboriginal cultural competency”.
The conviction in the Murray case was set aside with submissions to be heard on whether a new trial should be ordered.