Chen v The Queen - [2018] HCATrans 240

[2018] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S181 of 2018

B e t w e e n -
WEIDONG CHEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 NOVEMBER 2018, AT 10.41 AM

MR M. THANGARAJ, SC: Your Honours, I appear with my learned friends, MR S.A. BARON LEVI and MR T. BICANIC. (instructed by Maksisi Lawyers)

MR H. BAKER, SC: Your Honours, I appear with my learned friend, MS B.K. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Mr Thangaraj.

MR THANGARAJ: Your Honours, the issues in this case affect civil litigation and the criminal justice system in New South Wales. The applicant makes two contentions with respect to special leave. Firstly, as it is for the parties seeking to adduce expert evidence to establish that that witness has specialised knowledge, issues of reliability and bias are relevant to section 79 and also 135 and 137.

Secondly, the Supreme Court Act permitted the rules committee to mandate compliance with the expert code of conduct. Therefore, a witness cannot, the applicant says, give evidence without reading and agreeing to abide by the expert code of conduct. Alternatively, it would be an exceptional case to allow a witness purporting to be an expert to give evidence in the circumstances and this present case demonstrates the risk.

BELL J: Mr Thangaraj, you are not putting a proposition that it was not open to the judge to receive the evidence in the circumstances in which the witness acknowledged she had not read the code, are you?

MR THANGARAJ: If the Court, before she gave evidence, made the order that the rules permit, that is the Court may otherwise order, that would not have been a problem, but that did not happen. There was no order made in this case.

BELL J: So it is the absence of the formal order.

MR THANGARAJ: Yes.

BELL J: The matter was explored, was it?

NETTLE J: You cannot be serious, can you? Because the judge did not say, “I so order,” it makes ‑ ‑ ‑

MR THANGARAJ: No. All I am saying about that, your Honour, is that that is an out and it allows a court in the circumstances to say, “An expert does not need to have read it or to have abided by it in this case because, for example, an expert has written hundreds of reports and always had that and this one is an oversight. I have heard from the expert on the voir dire,” or for example, “The expert can go and read it now.”

That is not the issue in this case. The issue in this case is that it was accepted that the expert had not ever read the code, had not ever agreed to abide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] HCATrans 240
Decision Date

CaseChat Overview and Summary

In *Chen v The Queen*, the Court of Appeal of the Supreme Court of Victoria considered an appeal against a conviction for trafficking a commercial quantity of methylamphetamine. The appellant, Chen, had been found guilty by a jury and sentenced to a term of imprisonment.

The central legal issue before the Court of Appeal was whether the trial judge had erred in admitting certain evidence, specifically evidence of prior convictions and a prior finding of guilt for drug-related offences. The appellant argued that this evidence was unfairly prejudicial and should not have been admitted, as it tended to suggest a propensity on his part to commit drug offences, rather than proving an element of the current charge.

The Court of Appeal analysed the admissibility of the evidence under the principles governing the admission of evidence of prior convictions or misconduct. It considered whether the evidence was relevant to an issue in dispute in the trial, beyond merely suggesting a propensity. The Court ultimately found that the evidence was relevant to establishing the appellant's knowledge and intent in relation to the drug trafficking charge, and that the trial judge had properly directed the jury on how to consider this evidence, mitigating any unfair prejudice.

The appeal was dismissed, with the Court of Appeal upholding the conviction and sentence imposed at trial.

Orders