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

Copyright in the High Court of Australia

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 by it.  That is the issue and whether that mandated – so the rules say unless both of those matters are done, the expert cannot give oral evidence.

NETTLE J:   But it is accepted as a matter of established authority that notwithstanding non‑compliance a judge, if satisfied of the propriety of the evidence, can leave it in, is it not?

MR THANGARAJ:   That is right.  And so, firstly, the judge may do that.  In this case, we say there was no – the judge did not do it but that is not what we are relying on.  We are relying on, that in this case, it would not have ever have been appropriate to allow this witness to give expert evidence.

NETTLE J:   So, your case is it was not open to the judge in the circumstances to admit this evidence.

MR THANGARAJ:   That is right.  And that the Court of Criminal Appeal could not rely on it saying that it was not open – sorry, that it was open to the judge, it was a task that the Court of Criminal Appeal ought to have undertaken itself in relation to section 79 and the expert code of conduct. 

I will come to the issues shortly but, in our submission, short put, it is the court that has the experience of difficulties with experts.  The court knows about miscarriages of justice.  The court understands that science can be persuasive with a jury but there may be problems and that the court should, ultimately, act as a gatekeeper rather than leaving issues of reliability, contextual bias, contamination bias, confirmation bias, priming, leaving those matters exclusively ‑ ‑ ‑

BELL J:   Before we run through the whole shopping list, can we cut to the chase.  Here you have a witness who is a NAATI qualified interpreter who has grown up in the province in which this particular dialect is spoken to the age of 10 and continues to speak in that dialect on occasions with her family.  Is that right?

MR THANGARAJ:   That is right. 

BELL J:   NAATI does not accredit people in that dialect.  She, indeed, had sought NAATI accreditation but was unable to obtain it for that reason, so one infers that neither she, nor the expert called on the applicant’s behalf, were NAATI accredited interpreters of that dialect.

MR THANGARAJ:   Yes.

BELL J:   You say it was not open to the judge to consider having regard to the circumstances that she was qualified as an interpreter and spoke that dialect, albeit did not claim to be as fluent in that dialect as in Mandarin, that it was not open to the trial judge to consider that she had the appropriate specialised knowledge under section 79.

MR THANGARAJ:   Your Honour, there were a number of matters that needed to go into the mix to determine as a fact that the Crown had established that she had specialised knowledge.  Firstly, she did not have any training in the actual dialect.  I accept that she had the skills of an interpreter through her learning.  There were concerns ‑ real concerns ‑ about her credibility with respect to her experience because she said such things as, I was born in the province that spoke this, it became exposed that she had not been born in that ‑ ‑ ‑

BELL J:   She had learnt from her father.  In fact, she had not been born there.

MR THANGARAJ:   Well, your Honour, with respect, the birth certificate was clear and it was inconsistent with what she had originally said was her birthplace.  Her original birthplace that she said was within the area that spoke the dialect, then her birthplace showed it was not and ‑ ‑ ‑

BELL J:   I think correctly speaking, Mr Thangaraj, a witness cannot give evidence of their own knowledge of their birth, can they?

MR THANGARAJ:   Well, the fact that the birth certificate exposed that she had not come from there, then she said, “Well, my father told me we had moved from this hospital to there”, but the point was, where she was born was not the mother tongue of the dialect that she ultimately was asked to ‑ ‑ ‑

BELL J:   Surely one looks to questions of mother tongue to where it is that one first starts speaking, and that was in the province on her evidence, was it not?

MR THANGARAJ:   Well, she also agreed that by the time she left her vocabulary would not be as fully developed, there are issues with learning, so ultimately it is for the Crown to establish that she had specialised knowledge.  She herself used different words to describe her knowledge of the language, fluent versus well‑versed.  But there are other issues in this case that we say that the law should permit a trial judge to consider in looking at 79, such as she attended at the search warrant, she knew the police case was about granules, and she originally denied that, then accepted that she did know that before the translation of the critical word, she had interpreted material during the course of the investigation.  All of that is perfectly appropriate.

But if want to then use that witness in the trial surely, with respect, someone else needs to do that, not someone with the priming, the bias, et cetera, of that knowledge.  When it comes to a contentious word ‑ the critical words in this case the Crown relied on was “in dispute”, that she knew what the police wanted.  She used the very unusual word of “granule”.  Your Honours know what she ultimately says about that.  It is literal translation but she agrees it is not a noun, it is a qualifier, it does not actually mean anything, it could refer to any size.

But the size she chose is the word and the size that the police have already used, it was the word the Crown was using and, in our submission, those matters are relevant to the question of whether she had specialised knowledge and also the issues of bias.  It does not have to be actual bias.  It can be the biases I am talking about, the priming, et cetera, and we are talking about someone who has made a number of mistakes in the translation.  She said, “Well, I corrected those”, but she denies that they were changes that mimicked the defence translation concerns.  Clearly, with respect, they were.

NETTLE J:   How do you put it that the jury could not rationally have accepted her evidence?

MR THANGARAJ:   No, what we are saying is that she did not have specialised knowledge to qualify under 79, that those other matters were relevant to 135 and 137.

NETTLE J:   Well, she did have special knowledge.  Plainly, she had special knowledge.  She spoke the thing, as only half a dozen people in the world seem to do.

MR THANGARAJ:   Well, your Honour, with respect, you do not have specialised knowledge simply because not many other people do it.  You have to be at a particular level, otherwise someone who might purport to have expertise but actually might not be very good at all does not actually have specialised knowledge.  They might think they do.  They are the issues that this case would allow to be pursued and the Court of Criminal Appeal in Wood said there are matters unresolved in this area.  Honeysett did not deal with all of these issues.  But, in our submission, those matters arise in this case.

Now, with respect to the code of conduct, if I can just speak about that briefly.  Our submission is that that code mandates that a purported expert can not give evidence.  There is no dispute that those rules applied in the District Court criminal trial.  The response of the Court of Criminal Appeal and from our friends is that, well that does not overtake the Evidence Act and the Evidence Act rules.  Now, the Evidence Act is not a code. It deals with general issues. It does not purport to deal with the expert issues of not reading the code of conduct. We told our friends we would take the Court to section 124(1)(ma) of the Supreme Court Act and if I could just quickly hand that up to your Honours.

So the Supreme Court Act provides that the rule committee may make rules without limiting the generality of ‑ and with respect to (1)(ma):

for prescribing matters relating to expert evidence, including the disclosure, by the furnishing of copies of reports or otherwise, of the nature of expert evidence to be given, and [importantly] including the exclusion of expert evidence in case of non‑compliance with the rules relating to expert evidence or with any order for disclosure –

et cetera. So, in our submission, Part 75, rule 3J(3) is made pursuant to the Supreme Court Act.  It is not ultra vires.  It specifically deals with this issue.

BELL J:   Mr Thangaraj, I thought at the outset we established that you were not contending that it was not open to the judge to receive the evidence, notwithstanding the non‑compliance with the code. 

MR THANGARAJ:   Sorry, your Honour, that was in relation to the issues of reliability and bias.  The second point is the expert code of conduct.  Our position is that an expert cannot give evidence in a trial without having read and agreed to abide by the code unless the court orders otherwise and ‑ ‑ ‑

BELL J:   But here the court did examine the matter, did it not, and determined to receive the evidence, notwithstanding that the witness had not read the code.  Am I wrong in that?

MR THANGARAJ:   So, what his Honour the trial judge did was to say Wood makes it clear that it is not – that simply not abiding by the code does not mean it must be excluded.  It is relevant.  Then, so his Honour did not accept ‑ ‑ ‑

BELL J:   His Honour determined to receive the evidence in light of the statements in Wood, notwithstanding that the witness had not read the code.  Your complaint is with the failure of his Honour to say I hereby otherwise order.

MR THANGARAJ:   No, it is not, your Honour. 

BELL J:   Then I am sorry, what is the point?

MR THANGARAJ:   That would not be a worthwhile point to trouble this Court with.

BELL J:   No, indeed.  What are you troubling us with?

MR THANGARAJ:   Can I go back one step?  Firstly, Wood and no other case that we can see that has been relied upon here had regard to section 124(1)(ma). So, his Honour felt ‑ sorry, saw that Wood said mandatory ‑ these issues mean that it does not mean it is necessarily out so his Honour said, well, so I do not have to throw it out on the basis of non‑compliance with the code, there are other matters and I am letting it in.

So, our submission is in this case it would never have been appropriate for the trial judge to otherwise order in any case.  So, it is not a matter of simply his Honour failed to do something.  It is when one looks at all the matters that we say are relevant ‑ and I have taken the Court to some of them, the rest are in our documents ‑ all the problems with the witnesses specialised, et cetera, et cetera, that it would never have been a case where ‑ ‑ ‑

BELL J:   So, it was not in law open to the judge to receive the evidence in circumstances in which the witness had not read the code; that is the submission?

MR THANGARAJ:   Yes, and the response to that in this case, in the Court of Criminal Appeal and from our friends is, well, it is the Evidence Act that determines that issue rather than a subordinate piece of legislation, being the rules, but given how precise the Act is, it is what Parliament has empowered the rules committee to do, and these issues go to fair trial, of course, they are not simply matters of admissibility.  It is fair trial, permanent stay, they are all matters entirely within the province of a trial court or a court to make rules and make decisions about, these are important issues, with respect. 

So, what we say is this Court – and, firstly, if we are correct that except in cases where the order is made for good reason that it is mandatory, that is ‑ which is not consistent with Wood, so the Court of Criminal Appeal has not said to date that the code means something cannot be.  There are very good reasons why the rules are written, with respect, that way so that a witness is no longer an advocate, a witness does understand a duty to the court, all those things that we regard as trite.

But in the circumstances where a witness has been involved in the police investigation, understands the police case and then there are real concerns with her credibility and reliability, all matters not necessarily easy to take to a jury without the knowledge of and the concerns of those matters of priming and bias et cetera that I have raised with the Court, in our submission, those are important issues and, if we are correct, the appeal would be allowed, importantly.  That is why we say it is a suitable vehicle in relation to these issues.

Could I just deal with a couple of discrete points that the court relied upon.  The court said that section 177 was helpful in its construction.  With respect, that is misplaced.  We dealt with that below but, in short compass, 177 is a vehicle to shortcut the need to call witnesses.  If both sides agree that some evidence can go in uncontested then, of course, there is no need for compliance with the code because is not a matter of dispute between the parties.  That is an appropriate way to shortcut evidence and many criminal trials have the benefit ‑ use 177.  That does not assist in relation to this potential argument.

Our submission is that 79 imposes an onus on a party for very good reason, to adduce expert opinion.  The rules also do so and the failures to comply with that go to the issue of whether or not specialised knowledge has been established because it is for the moving party to establish that and it is well known that knowledge reflects a level of expertise above belief.  Honeysett, of course, made that clear.  The terms of the Act, of course, make that clear themselves, and perhaps that is the difference between being fluent on the one hand and well‑versed on the other or making the sort of errors that this witness made when she accepted herself that a fluent speaker would not make those sort of errors.

These are the concerns.  This Crown case may well have failed but for the translation of that word of “la”.  The Crown agreed below that it was an important meaning at the trial, that it was an important aspect of the Crown case.  There are other aspects of the facts which make it clear that that is an issue but, in our submission, the only way that the mandatory condition of having specialised knowledge being satisfied for the trial judge is to assess matters, for the trial judge to be permitted to examine matters of reliability, to examine matters of bias, at the moment none of which are permitted under 79 and some of which may not even be permitted with other provisions, 135 and 137.

But a purported expert who is not very good, as I said, may not have the specialised knowledge which is a prerequisite to admission and that is why we say all of these matters of unreliability and bias, one, are relevant and, two, should be dealt with by the court as a gatekeeper rather than being left to a jury.  They are very difficult matters, with respect, to direct a jury

on.  We can deal with identification et cetera but it is not necessarily easy in this case where there is science involved.  A purported identification, for example, that is based on suggestion, a high level of suggestion ‑ ‑ ‑

BELL J:   Mr Thangaraj, you are suggesting that for the purpose of determining whether a witness meets the qualification of giving an opinion based on the witness’s specialised knowledge, the court is to form a view, not about whether the witness possesses specialised knowledge, but whether the court considers that the witness’s opinion, based on that specialised knowledge, is a reliable one.  Is that where you are moving?

MR THANGARAJ:   No, your Honour, it is not.  Sorry, I am being unfair about that.  In determining whether the witness in fact has specialised knowledge, that witness in fact has a specialised knowledge, so not as a body of expertise but that that witness therefore is permitted to give evidence under 79 because that is the threshold.

It seems to be assumed that witnesses have all this expertise because they are presented that way, but not all of them do.  And, in our submission, a trial judge should be permitted to, in determining whether or not a particular witness has specialised knowledge, look at matters of reliability because that will impact, or may impact, on whether or not the witness has the knowledge that he or she claims to have.  And the number of factual problems in this case show why this was a particular vehicle, with respect, where a thorough examination of all those issues may well have led a trial judge to have such serious concerns that the Crown would have failed to establish that under section 79.  So that is the issue.

And the Court of Appeal has also said that the authorities make it clear, or that we had not brought any authority to the Court to demonstrate that bias could be relevant to these issues, because I have relied on confirmation bias et cetera.  We accept that that is the position but this Court would be in a position to say that those matters of bias are relevant to ultimate admissibility or ‑ ‑ ‑

BELL J:   Relevant to whether the witness possesses specialised knowledge and has expressed an opinion based on that specialised knowledge ‑ ‑ ‑

MR THANGARAJ:   No, that would ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ relevant to the exercise of a discretion under 135 or 137.

MR THANGARAJ:   That is right.

BELL J:   I see.  Yes, thank you.  We do not need to hear from you, Mr Baker.

In our opinion, there is no reason to doubt the decision of the Court of Criminal Appeal and for that reason special leave is refused. 

AT 11.02 AM THE MATTER WAS CONCLUDED