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Chen v The Queen

Chen v The Queen

Case [2018] NSWCCA 106 1 June 2018

Appeal

Expert Evidence

Admissibility of Evidence

Jury Directions

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Chen v R [2018] NSWCCA 106
Hearing dates: 1 November 2017
Date of orders: 01 June 2018
Decision date: 01 June 2018
Before: Hoeben CJ at CL; Schmidt J; Campbell J
Decision:
Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – expert evidence – whether evidence admissible as expert opinion under s 79 of the Evidence Act 1995 (NSW) – whether expert possesses necessary specialised knowledge – whether opinion evidence of expert should be excluded under ss 135 or 137 of Evidence Act where credibility, reliability and accuracy of evidence challenged

CRIMINAL LAW – appeal against conviction – expert evidence – expert witness code of conduct – whether evidence is inadmissible where provisions of Part 75 r 3J of Supreme Court Rules 1970 (NSW) relating to expert witness code of conduct not complied with – whether evidence of expert who is not aware of expert witness code of conduct should be excluded under ss 135 or 137 of the Evidence Act 1995 (NSW)

CRIMINAL LAW – appeal against conviction – jury directions– expert evidence – where translations of intercepted telephone calls challenged – whether judge failed to give jury necessary directions following Crown address alleged to have suggested a reversed onus of proof
STATUTORY INTERPRETATION – proper construction of s 79 Evidence Act 1995 (NSW) – proper construction of s 124 Supreme Court Act 1970 (NSW) – proper construction of s 171D District Court Act 1973 (NSW) – proper construction of Part 75 r 3J Supreme Court Rules 1970 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court’s Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Commonwealth Development Bank of Australia Pty Limited v Claude George Rene Cassegrain; Gerald Cassegrain & Co Pty Limited v Commonwealth Development Bank of Australia Pty Limited [2002] NSWSC 980
De L v Director-General Department of Community Services (NSW) (1997) 190 CLR 207 at 212; [1997] HCA 14
Fillipou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
Ocean Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 ; [2000] FCA 1463
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Chen (District Court (NSW); Buscombe ADCJ; 25 September 2015; unrep)
R v McIntyre [2001] NSWCCA 311
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
Tuite v R (2015) 49 VR 196; [2015] VSCA 148
Wood v The Queen (2012)

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.

Continue reading Chen v The Queen

Details

AGLC: Chen v The Queen [2018] NSWCCA 106
Case: [2018] NSWCCA 106
Decision Date: 01 June 2018

CaseChat Overview and Summary

Chen appeals against his conviction for various drug trafficking offences. The appeal focuses on the admissibility of expert evidence provided by a linguist and the propriety of jury directions given by the trial judge. The High Court was asked to determine the admissibility of expert opinion evidence under section 79 of the Evidence Act 1995 (NSW), the necessity of the expert possessing specialised knowledge, and whether the evidence should be excluded under sections 135 or 137 of the Evidence Act where its credibility, reliability, and accuracy are challenged. The court also considered whether the evidence should be inadmissible where the expert witness code of conduct, as set out in Part 75 r 3J of the Supreme Court Rules 1970 (NSW), was not complied with. Specifically, the court examined whether the evidence of an expert who was not aware of the expert witness code of conduct should be excluded under sections 135 or 137 of the Evidence Act. Additionally, the court evaluated whether the judge failed to provide the jury with necessary directions following the Crown's address, which allegedly suggested a reversed onus of proof.

The High Court determined that the expert opinion evidence was admissible under section 79 of the Evidence Act. The court found that the linguist's specialised knowledge was sufficient to qualify as expert evidence. The court held that the evidence should not be excluded under sections 135 or 137 of the Evidence Act because the challenge to its credibility, reliability, and accuracy did not warrant exclusion. Regarding the expert witness code of conduct, the court found that the expert's lack of awareness of the code did not render the evidence inadmissible. The court also found that the judge had adequately directed the jury, and there was no suggestion of a reversed onus of proof. The court concluded that the trial judge's directions to the jury were sufficient, and there was no miscarriage of justice. The court held that the expert evidence was properly admitted and the trial judge's directions were adequate.

The High Court dismissed the appeal, upholding Chen's conviction. The court found no error in the trial judge's handling of the expert evidence or the jury directions. The decision confirms the trial judge's discretion in determining the admissibility of expert evidence and the adequacy of jury directions in criminal trials. The court's reasoning reinforces the importance of specialised knowledge for expert witnesses and the need for expert witnesses to be aware of the expert witness code of conduct. The outcome of the appeal reinforces the trial judge's authority in managing expert evidence and jury instructions in criminal proceedings.

Orders