Nguyen, Ex parte- Re East and Ors

[1997] HCATrans 189

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M53 of 1997

RE:  EAST and ORS

Ex parte:

NGUYEN

DAWSON J (In Chambers)

AT MELBOURNE, WEDNESDAY, THE 30TH DAY OF JULY 1997
AT 2.30 PM

HIS HONOUR:   Yes, Mr Francis.

MR C.H. FRANCIS, QC:   I appear with my learned friend MR D. A. PERKINS for the applicant in these proceedings (instructed by Kuek and Associates).

HIS HONOUR:   Yes, Mr Francis.

MR FRANCIS:   I wondered if I might ask your Honour to what extent your Honour has been able to have time to read the affidavits which are quite voluminous in this case?

HIS HONOUR:   I have read the affidavits and I have read the three judgments of the courts below.  I think I have a fair understanding of what it is about.

MR FRANCIS:   Yes.  Well, in the light of that, your Honour, I may be able to shorten my argument a little and we will not, of course except where necessary, refer to the affidavits if your Honour is apprised of the material within them.

HIS HONOUR:   Yes.

MR FRANCIS:   If your Honour pleases.  This is an application for Writs of Certiori and if I may say so, your Honour, the matter is somewhat like Dietrich's case in that the prime question we say is whether by reason of the fact that there was no interpreter the accused has been denied important rights.  The applicant is a Vietnamese migrant now aged 21.  On 18 October 1996 he pleaded guilty to a count of armed robbery but he was released on a community bond which has certain requirements.  I presume your Honour only has a limited familiarity with community bonds in the State of Victoria?

HIS HONOUR:   Yes, I think enough to understand what it is all about and I have read the section which is set out in Chernov J's judgment.

MR FRANCIS:   Yes.  Well, perhaps I may be telling your Honour no more than your Honour already knows, but I referred to it as a community bond, in fact it is a community based order.  When a judge indicates that an accused is being released on a community based order ordinarily the main feature of that order is that the person concerned is required to perform a number of hours of community service and for the purposes of the community service he is required to report at certain times and perform that service. 

He may also be required to report at other times for other purposes simply to check in with his supervisor to indicate that he is about.  He may be, as in this case, required to have urine samples taken from time to time to check whether or not he is taking drugs and there are a number of details of that nature which are ordinarily contained in orders which are made not by the court itself but by the supervisor.  On 11 March 1997 the accused was brought before the Magistrates Court for alleged breaches of the community based order, I will refer to that simply as CBO, that is the ordinary way in which they are referred. 

There appears to have been no proper determination before the Magistrates Court of whether or not there had been a breach of the order and the magistrate remitted the matter to the County Court for him to be dealt with by the County Court.  If the procedures were properly carried out the magistrate should have made some initial finding on evidence or by satisfying himself in some other way that there had been the breaches, the record of the court does not indicate whether that was done, there is no finding on the record of the court that there was an ascertained breach.  There is simply a notation, plea reserved.  That of course forms part of the basis of the proceedings here but your Honour may well feel that that type of question, having already been looked into by the Supreme Court, is hardly the sort of matter which would warrant the intervention of the High Court on its own.

HIS HONOUR:   You are seeking, you said this is an application for Writ of Certiori or Writs of Certiori.

MR FRANCIS:   Yes.

HIS HONOUR:   Are you pursuing the application for a writ of Habeas Corpus?

MR FRANCIS:   Yes, we are, your Honour.

HIS HONOUR:   Yes, I see.

MR FRANCIS:   But I was mentioning that your Honour might well think that that matter on its own, whether or not that was complied with by the magistrate's court would not be a matter which on its own would concern this court but I mention it as part of the totality of the picture.  On 17 March 1997 the applicant was brought before the County Court before Chief Justice Waldron without the aid of an interpreter.  The breach report was not translated to him during those proceedings nor had he seen the breach report at that stage and the County Court proceedings were conducted without the aid of an interpreter.  The County Court proceedings were, however, conducted as if it were a hearing de novo. 

After hearing fairly short evidence Chief Justice Waldron imprisoned the applicant for two years and he was not to be eligible for parole for one year.  What, however, is a matter of great importance to the applicant in this case is he is not an Australian citizen.

HIS HONOUR:   Was there any appeal against that sentence?

MR FRANCIS:   The proceedings were taken to Byrne J, your Honour, and also ‑ ‑ ‑ 

HIS HONOUR:   Yes, but actual application for leave to appeal against sentence, was that ever made to the Full Court?

MR FRANCIS:   No, there was not, your Honour.

HIS HONOUR:   Yes.

MR FRANCIS:   Would your Honour pardon me?  My learned junior points out, your Honour, that there is in these circumstances no possibility of an appeal against conviction and of course the conviction itself is the very important matter from the point of view ‑ ‑ ‑ 

HIS HONOUR:   Yes, I follow, but there just was no appeal against sentence?

MR FRANCIS:   No, there has not been one, your Honour.

HIS HONOUR:   Very well.

MR FRANCIS:   I am instructed, your Honour, it has been filed but it has not been proceeded with.  I think I was in the process of telling your Honour he is not an Australian citizen and therefore this conviction which his Honour entered may be of great significance as it may well lead to his deportation.  Well, now, I wanted to turn next to the legal background to this application.

HIS HONOUR:   Well, before we do that, Mr Francis, where do I get jurisdiction?

MR FRANCIS:   I am sorry, your Honour?

HIS HONOUR:   Where do I get jurisdiction to grant either Certiorari or Habeas Corpus?

MR FRANCIS:   I was about to deal with that, your Honour.

HIS HONOUR:   Very well.

MR FRANCIS:   We will say the way in which it arises in this case.  First of all I want to refer your Honour to the International Convention on the Elimination of All Forms of Racial Discrimination, article 5.

HIS HONOUR:   Yes, but before we get to that, how do I get jurisdiction to grant either Certiorari or Habeas Corpus?

MR FRANCIS:   We say that your Honour has a jurisdiction in respect of this matter because the failure to provide interpreting services is a breach of the Commonwealth Racial Discrimination Act which was enacted pursuant to section 75 of the constitution. It arises out of an international treaty and therefore this court has exclusive jurisdiction in respect of that matter.

HIS HONOUR: This is under section 75 you say?

MR FRANCIS: Yes. We start off with section 75. Section 75 provides:

In all matters arising under any treaty the High Court shall have original jurisdiction.

That is where we say it begins, your Honour.  Now, the relevant treaty is the International Convention on the Elimination of All Forms of Racial Discrimination.  Does your Honour have that treaty?  I think we passed up ‑ ‑ ‑ 

HIS HONOUR:   I do not think so.

MR FRANCIS:   No, I am sorry, your Honour.  I have got a copy down here.  Would your Honour prefer me to read article 5 or would your Honour prefer me to pass article 5 up to you so ‑ ‑ ‑ 

HIS HONOUR:   It would probably be quicker if you passed it up, Mr Francis.  Yes.

MR FRANCIS: Now, I have referred your Honour to section 75 of the Constitution and under section 38 of the Judiciary Act that jurisdiction is exclusive.  Section 38 reads:

Subject to section 44 the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several courts of the states in the following matters, (a) matters arising directly under any treaty.

HIS HONOUR:   But how does this matter arise directly under any treaty?

MR FRANCIS:   We say it arises under the treaty, your Honour, because the treaty provisions were brought into effect by the Commonwealth Racial Discrimination Act 1975 which was enacted under the treaty.

HIS HONOUR:   Well, it was not enacted under the treaty.

MR FRANCIS:   No.

HIS HONOUR:   It was enacted under the external affairs power to implement the treaty but the Act is not the treaty.

MR FRANCIS:   No, but it arises from the treaty, your Honour, that is our submission.

HIS HONOUR:   Yes, but the matter does not arise under the treaty, it arises under the Act upon your argument.

MR FRANCIS:   Yes.  Now, under the Act I would refer your Honour first of all to section 9.

HIS HONOUR:   This is the Racial Discrimination Act.

MR FRANCIS:   This is the Racial Discrimination Act.

HIS HONOUR:   Yes.

MR FRANCIS:  

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic ...(reads)... any other field of public life.

We submit, your Honour, that the failure to provide the applicant with an interpreter and an interpretation of the supervisor's report, amounted to an impairment of his enjoyment and exercise on an equal footing of his rights to present properly his defence to the alleged breach of the CBO before the County Court. I do not know whether your Honour probably noted this as your Honour read under article 5, the state of course undertakes positive steps to implement the rights under article 5. Under section 10 of the Racial Discrimination Act:

If by reason of or of a provision of a law of the Commonwealth or of a state or territory persons of a particular race, colour or national or ethnic ...(reads)... or national or ethnic origin.

Now, his race falls within the ambit of the different raise, he being a Vietnamese and we say that he did not enjoy his rights to the same extent as an Australian would have enjoyed the rights by reason of his inability to fully understand and his lack of proficiency in the English language.

[2.45pm]

HIS HONOUR:   Yes.

MR FRANCIS:   I then wanted to mention ‑ ‑ ‑ 

HIS HONOUR:   Do you have any authority for the proposition that a matter arising under an Act of Parliament which implements in part or in whole the treaty is a matter arising under the treaty?

MR FRANCIS:   I have not got any immediate authority for that proposition, your Honour.

HIS HONOUR: It would seem that that is unlikely, is it not, because the treaty does not have the force of law of itself, but once it is implemented of course there is a law of the Commonwealth but matters arising under that law would not seem to arise under the treaty particularly whereas in this case the Act, particularly section 10 differs in form from the treaty itself.

MR FRANCIS:   I appreciate the difference, your Honour, but nevertheless states rights which we submit have been violated in this case.

HIS HONOUR:   States rights?

MR FRANCIS:   I am sorry, it states, sets out.

HIS HONOUR:   I see.

MR FRANCIS:   I am sorry, your Honour, I used a word which unfortunately is capable of two - it sets out, your Honour, rights which we say have been violated.

HIS HONOUR:   But the rights are under the Act, not under the treaty.

MR FRANCIS:   Yes, your Honour.  I wanted to turn very briefly to section 95 of the Sentencing Act.  Does your Honour have that?

HIS HONOUR:   Yes, I do.

MR FRANCIS:  

If a court proposes to make an order which has attached to it conditions to which a person is required to consent or which requires a person to give an undertaking, it must before making the order explain or cause to be explained to the person in language likely to be readily understood by him or her the purpose ...(reads)... may be varied.

Well, now, his Honour certainly made some explanation of the effect of the order when he sentenced the accused but so far as the details of what he was required to do by his supervisor they were never explained to him in his own language.

HIS HONOUR:   Details of what he was required to do by his supervisor.

MR FRANCIS:   That is right.

HIS HONOUR:   In other words the supervisor did not explain it to him in his own language.

MR FRANCIS:   As I explained to your Honour a little earlier, under the CBO a supervisor is appointed and thereafter the supervisor determines when he will report and what occasion he is required to attend matters of that nature and those matters were never explained to him in his own language.

I now want to go into a little more detail as to the applicant and what happened to him.  As I mentioned to your Honour he is 21 years of age, having been born in 1976 in Vietnam.  He came to Australia in 1991 speaking no English, and since then he has lived largely amongst Vietnamese speakers.  On 24 August 1995 he was charged with armed robbery.  On 4 September 1995 he attended my instructing solicitors office but thereafter the proceedings were conducted upon the basis that his English was inadequate.  Interpreters were used in his solicitor's office paid for by Legal Aid.  When he went for medical consultation, a medical consultation for a psychiatrists report his sister acted as interpreter and interpreters were used throughout his trial.  On 18 October 1996 he pleaded guilty to one count and was then sentenced to the community based order for a period of two years and he was ordered to do 500 hours of unpaid community work.

On 11 March 1997 he was charged with a breach of the CBO and he was brought before the Magistrate's Court but there appears, we say on the face of it, to be no determination of guilt or innocence and he was then referred onto the County Court.  Before on 17 March 1997 he was brought before the County Court and he was represented by Mr Johns of counsel.  A breach report had been written by the supervising officer but it is our submission, your Honour, that much of the material in that report would simply be matters reported to her by other persons or extracted from documents so that what is in that report would not necessarily amount to evidence, nor was the relevant officer called to give evidence.  The court simply had the order before it.  At this stage the applicant Nguyen did not have an interpreter for the purposes of giving instructions to counsel, nor had he had any interpretation of the breach report.

Before Waldron CJ his counsel admitted that there had been a breach of the CBO but no-one seems to have adverted to which breaches he admitted and which breaches were denied.  And Nguyen himself did not plead in respect of the breach of the CBO.  Now, the CBO set out within it - I am sorry, the report on the CBO set out within it a number of alleged breaches and anyone of those items, of course, would constitute a breach of the CBO.  Now, his counsel simply admitted that there had been a breach of the CBO but nobody seemed to be concerned to determine which breaches had occurred, and we say that was an important matter because if his Honour were satisfied perhaps that there was only one small breach of the CBO that might - his Honour might well have felt that that was not a reason why his Honour should take the sentencing steps which his Honour did.

Now, we say at the hearing before Waldron CJ the transcript indicates that the hearing had some quite unsatisfactory features.  Your Honour has read that transcript I understand.

HIS HONOUR:   Not the transcript before Waldron CJ, no.

MR FRANCIS:   Yes.  I presume your Honour did not read it closely.

HIS HONOUR:   Yes, I glanced at it, that is all.

MR FRANCIS:   Yes.  Well, I will shortly take your Honour to that transcript and we say there are unsatisfactory features and looking at the transcript one may well come to the conclusion that they arose in part because Nguyen did not have an interpreter, and has your Honour had a look at the affidavit of Marie Therese Jensen.

HIS HONOUR:   Yes, I have.

MR FRANCIS:   Well, your Honour, we say that is an important part of this case.  Your Honour will note that proficiency in English is on a scale of nought to five.  Nought is nil understanding;  one is survival proficiency;  two is minimum social proficiency;  three is minimum vocational proficiency;  four is general understanding, and five is perfect English.  Well, he was rated as having survival proficiency which ‑ ‑ ‑ 

HIS HONOUR:   Well, one plus effect.

MR FRANCIS:   Yes, which falls far below the level which would be required to properly understand what was occurring in a court, depending in part of course on what was involved in the proceedings and we say in particular of course a very good command of English would be necessary where what was being considered was really to some extent rather loose use of the phrase, it was to some extent an administrative inquiry into whether he arrived on the particular occasion, whether he had been excused on a particular occasion, matters of that nature which we say would point to the need for a reasonably high level of English.

Now, I wanted to turn now to the transcript of what occurred at the court.  Would your Honour pardon me a moment?  Your Honour, my learned junior has mentioned a matter which I may deal with at a later stage but he has submitted to me that we do rely directly on the convention, and I will refer your Honour to the relevant passage at a later stage but that comes from Tao's ‑ ‑ ‑ 

HIS HONOUR:   What is the authority, Mr ‑ ‑ ‑ 

MR FRANCIS:   Tao, your Honour.

HIS HONOUR:   Well, would you read the passage to me because this is what troubles me.

MR FRANCIS:   Would your Honour pardon me a moment.  The passage is at page 286 and 287, your Honour.

HIS HONOUR:   Yes.

MR FRANCIS:  

The status of convention in Australian Law.

In that case it was the Human Rights and Equal Opportunity Convention:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the executive in the exercise of its prerogative power, whereas the making and the alteration of the law fall within the province of parliament, not the executive ...(reads)... under international law.

HIS HONOUR:   Well, that does not assist you, does it?

MR FRANCIS:   I am afraid, your Honour, ultimately it probably does not assist us.

HIS HONOUR:   Because the matter here you say rises under the Racial Discrimination Act and it can only arise under that Act because the treaty not being part of the law it cannot arise under the treaty.

MR FRANCIS:   If I may say so, your Honour, it might indirectly arise ‑ ‑ ‑ 

HIS HONOUR:   But that is not sufficient, is it?  Well, it cannot arise.  I mean what you are saying is that your cause of action arises out of the treaty but it does not and cannot.  That is the problem that I have.  The Judiciary Act, the section of the Judiciary Act which you referred me was?

MR FRANCIS:   38, I think it was, your Honour, 38.

[3.00pm]

HIS HONOUR:   It is curious that that speaks of matters arising directly under any treaty and the constitution speaks of matters arising under any treaty.  Is there any significance in that?

MR FRANCIS:   I am afraid I am not really able to help your Honour on that point.

HIS HONOUR:   But in any event it is difficult to see how this matter arises under the treaty when it quite obviously arises under the Act and the Act and the treaty are two different things.

MR FRANCIS:   May it not, I submit, your Honour, arise under both?

HIS HONOUR:   No, it does not seem to me that it can.

MR FRANCIS:   May it not be said that the treaty creates certain expectations as to how Australia will prevent discrimination and the Act itself sets out the matters to which I have just referred.

HIS HONOUR: In all events you do not suggest that jurisdiction arises otherwise than under section 75(1).

MR FRANCIS:   No, I do not, your Honour.

HIS HONOUR:   I suspect what is meant by arising under a treaty is matters as between nations who are parties to the treaty within the exclusive regional jurisdiction of the High Court.

MR FRANCIS:   Well, with respect, your Honour, may that not be somewhat inconsistent with the interpretation which the High Court put on this in Teoh?

HIS HONOUR:   No, all that was said in Teoh was that one can take notice of a treaty and in fact the ratio of the case was that in making a decision the decision maker should take notice of the treaty obligations but that does not establish that a matter arises under a treaty when it arises under an Act which is wholly or partly implementing the treaty.

MR FRANCIS:   I was about to ‑ ‑ ‑ 

HIS HONOUR:   You cannot take that matter any further?

MR FRANCIS:   No, I cannot take that matter further, your Honour.

HIS HONOUR:   Yes.

MR FRANCIS:   The only other thing I can perhaps say is we say that this arises directly under the Act.

HIS HONOUR:   Well, it may do.

MR FRANCIS:   And therefore we say that the court does have jurisdiction because the Act comes from an area in respect of which the court does have exclusive jurisdiction.

HIS HONOUR:   Yes.

MR FRANCIS:   I was about to turn to the transcript of what occurred before Waldron J to demonstrate the unsatisfactory features of what occurred without the presence of an interpreter.

HIS HONOUR:   Yes.

MR FRANCIS:   At page 1 Ms Pullen said:

I understand the breach is admitted.

That is at line 21, 22.  Mr Johns says:

That is correct.

But neither counsel then choose to elaborate on which of the breaches are admitted.  Lines 21 to 23, your Honour, on page 1.  Towards the bottom of page 2, your Honour, between lines 23 and 29, Mr Johns points out that the accused has already served 138 hours of his community based order, which meant that he was well on target, he had to serve 500 hours over a period of two years, and in a period of less than six months he had already served 138 hours.  Mr Johns points out at page 4 that he had not been involved in any other offences.  At page 9 when he is sworn and examined what he is asked in his evidence in chief at 23:

What do you say to the court about why you have not done everything that the Office of Corrections have asked you to do?‑‑‑Because of my ...(reads)... clothing you mean?‑‑‑Yes.

Now, that is only, we say, an admission that there have been some breaches but not an admission of all the breaches.  On the following page he is asked about whether he obtained medical certificates when he was absent and he said he did.  That is at lines 10 to 12.  Then he is cross-examined by Ms Pullen for the crown, that commences at the bottom of page 10.  He is asked some fairly convoluted questions at page 11.  To two he answers yes and then he says:

I don't know really.

The next one he answers:

I don't remember.

Then at the top of page 12 he is again asked a somewhat complex question. 

You see the first breach of your community based order, I suggest, occurs on 31 October 1996.  The Office of Corrections say in one instance ...(reads)... order; do you agree with that?

Well, now, his answer yes to that form of cross-examination I submit is in reality meaningless because it is not clear that he is agreeing that he was absent on 31 October 1996.  It may be that all he is agreeing to is the fact that 31 October is about 13 days after he began his community based order, and that question, your Honour, would be a somewhat difficult question perhaps for the ordinary Australian to answer simply and where you have got no interpreter it adds to the complexity of the problem.  The next question:

So 13 days after you received the order you do not attend for supervision, agree with me, within 13 days, not six months later but within 13 ...(reads)... forgotten you were subject to the order?

His answer is:

I think I was late.

Well, now, that is not an admission of that breach and a little further on Ms Pullen asks:

So you would disagree with the Office of Corrections when they say you were unacceptably absent on that day, you say you were late?

His answer is:

I don't really remember.

At page 13 there are - I am reading these examples to your Honour to indicate some of the problems of the cross-examination and the obvious need for a high level of English.  At the bottom of page 12, I think I need to read that to get the context of the whole of the question, but Ms Pullen asks a fairly long question at the bottom of page 12.  Then she says:

Did you tell the Office of Corrections at any time before 18 October, I might be too busy to comply because of mum's sewing business?‑‑‑...(reads)... before 18 October?‑‑‑No.

Then the next question, your Honour, I will not read the whole of that but your Honour can see that that is a ‑ ‑ ‑ 

HIS HONOUR:   I have just read it, yes.

MR FRANCIS:   ‑ ‑ ‑ a very lengthy compounded question.

HIS HONOUR:   It is a wonder somebody did not step in.

MR FRANCIS:   Yes.  To which the answer:

Yes.

I know it may be some time since your Honour did perform the actual act of cross examination.

HIS HONOUR:   I remember it well though.

MR FRANCIS:   But your Honour would remember it well and this is not exactly the type of cross examination which one would show the Readers course to explain how cross examination should be done.  We say it is a very unfortunate mode of approach and particularly unfortunate when you have got a person with most limited English.

HIS HONOUR:   Yes.

MR FRANCIS:   On page 14 a whole long lead up again to what becomes the question, but at line 6 Ms Pullen says:

His Honour said all these conditions are to be in addition to the normal conditions of such an order and that is to run for a period of two years ...(reads)... answer was yes, do you remember yes?

Well, one cannot be quite sure what that means.  Then further down the page he is asked about urine samples and whether he left before he should have.  Line 18:

What I am saying to you is that on occasions when you have attended to give your urine samples you have done just that but then left and not stayed for ...(reads)... who takes the urine.

Well, that certainly does not amount to proof of a breach.  A little further down he is asked about doctors certificates, at the beginning of line 26:

I am suggesting to you that you have not always provided medical certificates or doctors certificates to the office of corrections when you have been sick ...(reads)... you have been sick?‑‑‑Yes, I did.

Now, once again there is a certain ambiguity in that but the more likely interpretation seems to be that he is asserting that in fact he did have a doctor's certificate.

HIS HONOUR:   Well, he clears that up in the next question, does he not?

MR FRANCIS:  

You say you did always or do you agree you didn't always ‑ ‑ ‑ 

Yes, I note what your Honour correctly draws my attention, if I may say so, that he does say:

I didn't always.

[3.15pm]

Now, that really is the only evidence in relation to the breaches and we say that it is implicit in this transcript that there were some breaches, but the extent of the breaches has never been properly determined.  At page 17 his Honour then proceeded to deal with the accused on the basis that each and every breach had been established.  I am sorry, your Honour, I have momentarily lost track of the transcript.

HIS HONOUR:   Well, it is the second paragraph on page 17.

MR FRANCIS:   Thank you, your Honour.  I have got a volume of papers here, your Honour, and I apologise for the fact that I have momentarily lost this.

HIS HONOUR:   Well, the paragraph reads:

The detail of your breaches are set forth in the report which has been provided by Ms East.

MR FRANCIS:   Well, we say that his Honour plainly proceeded upon the basis that all those breaches were established and that there were no mitigating circumstances and we also say that his Honour appears to have attached no weight to the following matters, first of all that the accused had had no further troubles with the law, that he was obviously obtaining vocational training to better himself.

That is set out in his evidence and, thirdly, that he was doing a significant and proper proportion of the work he was required to do under his CBO.  Now, we say that when one looks at this transcript and what his Honour did, this raises the risk that a serious injustice has occurred and we say that this in part arises from the failure to supply an interpreter.

Now, where there is a breach of right, in this case the right to have an interpreter in order to put him on an equal footing with Australians in the same circumstances, the onus then lies on the other party to establish that there was no injustice.  Did your Honour want me to say anything in relation to the proceedings before his Honour, Byrne J and his Honour, Chernov J?  It seemed to me that your Honour would really gain no assistance from what occurred before the two judges of the Supreme Court, but it seemed to us it was important that your Honour should at leas know that those proceedings had occurred.

HIS HONOUR:   Yes, well, I have read the judgments, but you would presumably say that they had no jurisdiction to determine the question which you say is before this Court because this Court has exclusive jurisdiction.

MR FRANCIS:   I do, your Honour.

HIS HONOUR:   It seems a very odd thing because the Racial Discrimination Act applies, does it not, throughout the country and is enforced by Courts exercising jurisdiction, which is not this Court's jurisdiction.  In other words, what you said to me was that under section 38 of the Judiciary Act, the High Court's jurisdiction is exclusive of the jurisdiction of the several Courts of the States in all matters arising directly under any treaty and that jurisdiction is a jurisdiction which is not then reinvested as Federal jurisdiction under section 39(2) because the matters in 38 are accepted from the reinvestment of jurisdiction.

MR FRANCIS:   Yes, we did make that submission, your Honour.

HIS HONOUR:   Well, then, what you must say is that the Racial Discrimination Act, or matters arising under the Racial Discrimination Act, could not be before the Supreme Court because this Court has exclusive jurisdiction in these matters.

MR FRANCIS:   It could arise in a different way, we would submit, your Honour, as to whether it went to the basic fairness of the trial and, of course, that was ‑ ‑ ‑ 

HIS HONOUR:   That has got nothing to do with it.  We are at cross purposes, Mr Francis.  You say that a matter arising under the Racial Discrimination Act is a matter arising under the treaty which lies behind the Act.

MR FRANCIS:   Yes, your Honour, I do.

HIS HONOUR:   Well, if that is so, the matter lies within the exclusive jurisdiction of the High Court under section 38 of the Judiciary Act.

MR FRANCIS:   Yes, your Honour.

HIS HONOUR:   So a matter arising under the Racial Discrimination Act is beyond the jurisdiction of the Supreme Court.

MR FRANCIS:   Yes, your Honour, but ‑ ‑ ‑ 

HIS HONOUR:   On your argument.

MR FRANCIS:   Yes, your Honour, but on the other hand, it was argued before Byrne J not on the basis of the Act, but simply on the basis of procedural fairness.

HIS HONOUR:   Well, that is a different thing.

MR FRANCIS:   It was a different argument.  It was not sought to raise the Act before him.  It was simply sought to raise before him, as your Honour says, a different thing, procedural unfairness.

HIS HONOUR:   Yes.  Well, I have read the judgments and I see what they are saying.

MR FRANCIS:   Yes.  It seemed to me, your Honour, that there were some unfortunate defects in that judgment, but I would not think that that concerns your Honour at the present time in relation to ‑ ‑ ‑ 

HIS HONOUR:   Well, this is not an appeal against those judgments.

MR FRANCIS:   No, it is not an appeal against those and those were the subject of an appeal to the Full Court and the Full Court said it did not warrant - the nature of the appeal did not warrant the matter being heard by the Appeal Court.  They refused leave to appeal.  Now, in relation to the use of - the only other matter to which I want to refer your Honour were various authorities in relation to the need for interpreters.

HIS HONOUR:   Yes.

MR FRANCIS:   That, of course, will not assist me in relation to the point which your Honour has raised, the question of how the jurisdiction arises.  That is simply in relation to - what I have to refer your Honour to simply relates to the problems of interpretation in order to achieve a fair trial.

HIS HONOUR:   One really does not need authority for that - or perhaps you do, Mr Francis, but obviously if a person does not understand what is going on ‑ ‑ ‑ 

MR FRANCIS:   Well, in those circumstances, I can refer to those authorities very quickly, I think, and we have handed them all up to your Honour.

HIS HONOUR:   Yes.

MR FRANCIS:   There is Lee Kun, your Honour, which is reported in (1916) 1 KB 327 which provides that:

Evidence must be translated unless his counsel is satisfied that they do not require it or unless the judge is satisfied that the accused understands the nature of the evidence given against him.

HIS HONOUR:   Yes.

MR FRANCIS:   There is Kunnath v The State. That is reported, your Honour, in (1994) 98 CAR 455.

HIS HONOUR:   That seems to turn on a section of the Constitution of Mauritius, does it not?

MR FRANCIS:   Yes.  The only passage I wanted to refer to, your Honour, was the passage at page 456.  The headnote:

It was an essential principle of criminal law that a trial for an indictable offence should be conducted in the presence of the defendant and that required not only his corporeal presence ...(reads)... could not in the absence of express consent be said to have had a fair trial.

And the point is further elaborated in the second part of the headnote.  There is Mohammed Ahmed Saraya in 70 ACR 515. We have given your Honour a copy of that. The important passage in that, your Honour, is at page 516 beginning at the second paragraph immediately after the part paragraph:

The appellant gave evidence at the trial.  His evidence in chief was given on 11 August 1992 and cross-examination commenced the same day ...(reads)... any reasonable possibility that the offence was committed under duress.

And he then goes on to elaborate the rights of an accused who has a limited ability to speak English.  The use of interpreters is referred to in Dietrich v R.  Dietrich is reported in 174 CLR at page 292.  The relevant passages to which I wanted to refer were in the joint judgment of Mason CJ and McHugh J at page 300, going almost halfway down the page:

Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the ECHR, enshrined such basic minimum rights of an accused ...(reads)... and the right to the free assistance of an interpreter when required.

And at page 330 Deane J referred to the sort of facilities required for a fair trial and in the fifth last line on that page:

The funds necessary to provide interpreter services for an accused and accused witnesses who cannot speak the language.

We have also given your Honour Olwen Industries v The Collector of Customs which is reported (1996) 3 NZLR 226 which simply supports the other passages to which I have already referred and I point out to your Honour in relation to this particular case that in some ways the perhaps fairly trivial questions of whether or not he appeared on a particular date, whether or not he arrived and was given permission to leave, what permission he had, they may all appear to be in one sense relatively small matters.

But it was very important, your Honour, that such issues be properly translated so that it was clear he had an opportunity to answer the allegations that were made against him and we say that when he never saw this report by the supervisor until after he had appeared and been dealt with by his Honour, Waldron J, and when all his counsel had done was to admit that there was some breach and when there was cross-examination of the type which I have read to your Honour, we would submit that it is very clear in this case that the absence of the interpreter had a very adverse effect on the fairness of the proceedings.  The only other point I want to make, coming back to what your Honour obviously considers the most important matter in this application.

[3.30pm]

HIS HONOUR:   Well, I do not know that it is the most important matter, but it may be the determinative matter, that is ‑ ‑ ‑ 

MR FRANCIS:   Yes.  Perhaps I have expressed myself badly.  But your Honour has raised for my consideration for me to argue if I can, that when the Act comes into operation pursuant to the Treaty, then the matter is not a matter within the ambit of the Treaty, it is simply a matter ‑ ‑ ‑ 

HIS HONOUR:   Well, it does not arise under the Treaty, it arises under the Act.

MR FRANCIS:   It does not arise under the Treaty.  Well, if that proposition is right, then it is difficult to see what could ever arise under the Treaty ‑ ‑ ‑ 

HIS HONOUR:   Matters concerning the parties to the Treaty, the meaning of the Treaty, and so on.

MR FRANCIS:   But that would not be a matter to be determined by the High Court, with respect, your Honour. 

HIS HONOUR:   It would be rare, but it could be.

MR FRANCIS:   Conceivably it could be, your Honour, but it would be very rare.

HIS HONOUR:   The declaration as to the meaning of the Treaty, for instance.

MR FRANCIS: Well, I would submit, your Honour, that a wider meaning must be given than that, or otherwise section 75 would ‑ ‑ ‑

HIS HONOUR:   It does lead to the curious result, Mr Francis, that the Racial Discrimination Act could not be enforced in the Supreme Courts of the States, on your argument.

MR FRANCIS:   Well, it seems it could not be raised as an argument, your Honour.

HIS HONOUR:   Well, the High Court has exclusive jurisdiction ‑ ‑ ‑ 

MR FRANCIS:   Yes.

HIS HONOUR:   ‑ ‑ ‑ with respect to matters arising under a treaty.

MR FRANCIS:   Yes.

HIS HONOUR:   And if the matter arising under the Racial Discrimination Act is a matter arising under a treaty, then it has exclusive jurisdiction with respect to that.

MR FRANCIS:   It may be, your Honour, though that the Act, whilst it arises under the Treaty, creating a jurisdiction for the High Court, may also be a matter which concerns the States.

HIS HONOUR:   But I am just pointing out that it cannot be both.  If a matter arising under the Act is a matter arising under the Treaty, then it lies within the exclusive jurisdiction of the High Court.

MR FRANCIS:   Well, it may be in those circumstances that the argument which really has been discussed already, that the same sort of questions can arise as a question of procedural fairness, but ‑ ‑ ‑ 

HIS HONOUR:   Well, then that would not be a matter which is within the jurisdiction of this Court.

MR FRANCIS:   But that would not be a matter - yes.  No, that would not be, your Honour, I concede.

HIS HONOUR:   Within the original jurisdiction. 

MR FRANCIS:   Yes.  Well, for these reasons, your Honour, we say that writs of certiorari should be obtained by the applicant in this case and ‑ ‑ ‑ 

HIS HONOUR:   And habeas corpus.

MR FRANCIS:   And habeas corpus.

HIS HONOUR:   Yes, thank you, Mr Francis.

MR FRANCIS:   If your Honour pleases.

HIS HONOUR:   I will consider this matter and give my decision as soon as I can.  I should think it would be tomorrow morning, but unless I strike any snags.

MR FRANCIS:   Did your Honour say it would not be tomorrow morning?

HIS HONOUR:   No, it is likely to be tomorrow morning.

MR FRANCIS:   Yes.

HIS HONOUR:   If convenient, I would have the parties notified.  Would that be convenient to you as to when I ‑ ‑ ‑ 

MR FRANCIS:   Yes, your Honour, could we leave telephone numbers with your Honour's Associate?

HIS HONOUR:   Yes, or with the Deputy Registrar.  Very well.

AT 3.35 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 31 JULY 1997