Nguyen v The Queen
[1999] HCATrans 131
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M53 of 1998
B e t w e e n -
QUOC PHU NGUYEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
KIRBY J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 14 MAY 1999, AT 2.51 PM
Copyright in the High Court of Australia
MR G. CONNELLAN: If the Court pleases, I appear on behalf of the applicant. (instructed by Kuek & Associates)
MR J.D. McARDLE, QC: May it please the Court, I appear with MS K.E. JUDD for the respondent. (instructed by the Office of Public Prosecutions (Victoria))
KIRBY J: Yes, Mr Connellan.
MR CONNELLAN: Your Honours, this involves an application for special leave to appeal from a decision of the Court of Appeal of Victoria. The questions of importance are twofold essentially: the question characterised in terms of what I would call the interpreter question; and the second is in terms of what I would refer to as the double jeopardy question in terms of the question of sentence. Your Honours may remember this matter from earlier occasions.
KIRBY J: Yes, indeed, we do, and we are wondering why it is revisiting us.
MR CONNELLAN: Your Honour, on this occasion, the appeal is from a decision of the Court of Appeal in Victoria which has not been dealt with on appeal before or in application before this Court previously.
CALLINAN J: It still looks much like a boomerang to me, Mr Connellan, I must say.
MR CONNELLAN: Yes, your Honour. The occasions where this Court has dealt with the matter previously involve a situation where there was a question of the original jurisdiction of this Court and - - -
KIRBY J: That is so, but the same issues are being reagitated, the only difference being that in the earlier proceedings it was held that there was no jurisdiction to entertain them. You are coming here without that problem but the issue of merits remains the same. I suppose your contention is that has never been finally determined and you want to have it determined now?
MR CONNELLAN: That is so, your Honour, and in addition, we say that the questions of merit relate to some very, very important questions, particularly in relation to the question of the interpreter.
KIRBY J: It is not the strongest case for the right to an interpreter in a criminal proceeding to be agitated in this Court when you had a case where a person was legally represented and counsel for the person said words to the effect you did not need an interpreter. The matter proceeded for a time and no request for an interpreter was made. I have sat in cases where requests for interpreters have been much stronger than this case. If the High Court is going to consider that matter, one would think that there would be a better vehicle than this one.
MR CONNELLAN: The reason why I submit this is, in fact, a very good vehicle is this, your Honour: the matters that your Honour has just outlined raise some very critical questions. First of all, what is the duty of counsel in that situation and, secondly, what is the duty of the court? They are two, in my submission, very important questions.
KIRBY J: We do not have to lay down that if there is any doubt whatever that a litigant does not understand the nature of the proceedings or the matters which they are called upon to answer, that it would be the duty of counsel to bring that to the notice of the Court. There was an inference, as I recollect it, that in this case counsel had had an opportunity of a pre-hearing conference with the applicant and yet, notwithstanding that and notwithstanding the fact that counsel was an experienced barrister, no suggestion whatever was made either by him or by your client that there was a need for an interpreter and the judge did not draw that inference himself, a most experienced trial judge.
CALLINAN J: And let me add this: assuming Ms Jensen’s qualifications to make the report that she did of 25 May 1997, it strikes me, I must say, as a singularly unconvincing document.
MR CONNELLAN: There are several reports from Ms Jensen, your Honour.
CALLINAN J: The one I am looking at is at page 225.
MR CONNELLAN: Right. That is the last one where she goes to the analysis of the actual evidence of the witness.
CALLINAN J: Which I do not think is even admissible; not even remotely admissible, half of that, I would have thought. Were you in Court this morning when we talked about – you probably were not - there were some observations made about evidence that was sought to be relied upon or the lack of evidence and the lack of evidence in proper admissible form which is sought to be relied upon in special leave applications. It may be that there is no objection to this but I still find it, I must say, utterly unconvincing.
MR CONNELLAN: Your Honour, could I take another step and then come back to what you have raised with me?
CALLINAN J: Yes, certainly.
MR CONNELLAN: What I wish to put to your Honour that there is an analogy of the situation of a person who relies on an election made on their behalf by their counsel and that analogy is where a person has a right to go for trial by jury and they opt to have the matter dealt with summarily. Now, the cases on that make it clear that not only must the defendant be in court when that election is made on their behalf by counsel, but they must be in court so that they give their acknowledgment of the consent on their behalf by way of conduct.
Now, where the person suffers from a disability in terms of their ability to understand the language, it is my submission that that approach is inadequate and that, in fact, what is required both of counsel and of the court in those circumstances is to ensure, first of all, that the defendant themselves has the question raised with them as to whether or not – and directly with them, not through counsel – they are in need of an interpreter and to ensure that the defendant understands that they have a right to understand all the vital steps and processes within the hearing.
KIRBY J: Would we not have expected in this case that if you were seeking to mount an argument that notwithstanding what the record shows that counsel may have made a mistake, that he was busy that day, that he thinks on reflection that he had not had a full conference or adequate, you would have expected some sort of affidavit from counsel, acting fairly and honestly to the former client, but there is nothing like that before us, only the evidence in inadmissible form from an expert.
CALLINAN J: How can Ms Jensen possibly say:
I will then analyse the transcript of proceedings in the County Court in Melbourne –
she was not there. This is an analysis attempted afterwards.
(a), and argue –
“argue”, which might give some indication of the way in which she approaches a professional obligation –
that the linguistic evidence in this transcript shows that your client did not understand critical questions put to him during cross‑examination –
I do not know how anybody can say that, let alone an English teacher. At the moment, you do not even get to first base. I do not see any merit at the moment in the suggestion that you can establish that your client did not understand the proceedings anyway.
MR CONNELLAN: The only things that I can point your Honours to in that regard are things that arise from the transcripts of the original plea in the County Court when the defendant was originally placed on the community based order and also from the subsequent occasion in the County Court when the breach of the community based order was dealt with. In those regards, in the first occasion, there was viva voce evidence from the father in the course of that plea where his father said, in response to a question – and it is at the application book at page 106 – “maybe English is his problem” and then he goes on to say in that connection, “He was not interested in his education.”
CALLINAN J: How can we draw an inference from that that he did not understand English? And what qualifications has the father got to talk about what amount of English the son can understand?
MR CONNELLAN: The only qualification he can have is his daily contact with him, your Honour, nothing more beyond that. The other matter in that regard that I would rely on is in the application book at page 111 where, as part of the plea, it is said by counsel on behalf of the applicant – it starts at line 11 on page 111:
it is relevant to take into account the fact of him being 15 years old with poor English and demonstrates by his performance here and the commission of these offences –
Now, that is on the same occasion where, at the commencement of that plea, counsel had dealt with the question of whether or not an interpreter was required.
CALLINAN J: But all he says there is “poor English”. He does not say that he does not understand the proceedings or what is going on or the jeopardy he is in or that he is under an obligation to tell the truth. Really, Mr Connellan, I do not see how you can possibly mount a case to get even to first base that you can establish a lack of understanding.
MR CONNELLAN: Well, the only other matter I can rely on is the affidavit of the applicant himself which is contained in the application book at pages 187 to 190 where he deposes himself that – and I take your Honours to page 189, to line 24, talking about the hearing on 17 March:
When I gave evidence, I did not understand all the questions put to me.
CALLINAN J: But the trouble about all of that is that is all set out in a literate affidavit itself. Now, I would be prepared to accept that a lot of it is perhaps not his language, that it is the language of whoever drafted the affidavit, but that does not help you either. It does not help you either way. It does not make your case, it may not hurt, but it certainly does not assist your case.
MR CONNELLAN: I can only say in relation to one of the comments your Honour made is that that affidavit is sworn with the assistance of an interpreter.
KIRBY J: Yes, that is stated at the foot of the affidavit on page 190.
MR CONNELLAN: Yes, that is so.
KIRBY J: I am not unsympathetic to the problem that people have in our courts, having myself at various conferences tried to get through in German and French at better than survival level, but it is difficult in a different alien environment, formal environment, you often do not do as well and you do not follow everything. So, I am not unsympathetic but the facts of this case make it a most unsuitable vehicle, it seems to me, for the three reasons that I mentioned before. What inference are we to draw from the fact that there is no affidavit from the barrister who, at the critical moment, was appearing for your client, an experienced barrister? He put on an affidavit from the applicant as to what he understood but there is nothing there to say, “Well, I was busy that day” or, “I may have misunderstood” or, “I didn’t have a very long conference and I assumed” or matters of that kind. Nothing of that is there.
MR CONNELLAN: No, and I cannot really assist you as to - - -
KIRBY J: Well, would not one infer from the absence of that, that is not evidence that you could rely on?
MR CONNELLAN: That may be so, your Honour, but it may be that that inference should - - -
KIRBY J: The question of the right to interpret is a very important question in a country like Australia, a very important question. I mentioned it in the case of Gradidge v Grace Bros when I was in the Court of Appeal. But in deciding the special leave gateway, we have to keep our eye on what would be the appropriate vehicle to allow that question to be ventilated in this Court. Your client has already had a very substantial hearing in the Court on other matters and it just does not strike me that this is a good case to test the question of the right to interpreter.
MR CONNELLAN: The only thing I can say in relation to that aspect of it, your Honour, is that, in my submission, it is an appropriate vehicle because it does raise those very critical questions of not only how it is that the right to an interpreter should be determined or defined in terms of the way in which we establish whether a person has the adequate skills but also it goes to those very fundamental questions I raised before of how it is that the exercise of the right, if you like – although it is not quite a right – the exercise of the waiver ‑ ‑ ‑
KIRBY J: Cannot a judge in a busy court – we are not talking of the High Court dealing with cases in the way we do, we are talking about the County Court of Victoria which is a flat-out court - and a judge is surely entitled to rely on lawyers such as your client had to bring to notice any problem that a client appears to have or may have. I realise that some lawyers may not be as sensitive to the problem as others and that is the point you seek to agitate but you would have a better case to advance that problem if there was the slightest clue – and there is not – in the transcript in the record of this case – there is not a clue, so this is not a good case. The case would go off on the facts and the important issue that is one day to be tendered would not be reached.
MR CONNELLAN: As your Honour pleases.
CALLINAN J: Where do I find Ms Jensen’s curriculum vitae in the - - -
MR CONNELLAN: Unless it is contained in the first report, I do not ‑ ‑ ‑
CALLINAN J: It is referred to as an exhibit to her affidavit, but I just cannot find it. It may be here.
MR CONNELLAN: I would have to say, your Honour, that I do not recall having looked at it.
CALLINAN J: If you look at page 192, paragraph 5, but I cannot see that exhibit. Page 193 says it is the exhibit but 194, I think, is the report, is it not?
MR CONNELLAN: That appears to be so, your Honour.
CALLINAN J: Frankly, that is hopeless. I cannot – the internal contents of the report, I must say, I find utterly unconvincing, that that lack of conviction about them can only be reinforced by the complete absence of any curriculum vitae because, on any view, it is obviously a new discipline, assuming it is a discipline. I have never encountered it before.
MR CONNELLAN: I think the contents of the application book at pages 197 through to 215 or thereabouts confirms what your Honour is saying, that it is a new discipline, that document itself, although it is dated 1982. I mean, it is clearly a new area in terms of people’s understanding.
CALLINAN J: That does not make it wrong in any way at all but the Court needs evidence about these things and there is just no evidence in relation to that matter.
MR CONNELLAN: I hear what your Honour says. The second arm of the grounds for seeking special leave are in relation to the question of whether or not, where a person is being resentenced in relation to a breach of a statutory community order, whether or not the principles of double jeopardy would apply and in its starkest terms it can be said that Mr Nguyen here was sentence to two years and three months plus 138 hours of community work and the question is whether or not, under the statutory schemes which now apply across Australia where community work and community-based dispositions are imposed and there is provision for breaching them and on breach, resentencing can involve custodial sentences, whether or not the failure to take into account the amount of work performed by way of community work amounts to a person being punished twice.
CALLINAN J: Mr Connellan, it is a little like driving when a licence has been suspended, is it not, really? A community service order is a kind of an indulgence, really, and the courts’ views and I would think the legislature’s view would be that if you breach that or fail to take advantage of that opportunity, then very serious consequences might be visited on you.
MR CONNELLAN: And I do not take issue with that at all, your Honour. But the legislation also makes it clear that the community work itself is to be considered punishment, and that is stated expressly in the legislation. Further, it is made clear that at the time of resentencing for a breach, the court must take account of the extent of compliance. Now, in this case, with Mr Nguyen, what occurs is that at the point where the community‑based order is imposed upon him, the sentencing judge makes it clear to him almost as a promise, “If you come back before me, I’m going to give you two years and three months and I will give you a longer minimum sentence that your co-accused.” Having completed 138 hours of community work and being brought back on a breach, the sentencing judge then imposes the two years and three months and the minimum of 12 months imprisonment - as a minimum – in, if you like, keeping with the promise already made.
Now, in my submission, there really is a question as to whether or not that judge can have said to have taken into account the compliance, the degree of compliance, specifically - - -
CALLINAN J: Let us assume that the judge should have done that and failed to do it, what difference would it have made to the sentence? Would you have been able to say that the current sentence was manifestly excessive?
MR CONNELLAN: What I would submit is this, your Honour: the amount of community work performed equated to a quarter of that or just over a quarter of that required under the community-based order and whilst it is not my submission that you therefore reduce the amount of imprisonment imposed by a quarter, what I would submit is that is a significant – one quarter is a significant level of performance of the community-based order and that where the legislation requires that to be taken into account then, by implication, one would expect that the sentencing judge will address that matter specifically and give reasons as to why, in the circumstance of this particular case, it should not change the end result.
CALLINAN J: Let me accept that for present purposes. How much difference, in fact, would it have made to the sentence if the judge had had regard to the 138 hours that had been performed out of, what was it, 500? What was the number? Five hundred?
MR CONNELLAN: Five hundred hours, yes.
CALLINAN J: In a practical sense, what difference would it have made to the sentence?
MR CONNELLAN: It could have made a difference in two ways, in my submission, your Honour. It could have reduced the length of the minimum term back to something like nine months, so it could have made a difference of three months there which would be, if you like, roughly a quarter of the
work performed, or it could, indeed, have reduced the length of the head sentence of two years three months and arguably, again, up to anything as to a quarter of that which could mean something like, roughly five months. Then that would have a consequent impact on the minimum sentence. So, in my submission, it, arguably, if it was taken into account, could have had a significant impact on the effective sentence served either by way of a head sentence or by way of minimum.
Now, it may be, your Honours, that it could also have this impact, that where the legislation directs the sentencing judge to consider the question of the degree of compliance, the process of the sentencing judge then going through that consideration in order to determine what is the appropriate sentence might even lead to the conclusion which was not reached here that it did not necessarily involve the accused being resentenced to a term of immediate custodial sentence. It might even, that process, which is what the legislation requires, cause the sentencing judge to think, “Well, in fact, no, it is still open to place this person back on the community-based order with either an extension in the number of hours or extension in which the period runs.”
In my submission, your Honours, that is the reason why, or one of the reasons why the legislation is directing the sentencing judge to consider those very matters because it must have bearing on the – sorry, your Honour, my time is up, I see – must have bearing on that matter. Thank you, your Honours.
KIRBY J: The Court does not need your assistance, Mr McArdle.
MR McARDLE: If the Court pleases.
KIRBY J: In this application for special leave the applicant raises matters which resonate with those which were raised in the earlier proceedings commenced in the original jurisdiction of this Court in Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108. In those proceedings, the application was dismissed on the basis that the Court had no jurisdiction to entertain the application. This application raises no new questions which would warrant the grant of special leave.
In particular, this is not, in the opinion of the Court, a suitable vehicle to consider the question of the steps which a trial judge should take to raise, notwithstanding the representation of a litigant by a legal practitioner, the need which the litigant may have to an interpreter in court, although never requested either by the litigant or his representative. No other point argued would attract a grant of special leave. Accordingly, special leave is refused.
MR CONNELLAN: If the Court pleases.
MR McARDLE: Would the Court entertain an application for costs? I appreciate that this is a criminal appeal and generally costs do not flow, but it has some unusual aspects to it. In support of that application, your Honours, if I could direct your Honours’ attention to a flow chart which was supplied to the Court yesterday of what has happened in this case. If I can commence by saying that the title of it is incorrect. The middle name of the applicant is Phu, not “Pham”.
KIRBY J: It is in your documents. You might have done better if this case had come first and the second case, second.
MR McARDLE: Well, it starts, of course, as you can see at the top there with the offence. Then it works its way through the County Court back to the Sunshine Magistrates’ Court where he is committed for breaching the CBO; then to the County Court again, and it is that appearance that is really, thereafter, subject to attacks in all directions.
There were two originating motions. One in relation to a lack of interpreter. The other one appears to relate to procedures adopted in the Magistrates’ Court.
KIRBY J: Yes. Both Justice Callinan and I remember the earlier proceedings well. But even allowing that every litigious ounce has been dragged out of this case, I cannot recollect either in 13 years on the Court of Appeal or my four years here ever awarding costs against a criminal litigant.
MR McARDLE: I was going to simply draw that to the Court’s attention by way of background. If one comes to look at what is said to be the special leave questions or the questions that are designed towards attracting special leave in this case, which are at page 67 of the application book, they consist of the following: “Is a court exercising State criminal jurisdiction obliged to observe and apply sections 9 and 10 of the RacialDiscrimination Act?” That was not pursued today and could not really be pursued in the light of East’s Case which was decided last year and the reasons for judgment given in December of last year.
Secondly, the issue of interpreter. That was, it is submitted, forlorn; always was, and was examined by the High Court in any event, certainly in the majority judgment.
KIRBY J: But the difference was that that was seeking to invoke a jurisdiction under the constitutional writs which had, at least, five difficulties lying in the path, whereas this application arises out of a determination by the Court of Appeal of Victoria and that comes to us under the Constitution.
CALLINAN J: Mr McArdle, I have to say that if the criterion for a grant of costs in favour of the Crown in a criminal case is that the application has turned out to be pretty hopeless, I have seen a lot more hopeless ones than this, even in my short time here, and you would need, so far as I am concerned, a much better criterion than that.
MR McARDLE: Rather than saying it is hopeless, the point I desired to make was some of the issues had really been resolved before today and well before today and had been resolved, it is submitted, by a Full Bench of this Court.
KIRBY J: I take the force of that. But those issues were resolved in proceedings which had a fundamental flaw and, in that sense an applicant might be entitled to say, “Well, I never got to the consideration of my merits because I didn’t have the jurisdiction of the Court”. Whereas, in this case, there is no problem with the jurisdiction and we have now disposed of the merits.
I am not saying that costs would never be granted but it would be a very rare case, very rare indeed, that costs would be awarded against a litigant in a criminal matter, truly a criminal proceeding, as this one is. But certainly if one sees many of this sort of case, you would have to start considering it.
MR McARDLE: Then, with your Honour’s permission, I will resume my seat.
KIRBY J: Yes. Thank you, Mr McArdle, for your help.
KIRBY J: The order is special leave is refused.
AT 3.19 PM THE MATTER WAS CONCLUDED