Re East; Ex parte Nguyen

Link copied
Case Copied 69 min read

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE EAST & ORS  RESPONDENTS

Ex parte QUOC PHU NGUYEN  APPLICANT

Re East & Ors; Ex parte Nguyen (M53-1997) [1998] HCA 73
Date of Order:  5 August 1998
Date of Publication of Reasons:  3 December 1998

ORDER

Application dismissed with costs.

Representation:

C H Francis QC with R A R Lewis and D A Perkins for the applicant (instructed by Kuek & Associates) at the hearing on 10 December 1997

P N Vickery QC with D A Perkins for the applicant (instructed by Kuek & Associates) at the hearing on 5 August 1998

J D McArdle with T P Burke for the first respondent (instructed by Solicitor for Public Prosecutions (Victoria))

No appearance for second, third and fourth respondents

2.

Interveners:

H C Burmester QC, Acting Solicitor-General for the Commonwealth, with A K Lukeman intervening on behalf of the Attorney-General for the Commonwealth (instructed by Australian Government Solicitor)

D Graham QC, Solicitor-General for the State of Victoria, with N D Hopkins intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re East & Ors; Ex parte Nguyen

Constitutional law – Original jurisdiction of the High Court – Matters arising under any treaty – Treaty implemented by statute – Whether statute implementing treaty provides exclusive regime for remedying contravention – Whether application raises a "matter" – Constitution, s 75(i).

Criminal law – Procedure – Fair trial – Interpretation of evidence from English language – Entitlement of accused to understand evidence – Duty of judge – Whether any risk of miscarriage of justice where no request made.

Words and Phrases – "matter", "Arising under any treaty", "requires".

Constitution, s 75(i)
Racial Discrimination Act 1975 (Cth), ss 9, 10, Pt III.

  1. GLEESON CJ, GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJ.   The applicant, Quoc Phu Nguyen, commenced proceedings in the original jurisdiction of the Court seeking orders of certiorari and declaratory relief.  On 31 July 1997, a Justice of the Court ordered pursuant to O 55 r 2 of the High Court Rules that the application be made by notice of motion to the Full Court.  At the conclusion of a hearing on the issue of jurisdiction, the Court dismissed the application with costs, stating that reasons for the decision would be given at a later date.  The following are our reasons. 

  2. The proceedings arose out of a sentence of imprisonment imposed upon the applicant by the Chief Judge of the County Court of Victoria.  The applicant made two applications to the Supreme Court of Victoria for remedies in the nature of prerogative relief.  Those applications failed.  This Court refused his applications for special leave to appeal from the decisions of the Court of Appeal dismissing his appeals.  In the present proceedings, the applicant has joined, as respondents, the person…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Re East; Ex parte Nguyen and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[1998] HCA 73
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of certiorari by Mr Quoc Phu Nguyen, who sought to quash orders made by Victorian courts. The applicant contended that the procedures followed in those courts contravened a federal Act, which in turn gave effect to an international treaty. The central question before the High Court was whether this application fell within its original jurisdiction, specifically under section 75(i) of the Constitution, which pertains to "matters arising under any treaty."

The legal issues before the Court were twofold. Firstly, it had to determine whether the application constituted a "matter" within the original jurisdiction of the High Court, given that the treaty in question was implemented by a statute that arguably provided an exclusive regime for remedying contraventions. Secondly, the Court was required to consider whether there was a risk of a miscarriage of justice in the applicant's criminal proceedings due to the interpretation of evidence from English, particularly where no explicit request for an interpreter had been made by the accused, despite his limited English proficiency.

The Court reasoned that for an application to fall within its original jurisdiction under s 75(i) of the Constitution, it must be a "matter" arising under a treaty. This requires more than a mere assertion of a treaty's relevance; the statute implementing the treaty must be the source of the right or obligation being litigated. In this instance, the Court found that the applicant had not demonstrated that the federal Act provided a basis for the relief sought, nor that the alleged procedural unfairness constituted a contravention of the treaty in a manner that would engage the Court's jurisdiction. Furthermore, regarding the fair trial issue, the Court noted that the applicant's legal representative had indicated that an interpreter was not required, and the judicial officers were unaware of the applicant's need. While acknowledging the importance of an accused understanding proceedings, the Court found no basis to conclude that the circumstances presented a risk of miscarriage of justice that would warrant intervention.

The application was dismissed with costs.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

Is an application for a writ of certiorari to quash orders of Victorian courts on the ground that the procedures followed were contrary to a federal Act (and an international treaty given effect by that Act) within the original jurisdiction of this Court? That is the question which was severed from process initiated in this Court and ordered to be argued separately[9]. [9]Re East & Ors; Ex parte Nguyen, Application for special leave to appeal, High Court of Australia, 10 December 1997 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).The background facts The facts necessary to understand the jurisdictional question were stated in affidavits filed in the application. Although some of the evidence, and the interpretation of it, was contested, the basic history was not in doubt. Mr Quoc Phu Nguyen ("the applicant") was born in Vietnam. His nationality, ethnic origin and primary language are Vietnamese. On arrival in Australia in 1991 he did not speak English. In August 1995, then 19 years of age, he was apprehended by police in connection with an attack by three young men on an attendant in an amusement parlour in Russell Street, Melbourne. It was alleged that the applicant had held a knife against the attendant, threatening to kill him. An accomplice took money and the three offenders ran off. The applicant was apprehended. When an interview was organised by police it was temporarily suspended to make arrangements for an interpreter in the Vietnamese language to be present. When the interview was resumed, the applicant acknowledged an understanding of the English language ("[j]ust a little bit"). He answered questions, some of them through the interpreter, but most of them without. Many of his answers were monosyllabic, being confined to "yes" or "no". On occasions, he indicated that he did not understand the police questions. The interpreter was then used. In the result, the applicant was charged with armed robbery. The Crown case was overwhelming. Parts of the offence had been recorded by video camera. The applicant signified an intention to plead guilty to the charge. In September 1996 he came before the Chief Judge of the County Court of Victoria (Chief Judge Waldron). He was legally represented by counsel. Although a letter had been sent by the applicant's solicitor to the Office of Public Prosecutions requesting the presence of an interpreter, that letter had not been acted upon. No interpreter was present. At the commencement of the proceedings Chief Judge Waldron asked whether the services of an interpreter were needed. Counsel for the applicant said:"I was able to conduct a conference without the need of an interpreter. The records of interview with my client are conducted without an interpreter. If matters are presented clearly to my client, then there is no need for an interpreter. It's just [a] little bit slow".The statement about the records of interview was not accurate. The judge persisted with his questions to establish "authoritatively whether an interpreter is required". Counsel for the applicant said emphatically that he was not seeking an interpreter. In such circumstances, Chief Judge Waldron proceeded with the arraignment. However, he indicated that he would keep under review whether the applicant required an interpreter[10]. [10]R v Tien Van Nguyen and Quoc Phu Nguyen, Transcript of Proceedings, County Court of Victoria, 16 September 1996 at 1.

Evidence

Evidence Before The Court

Before dealing with the identified issues, it is appropriate to note certain matters upon which there was common ground or about which there was no dispute for the purposes of the jurisdictional arguments:1.To establish the facts upon which this Court was invited to answer the reserved question concerning its jurisdiction, it was agreed that the Court could treat the affidavits as being before the Court. From this material it was undisputed that the applicant was in breach of the Order when called before the Magistrates' Court and the County Court. At no stage did the applicant ask the magistrate or the judge for the assistance of an interpreter. It was not contested that the judicial officers concerned were unaware that he needed an interpreter. His legal counsel, whose conduct generally bound him, had informed Chief Judge Waldron in the original proceedings that the matter could safely go ahead without an interpreter. In the subsequent proceedings, the subject of the present application, Chief Judge Waldron had, additionally, the opportunity to assess the applicant's needs because the latter gave oral evidence. In argument, counsel for the applicant made it clear that he was not submitting that an interpreter had to be supplied in every case where an accused person was not a native born English speaker. He simply contended that, in the facts now known, it was necessary in the applicant's case.2.As eventually presented, the applicant did not contend that this was a case of error on the face of the record of the Magistrates' Court or the County Court[49]. Instead, he sought to elaborate the record in order, by evidence, to demonstrate breaches of the rules of procedural fairness and relevantly of the requirements of the Act, non-compliance with which, it was submitted, would render the actions of the judicial officers concerned unlawful. The applicant asked, if jurisdiction of this Court were upheld, that the opportunity should be afforded to him to resolve the conflicts in the evidence revealed in the affidavits filed for the contesting parties. It was agreed that if it were necessary to resolve factual disputes, such questions would have to be remitted to the Supreme Court of Victoria or to the Federal Court. That was where, the applicant argued, the suggested lack of evidentiary merit ought to be determined.3.The applicant did not contest the proposition that the Act was written against the background of the established principles of the Australian legal system by which judicial officers are personally immune for their conduct in the course of performing their judicial duty[50]. However, according to the applicant, that fact simply demonstrated the unsuitability of the negotiation, conciliation and other procedures provided in Pt III of the Act. It left the unlawfulness on foot for which, it was argued, this Court would afford a remedy in the form of certiorari[51].4.The applicant did not invoke any suggested implied doctrine of legal equality guaranteed by the Constitution itself[52] or of constitutional due process applicable to the proceedings affecting him[53]. I will deal with this case without regard to any foundation for the Court's jurisdiction other than that which the applicant nominated.[49]cf Craig v South Australia (1995) 184 CLR 163 at 176, 180-183.[50]Rajski v Powell (1987) 11 NSWLR 522 at 534-536; cf Mann v O'Neill (1997) 191 CLR 204; Yates v Lansing 5 Johnson's Rep 282 (1809); Pierson v Ray 386 US 547 at 553-554 (1967).[51]Relying on R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) [1924] 1 KB 171; R v Town of Glenelg [1968] SASR 246. [52]cf Leeth v The Commonwealth (1992) 174 CLR 455 at 485, 488-490; Kruger v The Commonwealth (1997) 190 CLR 1 at 44-45, 63-68, 94-97, 112-114, 142, 153‑155.[53]cf Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580; Leeth v The Commonwealth (1992) 174 CLR 455 at 501-503; Dietrich v The Queen (1992) 177 CLR 292 at 326, 362; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. See also Gageler and Glass, Ch 3, "Constitutional law and human rights" in Kinley (ed), Human Rights in Australian Law (1998) 47.The no evidence point

Decision

Reasons for decision

HUGH, GUMMOW, HAYNE AND CALLINAN JJ KIRBY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW, HAYNE AND CALLINAN JJ, KIRBY J

Full text does not contain this section.