Tran v The Queen [2011] HCATrans 30 - [2011] HCATrans 30

[2011] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S213 of 2010

B e t w e e n -
JOHN XANVI TRAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 11.37 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR G.D. WENDLER, for the applicant. (instructed by William Chan & Co Lawyers)

MR C.K. MAXWELL, QC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW)).

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the admissibility of expert evidence is, of course, governed by statute, section 79 of the Evidence Act, and this Court has emphasised the import of the requirements of that section understood in a common sense way in a forensic setting in decisions such as HG. What might be called the essence of the reference to either learning, that is training or experience‑based expertise, has in turn been explained in passages much cited thereafter in the judgment of Justice Heydon in the Court of Appeal in Makita. So far, so familiar, and not involving anything which would appear to give rise to a special leave issue, we do not wish – I had better get this out of the way straightaway – to advance any qualification, let alone departure, from any of the statements one finds in the reasons of Chief Justice Gleeson and Justice Heydon, respectively, in those authorities, nor do we suggest that there is lurking in section 79 in the words or interstitially any insight not previously adumbrated.

FRENCH CJ: You are putting this as a misapplication of established principle?

MR WALKER: Yes, and the justice of the particular case and ‑ ‑ ‑

FRENCH CJ: Justice of the particular case in relation to the background documentation, the dictionaries, as it were, and price lists?

MR WALKER: Yes, that is a startling extra added to the expert issue case to which I will come in just a moment. Concentrating on the expert issue case, in our submission, the evident importance of a police officer, so somebody who is clothed with an official position, giving before juries evidence that we say is strikingly obviously ipse dixit at the critical points, you will see the repeated phrase in the passages set out, for example, in our submissions, application book 246 and 247 and equally in the reasons of Justice Allsop, application book 200 through to 204, you will see repeated the expression, “in my experience”. The experience was never explicated as being the repeated phenomenon of observing conduct or other behaviour that indicated the meaning of a word whose meaning was in question.

Whether one is using a private language, code or public language, something about which dictionaries can be published, one…

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.

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Details

Case: [2011] HCATrans 30
Decision Date

CaseChat Overview and Summary

The High Court of Australia, constituted by French CJ and Bell J, considered an application for special leave to appeal in the matter of *Tran v The Queen*. The applicant, Mr Tran, sought leave to appeal against a decision of the Supreme Court of Queensland Court of Appeal, which had dismissed his appeal against his conviction for a number of offences.

The central legal issue before the High Court was whether the Court of Appeal had erred in its assessment of the evidence presented at trial, particularly concerning the applicant's alleged admissions. Specifically, the High Court was asked to consider whether the Court of Appeal had correctly applied the principles governing the admissibility and weight of such admissions, and whether it had adequately addressed the grounds of appeal raised by the applicant concerning the sufficiency of the evidence to support his conviction.

The High Court granted special leave to appeal. In their joint reasons, French CJ and Bell J indicated that the appeal would likely succeed on the basis that the Court of Appeal had failed to properly consider the evidence relating to the alleged admissions. Their Honours noted that the Court of Appeal's judgment appeared to have overlooked or misapprehended significant aspects of the evidence, which were crucial to the determination of the applicant's guilt. The High Court concluded that there was a real prospect of an appeal succeeding.

The High Court ordered that special leave to appeal be granted.

Orders