Tsang v The Queen [2012] HCATrans 198

[2012] HCATrans 198

[2012] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M163 of 2011

B e t w e e n -

KIM MAN FREEMAN TSANG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 11.51 AM

Copyright in the High Court of Australia

MR L.C. CARTER:   May it please the Court, I appear with my learned friend, MR M.D. STANTON, for the applicant.  (instructed by Lethbridges)

MR L.K. CROWLEY:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Cth))

GUMMOW J:   Yes, Mr Carter.

MR CARTER:   Your Honours, we wanted orally to concentrate on the two pronged ground 2.2 which appears at page 552 of the book in the draft notice.  The first complaint is that the Court of Appeal erred in determining that it was legitimate for the prosecutor to contend to the jury in his final address that the accused had hidden behind or abused, as the Court of Appeal characterised it, the use of an interpreter.  The Court of Appeal correctly recognised by reference to authority ‑ ‑ ‑

GUMMOW J:   So it is 2.2 you wish to emphasise rather than 2.3 at the moment?

MR CARTER:   Yes, your Honour, and your Honour will see that 2.2 is in two parts.  The first point is that there is a problem and, indeed, a special leave point in the determination that it was fair at all for the prosecutor to mount this argument, especially in circumstances where it had not been put, and that there had been no issue taken with the utilisation of interpreter in final address.  The Court of Appeal’s reasoning is, with respect, internally inconsistent on this point.  The Court recognised that there is a fundamental difference between the level of English required to hold a conversation and that required in the rigorous environment of a court room.  For example, your Honours, if I could take you to Justice Kenny’s decision in Perera v Minister for Immigration and Multicultural Affairs behind tab 1 reported in 1999.

GUMMOW J:   Now, was there any complaint at the trial about this conduct by the prosecutor?

MR CARTER:   Your Honour, no, exception was not taken.  The complaint, such as it was, was conducted through heated remarks in final address and the passages, if I could take your Honour to it, is pages 293 to 294 of the final address.  What the complaint boils down to, your Honour, in part and we accept is that really what fell from defence counsel ought to have happened earlier and it should have been done by the judge when the argument was first raised.  Coming back to Perera, if I may briefly, your Honours, at paragraph – it is perhaps most efficient if I do this by reference to the judgment of the court – in paragraph 120 at page 528 of the book reference is made and it is taken from Justice Kenny’s judgment to the dicta of President Kirby in Adamopoulos that:

The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person’s own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law –

and there is plenty of recognition of that.  Now, your Honours, the prosecutor knew that the accused was able to speak some English.  There were witnesses who said that.  Indeed, part of his defence was that the kingpin had enlisted him to this tax dodging fraud on the basis that he could speak okay English.

CRENNAN J:   Well, the jury would have observed him speaking, would they not, in English?

MR CARTER:   They would, your Honour, but through partly in English, partly through an interpreter, but the point, your Honour, is that it was never suggested to him in cross‑examination that he was abusing the use of the interpreter.  There was never exception taken to him having an interpreter.

CRENNAN J:   Well, looking at application book 526, I wanted to direct your attention to paragraphs 109 to 111 or 112 actually of the court.  Paragraph 109 deals with what the jury would have observed.  Then there is what is said at 111 and the conclusion at 112.  May I direct your attention to the last sentence:

The defence, naturally enough, was entitled to and did reject such a suggestion in the strongest of terms.

MR CARTER:   Indeed, your Honour, and we must confront that.  Could I take your Honour back to page 525 and paragraph 108 where the court concludes midway through that paragraph that where:

His or her responses, delays . . . are all relevant, as is the manner and extent of use (and possible abuse) of an interpreter, particularly where an accused elects to use the interpreter selectively.  In our opinion, it is this suggested abuse that is a proper matter for the jury.

That, with respect, is the foundation of the court’s reasoning on this point, the notion that there is arguable abuse in the mere fact that, at times, the witness had answered in English.  Now, in further answer to your Honour Justice Crennan’s question, when the issue was raised at an earlier stage of the trial by her Honour at page 32, and this was in‑chief, her Honour inquired whether it would be possible for the accused to give evidence in English as it was apparent that he could at least speak some English in his ordinary life.  At page 32 line 7 her Honour asks:

HER HONOUR:   . . . I don’t know whether it would be possible for Mr Tsang to answer a question in English.

MR JACKSON:Not while I’m his counsel, Your Honour.

HER HONOUR:   That’s fine, I’m not saying he should do so.  What I’m saying is there may need to be an explanation why he’s not doing so ‑

which could hardly come from the Bar table by defence counsel, it needed to come from the judge.  Reading on, line 19, same page:

HER HONOUR:   It’s quite different speaking in a second language outside of the court and I’ve got no difficulty with him using an interpreter.

That position did not change, your Honours.  Now, what is put against us on this point is that there was sufficient.....to place it in issue to be a fair prosecutorial argument – a fair argument on behalf of a prosecutor ‑ because of what was put, including at page 94 of the book after collecting some of the evidence where the accused had spoken English outside of the court room, recognised in the cases to be different, at line 12:

You’re well able to understand and communicate in English without the aid of an interpreter, aren’t you?‑‑‑Because actually the things that we did we only use a few sentences only and I can understand them.

Hardly, in our respectful submission, your Honours, a fair foundation for the prosecutor’s argument and the Court of Appeal’s conclusion that it was potentially an abuse to have at times spoken in English.  Fundamentally, your Honours, the first part of ground 2 raises an issue of fairness.  The prosecutor had ample opportunity to raise concerns about the purported abuse of the interpreter with the judge without the jury being present; the court having allowed the use of an interpreter that was the appropriate course.  If necessary, a voir dire could have been held regarding whether Tsang, the applicant, needed an interpreter and it is submitted that the attack was both improper and unfair.

Turning then, your Honours, to the second part of ground 2, their Honours held as a condition precedent for such an argument and it is, at least on our research an unusual argument to see in a criminal trial against an accused where exception has not been taken, that any such argument would be subject to the provision of appropriate directions.  I refer, in particular your Honours, to page 525 of the book at paragraph 108 where we have already been, third line, “subject to such directions as are necessary”, 108, in the footnote number 48, and there are other references.

It is submitted, your Honours, that given that recognition and given the court’s concurrent acceptance that there were no specific directions at all dealing with the prosecutor’s argument in final address, rather the respective argument that was repeated, that that on the court’s own reasoning ought to have been the end of the matter, there should have been a miscarriage.  Alternatively, it is submitted that it is quite apparent from the court’s reasoning that the applicant came very close to securing the retrial.  The court says first at 526 at 113 that “The matter is not free from difficulty”.

CRENNAN J:   Well, at 119, page 528, paragraph 119, and their Honours recognised that ‑ ‑ ‑

MR CARTER:   And paragraph 127, your Honour, I wanted to place particular reliance on it ‑ ‑ ‑

CRENNAN J:   Well, before you get to that, I think relevantly one needs to look at paragraphs 122 and 124.

MR CARTER:   Yes, your Honour, we, with respect, challenge that as we have in the written submissions.  It is submitted ‑ and this is really the special leave point raised by this ground ‑ it is submitted that the purported abuse of the interpreter was not a matter of commonsense, it could be simply left to the jury in the form of an unstated direction you decide.  That is what the court specifically says at paragraph 123.  The process of interpretation is complex and nuanced; it is not merely a mechanical process.  Assessing credibility from demeanour, let alone through an interpreter, is notoriously difficult and the difficulty is particularly acute, it is submitted, in the context of an accused in a criminal trial.  In that regard, could I take your Honours briefly ‑ ‑ ‑

CRENNAN J:   Well, except that the Court of Appeal takes the view that the fact that no exception was taken is a strong indication of in the atmosphere of the trial the general directions in relation to witnesses were adequate.

MR CARTER:   Your Honours, we recognise that but in the end, as we have set out in the written submissions by reference to the judgment of his Honour Justice McHugh, ultimately, if there has been a miscarriage the Court of Criminal Appeal and then this Court on appeal cannot shirk from it.  It is clear, your Honour, on an examination of the course of the trial that part of the reason the accused was taking the course that he did, as defence counsel told the judge, was not.....on his counsel.

Your Honours, in Goodrich Aerospace v ARSIC (2006) 66 NSWLR 186, a case dealing with the power of the appellate court to overturn findings of fact, Justice Ipp with the agreement of the other members of the court referred in some detail at pages 189 and following to the need for care in making demeanour findings, and I interpolate there in those authorities it would seem ordinarily by judges engaged in appellate review of factual findings. Could I take your Honours specifically to page 190 to two paragraphs? Paragraph 21:

Another area where great care must be exercised in making demeanour findings is where a witness is from a different cultural and ethnic background to that with which the judge is familiar.  That occurred in this case.

Skipping down to paragraph 22:

Sir Thomas Bingham (as he then was) illustrated the difficulties clearly when he said (in Bingham, “The Judge as Juror –

I will not read the rest of the citation ‑

“[H]owever little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when . . . the witness belongs to some other nationality and is giving evidence either in English as his second or third language, or through an interpreter ‑

Skipping down to the bottom of the extract, your Honours ‑

To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.”

His Honour Justice Ipp over the page continues references to writing by Sir Thomas Bingham and to the comments made by Lord Devlin, Lord Justice Browne and Justice MacKenna in “The Judge as Juror: the Judicial Determination of Factual Issues”.

Now, the special leave point that arises here, your Honours, is that as against that backdrop of one, the accepted right of an accused person to have the use of an interpreter in a criminal trial, two, there being no challenge by the prosecutor by way of voir dire or by way of submission in the absence of the jury and then such a forceful argument being put in final

address, is how can it be said that it is simply a matter of commonsense given the nuances and difficulties essayed in those authorities.  It is respectfully submitted that proper adherence to that dicta would have tipped the court’s unease and would have galvanised the perception of justice that they talk about into a holding of miscarriage and an order of a retrial.

There is one other aspect in the court’s reasons, with respect, needs to be put to rest and that is the statement that the prosecutor’s submission formed a relatively small part of the final address.  In my respectful submission, that assessment is not to be conducted by line or page numbers, it is a matter of the sting in the argument.  We have relied in our written submissions, amongst other authorities, on R v Thompson (2008) 21 VR 135 where Justice Redlich who formed part of the majority said at page 161 paragraph 127:

The consequences of the impugned attack on the applicant’s credit cannot be assessed as though credit is divisible, issue by issue.  The jury’s assessment of his credibility would not necessarily have proceeded in a linear manner, as factual issues, including questions of credit, will often not be resolved in isolation from each other.

Clearly, your Honours, in this case, the prosecutor’s argument was an invitation to reject the whole of the accused’s evidence in part and significantly in part because at times he understood the questions in English.

The final point, your Honours, and this touches on the second ground, is that in ultimately concluding that the general directions that had been provided to the jury were sufficient, one of the directions that was relied upon by the court is, in fact, a direction that is impugned by ground 3 whereby the accused because there was a co‑offender received a diluted form of what his Honour Justice Nettle described in Buckley which was referred to at 562 in the submissions, paragraph 49 as “the standard direction” for an accused as witness.

So the protections given to him were diluted so as to protect the co‑accused who had not got into the witness box, who was protected from the prosecutor’s argument and, as it happened, to show the materiality was acquitted of his count 2, notwithstanding the fact that he was a participant in the four telephone calls in the ground that is no longer the subject of the application.  So for those reasons, your Honours, it is submitted that the Court of Appeal was wrong to hold that there had not been a miscarriage of justice on both limbs of ground 2.2.  If the Court pleases.

GUMMOW J:   Thank you, Mr Carter.  We do not need to call on you, Mr Crowley.

The applicant presses paragraphs (a) and (b) of what is the first ground in the draft notice of appeal.  These matters, however, were given comprehensive consideration by the Court of Appeal.  We are not satisfied that there is disclosed any error in that consideration.  Nor are we satisfied that the interests of justice otherwise call for a grant of special leave.  Special leave is refused.

AT 12.09 PM THE MATTER WAS CONCLUDED