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

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…

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: [2012] HCATrans 198
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by the applicant, Mr Tsang, against the decision of the Supreme Court of New South Wales (Court of Criminal Appeal). The applicant sought to challenge his conviction for a criminal offence.

The central legal issue before the High Court was whether the applicant had been denied procedural fairness during his trial. Specifically, the applicant contended that the trial judge had erred in failing to direct the jury on the issue of self-defence, and that this omission constituted a miscarriage of justice.

Gummow and Crennan JJ considered the evidence presented at trial and the relevant legal principles governing the defence of self-defence. Their Honours noted that for a direction on self-defence to be required, there must be some evidence upon which a jury could entertain a reasonable doubt as to whether the applicant acted in self-defence. After reviewing the transcript and the arguments, their Honours concluded that there was no evidence that could have supported a finding of self-defence. Consequently, the trial judge was not obliged to direct the jury on this matter, and no miscarriage of justice had occurred.

Special leave to appeal was refused.

Orders