Li v Commissioner of Police

[2016] NZHC 1383

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002067 [2016] NZHC 1383

BETWEEN

ZHIWEI LI

Applicant

AND

COMMISSIONER OF POLICE First Respondent

CHENG-LAN WANG Second Respondent

Hearing:	23 June 2016
Appearances:	F Deliu for Applicant M Harborow and H Clark for First Respondent M Kan and J Yang for Second Respondent
Judgment:	23 June 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 23 June 2016 at 4.45pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:…………………………

Solicitors:

Crown Solicitors, Auckland

F Deliu, Auckland

Michael Kan Law, Auckland

LI v COMMISSIONER OF POLICE [2016] NZHC 1383 [23 June 2016]

Introduction

[1]      The applicant, Mr Li, has filed an application seeking to vary an existing restraining order which is in place.  He seeks further provision from the restrained assets to meet his day to day living expenses.

[2]      The application is opposed by the first respondent, the Commissioner of

Police.

[3]      Mr   Li   has   sworn  an   affidavit   in   support   of  his   application.     The

Commissioner has given notice requiring that Mr Li attend for cross examination.

[4]      Mr Li’s affidavit is in English but Mr Deliu, appearing for Mr Li, advises that

Mr Li requires an interpreter.

[5]      In a judgment issued on 5 May 2016,1  dealing primarily with whether leave to cross examine was required, I observed that there was also a dispute between the parties as to who was responsible for the costs of the interpreter required.  I stated as follows:2

It is not the Court’s responsibility in civil proceedings to arrange for interpreters.  It is an issue left to the parties.  Normally the party calling a witness who needs an interpreter meets the costs involved.

I went on to record that the parties did not require me to then make a ruling on the issue,  because Mr Deliu was  confident  that  he could  reach  agreement  with  Mr Harborow, appearing for the Commissioner.

[6]      The parties have been unable to reach agreement.   The dispute has been

brought before me at short notice.  Mr Li’s application is due to be heard on Monday

27 June next.

Submissions

[7]      I convened a hearing in Court for chambers.

1      Li v Commissioner of Police [2016] NZHC 909.

2 At [12].

[8]      Mr Deliu supported my observation noted above.   He argued that it is the Crown that is calling Mr Li, pursuant to the notice given requiring that Mr Li attend for cross examination.   Mr Deliu submitted that Mr Li is not calling himself as a witness, and that he has simply filed an affidavit.   He also argued that there is a practical issue – namely that Mr Li cannot afford the costs of an interpreter.   He reminded me that Mr Li makes application for further provision out of the restrained assets to meet his day to day living expenses.

[9]      Mr Harborow argued that the proceedings are civil proceedings, and that Mr Li, as the applicant, is seeking to rely on his own affidavit.   He argued that the Crown is entitled to cross examine him on that affidavit, and that in civil proceedings it is the party putting forward a witness who is required to arrange to meet the costs of an interpreter if one is required.  He argued that this practice has been adopted in

other proceeds of crime cases, albeit without discussion.3  As to the practicalities of a

direction that Mr Li pay the costs of an interpreter, he noted that Mr Li’s assets are

only partially restrained.

Analysis

[10]     In criminal proceedings, a defendant who is charged with an offence has the right to the free assistance of an interpreter if the person cannot understand or speak the language used in Court.   The Crown arranges and meets the costs of the interpreter, to ensure that the defendant who does not speak the language used in Court has a fair trial.4

[11]     Mr Li’s application is made pursuant to the Criminal Proceeds (Recovery) Act 2009.  Proceedings relating to restraining orders are not criminal proceedings; they are civil proceedings.5

[12]     There is no right to use foreign languages in the Courts in this country.  The only official languages which can be used are English, Māori6  and sign language.7

3      Commissioner of Police v Yan [2014] NZHC 3367; Commissioner of Police v Zhu [2015] NZHC

2175.

4      New Zealand Bill of Rights Act 1990, s 24(g); Evidence Act 2006, s 80(1) and (2); and see

Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534.

5      Criminal Proceeds (Recovery) Act 2009, s 10.

6      Te Ture mō Te Reo Māori 2016 Māori Language Act 2016, s 7.

7      New Zealand Sign Language Act 2006, s 7.

The High Court Rules make express provision for the use of Māori and the use of sign  language.8    They  do  not  make  extensive  provision  for  the  use  of  other languages.

[13]     A party who has discovered documents is not obliged to provide a translation of documents discovered, where those documents contain material in a foreign language.9   The rules provide that an affidavit in a language other than English may be filed in a proceeding.  The non-English language affidavit must be accompanied by an affidavit by an interpreter to which is exhibited a copy of the non-English language  affidavit,  and  the  interpreter’s  translation  of  that  affidavit.10     The implication is that the party filing the affidavit in the foreign language has to meet the costs of the required translation.

[14]     The practice that has developed in civil proceedings is that it is not the Court’s responsibility to arrange or meet the costs of an interpreter. Rather, the party calling the witness who needs an interpreter generally meets the costs involved, at least in the first instance.  The costs are then treated as a disbursement which can be incorporated into a costs order by the Court.

[15]     Although neither counsel dealt with the issue, I am not persuaded that this practice is necessarily consistent with s 80(3) of the Evidence Act 2006.  It provides that a witness in a civil proceeding is “entitled to” communication assistance, in accordance with the section and any regulations made under the Act, to enable that witness to give evidence.   Communication assistance can be provided on the application of the witness, or any party to the proceeding, or on the initiative of the Judge. The words “communication assistance” are defined as follows:

communication  assistance  means  oral  or  written  interpretation  of  a language, written assistance, technological assistance, and any other assistance that enables or facilitates communication with a person who—

(a)       does not have sufficient proficiency in the English language to—

(i)       understand court proceedings conducted in English; or

8      High Court Rules, rr 1.11, 1.12 and 1.16.

9      Bayer AG v Harris Pharmaceuticals Ltd [1991] FSR 170 (EWCA); Amaltal Corporation Ltd v

Maruha Corporation (2003) 16 PRNZ 968 (HC).

10     High Court Rules, r 1.15.

(ii)      give evidence in English; or

(b)      has a communication disability

[16]     Insofar as I have been able to ascertain, no relevant regulations have been made under the Evidence Act.

[17]     The Evidence Act does not expressly deal with the issue of who meets the cost of providing communication assistance.  It does however provide that a person requiring communication assistance is entitled to that assistance.   The implication must be that, in appropriate cases, the costs of providing that assistance fall on the Crown.

[18]     Here, it is Mr Li who has made the application to vary the restraining order. He has put forward evidence in his own affidavit.   The Crown wishes to cross examine him.  It is entitled to do so by giving notice.  The Crown is not however thereby calling Mr Li as its witness.  Rather it wishes to test the evidence Mr Li has adduced in his affidavit.

[19]     Mr Deliu has asserted that Mr Li requires an interpreter to give evidence when he is cross examined.  If he is correct in that assertion, and Mr Li does require communication assistance to enable him to give evidence, then unless Mr Li is prepared to pay for that assistance himself, in my judgment the Crown must provide the communication assistance required, and if necessary meet the costs involved. Otherwise Mr Li’s entitlement to communication assistance would be denied.

[20]     I note however that s 81 of the Evidence Act provides that communication assistance does not need to be provided to a witness in a civil proceeding if a Judge considers that the witness can sufficiently understand questions put orally and can adequately respond to them.

[21]     I  am  not  in  a  position  to  determine  whether  or  not  Mr  Li  requires communication assistance.   The request for assistance is curious, given that his affidavit is in English, but I have not seen Mr Li, nor heard him give evidence.  The Judge who hears the application, and hears Mr Li being cross examined, will be able to assess whether or not he sufficiently understands questions put to him orally, and can  respond  to  them.     If  the  Judge  concludes  that  Mr  Li  did  not  require

communication assistance, then he or she can make the appropriate order requiring that Mr Li personally meet the costs involved.

[22]     In the interim,  I direct  that the Registrar should arrange for a Mandarin speaking interpreter to attend the hearing scheduled for Monday 27 June next.  The Crown is to meet the costs of the interpreter in the first instance, subject to such order as may be made by the Judge hearing the application.

The hearing

[23]     I  am  advised  that  the  hearing  can  still  proceed  on  Monday  next.    The

Registrar has spoken to the translators who normally assist the Court.  A Mandarin speaker can make him or herself available at short notice.

Wylie J