WU (By his next friend Xiao Ying WU) v DEVINDER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, COLE JA and STEIN JA 25 March 1998 [1998] NSWCA 267 PERCEIVED bias — procedural fairness — standard of proof — exposure of judge's reasons Cole JA. Mr Wu has appealed from an award made in his favour by O'Toole CCJ on 18 December 1996. The appeal is restricted to questions of law. By various grounds of appeal the appellant has raised the following substantive grounds of appeal: 1. Trial judge ought to have disqualified herself for perceived bias. 2. There was a denial of procedural fairness. 3. The trial judge applied the wrong standard of proof 4. The judgment did not expose the trial judge's reasons for not being satisfied on the balance of probabilities that the appellant had suffered a change in cognitive capacity and a degree of permanent brain damage. In my opinion none of these grounds should be upheld. I shall address each in turn. PERCEIVED BIAS The appellant's wife gave her evidence through an interpreter fluent in Mandarin. After she had given evidence concerning her discovery that the appellant had been injured, her visit to him in hospital, the changes she observed to his physical and mental well being and attitudinal changes towards her and her family, counsel for the respondent made some enquiry of her Honour regarding whether the interpreter was accurately interpreting the evidence being given in Mandarin. His enquiry was apparently based upon a comparatively lengthy English translation of a brief, if not monosyllabic, answer given in Mandarin. This led her Honour to ask the interpreter "What was said in Mandarin please?', evoking the answer 'That is exactly what I have said'. Her Honour continued: I have noticed now that there has been interruption that sometimes the word 'yoh(?)', single syllable is rendered "yes'. And sometimes much longer 36s utterances are rendered 'yes'"'. Counsel for the appellant stated that was not his observation. The following was then said: Her Honour: 'Sometimes three syllables are rendered 'yes', sometimes four syllables are rendered 'yes'. Is the word 'Yoh' in Mandarin yes? Interpreter: "No, "Yoh' means I have or somebody has.' Her Honour: 'Well, that has been rendered yes on occasion.' JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:25:28 2008 /reports/caseml]/case/urj/9808002 UNREPORTED JUDGMENTS Interpreter: 'May-be is an expression your Honour that some people do have. It's a verbal expression."! This led to a debate between Senior Counsel for the appellant and her Honour regarding whether there had been any material inaccuracy in interpretation. The following exchange occurred: Mr Perry: To allay my learned friend's concern. To direct what my enquiry was about, my learned friend's question certainly did invite a discursive answer and I agree with him about that. When I listened to what was said and your Honour I confess I have no Mandarin, when I listened to what was said and what appeared to me and I understood also appeared to your Honour was something very close to a monosyllabic answer given then there was a long discursive answer given in English. I therefore having no Mandarin invited your Honour to enquire as to whether what had been given was given directly or interpretively. I think your Honour I am entitled to make that enquiry so that one can see whether it is necessary to base an application depending upon the answer. Mr Menzies: Well that's an astonishing submission from somebody who confesses he has no knowledge of the language. Her Honour: Monolingual people can hear things Mr Menzies. I for example heard the single syllable 'yo' rendered in several different ways. Mr Menzies: If your Honour has come to the conclusion that the evidence isn't being rendered accurately then obviously we should stop now and we will arrange for another interpreter. If that is not so then obviously there is no need to but if that — that is the inference that my learned friend raises, it's what's behind might I say with respect your Honour's comment. Now if the position is that your Honour is not accepting this evidence as being rendered accurately then it is pointless continuing. Her Honour: Well I don't know whether there is a material inaccuracy. One of course is dependent on whoever turns up and however interpreters are brought to the Court room. The Court has no method of quality control except I suppose to deal with comments and objections which arise Mr Menzies. Mr Menzies: Quite so your Honour and objections and comments can only be made with respect to my learned friend which have some proper basis. Now this is — there was no basis for my learned friend's comment. Her Honour: Well I understand that submission Mr Menzies. Mr Menzies: What I am now saying to your Honour is in light of your Honour's comments is that your Honour has formed the view that the evidence is not being rendered accurately then your honour should say so and we will stop the proceedings now and we will have another interpreter. Her Honour: Well what I have said is something that I heard. Now presumably short affirmative answers in various forms were given in Mandarin, some of them were rendered identically into English, some of them were not. 1. Appeal Book, p.30F-K. URJ WU (By his next friend Xiao Ying WU) v DEVINDER (Cole JA) 3 Mr Menzies: Well but your Honour that with respect does not deal with the problem that has no arisen. If as a consequence if that your Honour has concluded that the evidence is not being rendered accurately then we cannot proceed. It would not be right to do so. Her Honour: Well I don't know if it is a material inaccuracy in the circumstances. Mr Menzies: But ... Her Honour: The Court is put in a position of having to ask the person who is rendering from one language into another about accuracy. Mr Menzies: Well your Honour my application then is for these proceedings to be adjourned for the purposes of obtaining another interpreter, Her Honour: I will certainly leave the matter standing for the moment while you make some enquiries.'2 After a brief adjournment senior counsel for the appellant asked the trial judge to disqualify herself. He said: Mr Menzies: ... The reason that I do that is this, that your Honour has expressed a doubt about the evidence as it has been translated by the interpreter and I do not cavil with that expression of doubt, it is obviously a matter for your Honour. But the difficulty it creates is this. That your Honour has now heard a considerable amount of evidence. Your Honour as I comprehend your Honour's comments cannot not be satisfied that the evidence has been interpreted accurately. That puts my client at an irretrievable disadvantage because of that and under those circumstances ... Her Honour: What is the disadvantage that you perceive? Mr Menzies: The perceived disadvantage is this your Honour. That we cannot know what part of the evidence which your Honour has now heard through two interpreters. Her Honour: Three Mr Menzies. Mr Menzies: There it is your Honour, three. Her Honour: The first one declared in open court that he would not interpret accurately. Mr Menzies: Your Honour, as to 67 per cent of interpreters that have been in your Honour's court, there has been strong doubt expressed by your Honour as I construe it of the accuracy of what they are doing. Now that means that we cannot be confident about what part of the evidence apart from the evidence given before the interpreter with whom your Honour did not express some concern will be accepted by your Honour as an accurate translation. Now that puts us in an irretrievably prejudiced position, and regrettably under those circumstances we have to make the application that we do. Her Honour: Let me say this Mr Menzies before I hear from Mr Perry or deal with the application that you can be assured that the part of the evidence which was. given, which by implication the interpreter agreed had been rendered in different ways, is the part that I know about. When I asked the interpreter, and of course the court is in this invidious position of having to ask someone 'was what you did accurate', because there is no quality control. 2. Appeal Book, p.31A ("Discussion" referred to Appeal Book, p.31). JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:25:28 2008 /reports/caseml]/case/urj/9808002 UNREPORTED JUDGMENTS I was told that that single syllable that I had heard as a monolingual English speaker meant something other than the rendition that had been given. True it was a short affirmative response but it does not seem to me, subject to anything Mr Perry has to say that your submission is valid, and now I propose to hear from Mr Perry. Do you want to be heard on this Mr Perry? I think it is usually a matter for the court, but I would be happy to hear from you if you wish to express a view.'3 Later O'Toole CCJ said: Her Honour: Yes, it does not seem to me that this application that you make is grounded on the principles that have been expressed in the authorities, included SPEDLEY INDUSTRIES I believe is the latest authority. You may be assured and your client may be assured who of course has not been in court Mr Menzies that I have formed no firm view of the evidence at all. The comment I made arose out of an objection that your opponent made, raising explicitly or implicitly a question regarding the accuracy of a rendition into English. And with respect I agree with Mr Perry's comment that this is the function of the court. The court is faced with interpreters of varying degrees of competence, varying forms of behaviour and has to deal as it can with whatever applications are made, Sometimes one assumes without trying to choose a particular example that inaccuracies of varying degrees are not material to the issues raised by the parties in this case. In this case I understood the interpreter to provide the court with a rendition that does not accord with my recollection of one of the short affirmative responses that was rendered. But if anything arises out of that, this court is sound recorded and other enquiries could be made. Sometimes and I do not suggest that this is not such a case, the matter can be dealt with by instructions to the interpreter to inform the court promptly if there is any difficulty in rendering something accurate. In the exercise of the court's discretion I decline to grant your application. I propose to continue hearing the case.'4 In her judgment the trial judge said: Mrs Wu complains that since the attack, there has been [a] dramatic, adverse change in the applicant's formerly calm, courteous behaviour towards herself and their two sons. Mrs Wu alleges that since the attack, the applicant's articulation, speech patterns, and bodily movement have been dysrhythmic, although she concedes that recently, those symptoms have diminished. The applicant alleges that as a result of the head injury, he is unable to use of his dominant right arm normally, and cannot even control chopsticks which he used, habitually, prior to the attack. The applicant complains that as a result of the head injury and its sequelae, he has to eat from a spoon in his left hand and has to use his left hand and arm for everyday tasks. The applicant alleges that the head injury grossly diminished or destroyed his capacity to use English actively, and that the head injury continues to cause headaches and other disabling symptoms. Through the applicant's presentation to the Court, and in oral evidence, he alleges that severe brain damage, caused by the head injury, prevents his walking normally. The applicant and Mrs Wu assert that for reasons including the applicant's unstable gait, and Mrs Wu's fear that the 3. Appeal Book, pp.32E-33G. 4. Appeal Book, pp.33P-34G. URJ WU (By his next friend Xiao Ying WU) v DEVINDER (Cole JA) 5 applicant might come to further harm, Mrs Wu accompanies the applicant whenever he leaves their home.'5 The first portion of the passage just quoted is a brief but accurate summary of the substance of the evidence given through an interpreter by Mrs Wu prior to the application made to O'Toole CCJ that she disqualify herself. It is apparent from that passage that her Honour recorded the evidence given by Mrs Wu at that time as interpreted. It follows, in my view, that it is simply incorrect to state that 'the appellant had been placed in an irretrievable prejudiced position'. Nor could there have been any reasonable perception that the appellant was placed in an 'irretrievably prejudiced position'. The trial judge had before her the evidence as translated and recorded in the transcript. The only question which she raised concerned one small aspect of the evidence, namely the proper interpretation of the word 'yoh', and the expressions which might properly be translated as an affirmative. The law regarding disqualification based on perceived bias is that stated by the High Court in Liversey v New South Wales Bar Association® where it was said: That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.'7 (emphasis added) Ican see no basis for suggesting that that principle is satisfied merely because the trial judge called in question the accuracy of interpretation. Additionally it was. contended that there were three other matters giving rise now to a reasonable apprehension of bias such that this Court should now disqualify her Honour and order a retrial. The first was said to flow from a passage in her Honour's judgment where her Honour said: The applicant gave all but a few English words of his evidence in rapid, fluent, apparently assertive Mandarin. The applicant's affect in the witness" box does not suggest to me that his mental processes are abnormal or even slow. The applicant followed, intently, the questions he was asked and their rendition from English into Mandarin. At times, the applicant commenced a response before the interpreter had commenced or completed a rendition into Mandarin of the question counsel was asking the applicant. At other times, the applicant interrupted the English renditions of his evidence, with additional utterances in Mandarin. The interpreter, who shares a first language with the applicant, Shanghaiese, had no difficulty understanding any part of the evidence which was given by the applicant in Mandarin, the applicant's second language.'® quot;had no difficulty understanding any part of the evidence which was given by the applicant in Mandarin. raw Appeal Book, p.829C-H. (1983) 151 CLR 288. (1983) 151 CLR 288 at 293-4; See also Australian National Industries Limited v Spedley Securities Limited (In Liquidation) (1992) 26 NSWLR 411. . Appeal Book, p.829L-P. JOBNAME: No Job Name PAGE: 6 SESS: 1 OUTPUT: Mon Feb 25 18:25:28 2008 /reports/caseml]/case/urj/9808002 UNREPORTED JUDGMENTS A trial judge, not being a Mandarin speaker, could readily determine by observing the interpreter whether that person was having any apparent difficulty in understanding what was being said to the interpreter. In any event as the interpreter was there to translate from Mandarin into English, it would be presumed that he would understand the Mandarin spoken by the witness. The second also flowed from passage in her Honour's judgment where she said: Over the short distance between the witness" box and the Bar table, the applicant's gait was bizarre. Initially, he flexed his cervical spine and moved in shuffling jerks. During a legal submission, the applicant left the courtroom. When the applicant approached the witness box for a second time, from the vicinity of the Bar table, his gait was somewhat freer: I do not suggest that the applicant's ambulation was normal, but the variations in his gait are consistent with behaviour which Dr Anthony Smith and Dr Matheson observed during consultations arranged by the respondents.'? It was argued that the trial judge did not draw counsel's attention to her observations of the appellant regarding his gait. Whether that offends the requirements of procedural fairness!® will be considered later in these reasons but it is no basis for an assertion of perception of bias. In any event, in a passage at page 40 of the transcript of 18 December 1996, which was handed to the Court today, it is plain that her Honour did draw to the attention of counsel the question of the gait of the applicant. Furthermore, the question of his gait and of his veracity was plainly in issue in the proceedings. The third matter arose from the following passage in her Honour's judgment: Mrs Wu's evidence that prior to the attack, the applicant was kind and considerate towards herself and their children, may well be sincere, but the balance of the evidence leaves me uncertain whether there has been a material permanent change in the applicant's personality or behaviour. If it is relevant, the bleeding peptic ulcer which hospitalised the applicant prior to the attack, does not bring to one's mind the placid disposition which, Mrs Wu deposes, the applicant enjoyed prior to the head injury.' !! It was contended that there was no evidence to support the causal connection between a person's disposition and the development of a bleeding peptic ulcer. Whether that be so or not, it is no basis for suggesting a reasonable apprehension of bias. By introducing the remarks with the words 'if it is relevant', the trial judge made plain that the matter was of little importance. A fair reading of her Honour's judgment makes clear that the material in the last sentence quoted played no part in the process of reasoning leading to the result. Accordingly, the ground of appeal that the trial judge should have disqualified herself, or that this Court should now disqualify her for perceived bias, should be rejected. DENIAL OF PROCEDURAL FAIRNESS 50 9. Appeal Book, p.829P-S. 10. See Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304. 11. Appeal Book, p.831L-N. URJ WU (By his next friend Xiao Ying WU) v DEVINDER (Cole JA) 7 Three matters which I have already mentioned are also said to ground a denial of procedural fairness. Those three matters are a failure to identify those parts of the evidence about which her Honour may have had doubts concerning accurate translation and consequent refusal to disqualify herself, adverse observations concerning the appellant's gait not drawn to counsel's attention, and her comment regarding the circumstance that he had been hospitalised with a bleeding peptic ulcer which might cast some doubt on whether he had a placid disposition before injury. Ihave previously addressed the first and third of these circumstances. In my view they do not touch upon any question of procedural fairness. In GIO v Bailey!? Clarke JA with whom Hope AJA agreed said: In this case his Honour relied on his observations of the respondent sitting in the back of the court both before and during the course of the trial and in addition, relied upon his observation of the manner in which he entered and left the witness-box. The latter observation took place in full view of both counsel and I find it difficult to see any basis on which this should not be regarded as part of the respondent's demeanour of which, on any view, a judge can take account. The passage quoted from O'Toole CCJ's judgment concerning the appellant's two approaches and departures to and from the witness box were similarly within view of all counsel and there was no requirement for the trial judge to draw them to attention. In the passage quoted the trial judge also noted 'during a legal submission, the applicant left the court room'. However, her Honour made no comment concerning his gait on that occasion, and it is not to be inferred that she drew any adverse inference against him from that departure. In any event, as the passage makes clear, the question of the variation in his gait was a factor to which attention had already been drawn by Dr Matheson. !3 None of the matters advanced establish that the appellant was denied procedural fairness at the trial. ERRONEOUS STANDARD OF PROOF The appellant contends that her Honour substituted a 'test of certainty' for the proper test of balance of probabilities. There are a number of passages in the judgment where O' Toole CCJ says that she is 'uncertain' regarding various matters. For example, she wrote 'the applicant's approach to and departure from the witness" box, leaves me uncertain whether there is, in fact, any permanent involuntary change in his balance or gait' .14 And later: I am uncertain whether there has been any relevant change in the applicant's cognitive capacity and uncertain whether he suffers any degree of permanent brain damage as a result of any injuries sustained on 20 March 1994." 15 12. (1992) 27 NSWLR 304 at 323. 13. Appeal Book, p.814U. 14. Appeal Book, p.833T. 15. Appeal Book, p.833W. UNREPORTED JUDGMENTS The evidence as a whole left her 'uncertain of the extent to which the applicant was able to express himself intelligibly in English, at any relevant time prior to the attack.!6 Her Honour wrote: Iam uncertain, therefore, whether there has been any permanent change in the applicant's ability to express himself in, or even to understand, English. I am not persuaded that, immediately prior to the head injury, the applicant had a greater capacity to communicate in English than he demonstrated to English speaking medical and paramedical hospital staff, over the weeks and months of his hospitalisation.' !7 The trial judge said: 'I am not persuaded that the applicant suffers permanent impairment of his neck',!8 and: lam uncertain whether either of those forms of activity was required of the applicant in the cake shop or during his brief period of employment at the respondents" restaurant.' !9 and later: I am uncertain whether at relevant times, the applicant has been fit for whatever work he performed in the cake shop, or for whatever physical activity he was required to perform for the respondents.'2° It is not to be assumed that an experienced judge such as O' Toole CCJ would misunderstand the standard of proof. As I read her judgment, her Honour has used the expression 'uncertain' to indicate doubts which she had concerning the aspects of the evidence to which she refers. The expression 'uncertain' is not used to specify the standard of proof which she is applying. That is so, it seems to me, because the critical finding which she made was expressed as follows: On the whole of the evidence, I am not persuaded that the applicant is as disabled or incapacitated as he alleges.'?! Nor was her Honour persuaded that his capacity to communicate in English was affected by the accident,22 or that he suffered permanent impairment of his neck.23 The reasons for her Honour's failure to be persuaded, applying the proper standard of prof, was because of the doubts which she had concerning the aspect of the evidence in respect of which she expressed herself as being 'uncertain'. Adopting the use of the expression 'uncertain' may be undesirable, but, properly read, I do not think that the judgment exhibits a failure to apply the correct standard of proof. FAILURE TO EXPOSE REASONS It was contended that her Honour failed to expose her reasons for not being satisfied on the balance of probabilities that there had been any relevant change in the appellant's cognitive capacity, or that he suffered any degree of permanent brain damage as a result of the injuries sustained on 24 March 1994. 16. 17. 18. 19. 20. 21. 22. 23. Appeal Book, p.834C. Appeal Book, p.834G-. Appeal Book, p.834K. Appeal Book, p.834L. Appeal Book, p.834L-M. Appeal Book, p.833U. Appeal Book, p.834H. Appeal Book, p.834K. URJ WU (By his next friend Xiao Ying WU) v DEVINDER (Meagher JA) 9 Ido not think that is so. The trial judge made plain that she preferred the medical opinions of Dr Matheson to competing opinions. The trial judge was faced with a conflict in the medical evidence. Her reasons outline the case advanced by the appellant and a consultant neurologist, Dr Griffith called on his behalf. That case was that the appellant: ... has significant permanent brain damage: the medical opinions which support the applicant's principal allegation are based (I interpolate) upon their authors" assumptions or conclusions that the head injury itself caused profound unconsciousness for a relevantly lengthy period, and post-traumatic amnesia for eight weeks or longer. The validity of those medical opinions depends (again I interpolate) upon the veracity of the applicant's allegation that he has the gross mental and physical disabilities of which he complained to medical practitioners and complains to this Court.'24 The trial judge made plain that his evidence did not persuade her that he had the gross physical and mental disabilities of which he complained and to which I have referred. Her Honour also preferred the view of Dr Matheson who concluded that, on the material available from hospital records, the period of coma was less than two days?5 and thereafter a state of unconsciousness was prolonger by medical treatment for recuperative purposes. Dr Matheson expressed the view that the appellant suffered no brain damage.?¢ The extent, if any, of both injury and incapacity was a question of fact for the trial judge which is not able to be challenged on appeal. The trial judge resolved the conflict of fact, preferring one medical view to another supported by her view of the veracity of the appellant's complaints. In my opinion her Honour adequately exposed the reasons for reaching that conclusion. It follows, in my opinion, that the appeal should be dismissed with costs. Meagher JA. I agree. Stein JA. I also agree. Meagher JA. The result therefore is that the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: P Menzies QC/R G Hanlon Solicitors for the appellant: Parisi Multari Counsel for the respondent: J Poulos QC/M J Perry Solicitors for the respondent: Vandervords 24. Appeal Book, p.827T-V. 25. Appeal Book, p.811P-Q. 26. Appeal Book p. 820J.