Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v R [2018] NSWCCA 106 Hearing dates: 1 November 2017 Date of orders: 01 June 2018 Decision date: 01 June 2018 Before: Hoeben CJ at CL; Schmidt J; Campbell J Decision: Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against conviction – expert evidence – whether evidence admissible as expert opinion under s 79 of the Evidence Act 1995 (NSW) – whether expert possesses necessary specialised knowledge – whether opinion evidence of expert should be excluded under ss 135 or 137 of Evidence Act where credibility, reliability and accuracy of evidence challenged CRIMINAL LAW – appeal against conviction – expert evidence – expert witness code of conduct – whether evidence is inadmissible where provisions of Part 75 r 3J of Supreme Court Rules 1970 (NSW) relating to expert witness code of conduct not complied with – whether evidence of expert who is not aware of expert witness code of conduct should be excluded under ss 135 or 137 of the Evidence Act 1995 (NSW) CRIMINAL LAW – appeal against conviction – jury directions– expert evidence – where translations of intercepted telephone calls challenged – whether judge failed to give jury necessary directions following Crown address alleged to have suggested a reversed onus of proof STATUTORY INTERPRETATION – proper construction of s 79 Evidence Act 1995 (NSW) – proper construction of s 124 Supreme Court Act 1970 (NSW) – proper construction of s 171D District Court Act 1973 (NSW) – proper construction of Part 75 r 3J Supreme Court Rules 1970 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Supreme Court Act 1970 (NSW) Supreme Court's Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Commonwealth Development Bank of Australia Pty Limited v Claude George Rene Cassegrain; Gerald Cassegrain & Co Pty Limited v Commonwealth Development Bank of Australia Pty Limited [2002] NSWSC 980 De L v Director-General Department of Community Services (NSW) (1997) 190 CLR 207 at 212; [1997] HCA 14 Fillipou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Ocean Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 ; [2000] FCA 1463 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Chen (District Court (NSW); Buscombe ADCJ; 25 September 2015; unrep) R v McIntyre [2001] NSWCCA 311 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 Tuite v R (2015) 49 VR 196; [2015] VSCA 148 Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 Woollahra Municipal Council v Secure Parking Pty Ltd (No 2) [2015] NSWSC 452 Category: Principal judgment Parties: Weidong Chen (Appellant) Regina (Crown) Representation: Counsel: Mr M Thangaraj SC with Mr S Levi (Appellant) Mr H Baker SC with Mr D Beaufils (Respondent) Solicitors: SCT Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/241348 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 04 March 2016 Before: Buscombe ADCJ File Number(s): 2012/241348 Judgment OF THE COURT 1. The appellant Weidong Chen came to police attention in 2012 during an investigation of the supply of pseudoephedrine in the form of a prescription drug for the treatment of cold and flu called "ContacNT", which is made for the Chinese market in the form of granules. Police surveillance of an identified supplier, Jian Yu, identified Mr Chen as also being involved in the supply of this drug. He was then in Australia on an expired student visa. The result was that six of their telephone calls were intercepted and Mr Chen was arrested after he was observed leaving Mr Yu's unit complex in the company of Mr Yu and Bingsegn Liu. When approached by police all three offenders immediately ran away from police, Mr Liu dropping a bag which on later examination was found to contain packages of "ContacNT". 2. All three co-accused were then arrested and Mr Chen was charged with the offence of which he was convicted by a jury in October 2015, at a trial with his two co-offenders. His offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) was knowingly taking part in the supply of 4985 grams of pseudoephedrine, that being more than a commercial quantity of this prohibited drug. 3. On a voir dire Mr Chen unsuccessfully challenged the admissibility of the evidence of the interpreter who had translated the intercepted calls, Ms Yang, on the basis of her lack of relevant expertise; lack of impartiality and bias; and the inaccuracy of her translations. Mr Chen then relied on the evidence of another expert, Mr Chan. 4. The circumstantial case which the Crown advanced against Mr Chen at trial relied on the results of physical police surveillance, Ms Yang's translation of the intercepted telephone calls and the circumstances in which Mr Chen was arrested. He also then made an unsuccessful application to have Ms Yang's evidence withdrawn from the jury, when it emerged that she was not familiar with the expert's code of conduct. 5. While Mr Chen did not either himself give evidence or call evidence from Mr Chan at the trial, the accuracy of Ms Yang's translation of the telephone calls and her expertise and impartiality remained in issue. The case then advanced for Mr Chen was that he had not gone to Mr Yu's complex with any drugs; that he had not left with any drugs; that he wasn't involved in the supply of drugs; and that his flight when approached by police was explained by his fear of being caught with an expired visa. The conviction appeal 1. Mr Chen appealed his conviction on four grounds: "1. The trial judge erred upon the voir dire in ruling that the evidence of Lara Yang was admissible under section 79 of the Evidence Act; 2. The trial judge erred upon the voir dire in failing to exclude the evidence of Lara Yang under section 135 or section 137 of the Evidence Act; 3. The trial judge erred in failing to withdraw the evidence of Lara Yang from the jury's consideration upon the application of the Appellant following the evidence of Ms Yang that she was not born or initially raised in Fuqing and had not read or agreed to be bound by the expert witness code of conduct; 4. The trial judge erred in failing to issue appropriate warnings or directions following the Crown's address to the jury - that the Crown's translation of 'la' as 'granule' was the only interpretation they had before them because they had not been provided with any alternative suggestion of what 'la' should have been translated as - which amounted to a reversal of onus." 1. As was explained for Mr Chen at the hearing of the appeal, these grounds were interrelated, relating as they all did to Ms Yang's evidence. 2. It is convenient to commence with ground 3, which was then first addressed for Mr Chen, even though it relates to evidence which emerged in Ms Yang's cross examination at trial, rather than the evidence which she had earlier given at the voir dire. That is because by that ground, Mr Chen contended that her evidence was entirely inadmissible. 3. For the reasons which follow, neither that or the other grounds of appeal can be upheld, with the result that the appeal must be dismissed. Ground 3 - the expert witness code of conduct 1. This ground raised questions as to the proper construction of and interaction between the Evidence Act 1995 (NSW), the Supreme Court Act 1970 (NSW), the Supreme Court Rules 1970 (NSW), as well as the District Court Act 1973 (NSW), even though these matters were not addressed in the parties' written submissions. 2. It was common ground that Part 75 of the Supreme Court Rules applied to the proceedings: s 171D of the District Court Act. That Part adopts the expert witness code of conduct provided in Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW): Part 75, r 3J(2). Part 75 provides that unless the Court otherwise orders, unless an expert witness who is to be called to give oral evidence acknowledges in writing, that he or she has read the code of conduct and agrees to be bound by it, and a copy of that acknowledgment is served on all parties affected by the evidence, oral evidence is not to be received from the expert: Part 75, r 3J(3)(c). Similar provision is made in respect of reports prepared by experts: Part 75, r 3J(3)(b). 3. It was also common ground that while a statement which Ms Yang had made had been served on Mr Chen and was tendered on the voir dire together with her disputed translations and she was later called to give oral evidence at trial, she had not made the acknowledgement required by Part 75, r 3J(3)(b) or (c). That emerged in her cross-examination at trial, whereupon the application was made for Mr Chen that her evidence be withdrawn from the jury. 4. On appeal Mr Chen's case was that Buscombe ADCJ had erred both in admitting Ms Yang's translations into evidence and finally, in failing to withdraw them and her evidence from the jury, when it was established that Part 75, r 3J of the Rules had not been complied with. 5. When Buscombe ADCJ refused that application, he had already concluded on the voir dire that Ms Yang's evidence was admissible under s 79 of the Evidence Act, for reasons which will be discussed in relation to grounds 1 and 2. His Honour then found that: "A failure to be aware of the expert code of conduct it seems to me does not create an absolute bar to admissibility but it is a factor that bears considerably on the admissibility of the so called experts' evidence. Here though, given what has emerged in cross-examination, only parts of some of the transcripts that the witness has prepared have been the subject of challenge. Those calls however where the word "granules" has been translated from the word "la", L-A, as I understand it is a word in Fuqing, are in the context of this case, of some significance in particular given the nature of the substance that the police ultimately seized on 2 August 2012. The jury however will be given directions of law as to how they go about assessing the evidence given by Ms Yang in relation to her translations. Those directions can explain to them the significance of the code of conduct for experts and can no doubt encompass, should I consider it appropriate after hearing from counsel, warnings as to how they go about assessing the evidence they have received from Ms Yang. It will be for the jury to make up their own mind as to what weight they should give to Ms Yang's evidence in that regard after receiving those directions. In relation to the application, insofar as it is based on Supreme Court Rule 75.3J, I do not, for these reasons, propose to withdraw all the evidence of Ms Yang from the jury. In relation to 137 of the Evidence Act, clearly the transcripts of these calls have probative value. My comments in the voir dire ruling on that issue should be incorporated in this extempore judgment. Issues of credibility of the evidence are not to be considered in assessing the probative value under s 137. See in that regard The Queen v Shamouil [2006] NSW CCA 112 and cases that have confirmed that approach. In my view, no unfair prejudice will arise because the jury will be given strong directions to follow and I have every expectation that they will follow them. For the identical reasons, in my view, I should not exercise my discretion under s 135. I do not consider that the evidence is misleading or confusing." 1. On appeal it was submitted for Mr Chen that the mandatory consequence of the failure to comply with Part 75, r 3J, was that Ms Yang's evidence was inadmissible and that the Court had no discretion to otherwise order. Further, that given her unsatisfactory and contradictory evidence, there could be no confidence that Ms Yang had been truthful in her evidence and that the Court's discretion, if it existed, should not have been exercised, because her evidence was biased and partial. 2. These submissions cannot be accepted. 3. There is no question that when Ms Yang's evidence was challenged on the voir dire, that Part 75, r 3J(3)(b) and (c) had not been complied with. But neither during the voir dire, nor before Ms Yang gave her evidence at trial was any point taken about this failure, or its consequence for the admissibility of her evidence. 4. In cross-examination, while initially Ms Yang said that she was familiar with the expert's code, when taken to it she said that she had not seen it before. That led to the unsuccessful application for her evidence and her translations of Mr Chen's intercepted telephone calls to be withdrawn from the jury. 5. His Honour's approach to that application accorded, however, with that discussed in Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21, where it was observed: "724 In Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [203], Ipp JA (Beazley and Giles JJA agreeing) said that the content of the duty of expert witnesses and the powers of the court to enforce that duty are yet to be finally determined. 725 The Code of Conduct is found in Sch 7 to the Uniform Civil Procedure Rules 2005. It applies to expert evidence in criminal proceedings by virtue of Pt 75 r 3J of the Supreme Court Rules 1970 and applies to Associate Professor Cross' reports and oral evidence. Clause 2(1) of the Code imposes on an expert witness "an overriding duty to assist the court impartially on matters relevant to the witness's area of expertise." Furthermore, there is a duty on the expert to state, "if applicable, that a particular issue falls outside the expert's field of expertise" (cl 5(1)(d)) and "If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.": cl 5(2). There is also an obligation to disclose whether an opinion is "not a concluded opinion because of insufficient data or research or for any other reason …": cl 5(3). An expert report is not to be admitted into evidence unless an expert has agreed to be bound by the Code (unless the court otherwise orders) nor is oral evidence to be received from that witness. 726 In Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, the High Court unanimously held that where an expert purports to give evidence not based on his specialised knowledge, the evidence is inadmissible. The majority confirmed the relevance of the analysis of Gleeson CJ in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [41] and of Heydon JA in Makita at [85] when determining whether the opinion of a witness is "based on specialised knowledge or belief": Dasreef at [37]–[43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 727 It was submitted by the applicant that these authorities are relevant in two respects — first, the assessment by this court of whether or not there has been a miscarriage of justice such as to warrant an acquittal or re-trial, and secondly, in determining whether or not the evidence Associate Professor Cross incorporated into affidavits and sought to be tendered by the Crown was admissible on the appeal. As to the second of these matters, it was submitted that where bias or interest or some other material breach of the Code of Conduct by an expert has been demonstrated, opinion evidence of that expert witness is inadmissible. The expert has demonstrated an unwillingness to be bound by the Code: cf Supreme Court Rules, r 75.3J. It was submitted that there is no place for such evidence in a Supreme Court criminal trial. It was further submitted that the requirements for admissibility under s 79 and s 137 of the Evidence Act were not established in these circumstances. 728 It may be, as some previous decisions suggest, that an expert's evidence is not inadmissible merely because the expert has breached or overlooked the Expert Witness Code of Conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [12] per Campbell J; Rich at [333] per Austin J; Stamoulis at [208] per Ipp JA (Beazley and Giles JJA agreeing); see Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9] per Einstein J. This position accords with the view that bias is "no reason not to admit evidence of [the] expert": Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281 at [71] per Ipp JA (Whealy and Howie JJ agreeing); see also Haoui v The Queen [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [127]. It also aligns with the reality that "[h]owever desirable these new rules and protocols [contained in expert witness codes of conduct] may be, they cannot establish changes to the principles underlying the law of evidence": FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] per Ormiston JA (Chernov and Eames JJA agreeing). 729 This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under s 135 or s 137 of the Evidence Act. Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: "The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under s 135." I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135–137 of the Evidence Act. The expert's "failure to understand his [or her] responsibilities as an expert" (Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party." 1. It follows that contrary to the case advanced for Mr Chen on appeal, consistently with Wood, Part 75, r 3J of the Supreme Court Rules did not confine the operation of s 79 of the Evidence Act, with the result that the failure to comply with that Part was not the mandatory exclusion of Ms Yang's evidence at Mr Chen's trial. 2. That is because s 79 of the Evidence Act establishes an exception to the opinion rule created by s 76, in the case of a person who has specialised knowledge based on his or her training, study or experience, where the opinion is wholly or substantially based on that knowledge. As discussed in Wood, an expert's evidence is thus not inadmissible when the requirements of Part 75 of the Supreme Court Rules have not been satisfied, but that failure is rather relevant to a consideration of the issues which arise under ss 135 and 137 of the Evidence Act, as his Honour concluded 3. Observations to different effect in earlier authorities such as Commonwealth Development Bank of Australia Pty Limited v Claude George Rene Cassegrain; Gerald Cassegrain & Co Pty Limited v Commonwealth Development Bank of Australia Pty Limited [2002] NSWSC 980 at [9], where Einstein J discussed "enforcing strict compliance in the expert witness provisions", do not reflect the proper construction of the applicable provisions of the Evidence Act, which govern the admissibility of expert evidence, or of Part 75, r 3J of the Supreme Courts Rules. It may not be overlooked that Cassegrain was not only concerned with civil proceedings, but that it was decided at a time prior to the enactment of the Civil Procedure Act in 2005 and the adoption in 2008 of the expert's code in criminal proceedings, by the amendments then made to Part 75, r 3J of the Supreme Court Rules. 4. The correctness of the approach adopted in Wood is underscored by other provisions made in the Evidence Act, including s 177. Pertinently, that section imposes no requirement as to compliance with the expert's code introduced by the enactment of the Civil Procedure Act 2005 (NSW), as a condition of admissibility of expert evidence, providing as it does: "177 Certificates of expert evidence (1) Evidence of a person's opinion may be adduced by tendering a certificate (expert certificate) signed by the person that: (a) states the person's name and address, and (b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and (c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge. (2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party: (a) a copy of the certificate, and (b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion. (3) Service must be effected not later than: (a) 21 days before the hearing, or (b) if, on application by the party before or after service, the court substitutes a different period—the beginning of that period. (4) Service for the purposes of subsection (2) may be proved by affidavit. (5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence. (6) The expert certificate is not admissible as evidence if such a requirement is made. (7) The court may make such order with respect to costs as it considers just against a party who has, without reasonable cause, required a party to call a person to give evidence under this section." 1. Nor does any other provision of the Evidence Act make it a condition of admissibility of oral evidence called from an expert at a criminal trial, that the provisions of the Supreme Court Act, which regulate the expert code of conduct it introduced, be complied with, even though s 11 provides: "11 General powers of a court (1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment. (2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected." 1. Section 11 is concerned with the protection of a court's general powers to control the conduct of proceedings, not with the admissibility of evidence at a trial, which is regulated by the Evidence Act. 2. Also necessary to take into account is that the requirement introduced by Part 75, r 3J of the Supreme Court Rules, that the expert code of conduct provided in the Uniform Civil Procedure Rules be complied with in criminal proceedings, arises from the Rules made under s 124 of the Supreme Court Act. 3. That section relevantly empowers the Court's Rules Committee to regulate and prescribe "the procedure (including the method of pleading) and the practice to be followed in the Court in all proceedings in, or with respect to which, the Court has for the time being jurisdiction (including the procedure and practice to be followed in the offices of the Court), and any matters incidental to, or relating to, any such procedure or practice". It does not, however, empower the Committee to make rules as to the admissibility of evidence in a criminal trial. 4. Once made, in the case of criminal proceedings, rules made under s124 as to matters of procedure and practice also apply in the District Court, s 171D of the District Court Act, providing as it does that the procedure and practice of that Court, "when exercising its criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction." 5. It follows that while s 8 of the Evidence Act provides that it "does not affect the operation of the provisions of any other Act", if there is any tension between the provisions expressly made in the Evidence Act as to the admissibility of evidence and those made in the Supreme Court Rules, whether that tension arises to be considered in criminal proceedings before the Supreme or the District Court, it must be resolved on the basis that the specific provisions as to admissibility of evidence which the Parliament has enacted in the Evidence Act, must prevail over the Rules. 6. That is because, as was held in De L v Director-General Department of Community Services (NSW) (1997) 190 CLR 207 at 212; [1997] HCA 14, "it would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend the Parliament's own enactments." No such express words conveying such an intention appearing in either in s 124 of the Supreme Court Act, or in s 171D of the District Court Act, it follows that the Supreme Court has not been empowered by adoption of a rule as to practice and procedure, to repeal or amend what the Parliament expressly enacted as to the admissibility of expert evidence in s 79 of the Evidence Act. 7. Reliance was also placed for Mr Chen on what was decided in Woollahra Municipal Council v Secure Parking Pty Ltd (No 2) [2015] NSWSC 452, where Ball J concluded that Part 7B of the Supreme Court Act, now repealed, overrode the general provisions made in s 131 of the Evidence Act as to the exclusion of evidence of settlement negotiations. That was because Part 7B of the Supreme Court Act then contained specific rules enacted by the Parliament, as to the evidentiary use which could be made of what was said and done in negotiations in a mediation conducted under that Part. 8. That conclusion is not available, however, in this case, despite the provision made in s 171D of the District Court Act, because of the limited rule making power granted by s 124 of the Supreme Court Act. 9. While Part 7B of the Supreme Court Act overrode s 131 of the Evidence Act, s 124 does not have a similar effect. That is because it does not empower the Court to make rules which override what the Parliament expressly enacted in the Evidence Act, including as to the admissibility of expert evidence. The rule making powers conferred by s 124 are concerned with "the procedure and the practice to be followed in proceedings before the Court", not with the admissibility of evidence in a criminal trial. 10. That is why it was concluded in Wood that a failure, in criminal proceedings, to comply with the expert's code of conduct provided for by the Civil Procedure Act, does not make the expert's evidence inadmissible, but it is rather a matter to be taken into account on an application for exclusion of evidence, made under either ss 135 or 137 of the Evidence Act. 11. In this case the expert evidence led from Ms Yang at trial was not by the tender of her statement, but by calling her to give oral evidence and tendering the transcripts which she had prepared in the way she described in her evidence. His Honour thus correctly approached the application for the withdrawal of her evidence from the jury, given her lack of awareness of the expert's code, as a matter relevant to his consideration of the application of ss 135 and 137 of the Evidence Act, to her evidence. 12. His Honour was also correct in his conclusion that Ms Yang's evidence and her translations could not be withdrawn from the jury, under either section. 13. That is because s 135 permits evidence to be excluded, if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, be misleading or confusing, or cause or result in undue waste of time. 14. Ms Yang's evidence was certainly probative, as his Honour concluded. There is no question that it was relevant evidence, that being identified in s 55 of the Evidence Act as being evidence which "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding affect the assessment of the probability of a fact in issue". It also had considerable probative value, given the definition of that term in the Dictionary to that Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 15. Probative value is concerned with the potential of the evidence to have the relevant quality, that is, ''it is predictive, as to what the jury 'could' rationally make of it, when all the evidence is in": IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [30]. 16. The question of whether the disputed evidence had to be excluded, had to be determined by the probative value of the evidence being assessed, but that did not depend on its capacity, by itself, to prove anything: IMM confirming the approach in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 and R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121. Further, the probative value of Ms Yang's evidence had to be assessed on the assumption that it would be accepted by the jury as supporting the Crown's circumstantial case: IMM at [49]. 17. There were certainly issues for the jury to resolve, as to Ms Yang's competence and the accuracy of her translations, but as his Honour also found, that alone did not give rise to a risk that her evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time. 18. It follows that while there were issues as to Ms Yang's evidence which were open to Mr Chen to pursue in cross-examination of Ms Yang as he did, or which could also have been pursued by calling evidence from Mr Chan, the expert he had relied on at the voir dire, the existence of those issues did not make receipt of Ms Yang's evidence unfairly prejudicial. To the contrary, they raised questions which properly fell to the jury to determine. 19. Section 137 required that Ms Yang's evidence not be admitted, if its probative value was outweighed by the danger of unfair prejudice to Mr Chen. 20. That receipt of Ms Yang's evidence made it more likely that Mr Chen would be convicted was not a basis for excluding it under s 137: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. What had to be shown to demonstrate risk of unfair prejudice was that the jury would use the evidence upon a basis logically unconnected with the issues in the case: Papakosmas at [92] – [93]. 21. That was simply not established by what remained in issue in relation to Ms Yang's evidence. Those were matters properly left to the jury to consider, in accordance with the directions which it was to be given, as to how her expert evidence had to be assessed, including in respect of her lack of familiarity with the expert's code of conduct. Grounds 1 and 2 the evidence of Ms Yang at the voir dire – sections 79, 135 and 137 of the Evidence Act 1. The evidence was that some 20 telephone calls had been intercepted during the investigation. They had been conducted in English, Mandarin and the Fuqing dialect. Ms Yang had been retained by police to prepare translated transcripts of those calls. She was provided with recordings of the calls and in her evidence explained how she had approached the translation task. 2. The six intercepted calls involving Mr Chen were conducted in the Fuqing language. Fuqing is a Chinese prefecture where the Fuqing dialect is spoken. It is not a written language and it was common ground that its interpretation depends on the context in which spoken words are used. Some of the words used had no direct English equivalent and so the translation was not entirely literal. It still had to correctly convey in English, the meaning of what had been said in the Fuqing dialect. Whether that had been achieved was in issue. 3. It emerged that Ms Yang had made certain changes to her initial translations. In cross-examination Ms Yang also agreed that she had made some errors in her original translation. Whether her corrections were the result of her having listened again to better quality recordings with other equipment, as was her evidence, or as the result of having read the report of the expert Mr Chen called on the voir dire, Mr Chan, he having disagreed with some of her translations, was explored with her. 4. Ms Yang's evidence was that she had listened to the recordings a second time, with better equipment and had made her corrections, before she had read Mr Chan's report. 5. Not only was Ms Yang's expertise in issue given her background and training, whether her translations and evidence should be excluded under either ss 135 or 137, given her capacity and integrity and the accuracy of her translations, were also put in issue. 6. Buscombe ADCJ found that Ms Yang's evidence was admissible under s 79 of the Evidence Act, she having the necessary specialised knowledge in translating and interpreting the Fuqing dialect into English, as a consequence of a combination of her training, study and experience and that it could not be excluded under either ss 135 or 137: (R v Chen (District Court (NSW); Buscombe ADCJ; 25 September 2015; unrep). 7. Mr Chen's case on appeal was that his Honour had erred, not only because Ms Yang was not qualified as an expert in the Fuqing language for the purpose of s 79, but that her evidence should have been excluded under ss 135 or 137. That followed from what had emerged in her evidence as to the errors she had made in her translation; as to her place of birth; and her unverifiable evidence as to having spoken the Fuqing dialect with family members, which it was argued all went to her integrity and established her bias. 8. It was finally submitted that Ms Yang fell within the category of a "charlatan or enthusiastic amateur". 9. Ms Yang was also submitted to have been a "dirty expert" because, it was contended, she should not have been present when a search warrant was executed. Nor should she have been informed either that the case was a drug case, or that police were investigating the supply of granules of ContacNT, if she was to be called to give evidence at the trial about the intercepted calls. It was accepted, however, that there was no authority which supported these submissions. 10. Reliance was particularly placed on Ms Yang's evidence on the voir dire that she had been born in Fuqing, while at trial she admitted that she had since learned from her father that she had actually been born in Fuzhou. In the result, it was submitted, on the voir dire her evidence had been untrue. 11. It was also argued that the evidence established that Ms Yang had no formal qualifications or training in Fuqing and that no professional body had ever recognised her as having any proficiency in that language, her exposure to it having been limited to her childhood and since then, her occasional use of the language with friends and acquaintances. On her own evidence, while fluent in Mandarin she was only "well versed" in Fuqing. In the result, it was not open to his Honour to conclude as he did, that her knowledge of the language was at a sufficient level to be counted as an expert for the purpose of s 79. 12. Further, that Mr Chan's evidence had established that there had been errors in Ms Yang's translation, which she had corrected as the result of his evidence. His Honour should have concluded that Ms Yang had then revised her interpretation, having seen his statement, given that her cross-examination established also her lack of familiarity with common Fuqing idioms and that she had corrected the word fifty to five, which she had accepted a native speaker of Fuqing would have been able to differentiate. 13. In the result, there was not the necessary specific evidence that Ms Yang had the necessary specialised knowledge: Ocean Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146; [2000] FCA 1463 at [22]. 14. Accordingly, his Honour had erred in concluding that Ms Yang had specialised knowledge concerning translating and interpreting the Fuqing dialect into English, as a consequence of both her training and study as well as her experience. 15. None of these submissions can be accepted. 16. As discussed in Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [23] – [24], s 79(1) is concerned with two conditions of admissibility. The first, the existence of "specialised knowledge based on the person's training, study or experience", which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter, which results in the acquisition of knowledge. The second, the opinion must be wholly or substantially based on that specialised knowledge based on training, study or experience and presented in a way that makes it possible for a court to determine that it is so based. 17. Section 79 is not concerned with reliability of the expert's opinions: Tuite v R (2015) 49 VR 196; [2015] VSCA 148 at [70] applying R v McIntyre [2001] NSWCCA 311 and R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167. In a jury trial the question of whether the expert's opinion should be accepted, is a matter for the jury. 18. The evidence established that as the result of her training, Ms Yang did have specialised knowledge of translation and interpretation, which she applied to the Fuqing dialect which she spoke and which in her professional work, she had ongoing experience in translating and interpreting. It also established that her opinions as to the meaning of the words used in the intercepted telephone calls which she translated in the way she described, were based upon that knowledge and her training, study and experience. 19. As was finally conceded on appeal, Buscombe ADCJ was referring in his reasons to Ms Yang's qualifications in interpreting, as well as to the languages to which she applied those skills, including the Fuqing dialect. That reflected the evidence as to Ms Yang's relevant formal qualifications, which included: 1. A BA in English teaching from Fuqing Normal University Fuzhou China; 2. An MA in Interpreting and Translation from Macquarie University; and 3. An MA in Teaching English as a Second Language from Macquarie University. 1. The evidence also established that Ms Yang lived and worked in Australia, where she is an accredited Professional Level Interpreter and Translator in Mandarin by the National Accreditation Authority. It was common ground that there is no such system for accreditation of the Fuqing dialect in Australia, even though Ms Yang had applied to NAATI for accreditation in that language in 2012. There was also evidence, however, that before she sought that accreditation from NAATI for the Fuqing language, she had been professionally engaged to perform interpreting work in that dialect on 13 occasions and that since then, she had continued to engage in such work, including interpreting in the Fuqing language for NSW Police. 2. Ms Yang's professional experience also included providing interpreting and translation services for courts and tribunals of differing levels in Mandarin, Fuzhou and Fuqing, as well as for State and Federal Police services; an Area Health Services, and various interpreting services. 3. The case Mr Chen advanced on the voir dire relied on the report of another accredited NAATI translator in English and Mandarin, Mr Chan. He lives and works in China as a lecturer at the Fuqing Branch of the Fujian Normal University. He also gave telephone evidence from China. Mr Chan was also fluent in the Fuqing dialect, that also being his native tongue. His qualifications were similar to those held by Ms Yang, namely, a Bachelor of Arts in the English Language from Fujian Normal University and a Master of Education from Macquarie University, as well as an MA in translation and interpreting from that University. 4. On the voir dire Ms Yang's evidence was that she was fluent in English and Mandarin and well versed in Fuzhou and Fuqing dialects. She was cross-examined as to her expertise and background, as well as about how she had come to make changes to her translation, on her evidence before she had read Mr Chan's report. She then believed that she had been born in Fuqing, but it emerged at the trial that she had since learned from her father, that she had actually been born in Fuzhou and that her family had then moved to Fuqing. 5. That made little or no impact on the time that Ms Yang had spent speaking Fuqing as a child, because she had lived in Fuqing until she was 10 years old, when her family migrated to Fuzhou and had grown up speaking Fuqing, which she had learned as a child before attending school. Ms Yang continued to speak Fuqing to her family and relatives into adulthood. Her evidence was that she also regularly travels back to China for work, holidays and to maintain her proficiency in Mandarin, Fuzhou and Fuqing. 6. On all of that evidence, it was well open to his Honour to conclude as he did, that Ms Yang had the necessary specialised knowledge to be able to translate Fuqing into the English language and that her evidence and her translations of the intercepted telephone calls where admissible under s 79. 7. The credibility of Ms Yang's evidence and the reliability of her translations were matters for the jury, as Buscombe ADCJ concluded, taking the view that the fact that Ms Yang had corrected some of her original translations did not cause him concern, so as to exclude her evidence, given her explanation that she had listened again to the recordings using different equipment. That conclusion was also open. As his Honour observed: "Experience suggests, as Mr Chan's evidence itself suggested, that there will on occasions be differences between the translations prepared by different translators. Mr Chan acknowledges that there is no such thing as a perfect translation. There could be no doubt that the transcripts are based on the specialised knowledge which I have found Ms Yang has. I do not consider that an application of s 137 of the Evidence Act results in the mandatory exclusion of the evidence. Section 137 requires a consideration of the probative value of the evidence and any unfair prejudice that will arise if it is admitted. If the probative value is outweighed by the danger of unfair prejudice there is mandatory exclusion of the evidence. Probative value is defined to mean the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue. The transcripts were of considerable probative value in the Crown case. The Crown case in relation to Mr Chen is one where he has dealing with a person by the name of Yu Jian, a person arrested at the same time that the accused Chen was arrested in the presence of the drugs, the subject of the charge the accused Chen faces. All the intercepted calls are said to involve Yu Jian and some, not all, are said to involve the accused Chen. The transcripts will of course assist the jury to understand the content of the content of the calls, given it may be readily assumed that members of the jury will not speak the Fuqing dialect. The fact that there is a dispute about the content of the calls is not a matter that diminishes the probative value of the evidence. That is a dispute which the jury will need to resolve. Nor do I consider that the fact that there is a dispute about the transcripts in some way creates an unfair prejudice. The disputed translation, if counsel of the accused considers it appropriate, can be taken up with Ms Yang. For these reasons I consider that s 137 of the Evidence Act does not result in the exclusion of the evidence, and for the same reasons I do not propose to exercise the discretion under s 135." 1. The case pressed for Mr Chen on appeal raised not only Ms Yang's reliability, but also integrity issues. As was then accepted, bias was an element of the integrity issues which he had advanced on the voir dire. As was also discussed in Wood, however, the authorities establish that bias is not a reason for not admitting expert evidence. 2. Only parts of Ms Yang's translations were challenged in cross-examination on the voir dire, when she made various concessions. Ms Yang accepted, for example, that she had made certain errors in relation to a colloquial expression which she accepted a fluent speaker would know, but her concessions did not establish that his Honour erred in concluding either that her evidence was admissible under s 79, or that it should not be excluded under either s 135 or s 137. 3. Section 137 required that Ms Yang's evidence not be admitted, if its probative value was outweighed by the danger of unfair prejudice to Mr Chen. That conclusion was not then open because, as his Honour correctly concluded, the issues as to Ms Yang's credibility and the weight which could be given to her evidence, were properly matters for the jury to consider and could not result in unfair prejudice. 4. His Honour was also correct to conclude that Ms Yang's evidence was not unfairly prejudicial, even though a dispute about parts of the transcripts remained. That could be pursued at trial in Ms Yang's cross-examination and by evidence called from Mr Chan. As it transpired, no evidence was then called from Mr Chan, for reasons which are not known. That, however, was a forensic decision for Mr Chen to make. Ground 4 – jury directions 1. One significant issue on the voir dire was Ms Yang's translation of the word Fuqing word "la" as meaning "granule". The word was used in only one of the six intercepted phone calls in which Mr Chen was involved. Ms Yang's translation of that call was: "YJ = Yu Jian UM = Unknown Male (the applicant) YJ Hello. UM Hello. YJ Uh. UM ....tomorrow...(ind)...normally speaking, tomorrow will be no problem...(ind) ...tomorrow morning will tell you...(ind) you do it clean. YJ Mhm. UM You can collect that granule. That one...that number, don't ...(no verb) anything, ok? YJ Mhm, Mhm. UM Ok. YJ Ok. UM ...(ind)..., Normally there won't be any problem. YJ Mhm, mhm, ok. UM Ok. YJ Mhm. Bye." 1. On Mr Chen's case on appeal Ms Yang's concessions about her translations made it clear that the word "la" had no English equivalent and that it did not mean "granule". Further, that Ms Yang's translation of the word 'la' was contended for Mr Chen on appeal to have been very prejudicial to his case and that it had been wrongly influenced by Ms Yang's knowledge of the police case as to his supply of granules of the drug. That was argued to have been the result of confirmation bias. 2. On Mr Chan's evidence on the voir dire, the Fuqing word 'la' is not a noun, but a descriptor which can be used for items of various sizes, not necessarily a small item, which the word "granule" implied. While he disagreed with Ms Yang's use of the word "granule" in the translation, he did not, however, express an opinion as to how, in the intercepted calls, particularly that in which Mr Chen was involved, the word "la" should have been interpreted. Nor was a different translation put to Ms Yang as reflecting the correct translation of the word "la", in the context in which it was then used. 3. No evidence was called from Mr Chan at trial, but Ms Yang did agree in cross-examination that while she considered her translation to be the most verbatim translation of how the word "la" was used, it was not itself a noun, but a word which was used to modify a noun and that it was used in conjunction with another word, as a classifier. Ms Yang also agreed that while she had used the word "granule", the word "la" had no English equivalent and that to use the literal translation of that word, would not have made sense to an English reader. 4. In its closing address the Crown submitted: "So what does it really come down to? It comes down to this word "la" and we've all learned the word "la" in Fuqing. It can mean many things. But one of the things it can mean is "granule". It is the verbatim translation of la. It's not been disputed as I understand it that la is capable of being translated as granule. It is an available interpretation. And members of the jury it is the only interpretation before you. Because you have not been provided with any alternative suggestion of what "la" should have been translated as in those calls. There is simply no evidence before you of what "la" meant in those calls other than granule." [Emphasis added]. 1. Complaint was then made for Mr Chen, that this had suggested a reversal of the onus of proof. That complaint was not accepted by Buscombe ADCJ. 2. On appeal it was submitted that his Honour had erred in that conclusion, because the implication of the Crown's submission was that Mr Chen had some obligation or expectation to adduce an alternative definition of "la", failing which Ms Yang's evidence should be accepted. At the minimum, the jury should have been warned that they should not understand that they could only accept the Crown's translation in the absence of any alternative adduced by Mr Chen. 3. Given the state of the evidence, the need for the direction sought in relation to the Crown's submission is not apparent. The submission accurately reflected the evidence, which included that the use of the word "la" can mean "granule". It was Ms Yang's opinion that in the context in which it had been used in the intercepted calls, that was the appropriate translation. There was no evidence that any other translation was more accurate in that context, because no evidence to that effect was called from Mr Chan and no alternative translation was put to Ms Yang in cross-examination. 4. Even accepting, however, that the direction sought ought to have been given, that the failure to do so could have resulted in any substantial miscarriage of justice, has not been established. In the result, this ground also cannot succeed and the appeal must be dismissed: s 6(1) Criminal Appeal Act. 5. That is because, as was discussed in Fillipou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15], what must be established is that "the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description". If, however, the conclusion is that no substantial injustice has actually occurred, the proviso to s 6(1) must be applied: Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 at [43]. 6. It must not be overlooked that when dealing with the case against Mr Chen, Buscombe ADCJ, conventionally, pointed out in the summing up that although an accused was entitled to give and call evidence in a criminal trial, he was not obliged to do so; that the onus to the exacting standard of beyond reasonable doubt always rested on the Crown; and that Mr Chen bore no onus of proof in respect of any fact in dispute. 7. His Honour also gave detailed and specific directions about Ms Yang's evidence, reminding the jury of what he had said earlier by way of a general direction about expert evidence. He also pointed out at (AB 48-49): "Of course, the value of an expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Ms Yang's evidence here was to provide you with English transcripts of the 20 telephone calls which are before you as part of the Crown Case. As you know, those telephone calls are said to be primarily in the Fuqing dialect of the Chinese language". 1. His Honour went on to remind the jury that the reliability of Ms Yang's translations were "the subject of considerable cross-examination" on behalf of Mr Chen and a co-accused. His Honour directed the jury to "consider carefully the submissions that [counsel for the accused] made to you (the jury) in that regard". 2. His Honour reminded the jury that Ms Yang's honesty, expertise and the accuracy of her translation had been impugned. His Honour also reminded the jury of what were said to be inconsistencies, which counsel had argued undermined the reliability of her evidence. He further reminded the jury that counsel for Mr Chen had "called into question Ms Yang's impartiality" and of counsel's criticisms, based upon the expert witness code of conduct, explaining generally its content. He also reminded the jury of the cross-examination based on the report of Mr Chan, "from whom you (the jury) have not heard in this case." He also reminded the jury that counsel for Mr Chen had suggested there were errors in her translations. His Honour concluded with this direction: "[Counsel for Mr Chen] called into question [Ms Yang's] proficiency in the Fuqing dialect. It is a matter for you, members of the jury, after no doubt careful consideration of the issues raised by [counsel for Mr Chen and counsel for a co-accused] and the Crown to determine whether or not you consider that Ms Yang's transcriptions are sufficiently reliable to use them in the way that the Crown submitted that you should." 1. Considering Buscombe ADCJ's relevant directions as a whole, it is difficult to see what the specific direction sought could have added to the jury's understanding of their role and their entitlement to reject Ms Yang's evidence if they evaluated it as not sufficiently reliable having regard to the onus and standard of proof. 2. Accordingly, it must be concluded that no substantial injustice could have actually resulted from the failure to give the direction sought in relation to what was a relatively small part of the evidence and given all of the other circumstantial evidence which the jury had to consider, particularly what was otherwise discussed in the intercepted telephone calls which implicated Mr Chen in the drug supply of which he was convicted. 3. Those calls had to be considered together with what was established about Mr Chen's involvement in the offence of which he was convicted by the other evidence led by the Crown. That included the results of the physical police surveillance and what occurred when police confronted Mr Chen and his co-accused, when they all left Mr Yu's unit complex, one of them dropping the bag containing the drugs and they all fleeing, before they were each then apprehended, arrested and charged. 4. In the face of all of that circumstantial evidence, that the failure to give the direction sought in relation to Ms Yang's translation of the word "la", in the context in which it was used in the intercepted calls, could have resulted in the injustice for which Mr Chen contended, cannot be accepted. Orders 1. Mr Chen's appeal is accordingly dismissed. ********** Amendments 17 July 2018 - [11] - r 3(c) amended to r 3J(3)(c) and r 3(b) amended to r 3J(3)(b) [12]- r 3(b) amended to r 3J(3)(b) [17]- r 3(b) amended to r 3J(3)(b) [19] - quote inserted from authorised report 29 January 2019 - Counsel name corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2019