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High Court of Australia Transcripts |
Office of the Registry
Melbourne No M53 of 1997
In the matter of -
An application for declarations and writs of Certiorari and Habeas Corpus against ROSEMARY EAST
First Respondent
MAGISTRATES' COURT OF VICTORIA AT SUNSHINE
Second Respondent
COUNTY COURT OF VICTORIA AT MELBOURNE
Third Respondent
GOVERNOR OF FULHAM PRISON
Fourth Respsondent
Ex parte -
QUOC PHU NGUYEN
Prosecutor/Applicant
Office of the Registry
Melbourne No M51 of 1997
B e t w e e n -
QUOC PHU NGUYEN
Applicant
and
THE COUNTY COURT OF VICTORIA
First Respondent
ROSEMARY EAST
Second Respondent
Office of the Registry
Melbourne No M52 of 1997
B e t w e e n -
QUOC PHU NGUYEN
Applicant
and
THE COUNTY COURT OF VICTORIA
First Respondent
ROSEMARY EAST
Second Respondent
THE MAGISTRATES' COURT OF VICTORIA AT SUNSHINE
Third Respondent
Applications for special leave to appeal
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 10 DECEMBER 1997, AT 10.21 AM
Copyright in the High Court of Australia
MR J.D. McARDLE: May it please the Court, I appear with MR T.P. BURKE for Ms East, who is the first respondent in M53, the second respondent in M51 and the second respondent in M52, the two special leave applications. (instructed by the Office of Public Prosecutions (Victoria))
GAUDRON J: In matter No M53 of 1997 the Deputy Registrar certifies that she has been informed by the Victorian Government Solicitor, solicitor for the second and third respondents, that they do not wish to have representations made on their behalf at the hearing of this matter and will abide by the decision of the Court save as to costs. She also certifies that in that matter she has been informed by the general manager of Fulham Prison on behalf of the fourth respondent that the fourth respondent does not wish to have any representations made on his behalf in that matter.
In matters Nos M51 and M52 of 1997 the Deputy Registrar certifies that she has been informed by the Victorian Government Solicitor, solicitor for the first respondent in both matters, that the first respondent does not wish to have representations made on its behalf at the hearing of these matters and will abide the decision of the Court save as to costs. She also certifies that in M52 of 1997 she has been informed by the Victorian Government Solicitor, solicitor for the third
respondent, that the third respondent does not wish to have representations made on its behalf at the hearing of this matter and, again, will abide by the decision of the Court save as to costs.
Now, all matters have been called together, but it does seem appropriate to deal with the applications for special leave first. Are the parties happy for the matters to proceed in that order?
MR FRANCIS: Yes, if the Court pleases.
GAUDRON J: Yes, Mr Francis.
MR FRANCIS: If the Court pleases, I apologise that most of the arguments, I think, which we had prepared were, in fact, prepared on what I might term very much a shoestring budget and they fall short of the standard which this Court is entitled to expect. I have prepared my oral argument which I propose to deliver to the Court and I had had that typed out and it seemed to me that it might be convenient to send to your Honours this morning the oral argument which I have prepared and I will be delivering that oral argument, virtually, as it now appears, in the typed form if that is a convenient course for the Court.
KIRBY J: It is not an oral argument at all, it is a written argument?
MR FRANCIS: The oral argument has become a written argument, your Honour.
GAUDRON J: Does that deal with the special leave applications?
MR FRANCIS: Yes, it does, your Honour.
GAUDRON J: Yes. That is what we are concerned with - - -
MR FRANCIS: Yes.
GAUDRON J: - - - at the first instance. So some part of that argument as we have it here will not arise on the special leave applications, will it?
MR FRANCIS: No, but if it is a convenient course for the Court, could I simply deliver one argument in relation to all matters.
GAUDRON J: I think they are quite separate issues, Mr Francis. There are some procedural difficulties in the matters that need to be - if not difficulties, mysteries perhaps, that need to be addressed, are there not?
MR FRANCIS: I hope when I have delivered my argument I will indicate to the Court that the matter is no longer, I hope, mysterious but, in substance, we say that there are important issues which do, with respect, warrant the attention of this Court.
KIRBY J: The mystery, if I can explain it from my point of view is that - and this really perhaps relates more to the matter for hearing than the application - there is not really placed before us as a demonstration of the linguistic incapacity of your client, save for the report from the expert, very much more than the transcript.
MR FRANCIS: There is the report - - -
KIRBY J: I mean, there is no affidavit from him that deposes to his confusion or uncertainty. But that really is more in relation to the first proceeding. If we are in the realm of the special leave application, we just have the ordinary decisions of the court below and, in so far as they are before us, the transcripts. It is all rather enigmatic. That is the mystery from my point of view.
MR FRANCIS: Yes. If your Honour pleases, perhaps I could very quickly refer to - - -
KIRBY J: If I could add to that: and then you have a judge, a very experienced judge, asking thrice over does he need an interpreter and thrice over the answer comes back, "No". There are three endeavours by Chief Judge Waldron to find out whether there is need for an interpreter. What more can a judge do?
MR FRANCIS: The authorities suggest that a judge is bound to satisfy himself that the accused's understanding is adequate for the purpose. It suggests that the judge must do something more than merely ask counsel. All counsel had was a one hour conference with his client with the aid of the client's father and sister and, with all due respect to counsel, it seemed to me that counsel did not fully understand the problems of communicating with a Vietnamese who had only survival English. I will give the Court an example of this from the police interrogation.
Part of this seems to be - I will give the Court an example of this from the police interrogation - a cultural problem. As the Court would know, even in English the word "yes" can mean various things to people. Both of whom have a full knowledge of the English language, one may speak to the other and the other may say "yes". That "yes" may mean no more than, "I hear what you say", or it may mean, "Yes, I agree with what you are saying".
With a number of Asian people, when they are conversing with an English speaking person, they may, from time to time, say "yes", meaning no more than a polite indication that they are continuing to listen and trying to communicate with the person who is speaking to them or questioning them.
KIRBY J: Mr Francis, that is not confined to Asian people. I have been in that situation with French and German speakers at international conferences, myself. But, where you are coming to a court seeking relief on the basis that you did not understand legal proceedings, one would have expected that there might be some material placed from the mouth of the particular person who alleges he was confused or uncertain, and that is not there in support of the primary matter for hearing.
MR FRANCIS: Could I give your Honour a very good example from something which appears in the appeal book. If your Honours look at the appeal book in relation to M53 - - -
GAUDRON J: Which is the matter that we were going to hear later.
KIRBY J: Yes, I am afraid I am guilty of this; I have led you into - I tried to explain what was mysterious about it from my point of view. If we are just going to deal with it as a special leave application, then we just go to the judgments of Justice Byrne and Justice Chernov and the Court of Appeal and that is it.
GUMMOW J: You have to, I think, face up fairly soon to what is said against the applications for leave in the respondents' summaries at pages 45 and 56 of the joint application book, and your time is running.
MR FRANCIS: Yes.
GUMMOW J: You have got to face up to it.
MR FRANCIS: 45 and 56. Could I very quickly answer his Honour Justice Kirby's question before I turn to that.
GUMMOW J: It is for you to take your course. All I am saying is that your time is running.
MR FRANCIS: Yes. Your Honours, I wanted to refer very quickly to page 93 and 94 of the application book, part one, in M53. If your Honours look at page 93, question 263:
Are you aware that what's happened is a theft?
The answer comes back:
Yes.
Do you know what theft is?
What?
Do you know what theft is?
No.
That, we say, is an excellent example of what happens when questions and answers are being directed to a person with survival English only. He answers the question "Yes", which might be regarded as an admission, but when he is questioned further it is apparent he does not even know what theft is.
GAUDRON J: As Justice Gummow has alerted you, there are procedures applicable to special leave applications including time limits.
MR FRANCIS: Yes.
KIRBY J: I would ask Justice Gaudron to extend a little time because I think I took you off on to something that was concerning me and I would not like you to suffer a time default by that.
MR FRANCIS: We say with - I am turning now - your Honour Mr Justice Gummow referred me, I think, to page 46 - - -
GUMMOW J: Commencing at 45 and commencing at 56. It is just the respondent's summary of argument which, on its face, appears to be quite cogent so I would like to hear what you say in rebuttal of it.
MR FRANCIS: In rebuttal of what was - - -
GUMMOW J: What appears in the respondent summary of argument commencing at 45 and 56 as to why you should not get special leave.
MR FRANCIS: Yes. We have dealt with what happened before Mr Justice Byrne at page 4 in the oral argument and we say there that a number of his Honours findings in effect of factual matters are contrary to the evidence and we say that his Honour, in determining whether or not he should allow the appeal, applied wrong tests to the situation. In particular, we say he approached the question of whether or not an interpreter was vital in a case of this nature on a wrong basis and we say that because his Honour applied wrong principles of law there, that is a matter which warrants special leave to this Court.
GAUDRON J: Which wrong principles?
MR FRANCIS: Could I refer - - -
GAUDRON J: His Honour had before him, did he not, an application for certiorari?
MR FRANCIS: Yes, your Honour.
GAUDRON J: What principle should he have applied in determining that application?
MR FRANCIS: His Honour, we say, considered what was the appropriate tests in relation to a person with a limited knowledge of English, and could I refer your Honours to M51 AB page 6.
HAYNE J: That relates to whether or not his counsel was sufficiently informed to enter the plea which counsel did on his behalf.
MR FRANCIS: Yes.
HAYNE J: Where is the wrong principle applied?
MR FRANCIS: I am sorry, I meant to go to the bottom of the page, your Honour. His Honour said:
I am mindful of the fact that his own level of English is described by Marie Therese Jensen as only sufficient to satisfy all survival needs and limited social needs, and not more. Nevertheless, this does not of itself mean that he was incapable of giving proper instructions to counsel in the non-threatening environment of chambers.
We say that the proper test there should be was Nguyen capable of giving proper instructions to counsel and then we say, your Honours, going to the next - - -
HAYNE J: This was a proceeding for certiorari. This was not a general appeal. Why was it the test that you posit?
MR FRANCIS: Could I take this just a little further? Going to the next page his Honour said:
I therefore reject a submission based upon some want of communication leading to an erroneous admission of guilt by his counsel.
His Honour then said at the middle of page 7:
I accept that Mr Nguyen's facility with English at the level of court debate was insufficient for him to understand all that was said. Nevertheless, there is no rule of law which would require, as an element of natural justice or procedural fairness, that a non-English speaker should in all cases have an interpreter to translate the proceedings. The question must be whether the accused was unfairly disadvantaged in some way. It might have been expected that counsel for Mr Nguyen would have perceived this if it existed.
Now, we say there, your Honours, that the rule should be that wherever there is a significant risk of unfairness to the accused then there should be an interpreter present to translate the proceedings. We say, moreover, whereas here the judge accepts that the accused was not understanding all that was said, the question arises just what part of the proceedings can we be satisfied he adequately understood.
HAYNE J: If we were to accept the rule which you posit, why has his Honour not applied that rule at the page you have taken us to in the sentence following that which you read:
The question must be whether the accused was unfairly disadvantaged in some way.
Is that not the test you put forward?
MR FRANCIS: That is the test we are putting forward. We say he was unfairly disadvantaged.
GAUDRON J: Was there no right of appeal from the decision of the County Court?
MR FRANCIS: The decision was appealed to the Court of Appeal in Victoria, that is the decision of Justice Byrne, which very quickly disposed of the matter so that we are now in a situation where we have an appeal - - -
GAUDRON J: From Judge Waldron; was there no appeal from the decision of Judge Waldron?
MR FRANCIS: There still is an appeal from Judge Waldron, your Honour, in relation to the matter of sentence and that is still before the Victorian Court of Appeal.
KIRBY J: Is that a general appeal or is that limited to a point of law?
MR FRANCIS: That is on a point of law relating to sentencing.
KIRBY J: What is the point of law that you have raised in that appeal? Is it the same matter?
MR FRANCIS: In that appeal, your Honour, we have raised a number of points in relation to what Judge Waldron did. For example, Judge Waldron, when he sentenced the accused, did not give any weight to the fact that Nguyen had done a lot of community service.
KIRBY J: These are merit sort of matters, but it does not overlap with the issues that you are debating before us.
MR FRANCIS: Your Honour, there is no right of appeal to the Victorian Court of Appeal or to a Supreme Court judge simply on the finding of his Honour that there has been a breach of bond. No appeal lies from that.
HAYNE J: There was a plea in the County Court of guilty, was there not?
MR FRANCIS: In the original trial, yes, your Honour.
HAYNE J: No, on the breach of CBO.
MR FRANCIS: Yes, there was, but the problem about that was this, your Honour: in the County Court they alleged seven matters which amounted to a breach of bond. There were the allegations that he failed to attend on four occasions when he should have attended. There was an allegation that on two occasions he did not attend for his community service. When it came before his Honour Judge Waldron, counsel for the accused said he admitted the breach of bond. We do not understand that that word admission of "breach" of bond amounts to an admission of all the breaches of bond. There were seven allegations - - -
HAYNE J: Was there seven charges or one charge?
MR FRANCIS: What happens is this, your Honour, that the breach of bond is set out in a form setting out the various breaches. I will refer your Honour to what, in fact, was said, the precise words used. At page 16 of M53, the appeal book - that is the first volume - - -
GUMMOW J: Is this part of the record below?
MR FRANCIS: This is the transcript of a plea, what happened before his Honour the Chief Judge Waldron.
GUMMOW J: I know, but was it before the Victorian Court of Appeal? Was it before the Victorian Court of Appeal? You are on a special leave application. You read to us material that was before the court below. Was this before the court below, which here is the Victorian Court of Appeal.
MR FRANCIS: No; I was answering his Honour Justice Hayne's question in relation to the question of breach of bond. The plea commenced at page 16 and Ms Pullen announced her appearance for the Crown and Mr Johns announced his appearance for Nguyen, and then what the court had before it was a report from Ms East, and it also had a standard form which set out what was alleged in relation to breaches of the CBO. Ms Pullen said at line 21:
I understand the breach is admitted.
She has used the term "breach" in the singular, Mr Johns said "That's correct". But then later, when the accused was giving evidence it became apparent that he disputed some of the matters which were alleged in the form to constitute breaches of the CBO. So that, although there was an admission of a breach of the CBO, as to how many breaches there had been of the CBO was never determined, and his Honour Judge Waldron dealt with him on the basis that all breaches were admitted. I am sorry, I was answering Justice Hayne's question and I did not answer the question which your Honour Justice Gummow put to me.
GUMMOW J: That is all right.
GAUDRON J: What is the principle to be applied in relation to the determination of an application for certiorari or an order in the nature of certiorari from the order of a County Court judge and where is the error on the part of Mr Justice Byrne in that regard?
MR FRANCIS: The errors in relation - - -
GAUDRON J: Could we have the principle to be applied.
MR FRANCIS: We say that when we went before Mr Justice Byrne to seek certiorari in relation to what his Honour Judge Waldron had done, his Honour Judge Byrne applied wrong principles - and I have elaborated some of those wrong principles already - in dealing with his Honour's failure to grant certiorari in relation to what Chief Judge Waldron had done in the County Court.
GAUDRON J: Did he have to find an error on the face of the record before certiorari would lie?
MR FRANCIS: We would say no but we would say also it did turn out that in fact there was an error on the face of the record. The record of the court - I am sorry, when I am talking about an error of record, it is part of our submission that the matter should never have got to Judge Waldron at all because it was a prerequisite of going to Judge Waldron - - -
GAUDRON J: They were your proceedings before Mr Justice Chernov, were they not?
MR FRANCIS: Yes, they were, your Honour.
GAUDRON J: All right. Let us restrict ourselves for the moment to the proceedings before Mr Justice Byrne.
MR FRANCIS: In relation to what happened before Mr Justice Byrne, all I can submit is what we have set out in the oral argument from about the middle of page 4 to the middle of page 5.
KIRBY J: You still have to prove, as I understand it, in Victoria for certiorari that there is an error on the face of the record. The record is what for the purpose of these proceedings in relation to Justice Byrne following Craig's Case? Does it include the transcript of his Honour's reasons? You have assumed it has but I understand Craig's Case may say it does not.
MR FRANCIS: Your Honour, before Judge Byrne the record of the Magistrates' Court which was relevant to this was not before his Honour Judge Byrne. It was in the application before Mr Justice Chernov.
KIRBY J: That is so, but you are seeking relief from the Court of Appeal which has declined it, and you are here on a special leave application challenging their refusal to intervene in what Justice Byrne did.
MR FRANCIS: Yes.
KIRBY J: You are saying his Honour ought to have provided you with certiorari. That requires proof of an error on the face of the record, presumably the record of Judge Waldron.
MR FRANCIS: Yes.
KIRBY J: Now, what record did Justice Byrne have of Judge Waldron's proceedings and how does that reveal that there was this problem with interpretation on the face of that record?
MR FRANCIS: What appeared there, your Honour, was the matters that what could be referred to in relation to what happened when the accused was interrogated by Ms Pullen and - - -
KIRBY J: But is that part of the record?
MR FRANCIS: No, that was part of the transcript of what occurred.
KIRBY J: But the transcript is not, I think, part of the record, is it, for the purposes of certiorari?
MR FRANCIS: Yes.
KIRBY J: I mean, it used to be thought to be in New South Wales but then Craig's Case hit that on the head, as I understand it.
MR FRANCIS: Well I cannot say much more than this that Mr Justice Byrne's reasons are incorporated in the record by section 10 of the Administrative Law Act 1978 , and we say that in what he did we can point to a breach of natural justice.
KIRBY J: You really need what you have referred to in the interrogation or the questions to your client in order to show that notwithstanding that counsel represented that he could understand, notwithstanding certain answers, that, in fact, he could not really understand it. You really need external material to get that result.
MR FRANCIS: Yes.
KIRBY J: Now, the problem, as I understand it, is that that may not be part of the record for the purpose of the relief of certiorari.
MR FRANCIS: All I can point to is what was done before his Honour Chief Justice Waldron. There was cross-examination before Chief Judge Waldron which we say was really quite improper and - - -
KIRBY J: Well, that may all be so, but unless it is part of the record it is not really available to you to challenge it. That may be why you need your primary application in order to get a wider range of materials before this Court. But if you are challenging on a special leave application or refusal of the Court of Appeal of Victoria to intervene to correct Justice Byrne, you have to show that Justice Byrne fell into error by reference to the record. The record, I do not think for that purpose, can include all of this other material you want to refer to.
MR FRANCIS: No. Well, we want to refer to that material simply for the purposes of showing that there was a breach of natural justice and I cannot take it further than that, your Honour.
GAUDRON J: Now, you said that the Administrative Law Act made the transcript part of the record.
MR FRANCIS: Yes, I think it does, your Honour. The Administrative Law Act of the State of Victoria section 10:
Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.
KIRBY J: But that gets you Judge Waldron's reasons. Does it get you the transcript of the proceedings before Judge Waldron, which is what you really need in order to show that your client did not really understand the questions?
MR FRANCIS: No, I cannot push it the extra distance, your Honour.
KIRBY J: That may be why you need your primary application as distinct from your challenge by way of special leave to the Court of Appeal.
MR FRANCIS: Yes, your Honour.
KIRBY J: Because, on the face of it, what the Court of Appeal did was simply a routine consideration, "Was there sufficient ground to intervene?" They then looked to what Justice Byrne and Justice Chernov and said and they said no.
MR FRANCIS: As the Court will appreciate, we say that both Mr Justice Byrne and Mr Justice Chernov were plainly wrong in what they did, wrong in law, and we respectfully submit that what they had done received inadequate consideration from the Victorian Court of Appeal.
GAUDRON J: You have exceeded your time on the special leave application in relation to the decision of Mr Justice Byrne. You will have another 20 minutes in relation to the decision of Mr Justice Chernov.
MR FRANCIS: Well, what I want to say in relation to Mr Justice Chernov is this. Before him, we had an originating motion seeking orders quashing the order of the Magistrates' Court and the County Court and our argument here was that as the supervising - - -
GUMMOW J: You had a time limit problem, did you not? Were you not out of time?
MR FRANCIS: Yes, we were, but all I can say in relation to that is this, that his Honour having decided the main matters of law, when he came to deal with the question of being out of time gave it, with respect, scant attention because he had already decided that if he granted the extension of time in any event he would dismiss the application.
GUMMOW J: Why would his Honour's discretionary decision on this time question found a grant of special leave in this Court?
MR FRANCIS: It should not, your Honour, but when one reads the judgment, I submit one does get that impression. Now, in relation to what had happened in the Magistrates' Court, do your Honours have section 47 of the Victorian Sentencing Act 1991 ? I wanted to refer first to section 47(2) of the Victorian Sentencing Act:
If on the hearing of a charge under sub-section (1) the supervising court is satisfied by evidence on oath or otherwise that the offender has committed an offence under sub-section (1) -
that is the breach of the CBO in this case -
the court may impose a fine not exceeding level 12 and in addition may -
(a) vary the order; or
(b) confirm the order originally made; or
.....
(d) if the order was not made by the Magistrates' Court, commit the offender to custody or release the offender on bail (with or without sureties) to be brought or to appear before the court by which the order was made.
What, in fact, happened when the accused was brought before the Magistrates' Court, the supervising court, the court heard no evidence so, in our submission, it could not have been satisfied of the guilt of the offender - - -
HAYNE J: And where do we find that in the material that was before Justice Chernov, or at all?
MR FRANCIS: I think I am right in saying, your Honour, there had already been a long affidavit put in by the instructing solicitor. But, we say this also, not the fact that there was no evidence but, the next matter I am going to deal with, does appear from the record of the courts. Now, we say in relation to this, the words, or otherwise, must, it is submitted, be confined to some other appropriate legal means of determining guilt such as a plea of guilty or proper proof of a record under the Evidence Act 1991 . The entry in the register of the Magistrates' Court, the supervising court, simply indicated "plea reserved" which, we say, indicates that guilt could not have been determined in this way nor by any other means and, consequently, the County Court had no jurisdiction to deal with the accused.
GAUDRON J: So what follows from that, however, when there is an admission of breach in the County Court, you then have a court order and notwithstanding what you have said about certiorari, I understood that, as a general rule, court orders were attacked on appeal.
MR FRANCIS: Your Honour, what we say followed from that was this, that because the proper procedures had not been applied in the Magistrates' Court and because there was no finding of guilty in the Magistrates' Court, the Magistrate had no power to refer the matter on to Judge Waldron and, consequently, because he had no power to refer the matter on to Judge Waldron, Judge Waldron, in fact, had no jurisdiction to deal with the offender at all at that stage.
GAUDRON J: Is not that a matter you can raise on appeal from the order of Judge Waldron?
MR FRANCIS: No, it is not, because there can be no appeal from a County Court judge dealing with a breach of bond.
KIRBY J: I thought you said that you did have an appeal and they were limited to points of law.
MR FRANCIS: We have an appeal, your Honour, but the only point of law there is in relation to his misapplication of the Sentencing Act.
KIRBY J: Why cannot you raise the point of law that you are now venturing, that is to say, that his Honour had no jurisdiction to sentence at all?
MR FRANCIS: As I understand it, your Honour, we cannot on that appeal. There is no appeal from a County Court's judge's - - -
KIRBY J: That is so in New South Wales; there is no appeal from them, but there are procedures whereby you can ask to observe points of law. I assume that was not done here.
MR FRANCIS: As I understand it, the only way we could do that would be by certiorari. We say that he had no jurisdiction to hear the matter at all because the Magistrate never dealt with the question of guilt or innocence. Before it could get to Judge Waldron there had to be a finding of guilt by the Magistrate.
GUMMOW J: Was this point raised before Chief Judge Waldron?
MR FRANCIS: No, it was not, your Honour.
GUMMOW J: Why not?
MR FRANCIS: I have no idea why it was not raised. I imagine counsel simply had not adverted to it at all.
GAUDRON J: Is it no longer possible to go back before Chief Judge Waldron and say, "We ask you to set aside your orders in this regard; there appears to have been a mistake."
MR FRANCIS: So far as I am aware, we could not now go back before Chief Judge Waldron.
KIRBY J: Anyway, you say he has purported to exercise jurisdiction for which there was a fatal flaw, because a precondition to the exercise of jurisdiction was missing.
MR FRANCIS: That is right. Yes, your Honour has - - -
KIRBY J: That is a point that you raise before the Supreme Court. The Supreme Court denied you relief. The Court of Appeal refused to intervene, and that is why you are here.
MR FRANCIS: That was a point which was - it was not raised before Mr Justice Byrne because it was not know at that time, but it was plainly raised before Mr Justice Chernov, because by that time we had the record of the Magistrates' Court, and the Magistrates' Court records show that there was no finding of guilty, there was simply a finding of plea reserved, and the matter was referred on to the judge.
HAYNE J: All of this proceeds from certain assertions which you have made about the course of proceedings in the Magistrates' Court. Again, I ask you, where in the papers before us do we find any evidence of that course of proceedings to support the contentions which you advanced?
MR FRANCIS: Your Honour, simply, the record of the court itself would tend to support part of what I advanced. Would your Honour pardon me a moment while I find the record.
KIRBY J: It is on page 21.
HAYNE J: I have it open at - 132 is a version of it, in application book part two.
MR FRANCIS: Yes.
HAYNE J: That is a version of it; no doubt there are others.
MR FRANCIS: Yes. There is an actual photostat of the record of the court.
KIRBY J: It is correctly sey out in Justice Chernov's decision, I think; it is on page 21. Let us work on that, because of the time constraints. It says, "Remarks: Plea Reserved."
MR FRANCIS: Yes.
KIRBY J: Is there anything else that we can have a look at, from the point of the view of the record?
MR FRANCIS: No, that is all there is. There is a photostat of the record as it actually looked, but it is no different from what appears in Mr Justice Chernov's judgment.
KIRBY J: This was simply a procedural step, was it not, to get the - - -
MR FRANCIS: I am sorry?
KIRBY J: This was simply a procedural step to get the matter from the Magistrates' Court to the County Court of Victoria.
MR FRANCIS: Yes.
KIRBY J: And whatever defects may have occurred, why were they not repaired by the time it got to the County Court of Victoria and your client entered the plea that had been reserved? Why does that not amount either to a waiver of the objection to jurisdiction or to a curing of it by your client proceeding to make his plea and submitting to the order of the court?
MR FRANCIS: We say, your Honour, that this of course is part of the problem of his lack of understanding of what was going on and probably part of counsel's lack of understanding of what had occurred. It is very plain, your Honour, that if counsel had been fully informed as to what had happened and there had been full communication between him and his client, the very first matter he should have raised before Judge Waldron was the fact that his Honour had no jurisdiction to deal with it because of the defect in what the magistrate had done.
KIRBY J: I do not think that is a matter that turned on your client's capacity to give instructions. It is hardly likely that in Vietnam they are completely alert to the subtle provisions of the Sentencing Act.
MR FRANCIS: No, but the lack of facility to communicate in English at more than survival level would not help in those circumstances.
KIRBY J: You say this is an oversight by counsel but it is one that goes to jurisdiction and it is therefore one which ought to be repaired because, if the court has no jurisdiction, that is a fatal flaw.
MR FRANCIS: Yes, we do, your Honour.
KIRBY J: What about the decision of this Court in Hot Holdings and the other decisions which effectively permit the curing of technical slips of this kind or allow these matters to be bypassed? This is simply a procedural step, it is not a matter that - - -
MR FRANCIS: No, with great respect, your Honour, it really amounts to more than that because the accused has certain rights before the magistrate and the course that was followed prevented him from exercising those rights. Those discernible rights are set out on page 6 of the oral argument. It was intended that the Magistrates Court, the supervising court, would be the one which would primarily deal with these breaches of CBO's which are of course in general fairly simple matters - failing to attend on a particular day, failing to report for community service.
HAYNE J: Where do you find that proposition, Mr Francis?
MR FRANCIS: We say that is what springs from sections 47(1) and 47(2) of the Sentencing Act. We say that section 47 plainly envisages that most of these matters will be dealt with by the magistrate and, indeed, he does not have to send the matter on to the County Court judge at all in this type of situation. That is a step he can take presumably if he thinks the matter is serious enough. Now, what we say is this, that the accused lost what were discernible rights before the magistrate. He lost the opportunity to present his excuses for particular breaches. He lost the opportunity for the magistrate to dismiss certain breaches as not having been proved.
HAYNE J: Why did he not have all of those opportunities in the County Court in the proceedings under 47(3), which is what then followed?
MR FRANCIS: But, your Honour, he had the right to have all this determined by the Magistrate. He had - - -
HAYNE J: Why did he lose it? He had the same right in the County Court.
MR FRANCIS: He lost his rights before the Magistrate because the Magistrate simply treated it somewhat like a committal proceeding and simply referred it on to the County Court without determining these matters at all.
GAUDRON J: Was your client fined in the Magistrates' Court?
MR FRANCIS: No, he was not, your Honour.
GAUDRON J: On one reading he should have been.
MR FRANCIS: Yes, he should have been.
HAYNE J: Unless you read 47(2)(d) as in effect requiring committal and that the satisfaction spoken of in the introduction to 47(2), when applied to 47(2)(d), is satisfaction to the level required on committal.
MR FRANCIS: As I understand it, your Honour, the accused has the benefit here of two steps.
HAYNE J: He has to be found guilty twice, you say?
MR FRANCIS: In effect yes, your Honour. We say that is the interpretation.
HAYNE J: A startling result.
GAUDRON J: Yes. It is certainly not well drafted.
MR FRANCIS: No. We say, your Honour, that these breaches of CBO first come before the Magistrate. Before the Magistrate he has the opportunity to argue that he has not committed breaches. He has the opportunity to give excuses in relation to his breaches. The Magistrate may then impose a fine if he thinks it is suitable in the circumstances and not refer the matter on. If the Magistrate imposes a fine but then refers the matter on to the County Court judge, any fine imposed by the Magistrate in relation to the breach of the CBO could be considered by the County Court judge when he came to decide what he would do with the offender.
We say all those discernible rights which he had before the Magistrate were lost when the Magistrate simply took the step of referring this matter on to the County Court judge. Part of the basis on which Mr Justice Chernov refused to consider the possibility of certiorari was that he said - and we say quite wrongly - that by the process the accused had lost no discernible rights. We say plainly he had lost discernible rights when the Magistrate did not embark upon a hearing of this at all.
KIRBY J: If this were an ordinary special leave day, we would ask you, "Yes, but this is section 47 of a particular Victorian Act that is of no great national importance or significance. Why should this Court trouble itself over the interpretation of that Act?".
MR FRANCIS: I would have to concede, your Honour, that what your Honour puts to me is right. My learned friend would want your Honours to know that since this occurred, the Act in fact has been amended. So that that would, unfortunately for me, strengthen the point that your Honour is putting to me. Ultimately, what we say is that we really fall back on a manifest injustice to a person with an inadequate knowledge of English.
McHUGH J: But you throw all the weight of your argument, do you not, on the use of the words "plea reserved"?
MR FRANCIS: Yes, I do, your Honour.
McHUGH J: As Justice Chernov pointed out, that does not necessarily indicate that the Magistrate was not satisfied, and that is the relevant factor, is it not? After all, your client was represented. There was a charge put before the Magistrate by Ms East. Why was there not, on the material put before the Magistrate, material upon which he could be satisfied, and he then made an order under paragraph (2)(d)?
MR FRANCIS: With great respect, it is difficult to see on what material he could have been satisfied, because evidence was not called; all that he had placed before him was a report. There was no evidence whatever, so that - - -
KIRBY J: It says on evidence or otherwise. So if there is a hand-up document, and your client is represented, and there is no contest, that could be the otherwise.
MR FRANCIS: Might I add to your Honour Justice McHugh's question a little further by saying this: that record of the Magistrates' Court is there for a purpose. If the Magistrate, in fact, found him guilty of a breach or breaches, the very first thing you would expect to find in that record is the finding of guilty in relation to a breach, specifying the breaches which were found. There is nothing in the record of the Magistrates' Court indicating any finding of guilty.
McHUGH J: Yes, but you have to go beyond showing that there is some defect in the record of the Magistrates' Court. The jurisdiction of the County Court does not depend upon the record of the Magistrates' Court, but upon whether or not the Magistrate had the requisite satisfaction. That is a question of fact, of which the record may be cogent evidence, or may not be. Arguably, it may be that the Magistrate's record would not be admissible to prove this jurisdictional fact concerning the County Court.
MR FRANCIS: As I understand it, the record of the court is available for the purposes of demonstrating error.
McHUGH J: Which court are we talking about?
MR FRANCIS: I am talking about the Magistrates' Court at this stage.
McHUGH J: It may be, but what you have to say here is that the judge in the County Court had no jurisdiction. You sought to bring certiorari to quash his sentences.
MR FRANCIS: The only thing I can there rely on is that there was no hearing before the Magistrates' Court. On the record of the Magistrates' Court it would appear there was no finding of guilty, and the Magistrate simply referred the matter on to the County Court without any hearing and without a finding of guilty. Therefore, he did not comply with section 47, therefore the County Court did not have jurisdiction.
McHUGH J: I know. But, before Justice Chernov you sought to quash the Magistrate's order, and you also sought to quash the County Court's order.
MR FRANCIS: Yes, we did, your Honour.
McHUGH J: Let it be assumed that for some reason you could quash the Magistrate's order, it does not necessarily follow that the County Court did not have jurisdiction, because it would have jurisdiction if the Magistrate had the relevant degree of satisfaction.
MR FRANCIS: Well, if we quash the Magistrate's order, I would have thought automatically the County Court cannot have jurisdiction because, as I pointed out to your Honours, it is a prerequisite of the County Court having jurisdiction that an appropriate order be made by the Magistrates' Court.
GAUDRON J: Well, it may only be a procedural prerequisite and the authorities are clear if it is only a procedural prerequisite, it may be waived and certainly one would think admitting the breach was a waiver of any procedural irregulatory. I dare say the County Court gets jurisdiction under the County Court Act.
MR FRANCIS: Yes. Well, the breach of the CBO is a summary offence, and with summary offences there is provision for appeal to the County Court - that is in the State of Victoria - and that is a rehearing of the matter. But what he has done here or what has occurred here is, as we say, he has lost the rights he had before the Magistrates' Court and the way in which his Honour proceeded to deal with it was not the hearing of an appeal from the County Court.
GAUDRON J: No, I think Mr Francis, you have exhausted your time on the application with respect to the judgment of Mr Justice Chernov.
MR FRANCIS: Yes.
GAUDRON J: The Court will adjourn briefly to consider what course it will take in relation to these applications.
AT 11.19 A.M. SHORT ADJOURNMENT
UPON RESUMING AT 11.43 PM:
GAUDRON J: We need not trouble you, Mr McArdle, with respect to the special leave applications.
No foundation was laid for the grant of certiorari before Mr Justice Byrne and thus there was no error involved in the decision of the Court of Appeal refusing leave to appeal from that decision. Accordingly, in relation to that decision, special leave is refused.
As to the decision of Mr Justice Chernov, we would indicate that we have come to the view that given that the only material before his Honour was a certified extract from the register of the Magistrates' Court, there was no reason why his Honour should have concluded that the requirements of section 47(2) of the Sentencing Act were not satisfied. Accordingly, there was no error on his Honour's part and no error in the subsequent decision of the Court of Appeal. Special leave is refused with respect to that matter also.
We will proceed then to your substantive application, Mr Francis.
MR FRANCIS: If the Court pleases. It is our submission that in Australia the fundamental right of any accused person that he should have a reasonable understanding of what is occurring in any criminal legal proceedings which may affect his human rights where, as in the present case, the applicant's proficiency in English was at the survival level only, there is a significant risk that he may be wrongfully deprived of those rights when he is not - - -
GUMMOW J: Just a minute. What is the source of the right and how does it attract the jurisdiction of this Court in respect of its alleged invasion?
MR FRANCIS: We say that the sources of the rights come from the International Covenant on Civil and Political Rights and also from the International Convention on the Elimination of all Forms of Racial Discrimination. The International Covenant - - -
GUMMOW J: You have only mentioned one of those, at the moment, upon the grounds of the notice of motion. You only mentioned the Racial Discrimination Convention.
MR FRANCIS: Yes. The International - - -
GUMMOW J: You have to be specific in these matters, Mr Francis.
MR FRANCIS: I am sorry, your Honour.
GUMMOW J: It has to be very specific.
MR FRANCIS: Yes. The International Covenant on the Elimination of all Forms of Racial Discrimination, Article 4, requires that no person shall be subject to discrimination and under section 9 of the Act, which was enacted under that Act, which provided:
it is unlawful -
and I am only taking out the relevant words -
It is unlawful for a person to do any act involving a distinction,
exclusion, restriction or preference based on -
we say here -
national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of any human right or fundamental freedom - - -
KIRBY J: Is this the Human Rights and Equal Opportunity Act 1991 that you are referring to there? Which Act is it? Is it the Racial Discrimination Act or the Equal Opportunity Act?
MR FRANCIS: That is the Equal Opportunity Commission.
KIRBY J: To which the International Covenant annexed as a schedule, is that correct?
MR FRANCIS: Yes, that is right, your Honour.
KIRBY J: But it provides remedies within its terms by way of applications to the Commission, not private suits in the courts of law.
MR FRANCIS: But what we say is this, that when a court conducts its proceedings in English without the aid of an interpreter, it does acts which involve a distinction against a person of non-Australian ethnic origin who has mere survival English only.
KIRBY J: That might be so, but your avenue of complaint under the Human Rights and Equal Opportunity Commission Act are by way of complaint to the Human Rights and Equal Opportunity Commission, not by way of a private suit or an application of the kind that you have now placed before this Court.
MR FRANCIS: What we would submit, your Honour, is that the Court should take cognisance of a section such as that, and we say that because of those - - -
McHUGH J: But assuming they should, assume that in your favour, how does this Court get jurisdiction from that fact?
MR FRANCIS: We say it gets it indirectly from the Constitution, section 75. Your Honour, no doubt, would be well aware that - - -
McHUGH J: 75(i). How is that a matter arising under a treaty, because the matter give rise to some enforceable rights?
MR FRANCIS: We are a signatory to those treaties and we have enacted legislation pursuant to those treaties, and we say that that does form part of the - dealing with matters arising in respect of those treaties, that gives the Court original jurisdiction.
McHUGH J: There is a lot of generalities in that statement that you have just made. The first is, what is the matter? Identify it precisely, if you would, the matter. What is the legal right that your client asserts is infringed and for which you seek a remedy in this Court?
MR FRANCIS: The right, we say, that was infringed is that by failing to supply him with an interpreter he went into a court in which he was the subject of discrimination in that he did not have a proper understanding of what was occurring and, therefore, he was not able to raise defences in relation to some of the alleged breaches by reason of his lack of a proper understanding of English.
McHUGH J: But the treaty, as such, has no legal effects so far as the County Court of Victoria or the Magistrates' Court is concerned; it has no effect whatever. If there is one area clear in the jurisprudence on these matters is that treaties do not have force in the domestic law.
MR FRANCIS: We say, in answer to that, your Honour, that proceedings should be so conducted that they are in accordance with the principles of the treaty and I cannot take it further than that.
McHUGH J: I appreciate that, but all I am putting to you is that even assuming that you are right, all it would be would be that the Victorian court was in breach in some way of some common law right that your client might have. It would not give this Court jurisdiction under section 75. If you have got an argument, it seems to me, it must be under the Racial Discrimination Act.
MR FRANCIS: Your Honour, might I point out that, as your Honour would well know, Justice Dawson referred this into the Full Court in part under section 16(a) of the Judiciary Act. Section 16(a) of the Judiciary Act:
The jurisdiction of the High Court may be exercised by a Justice sitting in Chambers in the cases following:
(a) Applications relating to the conduct of a cause or matter;
McHUGH J: But he did not send it under that, did he, he sent it under Order 55, I would imagine, did he, rule 2, referring it into the Full Court? Order 55 - is that the relevant rule?
MR FRANCIS: As I understand it, your Honour, it went on both bases but I may be wrong in relation to that.
GUMMOW J: What if it did?
MR FRANCIS: Once he has done that we go to section 18:
Any Justice of the High Court sitting alone, whether in Court or in Chambers, may state any case or reserve any question for the consideration of a Full Court, or may direct any case or question to be argued before a Full Court -
Now we say that his Honour having referred it on we now do fall within - - -
GUMMOW J: The question is what is the "it", Mr Francis.
McHUGH J: It is not a section 18 case. At best, it is a 55(2) case.
When an application is made to a Justice in Court or in Chambers, or otherwise, he may, if he thinks fit, direct that the application to be made by notice of motion to a Justice in Court or to a Full Court -
Is not that what you are here under, 55(2)?
MR FRANCIS: That would be the only alternative under which we could be here, I think, your Honour.
KIRBY J: Does it matter? These are just procedural means of getting you before us. Well, you are before us.
MR FRANCIS: Yes.
KIRBY J: And we have, as all courts must, to be satisfied with our jurisdiction. Now, what you have tried to say is that either directly under the Constitution or, as I understand your answer to Justice McHugh, under the Racial Discrimination Act made validly under the Constitution, what you have before us in our original jurisdiction is a matter arising under any treaty - - -
MR FRANCIS: Yes, your Honour.
KIRBY J: - - -namely, the Racial Discrimination Treaty or the International Covenant. The problem that has been raised for your submissions is how is it a matter given that the treaties confer certain obligations on Australia, but do they confer particular rights on your client? The International Covenant on Civil and Political Rights, the only right that I know of that it confers on your client is a right of complaint to the United Nations Human Rights Committee pursuant to the first option or protocol to the International Covenant on Civil and Political Rights. That is the only entitlement your client has, but is there some avenue under the Racial Discrimination Act that gives you some right that you say lifts the matter into the original jurisdiction of this Court as being a matter arising under a treaty?
MR FRANCIS: I can put no more than I have put to your Honour I think in relation to that.
KIRBY J: You have to establish our jurisdiction, otherwise we cannot venture upon this matter.
McHUGH J: All you can do with the Racial Discrimination Act is to rely on a Commonwealth statute which, by virtue of 109, might strike down the Victorian legislation in so far as it was inconsistent with it, but that does not give us jurisdiction.
KIRBY J: The only way it might would be if the Act is itself a vehicle for implementing in Australia the treaty and that in that way what you have by raising a contention under the Act is raising a matter arising under a treaty.
MR FRANCIS: I would adopt that, your Honour, as a further argument.
McHUGH J: You might adopt it, but section 9 itself of the Racial Discrimination Act states what the law is. It may be copied from a treaty, it may be based on a treaty and it unquestionably is, but the rights that you get do not depend on the treaty; they depend upon the statute and they are enforceable arguably in favour of your client. You might have an action in the Supreme Court of Victoria or some other court, but where do we get our jurisdiction?
MR FRANCIS: We would submit, with respect, your Honour, that where the procedures of a court are so conducted that they plainly do not comply with what is made law, then that is a situation in which the High Court should intervene.
McHUGH J: How can it? This is a matter in the original jurisdiction of the Court. This is not a case in which you are seeking relief against an officer of the Commonwealth. It is not an action between States or between residents of different States. It is not a matter in which the Commonwealth is a party. It is not a matter affecting consuls or other representatives of other countries and, at the moment, it does not seem to me that it can be a matter arising under a treaty because your right arises under sections 9 or 10 of the Racial Discrimination Act. Assuming in your favour that you have these rights and that there has been a breach, this is - at the moment anyway, subject to hearing you further - not the place to be seeking your relief.
MR FRANCIS: I appreciate what your Honour puts to me, and I see the difficulties in what your Honour puts to me. I might, perhaps, very briefly, refer to a recent Canadian case - we have not the judgment in it yet, and I do not know that it really helps me much further - but there is a recent Canadian case of Eldridge and it is on the Internet. It was delivered on 9 October, I understand, of this year, and that concerns - - -
McHUGH J: We have it.
MR FRANCIS: As I understand it, that involved the provision of facilities for deaf and dumb people.
GAUDRON J: How did the matter get before the Supreme Court? Under the Charter, was it?
GUMMOW J: It was on appeal.
MR FRANCIS: The only point I make there is, as I understand it, the Supreme Court of Canada, in Eldridge's Case, said there is a duty to take positive steps to ensure there is no discrimination.
GAUDRON J: Was that an appeal to the Canadian Supreme Court?
McHUGH J: It came from British Colombia, did it not?
MR FRANCIS: Yes.
McHUGH J: Supreme Court of British Colombia, and it involved the Charter.
MR FRANCIS: It probably does not help me in relation to the point your Honour Justice McHugh just made to me.
McHUGH J: It may help you in support of your more general argument that there is a breach of section 9.
MR FRANCIS: Yes.
KIRBY J: The Racial Discrimination Act, in its preamble, says that whereas it is desirable, "to make provision for giving effect to the Convention", so, in so far as one could look at that, that is presumably what Parliament is at. Section 7 gives approval to the ratification by Australia of the Convention, and just looking generally at it, that its purpose is to give effect to the Convention under Australian law.
MR FRANCIS: Yes.
KIRBY J: What you, as I understand it, have to argue is that in so far as it may be provided as part of Australian law by the Racial Discrimination Act, this country and the people in it will comply with the Act, that that does not exclude, for the purpose of determining jurisdiction, that a question arising under a treaty may be a matter arising under a treaty as well as a matter arising under the Act. And that, whether that is so or not, that is still an important question that the Court would have to consider. Have you given notices under section 78B of the constitutional question in relation to this point?
MR FRANCIS: No, we have not, your Honour.
KIRBY J: That is required by the Judiciary Act. I notice, looking at the Judiciary Act, that in section 38 it talks in respect of the conferral by Parliament of powers of "matters arising directly under any treaty." So that may be a further obstacle to you because this might only arise indirectly under a treaty via the Racial Discrimination Act. But, if you wish to assert jurisdiction under the Constitution and a question arises, then it may be that you have to give notices under section 78B of the Judiciary Act, which you have not done.
MR FRANCIS: I appreciate we have not done it, your Honour.
KIRBY J: Because the question of the direct effect of treaties, there being now so many of them - thousands of them - may raise an important question upon which various governments of Australia, including the Federal Government, may wish to be heard.
MR FRANCIS: Well, we would wish to give that notice at this stage, your Honour.
KIRBY J: But what foundation have you laid before us of a factual kind? Even at this death-knock , we still do not have very much factual foundation. I mean, we have not gone through this in the normal way of your reading the affidavits you rely upon in support of your relief. What is the factual foundation for the Court intervening here that you seek to put before the Court? This is a trial, original jurisdiction, if it is anything.
MR FRANCIS: In so far as the facts are concerned, I think I have probably traversed all I can traverse.
KIRBY J: No, they were on a special leave and we had appeal books and we did it in the normal way, but you are in a trial mode now, you are seeking relief from the Court. You would normally have to read the affidavits that you are seeking to move upon to get the relief, that is just the ordinary way a trial goes in this country. Tedious though it may be, that has to be done.
MR FRANCIS: The Court has, I think, the affidavit of Mr Kuek in one of the appeal books.
McHUGH J: You have your client's affidavit at page 115. Paragraph 14 is about as high as I think the evidence comes from your point of view.
MR FRANCIS: Thank you, your Honour.
KIRBY J: Speaking for myself, I would like at one stage to know what evidentiary material you place before the Court in support of the matter of Re East Ex Parte Nguyen.
McHUGH J: Your client says that during the hearing on 17 March:
I did not understand all of what was happening. I understood just a little bit of what he said but did not understand a lot.
Now, that seems to me, at the moment, the high point of your case saying that this Court should find that there was discrimination, unless you want to go so far as to say that an interpreter must be supplied in every case where a non-English speaking person does not have perfect English.
MR FRANCIS: We want to go as far as to say that an interpreter should be supplied in every case where there is a risk that he may not understand the case of what is happening sufficiently and we say that, in order to protect his rights, this was such a case.
GAUDRON J: Now, what is your treaty provision foundation for that argument or, if it be the Racial Discrimination Act, the statutory provision, which is the foundation of that argument.
MR FRANCIS: I referred to sections 9 and 10. The only other - - -
KIRBY J: That is in the Act, what about the - - -
GAUDRON J: Well, let me take you at section 9, do you rely on subsection (1A)?
MR FRANCIS: Yes, and we also rely on section 10.
GAUDRON J: Okay, but section 9(1A)?
MR FRANCIS: (1A), yes, your Honour.
GAUDRON J: Very well. Then you must have evidence, must you not, that there is requirement "to comply with a term, condition or requirement" which is, I suppose, that proceedings be conducted without an interpreter and then you have the next part, "which is not reasonable having regard to the circumstances of the case". You have to raise the reasonableness to get into (1A).
MR FRANCIS: Well, in relation to that, he has set out in his own affidavit the passage to which your Honour Justice McHugh referred just a short time ago.
GAUDRON J: But what is happening here is he has been asked in the County Court, there have been questions asked in the County Court, does he need an interpreter. You have to deal with "which is not reasonable having regard to the circumstances of the case". You have to deal with the circumstances.
MR FRANCIS: The circumstances of the case - - -
GAUDRON J: It was the Magistrates' Court, was it not?
MR FRANCIS: He was not asked about having an interpreter before the Chief Judge, but his counsel indicated to the Chief Judge that they could continue without an interpreter. A letter had been written seeking an interpreter, but there was no interpreter at the court and his counsel, having talked to him in conference, then gave his approval to proceeding, but an interpreter had been sought but was not provided.
KIRBY J: We have a whole application book in Re Rosemary East and Magistrates' Court et cetera. That is matter No M53 of 1997. That contains the affidavit of your client to which Justice McHugh has referred, an affidavit of Quoc Phu Nguyen, which is sworn 3 May 1997. It contains a lot of other material. Now, do you read all of this material or only some of it? This is a trial. I have got to know what is the factual material.
MR FRANCIS: The only other material we would want to refer to is the - - -
KIRBY J: There is an affidavit by the sister in here. Is that being read?
MR FRANCIS: There is the proficiency report by Ms Jensen.
KIRBY J: I am not trying to discourage you from reading this. I just want to know what is the material you are placing before the High Court of Australia on this application.
MR FRANCIS: We are placing before the High Court the material which - his own affidavit which we referred to - - -
GUMMOW J: That is the affidavit of 29 July, is that right?
MR FRANCIS: Yes. We are also placing before the High Court the report of Ms Jensen which explains the level of English which he has.
GAUDRON J: That is her affidavit, is it? That is also sworn 30 April 1997.
MR FRANCIS: Yes.
KIRBY J: There is an affidavit of your solicitor, I think.
MR FRANCIS: And there is also the affidavit of the solicitor.
KIRBY J: What about the sister? Is that being read or not, the affidavit of the sister? That is at the beginning of the application book, 104, Van Anh Tuyet Nguyen sworn 24 April 1997. Is that read? Because the Crown may have rights of objection to the reading of these affidavits.
GUMMOW J: And to cross-examination.
MR FRANCIS: Yes, I did want at some stage to refer to what happened in cross-examination.
GUMMOW J: No, cross-examination on these affidavits.
McHUGH J: No, cross-examination of those affidavits that you have filed. I mean, if there is any basis in your case, then it is fairly obvious that it will have to go up to Federal Court under section 44 or the Supreme Court of Victoria under section 44 to have these factual matters determined.
MR FRANCIS: There is the affidavit of Gabriel Kuek sworn on 17 April 1997.
HAYNE J: I do not seem to have such an affidavit, Mr Francis.
MR FRANCIS: That is set out in the application book, your Honour, at pages - it is mentioned at page 1.
GUMMOW J: It has a number of exhibits to it. The only exhibit at the moment you have indicated you rely on is that of Jensen, the affidavit of Jensen of 30 April, which is exhibit GK-E to this affidavit.
MR FRANCIS: I refer to paragraph 7 also of that affidavit, which says - it is at page 3 of - - -
GUMMOW J: I know that, but I am trying to find out which of all these exhibits, which go from A to L for this affidavit, do you seek to read as well, in addition to the affidavit of Jensen of 30 April.
MR FRANCIS: There were two exhibits to her affidavit.
GUMMOW J: We still do not understand - look, No 1, affidavit of Kuek, 17 July `97, page 1, right?
MR FRANCIS: Yes, that is the first one, yes, your Honour.
GUMMOW J: Yes. And there are exhibits going right through from A to L, which goes from pages 14 to page 173.
MR FRANCIS: Yes.
GUMMOW J: Which of those exhibits do you tender, in addition to the one that is already mentioned in response to Justice Gaudron, which is that appearing at page 117, which is the affidavit of Jensen.
MR FRANCIS: Would your Honour pardon me one moment, but I think the only one that we wish to tender is the report of Ms Jensen, but I want to check on that, if I may.
GUMMOW J: Very well.
MR FRANCIS: I know one matter we would want to tender, your Honour, is the part of the transcript of what happened at the police station.
GUMMOW J: Whereabouts is it?
MR FRANCIS: That is set out in the appeal book, and it commences at page 66 of M53.
GAUDRON J: When you said that the breach you relied upon in section 9(1A) involved the requirement to provide an interpreter in all cases where there was a risk that the person concerned might not have an adequate understanding of English, are you referring to the Magistrates' Court, to the County Court or to both?
MR FRANCIS: To both, your Honour.
McHUGH J: And your relief that you seek states that, I think. You say that proceedings miscarried - - -
MR FRANCIS: I did earlier on today on the special leave - - -
McHUGH J: I know, but we are concerned with certiorari, and at page 189 of the book, ground (2), which is at 25, you say that your client:
was denied natural justice and/or procedural fairness before the Magistrates' Court -
and that, among other things, he did not have an interpreter and the breach report was not tendered at his first - - -
MR FRANCIS: I did also want to rely on exhibit G to Mr Kuek's affidavit, exhibit G. That is at pages 134 and 135. On the second page of that there is a report on him by - - -
GAUDRON J: How does this or the police report become relevant to the issues?
MR FRANCIS: The only relevance it has, your Honour, is that it demonstrates his lack of facility with the English language.
GAUDRON J: I see.
KIRBY J: Where do we find him saying that? Is there anything else in that passage at 117 or 115? That is the only passage that contains his assertion?
MR FRANCIS: I can give your Honour some other passages. Your Honour is referring to the transcript of the interrogation?
KIRBY J: No, I am referring to the affidavit which your client swore dated 3 May 1997 which is at 115 of the application papers and paragraph 14 which Justice McHugh referred to. Is there any other assertion by him that he did not understand what was going on?
MR FRANCIS: That is right. There is also the passage in Mr Kuek's affidavit which refers to his limited comprehension of English. That is M53, page 3.
KIRBY J: You may also want - I do not know - the police interrogation as demonstrating on its face some apparent difficulties and perhaps the evidence he gave before the courts below.
MR FRANCIS: Yes, I did, your Honour.
KIRBY J: You are being asked to identify what you want and it is coming to us in dribs and drabs. It is like extracting gold.
MR FRANCIS: Your Honour, I appreciate I am not doing it very expertly but I am endeavouring to indicate to the Court the matters. There is first of all the accused's own affidavit. Your Honour Justice McHugh has highlighted the important passage there. Secondly, there is Mr Kuek's affidavit and the relevant passage there is at page 3, paragraph 7:
When the applicant came to Australia in 1991 he could speak no English. The applicant is and at all material times been unable to speak English as a first language: his first language is Vietnamese. The applicant's lack of fluency in the English language (consistent with English being his second language) is such as to prevent him communicating fully and on an equal footing with native English speakers, whereas he is reasonably fluent in the Vietnamese language as his first language.
GAUDRON J: The next part is clearly inadmissible. That is your argument. That is not a matter of evidence.
MR FRANCIS: Yes. Then I wanted to refer to exhibit G of Mr Kuek's affidavit which appears at page 134. On the second page of that the supervising officer reports:
Quoc speaks English well. However I consider his comprehension of English is limited.
KIRBY J: Mr Francis, can I explain to you the difficulty that I have. Assume we could get clear what the evidentiary material is and assuming the Crown had no objection or that was sorted out, it still is the duty of this Court to be satisfied that it has jurisdiction. We go back to that issue of matters, whether it is a matter arising under a treaty. That may have no legs on the basis that any complaint you have arises under an Act of the Australian Parliament, not under the treaty, but the question whether indirectly it is a matter arising under a treaty may be an important one. But upon that question this Court does not at the moment have the assistance, if it is going to be provided, of the Commonwealth or of the States which might move to strike out your application on the basis that it is not the business of the High Court to get into that.
You have, as it seems to me, indirectly raised a matter that might arguably be of importance, but normally you have to give notices so that the Solicitors-General of the Commonwealth, the States and the Territories can decide whether to move the Court to strike out your pleading. I just do not see how we could send it off to another court before at least affording them the opportunity to do that if that be their wish because they might say, "Don't send it to the Federal Court. On its face it is manifestly objectionable. It has no basis because it's not a matter arising under a treaty; it's a matter arising, if anything, under an Act of Parliament or under an unincorporated treaty which is not part of the law of this country".
McHUGH J: There is another way you can put an argument that you have jurisdiction, which you have not put so far, it is not a section 75 question - it is a section 76(2) of the Constitution and a section 30 of the Judiciary Act question. This is a matter arising under a law made by the Parliament. Under section 30 of the Judiciary Act it is provided:
In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction.
Et cetera.
GAUDRON J: I have an anterior question, where is the matter? What is the justiciable controversy? If you rely on the Racial Discrimination Act, then you go before commissioners and various people of that kind. You do not come to this Court. Not a word in the Racial Discrimination Act that suggests you can attack the decision of a court in collateral proceedings. Nor, I must say, do I find the slightest hint of a suggestion in any treaty that you can attack the decision of a court in collateral proceedings in this Court.
MR FRANCIS: I am afraid I cannot help your Honour further by - - -
GUMMOW J: Unless you can, that is a complete answer to your case, on any jurisdictional footing, it seems to me.
McHUGH J: You have to show that either a treaty or a federal Act confers private rights enforceable in this Court. Now, section 76 will get you part of the way but, as Justice Gaudron pointed out, you have still to show that the Racial Discrimination Act is capable of giving rise to a matter as opposed to giving relief in front of the Human Rights and Equal Opportunity Commission.
MR FRANCIS: I appreciate the difficulty that your Honour is putting to me and - - -
KIRBY J: I think the point on the Human Rights Commission is relevant to the Human Rights and Equal Opportunity Commission Act, not to the Racial Discrimination Act. That is justiciable and enforceable in courts of law in this country, as I understand it. The Human Rights and Equal Opportunity Commission Act is relevant to the International Covenant on Civil and Political Rights. Am I wrong in that, or not?
MR FRANCIS: With respect, I think your Honour is right.
KIRBY J: I only raised that because it was I who raised the other matter earlier. You see, there is a prohibition in section 8.
McHUGH J: I thought you had to get a determination first and then you could enforce it in the Federal Court. Am I wrong about that?
MR FRANCIS: I am sorry, I cannot answer your Honour immediately on that question.
KIRBY J: If, by reason of a provision of law of the Commonwealth the person does not enjoy the same rights by reason of their race, colour or ethnic origin then, by force of this section, they enjoy the right to the same extent as persons of other race, colour and national origin. So, it is a conferring of a right, as I understand it. It is not like the Human Rights and Equal Opportunity Commission Act which permits you to go to the Commission. This is an Act which confers rights on people in Australia. The heading of that section is "Rights to Equality Before the Law". It does not say you can go off to the Human Rights Commission and complain about it. It purports to confer the right on you and its foundation for doing so is the treaty and Australia's ratification of it.
HAYNE J: But hitherto, as I understand it, Mr Francis, you have placed chief emphasis on section 9 of the Racial Discrimination Act.
MR FRANCIS: Yes, I have, your Honour.
HAYNE J: Under that provision, who is the person who you say has done an act of a kind said to be unlawful by that section?
MR FRANCIS: We say that the manner in which the proceedings were conducted in the County Court denied that right.
GUMMOW J: No, no, no, who was the person?
MR FRANCIS: The only person it could be would be the judge conducting the case.
GUMMOW J: Exactly, and that is a big, difficult question of interpretation of section 9(1)(a) I would have thought.
KIRBY J: I notice that in section 10(2), it says:
A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
So that in that way, Article 5 of the Convention, which is the one that includes various civil rights - it is on page 49 of the print - seems to be incorporated into Australian law not just by its re-enactment but by reference and by its terms, so that to give meaning to section 10(1) it may be that if that is a directly enforceable right that it is a matter arising under a treaty.
MR FRANCIS: Yes, your Honour.
KIRBY J: That is what you would have to say in your argument.
GAUDRON J: Before you get there you have to identify the law whereby persons of Vietnamese nationality or ethnic origin do not enjoy a right that is enjoyed by persons of other races or another race, another nationality or ethnic origin. You are looking first at the provision of the law. The effect of section 10 is to nullify laws that discriminate by force of section 109.
GUMMOW J: There are decisions of this Court on that point.
GAUDRON J: Koowarta is the case in point on that one.
MR FRANCIS: The way in which we approach that, we tended to rely more on section 9 but what we were submitting was that when a court conducts its proceedings in English, then the conduct of those proceedings in English impairs the enjoyment of the rights of the accused if the person is a person who has a very limited knowledge of English, as was the accused in this case.
GUMMOW J: Anyhow, you say "person" in (1A) as I understood you was the judge or the magistrate.
MR FRANCIS: I am sorry, your Honour?
GUMMOW J: The person in section 9(1A)(a) who required your client "to comply", et cetera, that person was the magistrate or the County Court judge. Is that right?
MR FRANCIS: Yes, your Honour.
GAUDRON J: And what relief does the Racial Discrimination Act give you against those persons or anyone who did that, who breached it?
MR FRANCIS: We, with respect, say that this Court, which ultimately supervises all the legal systems operating within Australia, should not tolerate a situation where a person has been deprived of the rights - - -
GUMMOW J: That is not a legal proposition, Mr Francis.
GAUDRON J: Perhaps if that is your submission you should have taken it to the Constitutional Conventions of the turn of last century, or, perhaps, you can take it to some other Constitutional Convention, but we do operate within the four corners, at least, of the Constitution and of the laws of the country.
MR FRANCIS: I appreciate that, your Honour. I believe I have probably advanced all the arguments I can at this stage in relation to the question of jurisdiction, but to summarise what we have to say is, we say that this situation deprived this accused of a fair trial when he went before his Honour Chief Justice Waldron, and in so far as he did not receive a fair trial he lost important rights which we say he has at common law and also under section 9, and a fair trial involves an understanding of the proceedings; an ability to instruct counsel fully, an ability to properly prepare a defence, and by reason of the fact that there was no interpreter he lost all those rights.
GAUDRON J: Do you rely - in any event, do you place your argument squarely on section 9(1A) of the Racial Discrimination Act. You have already abandoned, as I understand it, reliance on section 10.
KIRBY J: Do you abandon reliance on section 10?
MR FRANCIS: No, I do not abandon it, your Honour, but I find difficulty with it. I also, of course, say that one should bear in mind what is said in 9(2), the reference in (1):
to a human right or fundamental freedom in the political.....or any other field -
It includes a reference to:
any right of a kind referred to in Article 5 of the Convention.
KIRBY J: Yes, but what is the remedy? What is the sanction that is provided for breaches of section 9?
MR FRANCIS: What is the remedy?
KIRBY J: Yes.
MR FRANCIS: Obviously, one remedy, I presume, would be the one to which your Honour adverted earlier, and that is the possibility of going to the Equal Opportunity Commission.
KIRBY J: That is of no help to you whatsoever because you are seeking relief in this Court.
MR FRANCIS: That is no help to us here, no.
McHUGH J: Can you put your case this way: can you say that section 9 operates on the Magistrate and on the County Court judge for them to have committed your client, in the case of the Magistrate, or to have gaoled your client in the case of the judge, was unlawful, by reason of the fact that they were in breach of section 9?
MR FRANCIS: I have sought to argue that, your Honour. Perhaps I have not done it expertly but I was seeking to make that part of my argument.
McHUGH J: But then, the next question is, what remedy does your client have? Your client does not get a remedy under the Racial Discrimination Act. All he can do is to invoke that Act to nullify something that was done which affects him. But at the moment, I just still have not got clear in my mind how there is a matter within the meaning of sections 75 or 76 of the Constitution. It seems to me just to be still back in the situation where you are saying that you were wrongly sentenced but that just seems to me, ultimately, to depend upon the fact that the Magistrate, or Judge, was not acting with jurisdiction. I still do not see a right that you get either under a treaty or under a law of the Parliament sufficient to constitute a matter.
MR FRANCIS: Well, I have sought to put argument on that and I think your Honour is fully apprised of the argument that I have put. I think your Honour is really saying to me, in effect, that you do not regard that as a sufficient argument to get me home.
McHUGH J: It is not. The questions you raise are, to my mind, questions of great importance and are questions upon which this Court will have to rule, I would suspect, one day or another, and probably quite soon. But it is just a question as to whether we have jurisdiction, having regard to the path that you are taking. You are coming here in the original jurisdiction of the Court.
MR FRANCIS: Well, our client was somebody living in Australia, he is not an Australian citizen, but as somebody living in Australia he is given those rights by sections 9 and 10.
McHUGH J: Well, no, he has not, that is the problem. Section 9 does not give him any rights. What it does, it makes it unlawful for a particular person to do with certain acts, but it does not confer any rights. In so far as the Act gives you any remedies, they are up to other tribunals. You can no doubt rely on section 9 to nullify something done in the course of other proceedings, but whatever right you have exist under the common law as some other statute.
MR FRANCIS: What we have sought to do is say that the failure to accord those rights by the court should lead to the ability to quash the proceedings by certiorari.
McHUGH J: That may well be. It may be the case and if you are running the argument in the Supreme Court of Victoria, provided your factual foundation was right and your legal argument was right, you may well have a solid case, but it is a question of whether we have jurisdiction.
KIRBY J: I think your argument is either good or bad but, as I understand it, confining yourself to section 9, you say that there is a breach of section 9(1A), that that triggers section 9(1), which renders it unlawful, that by 9(2) it brings in and by its terms it brings in the terms of the convention that, because it is unlawful, though it descends upon another person it effectively gives your client entitlements to enforce against the unlawful person the rights that are thereby occasioned and that on that footing you have an argument for a matter and, in any case, it is an important matter, as Justice McHugh has indicated, and you should have the right to give notice to the law officers so that if they want to they come along and argue that you do not have a foundation. In the meantime, you might have more time to look at the problems that the Court has raised.
MR FRANCIS: If I may say so, your Honour has, I think, expressed better what I was trying to convey to the Court in my argument. Perhaps the only other matter which the Court may want to hear me on is what evidence is there as to his inability to speak English, inability to - - -
KIRBY J: I think that is assumed for the moment, that you could make out that if you get that far, but that is a factual matter that we might not want ourselves to determine.
McHUGH J: This is a matter that is coming up here without pleadings and all sorts of issues that would be raised under section 9. I cannot recollect seeing any reference to section 9 in the books. Is there any reference to section 9 in the - - -
MR FRANCIS: There was reference to section 9 in the argument that we - - -
McHUGH J: I know, but there is nothing in the books.
MR FRANCIS: Not in the book, no, your Honour. The only other matter - I assume the Court has had the opportunity to read the oral argument which we delivered to the Court earlier today and much of that oral argument, of course, I have traversed in the course of the three matters which have been before the Court.
The only other matter that I think I could usefully raise with the Court now is, if the Court does come to the conclusion that it may have jurisdiction, then it would seem the appropriate step might be to have the matter adjourn so that we can give notices to the relevant Attorneys-General to see whether they wish to intervene.
KIRBY J: Does that amount to an application for an adjournment for that purpose because, as I understand section 78B, if a question arises under the Constitution you are obliged to give notice and we are obliged not to take the matter any further until you have?
MR FRANCIS: If the Court takes that view, I would make an application for an adjournment to give that notice.
GUMMOW J: It seems to me that, even on the assumption that there is jurisdiction, that on the material in your books, which you refer to as the evidence on which you would rely, I cannot see how you could show that in this case what happened was not reasonable having regard to the circumstances of the case. If that is right, section 9, on any footing, is not enlivened anywhere, let alone here, now, on the material presently before us, at any rate.
MR FRANCIS: My short answer to what your Honour is posing to me would - - -
GUMMOW J: I am putting it to you because, at the moment, that is my tentative view as to how this application should be disposed of.
MR FRANCIS: Yes. We would submit, if one looks at the transcript of what happened on the plea, it is fairly plain that questions were put to the accused which would be exceedingly difficult for him to answer. Perhaps I could quickly refer to some of those - - -
McHUGH J: Yes, I know, but that does not seem to me to help you because it is a question whether, in this particular case, Judge Waldron had imposed some term, condition or requirement on your client which was not reasonable having regard to the circumstances of the case. The judge said to Mr Mueller, "We should find out authoritatively whether an interpreter is required by either accused", and Mr Mueller said, "I am not seeking an interpreter". How can you say it was then unreasonable for the judge to proceed in that situation?
KIRBY J: I assume your case, as I have understood it, is that the Act requires not questions of reasonableness to be determined but whether, as a matter of fact, there was imposed on your client, as distinct from on Mr Mueller, certain requirements that are in breach of the Act?
MR FRANCIS: Yes, your Honour.
KIRBY J: The requirement to proceed with a trial in Australia without an interpreter of a person who we now know is incompetent may not have done any offence to Mr Mueller but it did offence to your client and to his rights under the Act. It may be a good or a bad argument, but reasonableness is not the test.
McHUGH J: I am afraid it is under section 9(1A).
MR FRANCIS: In partial answer to what your Honour Justice McHugh put to me just a moment ago, authorities such as Kunnath (1994) 98 Crim App R 455 - that is referred to in the oral argument. That is a judgment of the English Court of Criminal Appeal, I think.
GUMMOW J: Privy Council.
MR FRANCIS: I am sorry, Privy Council. The Privy Council said, in effect, that not only must counsel consent but the judge must satisfy himself that the accused has sufficient proficiency in English for it to be not unfair to proceed with what is done without the aid of an interpreter.
GUMMOW J: They were not construing section 9(1A). They were construing a differently expressed provision in the Constitution of Mauritius. A number of times this morning I have invited you to get to specifics.
MR FRANCIS: I am sorry, your Honour, I have not been able to give any more answer than I have given today and I regret that, but we have put our arguments and I cannot help your Honour further on that.
KIRBY J: I rephrase what I said earlier, my attention having been drawn to the words "which is not reasonable having regard to the circumstances of the case". As I understand it, what you say is that it may have looked reasonable in the circumstances but that with the evidence that you wish to advance before the Court, you at least have an arguable case, that objectively it was not reasonable now that we know that your client has the deficiencies in language that were not fully appreciated at the time but that objectively it is not reasonable having regard to the circumstances of the case and that you want the opportunity of advancing that as a matter of fact and that at least your evidence is not to such a paucity that it is so manifestly worthless on its face that it should be stopped from the opportunity of being ventilated.
MR FRANCIS: Could I add this further point to what your Honour has just put to me, that, although it may seem a minor matter when one looks at it in totality, in fact the tracing out of whether or not there have been breaches of a CBO may require a fairly high level of English because various questions arise: did he understand what the CBO required him to do; did he attend on particular days; when he attended was he given permission to go and, if so, by whom and in what circumstances; and if he failed to attend on particular days did he have a valid excuse for failing to attend on those particular days? In some ways, an inquiry of that nature requires a far greater facility with the English language than does an inquiry, for example, into a petty larceny or something of that nature.
Now, we say that when you look at his cross-examination - and he had some very complex questions put to him by Ms Pullen - it would be fairly apparent that his English would not be adequate to deal with the situation. If I could perhaps just refer to one or two questions to show the point I am making. If the Court looks at M53, AB page 28, beginning at line 5. This is a fair sample of the type of questions he was being asked:
You didn't? Okay. When you were asked by the Office of Corrections your reasons for being late and so on you gave the explanation -
it goes right down to the end, a huge question to which he finishes up giving the answer "Yes."
KIRBY J: Have you any other remedy that you are aware of that you can prosecute, having lost the special leave application this morning, to advance your contention that your client was submitted to a proceeding affecting his liberty in this country, although he could not understand what was going on?
MR FRANCIS: We know of no other remedy and this is one of the reasons why we have sought to get to the High Court, because it seemed to us that although we might not have a strongly arguable - - -
HAYNE J: That may be not unconnected, Mr Francis, with the fact that you have twice applied for certiorari to the Supreme Court of Victoria and failed. You have had two goes at it.
MR FRANCIS: Yes, I appreciate that, your Honour.
HAYNE J: Yes.
MR FRANCIS: In so far as the question of his inability to understand English is concerned, that was not part of the basis of the applications for - - -
HAYNE J: No, this is a point more recently devised.
MR FRANCIS: It certainly became apparent to his solicitor in the course of conducting the case.
KIRBY J: In the Supreme Court of Victoria I think you had the problem that you had to show the error on the face of the record, whereas the proceeding you are raising before us does not present the same - or may not present the same problem.
MR FRANCIS: We had that problem when we came before Mr Justice Byrne but the record was certainly placed before Mr Justice Chernov and he dealt with it in the way which has been mentioned earlier on by your Honours, I think, in the course of discussion today. But this Court seemed to us to be the only conceivable remedy left to the accused - - -
GUMMOW J: What, to get certiorari for denial of natural justice?
McHUGH J: Because, ultimately, that is the only right, it seems to me, that you have got, to get certiorari to quash the sentence. You may be able to invoke the Racial Discrimination Act as a step in your argument to invalidate some act; but, even then, a question will still arise as to whether you are entitled to certiorari, even assuming the Racial Discrimination Act applied. Arguably, you would be able to get certiorari, but it is still a question.
MR FRANCIS: Well, if the Court has jurisdiction to deal with the matter, we would say fairly plainly this is a matter in respect of which certiorari should lie because, firstly of all, he lost discernible rights in the Magistrates' Court where his breaches were never investigated then and, secondly, he lost rights before his Honour Judge Waldron when his counsel merely said that he admitted a breach of the CBO. But then his Honour finally dealt with him on the basis that this was an admission of all breaches.
Unless there was any other matter on which I could help the Court, those are our arguments.
GAUDRON J: Yes, thank you, Mr Francis. Mr McArdle, we would like to hear from you, at this stage, on the question of the 78B notices and when we have heard that we will consider the matter further.
MR McARDLE: Yes. We understand that it remains the firm intention of our learned friends to pursue the matter so that the section 78B notices have to be given. Perhaps I have misconceived the situation but I understand that to be firmly their view. If couched in amongst all of that is an application for an adjournment, the provisions of the Act, as I understand it, would make the resistance of such an adjournment very difficult.
GAUDRON J: But that would only be, would it not, if the Court came to the view that there was an arguable case for relief? Is that not right?
MR McARDLE: It would have to be, yes. The approach we took in relation to this matter was that we were a bit perplexed about some of the matters that we thought would be put before the Court. When we were confronted with an outline of argument late last week there was no mention of the Racial Discrimination Act. That was the first version of the outline of argument, but I am not sure if this Court has been favoured with that, but we were.
We thought then that the matter had been abandoned, and the best we could do in those circumstances was to say, perhaps too pragmatically, that in the event that it was resurrected, an examination of the facts would reveal that there was no discrimination; no breach of the Act, regardless of whatever the consequences of such a breach would be. We maintain that as being the situation, that an examination of the events - in essence, the point being that Mr Nguyen's complaint is that he was not provided with an interpreter in circumstances where he required an interpreter in order for there to be a fair hearing, or for him to follow what was going on, or to properly instruct his counsel, or to properly give evidence, or a combination of all of those things.
GAUDRON J: Yes. Well, at this stage we are concerned only about the 78B notices.
MR McARDLE: Yes.
KIRBY J: Could I just ask you on that point that Justice Gaudron has asked you about. 78B starts:
Where a cause pending in a federal court including the High Court.....involves a matter arising under the Constitution -
Now, what is your submission? Does that mean where a real cause arising out of a real matter or does it merely focus the attention of the Court on the fact that there is a proceedings which has been begun in the Court?
MR McARDLE: I think it has to be further than a proceeding because if it commences in the proceeding to form part of the pleadings, if this was a case that involved pleadings - and it may well never get to that stage - - -
KIRBY J: You would have to move, would you not, to strike out the matter as a cause because whilst it remains before us it is a cause pending and then it goes on to say:
it is the duty of the court not to proceed in the cause - - -
MR McARDLE: Yes. It was those words that led me to submit that it would be a bit difficult to resist an adjournment in the event that my learned friends persisted with it and that appeared to be their position.
GAUDRON J: Yes. We understand your position with respect to that, Mr McArdle. The Court will adjourn now until 2.15.
AT 12.55 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GAUDRON J: Mr Francis.
MR FRANCIS: Yes, your Honour.
GAUDRON J: In relation to your application for an adjournment, your application will be granted on these conditions. Firstly, a notice should be sent to each of the Attorneys-General of the States and of the Commonwealth and the Territories of the existence of this question in these proceedings, namely, whether an application for certiorari to quash a decision of the Magistrates' Court of Victoria, to commit the Prosecutor to the County Court of Victoria pursuant to section 47(2) of the Sentencing Act (Vic) and also to quash the sentence subsequently imposed by the County Court on the ground that the procedures of those courts were contrary to section 9(1A) of the Racial Discrimination Act 1975 (Cth), the International Convention on the Elimination of all Forms of Racial Discrimination or the International Covenant on Civil and Political Rights is within the original jurisdiction of this Court. Those notices are to be filed within seven days.
MR FRANCIS: If the Court pleases.
GAUDRON J: Affidavits of service will be filed in the Melbourne Registry of the Court by 5 January 1998 and the matter will then be listed before a single Judge for a directions hearing so that the issues upon which the issues which are raised and the matters on which you rely can be precisely identified. Costs of today will be reserved. The matter will then be stood over to a date to be fixed.
MR FRANCIS: Could I just mention very briefly to the Court one matter which I do not believe I made clear to the Court and I just want to correct it so that if there is any misunderstanding in the Court's mind, it is corrected at this stage rather than at a later stage.
Your Honours raised with me the fact that counsel for the accused had consented to the matter being dealt with by an interpreter. What I should have made clear to your Honours is this; that the question of the use of an interpreter was raised on the original plea before Judge Waldron when Judge Waldron originally dealt with the offender. What was then said by Mr Mueller was:
In relation to the issue of an interpreter, my instructor did in fact write to the DPP in the middle of last week about it being prudent to have one here. So notice was given, but I am content to proceed for the time being. If it becomes necessary during the course of the plea, there are problems about that, well then, we might have to re-assess the matter.
That was in September of 1996, when, of course, he was released on the Community Based Order. The question of whether or not there should be an interpreter when he came back to be dealt
with on the Community Based Order was never discussed by the court at all. I thought I should mention that to the Court while it is fresh in the Court's mind, because the Court may have been proceeding on a misapprehension in relation to that, and if there was a misapprehension, it was because I did not properly explain it. If the Court pleases.
McHUGH J: I thought it was raised on - what date did you read from? What date was that?
MR FRANCIS: I read from September of 1996, your Honour.
KIRBY J: What date in September?
MR FRANCIS: The 16th of September 1996. And that was when he originally came up for the plea in relation to the offence and, of course, the CBO did not come up until 17 March and at that time the transcript does not suggest there was any discussion about an interpreter. If the Court pleases.
KIRBY J: Your client received bail, I think, from the Supreme Court of Victoria, is that right?
MR FRANCIS: Yes, he is out on bail now, so, a certain urgency has left the matter. On the other hand, we did undertake that in so far as this matter was before the High Court, part of the terms of his bail was that we should prosecute this matter with due diligence.
GUMMOW J: You will be doing that if you observe these directions.
MR FRANCIS: If the Court pleases.
GUMMOW J: The terms of the bail order do not require any intervention by this Court, if we have the power to intervene.
MR FRANCIS: No, your Honour.
GAUDRON J: Did you have something to say Mr McArdle?
MR McARDLE: Yes, simply this. If it was of assistance to the Court, I could, perhaps, explain what happened in the Court of Appeal but the position is this - that the applicant was released on bail on 11 September shortly after his appeal which was, at that stage, an appeal against sentence. There was originally an appeal against conviction had been abandoned. It was brought to the attention of the Court of Appeal, for the first time, and to my own attention for the first time, on that morning that these proceedings were on foot and, in fact, that an order had been obtained from Justice Dawson. The Court of Appeal then felt that it was unable to hear an appeal against sentence when a conviction was in issue.
However, because of what was thought to be likely delays he was released on bail by the Court of Appeal pending the hearing of his sentence appeal which will, of course - - -
KIRBY J: Did the prosecutor join in that application that the sentence matter go over?
MR McARDLE: I was the prosecutor.
KIRBY J: I mean the prosecutor before us. Did Mr Nguyen join in that application?
MR McARDLE: I have a transcript. In fact, I have got plenty of copies of the transcript available in case this became an issue today and I will leave them with the Court, but - - -
GAUDRON J: Perhaps you should tell us now, Mr McArdle. The way you reported it a minute ago, it sounded as though the court decided of its own motion that the matter could not proceed.
MR McARDLE: Yes, and my memory is that that was pretty much the situation and it was a view that I shared and a view that I submitted to the court that they probably should not hear the appeal.
GAUDRON J: Why? There is nothing in this, is there, that could possibly prevent the court from hearing that?
KIRBY J: Was it on the basis that if this Court struck out the order that they were nullities and you should not be wasting time dealing with consequences of nullities?
MR McARDLE: Yes. The view was taken, as I recollect - and I have got the transcript here - that there would be no point in hearing an appeal against conviction in the event that at some time in the future - an appeal against sentence, I am sorry, in the event that the conviction upon which that sentence was based was overturned at some time in the future. All the court had at that stage was copies of the order made by Justice Dawson. So those proceedings were - - -
GAUDRON J: Is there a conviction anywhere recorded as such?
MR McARDLE: Yes.
GAUDRON J: By Chief Judge Waldron, is there?
MR McARDLE: Yes. He would have convicted on the first occasion obviously enough when the - - -
GAUDRON J: No, I am not asking what he would have done. I am asking if there is one, in fact, recorded.
MR McARDLE: Yes, I am sure there is. I cannot immediately put my hand to a court extract in relation to that, but it must have been the situation.
HAYNE J: Why? If satisfied, what he does is cancel the CBO and he is called up then for sentence on the original defence.
MR McARDLE: Yes. I am sorry, I was going back in time, but that is a conviction that is probably not amenable to appeal by the - - -
GAUDRON J: What conviction are you talking about?
MR McARDLE: I had in mind, when I responded to your Honour's question, the conviction back in, when - - -
GAUDRON J: For armed robbery, or whatever?
MR McARDLE: For armed robbery, when he pleaded guilty, yes, I am sorry.
GAUDRON J: Well, that has never been brought into question in these proceedings, has it?
MR McARDLE: No.
GAUDRON J: And I may be wrong, but if I am wrong the questions need to be reframed. I do not understand the certiorari application to be directed to anything other than, so far as the County Court is concerned, the sentence imposed.
MR McARDLE: Yes.
KIRBY J: Is that correct, or is the fact that there was the challenge to the validity of the process that brought it before Judge Waldron not something that goes to the validity of the orders that his Honour made?
MR McARDLE: The validity of the order made by his Honour Judge Waldron.
KIRBY J: On the basis that it ought to have, as I understand the argument, been dealt with in the first instance in the Magistrates' Court. That was one of the points that was raised.
MR McARDLE: I do not know if the matter was entirely ventilated in the Court of Appeal but the position they felt themselves faced with was that the matter that they were to deal with was before this Court, and they felt that they, in those circumstances, could not, and should not, at least, deal with it.
GAUDRON J: The application is directed to the finding that he breached the community based order.
MR McARDLE: Yes.
GAUDRON J: So the sentence should be, "and to quash the finding and sentence". So the question to which we earlier referred would be changed to read, in the second part, "and also to quash the finding of breach of the community based order and the sentence subsequently imposed by the County Court".
MR McARDLE: Yes.
KIRBY J: .....happy when they do. It may be, for example, that if Mr Nguyen has his appeal to the Court of Appeal, and on the sentence, and he is content with the outcome; he acknowledges that he was in breach, as I understand it, of the conditions, it may be a solution to the whole thing. It might all go away and then no-one is troubled. Is there any reason in principle why the Court of Appeal should not deal, from your point of view, with the matter, except the theoretical one that has been raised?
MR McARDLE: The problem is a theoretical one. It is an appeal which, if I speak frankly, is one that has some prospects as far as he is concerned. Not to be taken at this stage as conceding it, but it is an appeal that has prospects.
KIRBY J: Who wants a great constitutional battle if the matter can be solved on a lesser level and can be done consistently with principle. The only suggested principle in the way is that if at a later time this Court might strike down the order of sentence, that that might be a reason why, and I can understand this, the Court of Appeal has felt that it should restrain itself. But, subject to hearing Mr Francis, if he had no objection, then this Court could, perhaps, make it clear that they can deal with the matter to conclusion in their court, and that might take the whole problem away.
MR McARDLE: It may very well.
KIRBY J: If it does not, we can always return to deal with whatever is left.
MR McARDLE: I think that concludes all that I want to say at this stage, if I might be excused.
MR FRANCIS: Could I reply briefly to the question which your Honour Justice Kirby has just posed.
KIRBY J: I think all members of the Court were concerned about it.
MR FRANCIS: Yes. It seems to me that that problem may not go away because I think there are considerable difficulties about the position in the Court of Appeal and there is, so far as the accused man is concerned, a second problem. As I mentioned this morning, he is not an Australian citizen and he is at risk of being deported because he has this conviction. That is one of the reasons why I think it may be that we would be returning to this Court fairly soon.
KIRBY J: Is he conforming in the meantime to the orders of Judge Waldron under the guise of bail conditions?
MR FRANCIS: Yes, I understand he is, your Honour, that he has had a good record in the meantime.
GAUDRON J: I think the position is this, that neither Justice Kirby nor any other member of this Court has any difficulty with the idea that the matter can proceed before the Court of Appeal if it is minded to hear the matter.
KIRBY J: I do not know why my name was singled out. I sit here as a member of the Court. I express only my own views, but I certainly have no objection to anything that the Court decides should be done and that the Court of Appeal should decide should be done.
GAUDRON J: I am not sure if you are clear about the question because it was altered on the run, as it were. I will read it into the transcript again:
whether an application for certiorari to quash a decision of the Magistrates' Court of Victoria, to commit the Prosecutor to the County Court of Victoria pursuant to section 47(2) of the Sentencing Act 1991 (Vic) and also to quash the finding of breach of a community-based order and the sentence subsequently imposed by the County Court on the ground that the procedures of those courts were contrary to section 9(1A) of the Racial Discrimination Act (Cth), the International Convention on the Elimination of All Forms of Racial Discrimination or the International Covenant on Civil and Political Rights is within the original jurisdiction of this Court.
You will be able to obtain a copy of the transcript in a short time.
MR FRANCIS: Thank you, your Honour.
GAUDRON J: The matter will be adjourned to a date to be fixed but the Court is adjourned until 9.30 tomorrow in Canberra.
AT 2.35 PM THE MATTER WAS ADJOURNED
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