Tran v The Queen [2011] HCATrans 30 (11 February 2011)

Last Updated: 18 February 2011

[2011] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S213 of 2010

B e t w e e n -

JOHN XANVI TRAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 11.37 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR G.D. WENDLER, for the applicant. (instructed by William Chan & Co Lawyers)

MR C.K. MAXWELL, QC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW)).

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the admissibility of expert evidence is, of course, governed by statute, section 79 of the Evidence Act, and this Court has emphasised the import of the requirements of that section understood in a common sense way in a forensic setting in decisions such as HG. What might be called the essence of the reference to either learning, that is training or experience-based expertise, has in turn been explained in passages much cited thereafter in the judgment of Justice Heydon in the Court of Appeal in Makita. So far, so familiar, and not involving anything which would appear to give rise to a special leave issue, we do not wish – I had better get this out of the way straightaway – to advance any qualification, let alone departure, from any of the statements one finds in the reasons of Chief Justice Gleeson and Justice Heydon, respectively, in those authorities, nor do we suggest that there is lurking in section 79 in the words or interstitially any insight not previously adumbrated.

FRENCH CJ: You are putting this as a misapplication of established principle?

MR WALKER: Yes, and the justice of the particular case and - - -

FRENCH CJ: Justice of the particular case in relation to the background documentation, the dictionaries, as it were, and price lists?

MR WALKER: Yes, that is a startling extra added to the expert issue case to which I will come in just a moment. Concentrating on the expert issue case, in our submission, the evident importance of a police officer, so somebody who is clothed with an official position, giving before juries evidence that we say is strikingly obviously ipse dixit at the critical points, you will see the repeated phrase in the passages set out, for example, in our submissions, application book 246 and 247 and equally in the reasons of Justice Allsop, application book 200 through to 204, you will see repeated the expression, “in my experience”. The experience was never explicated as being the repeated phenomenon of observing conduct or other behaviour that indicated the meaning of a word whose meaning was in question.

Whether one is using a private language, code or public language, something about which dictionaries can be published, one way or the other it is an inferential process when a particular word is used, a combination of inferences, perhaps admissions – inferences from conduct, admissions by what might be called ad hoc translation thereafter – can lead to the construction of what might be called a vocabulary. Nowhere did the expert evidence here condescend to show any example of any kind, and I stress “of any kind” whether his own cases – he could not produce any records from his own cases – or from the police material, that is, that he and his colleagues had managed to put together, the so-called word list. The same thing goes for the somewhat different pricelist.

It is for those reasons, in our submission, that his evidence ultimately came down to saying, “Well, I tell you that ‘old man’ means 350 grams of heroin, it is as simple as that. And why? It is in my experience”. In our submission, that is precisely the kind of assertion lacking any explanation of basis and not opening up to anything other than cross-examination blind which was, with great respect, trenchantly identified by Justice Heydon as being a once favoured now thoroughly exploded version of how to give expert evidence in-chief.

It cannot be said, bearing in mind that this all first came out on the voir dire and that there were repeated opportunities to provide the material to which he said he had made reference, though not so as to supply his own opinion, it cannot be said there were not opportunities given on multiple occasions for the witness to explain how it is that he can say that when speakers in either all or any context say “old man” in Vietnamese that means that particular configuration of illegal heroin.

FRENCH CJ: That is going to a basis for opinion in relation to particular expressions used.

MR WALKER: Yes.

FRENCH CJ: What is the effect of the finding of fact at page 11 in the voir dire ruling of the primary judge, that is, “He has become conversant”, et cetera?

MR WALKER: That, with respect, is an inexplicable statement.

FRENCH CJ: You do not accept the correctness of that finding?

MR WALKER: We certainly do not accept it, but it bespeaks its own lack of foundation. How can anyone say that a person has become conversant without, in the case of a public language, being able to test whether they know what a word means in French, Spanish or Italian, as the case may be? Similarly, when it is a private language, a code, how can one know whether they are conversant without making gross assumptions which prevent the conclusion from having any weight, such as, they are correct in the very instance which is under challenge, bearing in mind that there were alternatives offered in the ERISPs by my client as to other illicit but very different meanings for the code employed?

BELL J: The Court of Criminal Appeal – this is at application book 198, paragraph 24 and 25 on the following page – set out how the matter was argued before that Court. As I understood it, neither the suggestion that the detective’s specialised knowledge was not a proper subject of expert evidence or that he lacked qualifications was pressed, so it was only the insufficiency of reasoning - - -

MR WALKER: That is quite correct, which is why I started, as I did, by reference to that part of Makita rather than to other important parts. Now, that is not to say a case like this might not have thrown up at least some aspects of those other components of admissibility, but the way the case has been fought I am left with the third.

BELL J: If the reasoning is, “I have been a detective investigating people involved in drug trafficking for 10 years and I have spoken to many informants and I have listened to lots of listening device tapes and I have interviewed many drug dealers and in my experience when they speak of money invariably in telephone conversations they call it paper”, how much more can you expose that?

MR WALKER: Well, quite a considerable amount. Let me illustrate it by contrasting it with the closest area we will find, which is what I have been calling it, public language, a non-code language, where if somebody says a particular word means something either in what I will call mainstream use or dialect or whatever, one can go to dictionaries. Now, they may be highly specialised dictionaries if one is talking about dialect, not in order to contradict the witness, necessarily, although they could be used so, but in order that there can be an explication of why the witness says that word means this. You might say, for example, “According to the latest scholarship in the area, this word has never been used. It has never been heard or read in that context since 1620 and you are telling us that suddenly this is archaic”, et cetera.

With a public language, in other words, the fact that somebody says in-chief, “I tell you being fluent in” whatever the language or dialect is, “this word means such and such” cannot be either its own self-proving basis for admissibility or, second, if challenged, cannot by ipse dixit see off the challenge. It is not a matter for the distinguished silver hair of the witness or qualifications. It is a matter for demonstration of basis of reasoning.

BELL J: The difficulties I see with that is let us assume the New South Wales police service did not have a dictionary containing the understanding of police officers of what particular terms mean, your argument would be just as good, would it not?

MR WALKER: Absolutely. Indeed, it would be improved in certain regards, your Honour.

BELL J: Is not the criticism really one sought to be advanced in this Court concerning the field of specialised knowledge and - - -

MR WALKER: No. We would never lend ourselves to the proposition that you cannot have an expert in codes.

BELL J: Understandably, but I think you are lending yourself, perhaps, to the proposition that this police officer with his qualifications could not give this evidence and that seems to be a bit of a slide.

MR WALKER: It is a difference and it is well, with respect, pointed out by the Court of Criminal Appeal’s noting of the three possible heads and the confinement of the case to the third. They do, of course, overlap. In other words, explanation of the basis of a conclusion, the reasons for a conclusion, will necessarily call in aid what might be called the criteria or principles which can be themselves explained so that the jury can understand for themselves and evaluate for themselves, rather than be bound by ipse dixit, the cogency of the opinion evidence. In this case we are by no means complaining about matters which could only be put under the rubric of lack of specialised knowledge.

It is true that our objections might have revealed that, in fact, this gentleman did not have specialised knowledge, but I am bound to say the record is not particularly hopeful in that regard. He would appear to have specialised knowledge, but the question really is whether the specialised knowledge was such as, for example, to justify the jury in attributing confidence or clarity to the opinions he expressed and, bearing in mind that the standard of proof, in our submission, this is from beginning to end significant both at voir dire level and at trial level and at appellate level in relation to the weighing up of what the Court of Criminal Appeal acknowledged was important evidence.

The point for which we seek special leave can very readily be seen as being thrown up by this case, notwithstanding the confinement below of the objection to the issue of insufficient explanation of reasons, because the mere recitation of experience without any reference to the experience, the reference which the jury got to corroboration but not dictation by the dictionary, the police dictionary, all of that, in our submission, amounts to the proposition that somewhere, either in the dictionary or in the experience but never explained, there were these occasions, and they would have to be repeated, one officer will never do it, there are these occasions where his experience or the experience of other people with the skills that have been imparted to him, for example, by training, shows that “paper” means money or “old man” means heroin, for example.

FRENCH CJ: Just looking at it in that context, the ground of appeal in your draft notice, the first ground of appeal, and your complaint relates to the inability:

to enable an evaluation of his expertise in reaching an opinion about the meaning of the coded language.

It is not an attack on the sufficiency of his expertise generally. It seems to me that the way you are putting your submissions is that he is making conclusionary statements and not exposing their factual base. That is not so much expertise. It is going to the particular conclusionary statements he is making.

MR WALKER: That is right. Exactly. In other words, it is the same problem with a very distinguished psychologist or paediatrician who is in the box, there could be no doubting his or her expertise, what I might call generally, but there can be every doubting and challenge to, both at the level of admissibility and, as Makita shows, to weight, calling in aid exactly similar considerations, there can be a very lively and important, perhaps in a case, critical challenge to the degree to which that undoubted, what I will call general expertise, can inform and make either admissible or persuasive opinions which, as Chief Justice Gleeson pointed out, may be mere inference or speculation of a kind that no expert opinion can govern.

FRENCH CJ: There was some discussion in Makita in this context, was there not, against the specific provision in the uniform Evidence Act in some native title cases I think, particularly by Justice Sundberg, if I recall?

MR WALKER: Yes.

FRENCH CJ: How does that bear, if at all, on what you are putting? That was anthropological evidence.

MR WALKER: Yes, that is so. Anthropological evidence at least - - -

FRENCH CJ: Neowarra I think was the case, was it not?

MR WALKER: Your Honour, I cannot remember that name, although I can remember the judge’s name. From my experience, and I am aware that I am addressing somebody who has all the experience in this area, the anthropological evidence in question I cannot remember ever involving mere ipse dixit.

FRENCH CJ: It was a question of whether you had to expose all the underlying facts for the purposes of section 79 in order to support an opinion, given you were - - -

MR WALKER: There are, as used once to be put in public liability or health cases, there is a point at which any concern about hearsay becomes a positive obstacle to fact-finding. The obvious one is in the medical field where there may be a body now of scholarship or science stretching back so that for some of the documents the authors are still alive, presenting difficulties under hearsay, for many of them they are dead, perhaps presenting solutions under hearsay, but either way hearsay is a ludicrous tool to apply to what might be called a body of organised knowledge. Section 79 recognises that. It may be that the anthropology in question in connection with country issues has not reached that state of what I might call scientific maturity.

FRENCH CJ: My concern was really focused on the statutory provision and whether Makita really addressed the position arising under the statute.

MR WALKER: In our submission, it does, although I accept, as I said in opening, that it really only addresses one component of what the statute calls for. It is not so much an admissibility of underlying matters that we complain about here. We do not challenge that there could have been a narration, including by a police dictionary, of observations put together so as, as it were, to show that there had been a study by acceptable methods, social science authenticated, as it were - - -

FRENCH CJ: Your complaint seems to be his evidence is “paper” means money. He has not provided a factual database either based on what other people have said or his own direct experience to support that proposition.

MR WALKER: All he says is, “Believe me - - -

FRENCH CJ: That is the Makita problem, is it not?

MR WALKER: Yes, and it is also the HG problem. It is also squarely a section 79 problem. How can a man, who may well be accepted as completely truthful and accurate in describing his experience and his skills, how can a man just stand there and say, “And, therefore, I tell you ‘paper’ means money, ‘old man’ means”, et cetera? The answer is, in order to

know whether you are using or overusing your expertise, which is the usual issue – the usual issue is not whether you have expertise. The usual issue is whether with your expertise your opinion carries much weight.

For those reasons, whether it be a medical practitioner, a linguist or in this case an experienced police investigator with specialised assignments in his career, the same sensible requirement ought to be the basal level at which, first of all, admissibility and thereafter, weight should be measured. The first is critical for the conduct of a fair trial. The second, subject of course to the proviso, is critical as well to the common form of public statutes and, in our submission, what cannot be seen in any of the material in the Court of Criminal Appeal or on the voir dire is any explanation of what method produces this equivalence of one word with another. That is our first point.

The second point I should put briefly, bearing the amount of time, and that is this. Bearing in mind the prominence with which the opportunity to explain method and sources and, indeed, to deal with possible alternative views was provided on numerous occasions by the request for the police dictionary, the police pricelist. Just concentrating on the police dictionary. We had the evidence to which we have drawn attention. The witness estimated, without wishing to be held to anything precise, probably about 80 per cent of the occasion his opinion coincided with the police dictionary. He insisted, and we had no point to challenge this, he insisted that he had nonetheless made up his own mind.

However, in any case of expert opinion evidence where an individual’s interpretation is being offered, matters of weight are of course assisted by being able to refer to what the mainstream of the profession or those in the field think. It makes a difference to say, “And I am the only person who would say this,” from saying, “And I think nearly all my colleagues would reach the same conclusion”. For those reasons, in our submission, this was an immediate, practical and obvious way to permit the testing of the application of claimed expertise to the conclusion which would otherwise remain an ipse dixit and its inadequately explained absence of production, in our submission, adds a second and distinct matter in the interests of justice in the particular case.

FRENCH CJ: What, if any, significance attaches to the fact that you did not invoke any coercive procedures to require production of the document?

MR WALKER: None whatever. It is for the Crown to make their case both admissibly and with cogency.

FRENCH CJ: Yes, all right. Thank you, Mr Walker. Yes, Mr Maxwell.

MR MAXWELL: Just on your Honour the Chief Justice’s last point, there was discussion in the voir dire about obtaining the “dictionary” and the pricelist and there was some suggestion that the Crown should have disclosed it in its case. The Crown took issue with that and the resolution, if it were to come, was to be the defence would subpoena the Commissioner of Police in the usual way and that did not happen. So that is just to cover that. The effect of it is that that material never was before the tribunal of fact. The primary submission that the respondent makes in relation to that point, the absence of what is termed a dictionary and pricelist, has no bearing at all on the question of exposing the reasoning process.

FRENCH CJ: What is one to make of the statement by the witness that he referred to it but did not rely upon it?

MR MAXWELL: Your Honour, my learned friend in his submissions has referred to some of the evidence that he gave about it, and that is at page 238 of the application book, where he is asked the question at about line 10:

Q. You’ve told us about a list we called it secret list the other day of words you say you were able to look at on your list –

et cetera. He says at about point 5 of that page:

Q. Are you referring to some type of list where you have (sic) able to reference that list?

A. Yes, sir

If it was just that, then there may be some force in the proposition that he had in some way relied upon that list to form his opinion, but there is quite a bit more than that on this point, and that is referred to at page 246 of the application book. There is a question at paragraph 3.4:

Q. Is there a dictionary type document that you have relied upon which confirms that certain expressions are commonly meant to mean certain thing?

A. Can I say it in two parts.

Q. Please?

A. There is a document, yes as I referred to yesterday. That document didn’t confirm anything for me. That document can be used as a guide or indicator and as an expert or as a person who purports to be an expert, I rely on what I see in that call –

He has actually used the word “call” in two different ways there. He said:

I rely on what I see in that call –

and he is referring to one of the telephone calls, then –

to make a call.

Which is the call he has made.

FRENCH CJ: Yes, metaphoric.

MR MAXWELL:

I certainly wouldn’t allow someone else’s opinion to be transposed into my opinion.

Further down the page:

A. I have utilised a document to assist me, but I have not in any way relied upon it.

FRENCH CJ: How does it assist him?

MR MAXWELL: All that he says that he does is he forms his own opinion as to the meaning of words like this – 80 per cent of the 50 my learned friend says – but then he has said that – I do not know whether he did it all of them, I do not know whether it is clear, but he looked at the document that he does not describe as a dictionary. It is the questioner that suggests it is a dictionary. The use of that word in itself is difficult because a dictionary suggests this is a respectable body of words that you can go to and find out what the meaning is. He does not say it is that. It is clear in that answer he does not say it is that. Rather, it appears to be some kind of database that police officers in the field put material into. To answer your Honour’s question, that, it seems, is the only way he used it.

BELL J: He did say of the pricelist that he used it for confirmation and I think that is set out in your materials at 247 at about line 28.

MR MAXWELL: Yes, your Honour. He says, that was:

For confirmation for thoroughness.

BELL J: That does give a certain stamp, arguably, of credibility that the evidence might not otherwise have.

MR MAXWELL: A certain stamp but just the Crown – I am sorry – we would suggest a very minimal kind of stamp because even on the pricelist he says it is from his own experience. Just on that, going to my learned friend’s other point, and that is the suggestion that he is simply reciting his expertise and saying therefore this means that and you do not see the real basis for it. The reference that the learned Chief Justice went to at page 10 – I am sorry, it was page 11 your Honour referred to, but at page 10 it is worth reading. I suppose the point that the respondent is making here is, how far do you have to go? How far does an expert have to go to indicate with precision what his expertise is and where it comes from, because the submission is that you could not go much further than what - - -

FRENCH CJ: Despite the formulation of the ground of appeal to which I directed Mr Walker, this does not seem to be so much a complaint about insufficient demonstration of expertise. That seems to be accepted at a general level. The complaint seems to be about exposure of the basis for particular conclusions. The complaint is, he talks about “noses” and “old men” and “paper” and says he has heard those terms used a lot before, but he does not tell us how he knows that “paper” means money and “noses” refer to cocaine or whatever it is and so forth.

MR MAXWELL: The respondent would submit he does not have to go that far. He does not have to go through every single word that he interprets and go through a long process of explaining how it is that he got “paper” means money. Your Honour, looking at the expertise, at the bottom of page 10, for instance – and this was the finding of the trial judge:

He has handled and debriefed informants over the past ten years about their knowledge of methodology and terminology when speaking about drugs. He has listened to hundreds of hours of lawfully recorded telephone intercepts and read –

et cetera. What, in effect, he is saying is he has dealt with people intimately who have been up to their necks in this drug milieu and he has spoken to them at length and these words – most of the words that he has interpreted seem to be fairly accepted and nothing too controversial, like paper and money and things like that. Your Honour, the other basis, though, that – I am aware of time too, your Honour – that my learned friend complains of about not demonstrating the reasoning process is not revealing the dictionary and the pricelist.

The first step really in that argument is to look at what his reasoning process was. The Court of Criminal Appeal looked at a number of examples, for instance, from application book page 200 onwards. I will just take one example and that is the first one at page 201, the word “cabinet”

and the Vietnamese word is “To Lun” which means “cold cabinet” which equals “fridge” which refers to “ice”. He goes through, and the Court of Criminal Appeal goes through the analysis and his methodology and to read that carefully really demonstrate that this is an expert applying information that he has gleaned in the way that it is set out in the judgment by the trial judge and that his reasoning process is not about – does not need reference to the documents that my learned friend suggests, the absence of which fail to reveal his reasoning process. On those bases, the respondent submits that there is no relevant hiding or failure to disclose material upon which his reasoning process was based and on that basis that the Court would not entertain this application.

FRENCH CJ: Thank you, Mr Maxwell. Yes, Mr Walker.

MR WALKER: Your Honour, on those very pages, 200 to 201, notwithstanding all the questioning, the answer never rises higher than experience. There are some decorative features about the experience but none that explains anything in relation to “cabinet”. Thus, for example, page 200, line 42, page 201, line 25, page 202, as it were, the last word on the topic, line 12. It never gets above an ipse dixit, “Cabinet means methylamphetamine because I say so.” “Why do you say so?” “It is my experience.” That is it.

On the same pair of pages, page 203 at about line 25, “old man”, the one I referred to in-chief, he gives evidence that, “It is relatively common.” That is a rather important proposition. First of all, let me go back to the voir dire finding at page 11 to which attention was drawn by my learned friend. Yes, when you read the passage starting on page 10, line 29 and concluding on page 11, line 30, there is a thorough going explanation of the ground of what I will call the man’s expertise and skill. Not a word as to the method by which he or his learned interlocutors, his colleagues, say, or teachers, actually establish Rosetta stone-style, for example, what the words mean.

BELL J: Just if one turns to the answer that he gives at the bottom of 202, going over to 203, this question of the reference to money as “paper”. He gives an account that the term is almost universally used not only amongst Asian people trafficking in drugs when referring to money and he says there are variations of the term. Then he goes on to express his opinion based on his – I am sorry, I may have misread it. He says:

it universally means – that I’ve never known it to mean anything other than money.

Clearly, he is making an assertion about his experience.

MR WALKER: He is not explaining the reason at all. He is not undercover, for example.

BELL J: I understand that. He is saying, “In my experience, I have not known ‘paper’ when it is used by people involved in the drug trade to mean other than money.” Section 79 contemplates that one may have specialised knowledge based on experience.

MR WALKER: Absolutely.

BELL J: If he is not challenged on a question of the frequency with which he has had occasion to deal with people in this milieu who use the word “paper” for money, what more can there be?

MR WALKER: He was challenged as to, “But how does that experience enable you to say that matter?” In other words, to say “I have dealt with people in the milieu” is not to say you have always understood accurately what they are talking about, particularly in a foreign language. The nature of the challenge, which seems to be a bit different from the way it finally emerged, can be seen at page 11, lines 30 to 40. They did not say, “You have not had the experience you have claimed.” What they said is, “How does that experience link up or enable you to say anything about any particular word?” and it has to come down to particular words in code. We know the database, the dictionary, to use the expression my friend is uncomfortable with, was referred to and relied upon at what I will call the expertise or experience point. We can see the finding, voir dire, 11, line 22. Part of the experience he called in aid was:

referring to a database maintained and contributed to by police officers in respect of coded conversations –

Leaving aside the circularity of the assumption which assumes the conclusion in calling something a coded conversation and accepting, because of ERISP admissions, that code was being used, the issue where the jury – we were entitled to ask the jury to be able to evaluate with proper material the cogency of the proffered explanation, the real meaning of the code words. That was denied us by (a) the failure in-chief to provide any explanation of how this experience produces what I will call vocabulary or a word list and (b) we were denied, in a way that remains insufficiently or inadequately explained, resort to something which on any view could have led to either challenge or further doubt being expressed.

For those reasons, in our submission, this is an ideal vehicle to raise really critical matters that go right to the heart of very necessary police and investigative techniques and the fairness with which what juries are pressed with by people in public office who say they are expert about what words

may mean in a way which does not involve any of the safeguards, for example, that a registered interpreter would have to show and could be subject to cross-examination concerning his or her interpretation of a word in a general language, a public language.

FRENCH CJ: Thank you, Mr Walker.

At the applicant’s trial for a number of drug-related offences the Crown sought to produce evidence from a police officer, said to be based on that officer’s specialised knowledge devised from operational experience, that words used in intercepted telephone conversations, to which the applicant was a party, were coded terms referring to the identity, quantity and prices of specific drugs. The trial judge held the evidence admissible pursuant to section 79 of the Evidence Act on the basis of claimed specialised knowledge.

The applicant complains that the evidence given by the witness was conclusionary and did not expose the factual basis upon which the conclusions were offered. However, the general findings of fact in relation to the witness’ experience were sufficient, in our opinion, to support the admissibility of his evidence in this case pursuant to section 79.

The applicant also complains that the witness indicated that in forming his opinion he had made reference to a police dictionary of terms and a price list, which he declined to produce. He said on the voir dire examination that he referred to but did not rely upon the dictionary.

In our opinion, the Court of Appeal was correct to find that, notwithstanding the non-production of the dictionary, the reasoning processes were adequately exposed. Special leave will be refused.

AT 12.17 PM THE MATTER WAS CONCLUDED