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Court of Criminal Appeal 1 June 2018

Chen v R

[2018] NSWCCA 106

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION EXPERT EVIDENCE APPEAL AGAINST CONVICTION EXPERT EVIDENCE EXPERT WITNESS CODE OF CONDUCT

Citation: Chen v R [2018] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 1 June 2018
Judges: Hoeben CJ at CL; Schmidt J; Campbell J

Background

The appellant was convicted by a jury in October 2015 of knowingly taking part in the supply of 4,985 grams of pseudoephedrine, a commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). The case arose from a police investigation into the supply of a Chinese cold and flu medication called "ContacNT," which contained pseudoephedrine in granule form. Police identified the appellant through physical surveillance and intercepted six telephone calls between him and an identified supplier.

The Crown's circumstantial case relied on police surveillance, the intercepted telephone calls, and the circumstances of the appellant's arrest. When police approached him and two co-accused leaving a unit complex, all three fled. One dropped a bag found to contain packages of the drug. The appellant was arrested, tried alongside his co-offenders, and convicted.

Central to the conviction appeal was the evidence of Ms Yang, an interpreter retained by the Crown to translate the intercepted calls. The appellant challenged her qualifications, impartiality, and the accuracy of her translations both on a voir dire before trial and during the trial itself. It emerged during cross-examination at trial that Ms Yang had not read or acknowledged the expert witness code of conduct required under Part 75, r 3J of the Supreme Court Rules 1970 (NSW).

  • Whether Ms Yang's evidence was admissible as expert opinion under s 79 of the Evidence Act 1995 (NSW), given challenges to her specialised knowledge, impartiality, and translation accuracy.
  • Whether her evidence should have been excluded under ss 135 or 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the risk of unfair prejudice or that it was misleading or confusing.
  • Whether Ms Yang's failure to comply with Part 75, r 3J of the Supreme Court Rules 1970 (NSW) rendered her evidence inadmissible as a matter of law, or whether the trial judge retained a discretion to admit it.
  • Whether the trial judge failed to give adequate jury directions after the Crown, in its closing address, suggested that the translation of the word "la" as "granule" was the only interpretation before the jury, which the appellant contended amounted to a reversal of the onus of proof.

Decision

Ground 1 and 2 (s 79 admissibility and exclusion under ss 135/137): The Court upheld the trial judge's conclusion that Ms Yang's evidence was admissible under s 79 of the Evidence Act. The Court also found no error in the trial judge's refusal to exclude the evidence under ss 135 or 137. Consistent with R v Shamouil, credibility and reliability considerations do not bear on the assessment of probative value for the purpose of s 137; that assessment is confined to the nature of the evidence itself.

Ground 3 (expert witness code of conduct): The Court found that the failure to comply with Part 75, r 3J of the Supreme Court Rules did not create an absolute bar to admissibility. The Court held that the provision confers a discretion on the court to otherwise order, and that non-compliance is a factor bearing on admissibility rather than a mandatory exclusionary rule. The trial judge was entitled to admit the evidence and address the issue through jury directions. The Court also rejected the submission that non-compliance required exclusion under ss 135 or 137 of the Evidence Act.

Ground 4 (jury directions and onus of proof): The Court found no error in the trial judge's directions. The judge had directed the jury that the Crown bore the onus of proof beyond reasonable doubt and that Ms Yang's evidence was to be assessed for reliability before being acted upon. Considering the directions as a whole, nothing in the Crown's closing address created an impermissible reversal of the onus. Any gap in the specific direction sought was immaterial given the totality of the circumstantial evidence against the appellant, which included the intercepted calls (beyond the disputed "la" translation), surveillance evidence, and his flight from police.

The appeal was dismissed on all grounds.

Orders Made

  • The appellant's conviction appeal was dismissed.

Key Takeaways

  • Non-compliance with the expert witness code of conduct under Part 75, r 3J of the Supreme Court Rules 1970 (NSW) does not automatically render expert evidence inadmissible. The Court confirmed that r 3J confers a discretion to otherwise order, and that non-compliance is a relevant factor going to admissibility rather than a hard bar.

  • Under s 137 of the Evidence Act 1995 (NSW), and consistently with R v Shamouil, questions of credibility, reliability, and accuracy of expert evidence do not enter into the assessment of probative value. That assessment focuses on the nature of the evidence, not its weight.

  • Where a trial judge addresses deficiencies in expert evidence through targeted jury directions, including directions on the witness's limitations and the jury's role in assessing reliability, an appellate court will assess the directions as a whole rather than in isolation.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a Crown address pointing to the absence of contrary expert evidence does not necessarily reverse the onus of proof, provided the jury has been properly directed on the burden and standard of proof.

  • Sufficient circumstantial evidence, including surveillance, conduct at arrest, and intercepted call content beyond the disputed translation, can sustain a conviction even where individual pieces of Crown evidence are contested.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Evidence Act 1995 (NSW), ss 79, 135, 137
- Supreme Court Rules 1970 (NSW), Part 75, r 3J
- Supreme Court Act 1970 (NSW), s 124
- District Court Act 1973 (NSW), s 171D
- Civil Procedure Act 2005 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), Schedule 7

Cases:
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Fillipou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Tuite v R (2015) 49 VR 196; [2015] VSCA 148
- R v McIntyre [2001] NSWCCA 311
- De L v Director-General Department of Community Services (NSW) (1997) 190 CLR 207; [1997] HCA 14