New South Wales Crime Commission v Sun

The second defendant's application that the trial be aborted

1. At the commencement of the third, and final, day of hearing Mr Wendler applied for an order that the trial be aborted on the ground that the second defendant's evidence had not been accurately interpreted. Mr Wendler made the application on the basis of a conversation he had had with his instructing solicitor, Alexander Harmstorf, after Court at the end of the previous day. The Commission opposed the application.

The evidence in support of the application

1. Mr Wendler called Mr Harmstorf, who gave oral evidence about various aspects of the interpretation of the second defendant's evidence from Mandarin to English. Mr Harmstorf is a native English speaker but has learned Mandarin in the last five years. He has offices in China and most of his clients are Chinese. In the course of his practice, he is regularly called upon to speak Chinese and, indeed, when he is at work, he speaks Chinese "a lot of the time". He does not hold himself out as a fluent Chinese linguist. However, he said that he has good conversational Mandarin.
2. Mr Harmstorf said that, on several occasions, the interpreter prefaced the translation of the second defendant's answers in cross-examination by the words "well, anyway". He said that these words were not used by the second defendant in her answer in Mandarin and tended to give the impression that she was nonchalant about her response, when that impression was not open on the basis of the Mandarin words she had used.
3. Mr Harmstorf also said that the interpreter, on several occasions, translated a particular answer with the words "should be". He said that this accorded with a literal translation of the Chinese words; however, it was not a good translation because it conveyed a conditional sense in English, which was not present in Mandarin. He gave an example of a person who, when asked their age, might respond, in Mandarin, "I should be 42", when the person is really saying, "I am 42".
4. Mr Harmstorf also instanced occasions on which the interpreter translated "I don't understand" as "I don't know", although he was unable to recall how many occasions that had occurred, and the context in which what he regarded as a mistranslation arose.

The Commission's evidence in opposition to the application

1. Ms Dobraszczyk, who appeared for the Commission, called oral evidence from Jiansong Wen. Mr Wen is a forensic accountant who is employed by the Commission and who gave evidence in support of its case but was not required for cross-examination. He sat through the whole proceedings and was absent only for a short period on the second morning when he arrived shortly after 10am. He was, however, present for the whole of the second defendant's evidence.
2. Mr Wen was born in China but has lived in Australia since 2000. Mandarin is his first language and English his second. He obtained a Bachelor Degree, majoring in the English Language, while he was still in China. He obtained a certificate from the Community Language Allowance Scheme in Australia as a Mandarin Speaker in 2012. The certificate is valid for 10 years. Although he is principally engaged as a forensic accountant with the Commission, he also assists in providing translation services from Mandarin to English (and possibly from English to Mandarin) as and when required by the Commission.
3. Mr Wen said that, in his opinion, the interpreter engaged by the Commission to interpret the second defendant's evidence was "very competent".
4. He said that "well, anyway" was a correct translation, as far as he could recall, of the actual words used by the second defendant. When Mr Wendler put to him in cross-examination that the translation "well, anyway" tended to give the impression that the second defendant did not care one way or another about her answer to the question, he said that the words, to him, created the impression that she wanted to emphasise her answer. He had gained this impression from the Mandarin words that she had actually used.
5. When Mr Wen was asked about the use of the words "should be" as a literal translation, he said that he did not see anything wrong with translating the Mandarin words in that way.

The parties' submissions

1. Mr Wendler submitted that the trial should be aborted and listed for hearing before another judge. He contended that the importance of the translation in the present case ought not be underestimated because the second defendant's credibility was in issue. He submitted that although there was no criticism of the interpreter's credentials in the Mandarin language, the real issue was his facility in English and his ability to convey the attitude of the witness in his choice of English words. Mr Wendler contended that, where a false (and indeed, adverse), impression was created by the choice of words, which was not encompassed by the witness's choice of words in Mandarin, an injustice could be occasioned. He submitted that, the false impression having been created by many hours of evidence, the trial ought not continue before me.
2. Ms Dobraszczyk submitted that I ought prefer the evidence of Mr Wen and have confidence that the interpreter had accurately translated what the second defendant said, since his Mandarin was superior to that of Mr Harmstorf and he was, accordingly, in a better position to determine the correct translation of Mandarin words. She relied on Mr Harmstorf's relative lack of fluency in the Mandarin language.

Reasons

1. At the conclusion of argument on 30 April 2015, I ordered that the trial be aborted and that each party pay its or her costs of the three days thrown away (28 April, 29 April and 30 April 2015). What follows are the reasons for my decision.
2. Credibility is a substantial issue in the case. Although many matters are not disputed, a principal fact in issue was whether Esther Xu, the second defendant's accountant, discussed with the second defendant the preparation of two false tax returns to support her application for a loan from St George Bank Limited (St George Bank) to purchase a property in Carlingford, in respect of which contracts had already been exchanged. The Commission's case was that Esther Xu discussed the preparation with the second defendant and, accordingly, when the false tax returns were submitted to St George Bank, the second defendant had committed a "serious crime related activity" within the meaning of s 6 of the Criminal Assets Recovery Act. The relevant offence, provided for by s 178BB of the Crimes Act 1900 (NSW), was obtaining money by false or misleading statements. The false tax returns were said to be the "false or misleading statements" and the money obtained was said to be the monies advanced by St George Bank for the purchase of the property.
3. The second defendant's case was that she went to see Esther Xu to see if she could help her get a loan and that she signed documents which had been prepared by Esther Xu, at the places indicated, but did not appreciate that she was signing false tax returns since she does not read in English. She denied that there was any discussion between them about the preparation of false tax returns.
4. Esther Xu gave evidence in English. The second defendant gave her evidence through an interpreter. On several occasions the second defendant prefaced her answers with the words "well anyway", or at least, that was what the interpreter said when translating her answers which were given in Mandarin. She was also asked several questions about whether she had given particular documents to Esther Xu. On a number of occasions she used the words "should be" in answer to a question. The ambiguity created can be demonstrated by the following exchange in the second defendant's cross-examination: "Q. My question Ms Xu is do you remember giving either original documents or some copies like this to Ms Esther Xu? A. INTERPRETER: Yes, should be. Q. Yes, should be that you gave them to her? A. INTERPRETER: Yes, should be, yes. Q. Are you saying that you did give these documents to Esther Xu? A. INTERPRETER: I don't know what sort of document or that. Q. My question is do you remember giving those documents, either original documents or copy documents like this to Ms Esther Xu? A. INTERPRETER: Yeah, should be, yes. Q. When you say "should be", are you saying you should have given them to her or that you remember that you gave them to her? A. INTERPRETER: Yeah, I gave, should, yeah, should be, yeah. Q. Please listen to my question and try and answer to the best that you can. Do you remember giving these documents to Esther Xu or are you saying that you should have given those documents to her? A. INTERPRETER: Yeah, I should have given her these documents."
5. Although the last answer purported to clarify the meaning of "should be", I am not satisfied that the last answer is correct, in light of the evidence about the use of the equivalent of "should be" in Mandarin.
6. The assessment of credibility (in the sense of reliability) requires the tribunal of fact to take account of the way in which a witness answers questions, including the words used and the demeanour, as well as other matters such as the consistency of evidence, whether answers given are inconsistent with other evidence, with objective facts, or with answers a witness has given on another occasion: see Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 per Lord Pearce.
7. Translation from one language to another is both a skill and an art. The choice of English words that convey the same meaning as is conveyed in Mandarin, and to do so instantaneously in a court room, is not an easy task. Nonetheless, the second defendant is not to be disadvantaged by reason of the circumstance that her evidence is given through an interpreter. Her right to a fair hearing depends on the competent performance of that task. I respectfully adopt the analysis of Allsop CJ in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 at [5] - [11].
8. I am satisfied, on the basis of the evidence of Mr Harmstorf, that the translation of the second defendant's evidence gave, in material respects, a misleading impression of her evidence and her attitude. It is also significant that Mr Wen considered that the literal translation "should be" of the Mandarin to be both appropriate and acceptable, notwithstanding the impression, which I regard as misleading, that such an interpretation created. I have also taken into account that the impression gained by Mr Wen from the words "well, anyway" (or at least the original Mandarin from which these words were interpreted), that the words were intended to emphasise the answer, was quite different to the one I gained from them.
9. Nuance is important as is choice of words, both for sense, context and flavour. The advantage I enjoy as trial judge of seeing and hearing the second defendant give her evidence was, in my view, compromised by the interpreting in the particular circumstances of this case outlined above.
10. Because of the complexity of the task of assessing credibility it is difficult to unravel the strands that combine to create an impression of reliability or otherwise. Neither party suggested that, if I formed the view that the interpreter's translation had created a misleading impression, I should continue to hear the case, or that I should hear the proceedings again when another interpreter is available. I accept their concessions as properly made for the following reasons.
11. Although the parties did not frame their submissions as to why I should not continue to hear the matter by reference to the language of reasonable apprehension of bias, I consider this to be the appropriate analysis. The relevant test for apprehended bias was as stated in Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 at [28]: "[whether] a hypothetical fair minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias [would reach that conclusion]."
12. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, the High Court held that the question whether there is a reasonable apprehension of bias can only be determined after examining both the matter said to give rise to the apprehension and how the outcome of the matter to be decided might affect that interest. Gleeson CJ, McHugh, Gummow and Hayne JJ said at [8] that the application of the apprehension of bias principle requires the following two steps: "First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits."
13. The matter that might have led me to decide the case other than on its merits was the interpreter's translation of the second defendant's evidence, which I accepted was misleading in material respects. It was not necessary to decide the question whether I considered myself to be capable of putting the matters identified out of consideration in assessing the credibility of the second defendant, since I was satisfied that a reasonable observer might consider that any assessment which I eventually made of the second defendant's evidence (had the matter proceeded to judgment) might be affected by the misleading translation.
14. It is a serious matter to abort a trial that has been listed for hearing and is already part-heard. Nonetheless, once I had concluded that a misleading translation might be seen to lead to the possibility of an adverse finding of credit against the second defendant (had the matter proceeded to judgment on the basis of such an adverse finding), I considered it to be necessary, in the interests of justice, to order that the trial be aborted and that it be relisted before a judge other than myself.
15. Where issues relating to translation arise, it is preferable that they be raised at the earliest possible time, so that they can be addressed and corrected immediately. Had this occurred in the instant case, it would have been possible to clarify the "well anyway" and "should be" difficulties and any misleading impression thereby created might have been able to be rectified. In making this observation I do not intend to convey any criticism of Mr Harmstorf for not raising these matters with Mr Wendler earlier than he did. Difficult matters of judgment are involved, particularly where, as here, the second defendant was being cross-examined and instructions to make such an application could not, without the consent of the Commission or other exceptional arrangement, be obtained.

Costs

1. The parties accepted that it was appropriate to make no order as to costs with the intention that each party bear its or her, as the case may be, costs of the three days of hearing (28, 29 and 30 April 2015) before me.

Orders

1. At the conclusion of oral argument on 30 April 2015 I made the following orders: 1. This trial be aborted and returned to the list to be listed before another Judge for hearing. 2. Each party pay its or her, as the case may be, own costs of this hearing. 3. The matter be referred to the List Manager to be allocated the next available hearing date suitable to the parties with priority.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2015