DPP v Zheng - [2013] VSCA 304

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0194

DIRECTOR OF PUBLIC PROSECUTIONS
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
DE JUN ZHENG	Respondent
S APCR 2013 0195
DE JUN ZHENG	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES:	MAXWELL P and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2013
DATE OF JUDGMENT:	18 October 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 304
JUDGMENTS APPEALED FROM:	R v Zheng (Ruling No 5) [2013] VSC 559; R v Zheng (Rulings Nos 4 & 6) [2013] VSC 561

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CRIMINAL LAW – Appeal – Interlocutory appeal – Murder – Trial judge’s ruling on alternative Crown case – Judge refused to certify – Ruling plainly correct – Application to review certification decision refused – Juror’s comment – Whether apprehended bias – Judge refused to discharge jury – Ruling plainly correct – Applications made after trial commenced – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for leave to appeal refused – Criminal Procedure Act 2009 (Vic) ss 295(2)–(3), 296, 297(2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Respondent	Ms M M Williams SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent/Appellant	Mr G A Georgiou SC	Turnbull Lawyers

MAXWELL P:

I invite Priest JA to deliver the first judgment.

PRIEST JA:

The wheels of justice have turned slowly in this case. De Jun Zheng is on trial for the murder of Abraham Marco Papo, the killing having occurred as long ago as 12 February 2009. On 30 September 2013 a jury was empanelled to try the case against the accused. For reasons that are not presently relevant, a juror was discharged in the course of the trial, so that the trial is now proceeding with a jury of eleven.

There are two applications before the Court pursuant to ss 296 and 297 of the Criminal Procedure Act 2009 (Vic) (‘the Act’), seeking leave to appeal two interlocutory decisions made by the trial judge.

The first application in time was lodged by the prosecution. In essence, the prosecution contends that if the trial judge directs the jury on causation (and associated features) in the manner that he has ruled that he will, he will do so in error, and to the detriment of the prosecution case.

The second application is made by the accused. Remarkably, it is now joined in by the Crown. It is contended that the trial judge erred in failing to discharge the jury following a remark made by one of the jurors to a member of court staff betraying bias on the part of that juror infecting the whole of the jury.

Each party asked the judge to certify that the interlocutory decisions that they respectively were concerned with was, pursuant to s 295(3)(b) of the Act, ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.

His Honour refused to certify with respect to the first interlocutory decision, but, due to the unusual circumstances as his Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Zheng

Details

AGLC: DPP v Zheng [2013] VSCA 304
Case: [2013] VSCA 304
Decision Date: 18 October 2013

CaseChat Overview and Summary

The Director of Public Prosecutions brought an appeal against a decision of a trial judge, Zheng, in relation to a murder charge. The appeal concerned the judge's refusal to certify an interlocutory appeal regarding the alternative Crown case, as well as the judge's decision not to discharge the jury due to a juror's comment. The appeal was made under sections 295(2)–(3), 296, and 297(2) of the Criminal Procedure Act 2009 (Vic). The central legal issues were whether the judge's refusal to certify the interlocutory appeal was plainly correct, whether the judge's decision not to discharge the jury due to apprehended bias was plainly correct, and whether the reasons for granting leave to appeal clearly outweighed any potential disruption to the trial.

The court found that the judge's refusal to certify the interlocutory appeal was plainly correct, as the issues raised did not warrant certification. The court also determined that the judge's decision not to discharge the jury was plainly correct, as there was no apprehended bias. The court further held that the reasons for granting leave to appeal did not clearly outweigh any disruption to the trial, as the applications were made after the trial had commenced. Consequently, the application for leave to appeal was refused.

The court's decision was based on a thorough analysis of the legal principles and provisions outlined in the Criminal Procedure Act 2009 (Vic). The court emphasised the importance of maintaining the integrity of the trial process and ensuring that any potential bias or disruption was properly assessed. The final outcome of the appeal was that the application for leave to appeal was refused, and the original decision of the trial judge stood.

Orders