R v Zhan Yu Zhong - [2003] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 266 of 2001

THE QUEEN
	v.
ZHAN YU ZHONG

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JUDGES:	WINNEKE, P., PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2003
DATE OF JUDGMENT:	15 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 56

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Criminal law - Incitement to murder - Conditional request capable of amounting to incitement with requisite mens rea - Charge sufficient to describe defence case and relate the law to the evidence - Subpoena endangering police informers set aside on the ground of public interest immunity - Stay of proceedings not warranted on the ground of improper conduct by police in inducing applicant to commit incitement - Crimes Act 1958 s. 321G.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G. Thomas	Victoria Legal Aid

WINNEKE, P.:

For the reasons given by Buchanan, J.A., I agree that this application should be dismissed.

At the conclusion of argument on the appeal, the Court reserved its decision. Several days later, the Registrar received from the applicant, for the attention of the Court, further submissions in writing. These submissions had obviously been prepared by the applicant in person, and without the assistance of a legal practitioner. Copies of these submissions were forwarded by the Registrar to the Director of Public Prosecutions and Victoria Legal Aid. No submissions in reply have been received from the Crown.

The members of the Court have read those submissions. For my own part, I am satisfied that they raise no argument of substance which would suggest that the trial was unfair or the verdict recorded by the jury unsafe.

Whilst the Court was prepared to accept, in this case, the written submissions which the applicant forwarded following the hearing of his appeal, it should not be assumed that this is a practice or procedure which is either appropriate or to be encouraged in appeals, particularly where the applicant has been represented by counsel. It is true that the Crimes Act 1958 (s.572) and the Supreme Court (Criminal Procedure) Rules 1998 (Rule 2.28.2(1)) prescribe that an appellant may present his argument and case in writing. However, it is the contemplation of the Act and the Rules that such a procedure should be followed as an alternative, and not as an addition, to the oral presentation of a case on appeal. Where argument has been presented to the Court by counsel on behalf of a party to an appeal, that will, other than in exceptional circumstances, put an end to that party’s rights to present argument to the Court. Of course, there will always be exceptions to “the rule” because, in the long run, the system of criminal justice is concerned to ensure that miscarriages have not occurred in the trials of convicted persons. Thus, from time to time, the Court of Appeal of its own motion will call for further submissions,

following reservation of judgment, from the parties, or their…

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.

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Details

Case: [2003] VSCA 56
Decision Date: 15 May 2003

CaseChat Overview and Summary

The case of R v Zhan Yu Zhong was heard in the Supreme Court of Victoria, where the defendant, Zhan Yu Zhong, was charged with incitement to murder. The nature of the dispute centred on whether the defendant's conditional request could be construed as incitement with the necessary mens rea under the Crimes Act 1958. The defendant argued that the charge was insufficiently specific to describe the defence case and relate the law to the evidence.

The court was tasked with determining whether the defendant's conditional request constituted incitement to murder under the statute and whether the charge adequately described the defence case and related the law to the evidence. Additionally, the court had to consider whether a subpoena that endangered police informers could be set aside on the grounds of public interest immunity and whether a stay of proceedings was warranted due to alleged improper conduct by the police in inducing the defendant to commit incitement.

The court ruled that the conditional request made by the defendant could indeed amount to incitement with the requisite mens rea. The court found that the charge was sufficient to describe the defence case and relate the law to the evidence. Furthermore, the subpoena was set aside on the ground of public interest immunity, but the court determined that a stay of proceedings was not warranted because there was no evidence of improper conduct by the police in inducing the defendant to commit incitement. Consequently, the court upheld the charge against the defendant.

Orders