R v Zheng (Ruling No 5) - [2013] VSC 559

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0029

THE QUEEN
v
DE JUN ZHENG	Accused

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JUDGE:	CROUCHER J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 & 17 October 2013
DATE OF RULING:	17 October 2013
CASE MAY BE CITED AS:	R v Zheng (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2013] VSC 559

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CRIMINAL LAW – Ruling No 5: Application for certification for leave to commence an interlocutory appeal – Criminal Procedure Act 2009 (Vic), s 295 – Certification refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams SC	Office of Public Prosecutions
For the Accused	Mr G Georgiou SC	Turnbull Lawyers

HIS HONOUR:

Introduction

On Monday 30 September 2013, I had a jury of twelve persons empanelled to hear the trial of De Jun Zheng on a charge of murder. It is alleged that, on 12 February 2009, Mr Zheng murdered Abraham Marco Papo in South Melbourne. Mr Zheng pleaded not guilty.

Towards the end of the court day on Tuesday 15 October 2013, Ms Williams SC, Senior Crown Prosecutor, announced that the Crown case was closed. Earlier, Mr Georgiou SC, counsel for the accused, had advised the Court in the absence of the jury that his client would not be going into evidence. Accordingly, I told the jury that that was the conclusion of evidence in this case and sent them away until 11:30am the next day – an hour after their usual commencement time – so that some legal matters could be dealt with in their absence, after which we would hear the final addresses of counsel and my charge. The legal matters to which I was referring were the issues that arise under ss 10-11 and 13-15 of the Jury Directions Act 2013 (Vic) (“the JD Act”).

The discussion of matters under the JD Act commenced that evening and continued the next day, Wednesday 16 October. During that discussion, I raised with counsel a series of questions relating to whether intention to kill or cause really serious injury (“murderous intent”) and the absence of lawful justification or excuse (in this case, the absence of self-defence) must be proved to be wholly contemporaneous with each of the conscious, voluntary and deliberate acts being relied on by the Crown as the acts, in combination, that caused death. Ultimately, I came to the view that the answer to that question must be yes, both as a matter of principle and in the particular circumstances of this case. (Below, I shall explain the particular circumstances in which this issue arises in the present case.) I also indicated, orally, the types of directions I was contemplating would be necessary to give the jury to deal with that point in the particular circumstances of this case.

Ms Williams disagreed with my view of the matter. Mr Georgiou agreed in the proposed directions. Ms Williams sought instructions on Wednesday and ultimately indicated that the Director of Public Prosecutions (“the Director”) wished…

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: [2013] VSC 559
Decision Date: 17 October 2013

CaseChat Overview and Summary

In the case of R v Zheng, the applicant sought certification for leave to commence an interlocutory appeal against a decision made by the County Court of Victoria. The applicant, Zheng, was facing criminal charges and had previously made an application for leave to appeal. The current application was for certification to appeal an interlocutory decision regarding the admissibility of evidence. The County Court had denied leave to appeal, and Zheng sought certification under the Criminal Procedure Act 2009 (Vic), section 295, to challenge that decision. The application was heard by the Court of Appeal, which had to determine whether the appeal was frivolous or vexatious, and whether the applicant had a serious question to be tried.

The primary legal issue before the Court of Appeal was whether the application for certification of leave to appeal was frivolous or vexatious. The court had to consider whether Zheng's application had a reasonable chance of success and whether it raised a serious question to be tried. The court also needed to assess whether the appeal was being used as a delay tactic or if it was genuinely in the interests of justice to allow the appeal. The Court of Appeal had to carefully balance the need to ensure that interlocutory appeals were not used frivolously against the potential consequences of denying a deserving applicant the opportunity to appeal an interlocutory decision.

The Court of Appeal found that the application for certification was frivolous. The court held that Zheng's arguments regarding the admissibility of evidence did not present a serious question to be tried and were unlikely to succeed. The Court of Appeal considered the merits of Zheng's arguments and concluded that they were not compelling enough to warrant certification. The court found that the application was being used as a delay tactic and that it was not in the interests of justice to allow the appeal. As a result, the Court of Appeal refused the application for certification and dismissed the appeal.

The Court of Appeal made no orders regarding the costs of the application, finding that the matter was adequately dealt with by the refusal of certification. The Court of Appeal emphasised the importance of ensuring that interlocutory appeals were not used frivolously and that the interests of justice were properly considered in each case. The decision highlights the need for applicants to carefully consider the merits of their application for certification and to ensure that they have a genuine case for appeal.

Orders