R v Zhong

[2001] VSC 522

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1416 of 2001

THE QUEEN	Plaintiff
v
ZHAN YU ZHONG	Defendant

---

JUDGE:	Flatman J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2001
DATE OF RULING:	1 November 2001
CASE MAY BE CITED AS:	R v Zhan Yu Zhong (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2001] VSC 522

---

CRIMINAL LAW RULING – Ex-Parte Application to set aside subpoena to produce documents

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Ray Gibson	Ms Kay Robertson, Solicitor for Public Prosecutions
For the Defendant	Ms Jane Dixon	VLA

HIS HONOUR:

1. This was an application to set aside a subpoena issued on behalf of the accused against the Chief Commissioner of Police.  Miss Dixon, on behalf of the accused, sought information concerning the identity and activities of two people in particular, identified as Paul and Di, who were engaged in conversations with the accused man.  She submitted that the material was relevant: (1) in an application to exercise my discretion to stay proceedings because of improper behaviour by the police or agents of the police in inducing or pressuring the accused to become involved in a crime, and (2) as part of the defence case that the accused was never committed to an intention to incite the undercover operative to kill his wife, and the prelude to the dealings with Mark and the conversations with Paul were relevant to understand the full context. 

1. On 8 October, I ruled that save for the tape recordings, transcripts and information reports by the person known as Di, that the balance of the subpoena be set aside.  I left open the question of whether there should be a stay of proceedings because of improper conduct by the police until Miss Dixon had had an opportunity to consider the material provided. 

1. On 9 October, Miss Dixon reaffirmed her submission that there was an issue of inappropriate pressure or coercion placed upon the accused in that the police really initiated the whole matter (confirmed she argued by the tape with Di) and that there was an ongoing subtle kind of pressure which went beyond mere facilitation of the crime. 

1. The essence of Miss Dixon's argument was not that the evidence was unlawfully obtained but rather that it was obtained through improper conduct on behalf of the police in the sense set out in Ridgeway v The Queen (1995) 184 CLR 19 at 36 and 37:

“The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly .inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things ,the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion , the difficulty of effective investigation or prevention and any imminent danger to the community.”

1. I have ruled that the accused is not prejudiced in his fair trial by the balance of the material provided by the Crown on the subpoena, and it seems to me, if anything, that material clearly favours the Crown.  Miss Dixon took me to various parts of the transcript of the conversations between the accused and Mark James and relied on her client's evidence on the voir dire to argue that the police or agents of the police acted improperly.

Evidence by the Accused

1. The accused, in broad terms, in his evidence on the voir dire, said that he had been induced into this whole scheme by Paul, Di and Mark.  He said that he told particularly Paul and Di that it was a family matter and he did not need help.  He described Paul as a gun seller who had connections with corrupt police.  He maintained an ongoing communication with Paul while dealing with Di and Mark.  He said Paul had pressurised him to see Di and then continued to induce him to see Mark.  There were some arguable contradictions inherent in his story.  Although he said that in the end he felt he had to go on with the negotiations because he was afraid of Paul and did not want to become his enemy, at the same time he was told by Paul that Mark worked for D24.  He was told by Paul that Paul wanted Mark killed and he said he was afraid for Mark's safety.

The Tapes

1. A fair listening of the tapes indicated that Mark James the undercover operative, far from putting pressure on the accused, repeatedly made it clear to him that he was free to "walk away from this" and get his money back.

1. The accused on the other hand was reasonably assertive about relevant matters. The conversations disclosed concerns by him as to the security of the proposed operation. The accused was concerned that the “undercovers” could not be trusted.  He was very suspicious at the outset of the role of both Di and then Mark.  He was equally concerned to ensure that there would be no danger of suspicion attaching to him.  This was demonstrated by such things as the need to have the victim disappear, preferably outside Victoria, the idea of the semen from the brothel, his continuing concern about Mark's mobile phone use, his use of gloves, and his concern that Mark would inform on him if Mark was caught. 

1. He raised matters that he was only "working class", and he had to raise the money.  He also expressed concern that he should establish a good relationship with his daughter before his ex-defacto was killed and that his daughter should not suffer any psychological harm from that. 

1. He volunteered that he had sought to get the job done by an Italian two and a half years before and that that person had not returned his calls.  The tapes disclosed a high level of anger and animosity towards the intended victim. He was interested in buying a gun and a silencer.  He also made threats that he might commit suicide All this was relevant to potential serious criminal activity.

1. He took active steps to assist the carrying out of the crime. He gave detailed information to Mark James as to the address, routine and movements of the intended victim to enable photographs to be taken.  He paid a deposit in the form of a Casino chip worth $1000 and at a later meeting paid $200 in cash. He raised the possibility of getting the purchase price from the sale of drugs and took steps to put this in train, and he developed the idea of a written apology to be made to him by the victim at the same time as a suicide.

Conclusion

1. Law enforcement authorities have a duty to detect and prevent crime.  Any initial caution the accused felt at dealing with Di and Mark is easily understood as his concern for his own security.  A fair reading of the conversations disclose at the very least a strong animosity by the accused towards his ex-defacto and a powerful interest in having her killed. In my view, the tapes of conversations between the accused and Di and Mark show a man who was well able to put his point of view.  The conversations do not suggest a man who is being pressured by someone else into becoming involved.  On the contrary they suggest a person who is driven by his own reasons.

1. Accordingly, on the whole of the material, I am not persuaded that it could be said that the police or their agents "encouraged or induced the accused into becoming involved in the offence".  It may be that they facilitated the alleged offence, but they did so in the sense only of providing an opportunity.[1]  Far from accepting this as behaviour inconsistent with minimum standards of acceptable police conduct[2], I think the police would have been derelict in their duty had they not acted. 

   [1]See Ridgeway, supra, at p.37, and Chernov J in Jack Sahin [2000] VSCA 145 at para 22.

   [2]See Ridgeway, p.36.

1. Miss Dixon also put it that I should be satisfied that the person known as Paul was an agent of the police and that pressure was placed on the accused by him.  She said that this should not be seen to be condoned by the police and that constituted impropriety. 

1. Limiting myself to the evidence disclosed in open court[3], I do not find that the evidence given on the voir dire considered in the context of all the taped conversations between the accused and Mark and Di give rise to the conclusion that the accused was induced by Paul to commit the crime alleged.  Moreover even if it is assumed that Paul acted improperly in some way I cannot see any basis for attributing responsibility for that impropriety to the police.

   [3]I have already ruled that the material  disclosed by the Chief Commissioner on subpoena assists the Crown rather than the Defence on this point see Ruling  8^th October  2001.

1. Finally, even if it is assumed that there was some impropriety that encouraged the accused to deal with the undercover operatives, the public interest in bringing to justice those who seek to contract a "hit man" to commit the most serious crime on our criminal calendar, would clearly outweigh the public interest in not sanctioning the activities alleged to have been carried out in this case.  Accordingly, I am not prepared to exercise my discretion to stay proceedings because of any improper behaviour by the police or agents of the police in inducing or pressurising the accused to become involved in a crime. 

---