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:

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.

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.

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.

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.”

I…

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 R v Zhong

Details

AGLC: R v Zhong [2001] VSC 522
Case: [2001] VSC 522
Decision Date: 1 November 2001

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Zhong, the appellant, sought an ex-parte application to set aside a subpoena issued to him by the respondent, the Commonwealth Director of Public Prosecutions, to produce certain documents. The subpoena was issued as part of an investigation into allegations of organised crime and money laundering. The dispute arose when Zhong argued that the subpoena was invalid as it did not comply with statutory requirements and that producing the documents would infringe upon his right to silence and self-incrimination.

The court had to determine whether the subpoena was properly issued and if Zhong's rights under the law were adequately protected. Specifically, the court needed to consider whether the subpoena complied with the statutory requirements for its issuance, including whether it was issued by a person with the appropriate authority and whether it specified the documents to be produced. Additionally, the court had to balance Zhong's right to silence and protection against self-incrimination against the public interest in investigating serious criminal activity.

The court found that the subpoena was indeed valid and properly issued, adhering to all statutory requirements. The court emphasised that the power to issue subpoenas for the production of documents in criminal investigations is a crucial tool for law enforcement, essential for uncovering evidence of serious crimes. The court further held that Zhong's rights were not infringed, as the subpoena did not compel him to provide testimonial evidence but merely to produce documents. Consequently, the application to set aside the subpoena was dismissed.

The court's decision underscored the importance of maintaining the integrity of criminal investigations while also respecting individual rights. The court's ruling clarified that, in the context of document production, the balance between investigative powers and individual rights favours the broader public interest in preventing and prosecuting serious crime.

Orders