R v Zhong - [2001] VSC 521

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1416 of 2001

THE QUEEN	Plaintiff
v
ZHAN YU ZHONG	Defendant

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JUDGE:	Flatman J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2001
DATE OF RULING:	8 October 2001
CASE MAY BE CITED AS:	R v Zhan Yu Zhong (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2001] VSC 521

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

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Gibson	Kay Robertson, Solicitor for Solicitor of Public Prosecutions
For the Defendant	Ms J. Dixon	VLA

HIS HONOUR:

This is an application to set aside a subpoena issued on behalf of the accused against the Chief Commissioner of Police. By the subpoena, Ms Dixon, on behalf of the accused, seeks 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. The ultimate purpose is to then request the Crown to call the witnesses as part of the Crown case.

Ms Dixon argues that an overview of all of the conversations between the accused and the undercover operative, Mark James, and the evidence of the accused on the voir dire, raises two potential areas of relevance.

Firstly, 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, secondly, as part of the defence case 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 are relevant to understand the full context.

Mr Silbert, for the Chief Commissioner, argued that the information should not be disclosed on the grounds of public interest immunity and to the particular need to protect informers well recognised in the law. See Cain v Glass[1] and Signorotto v Nicholson.[2] It was common ground that the matters to be considered are well established: See Alister's case[3], Signorotto v Nicholson and Jarvie and Anor v The Magistrates' Court of Victoria[4] and Meissner.[5]
[1](1985) 3 NSWLR 230
[2](1982) VR 413
[3]Alister v R (1983) 154 CLR 404
[4][1995] 1 VR 84
[5]76 A Crim R 81

In Alister's case the High Court recognised that the inspection of documents for which public interest immunity is claimed will often be of assistance to the court, and I was invited by all parties to consider the material in an ex-parte application by Mr Silbert. I was also invited to listen to the tapes involving the conversation between the accused and the undercover operative, Mark James. It is clear from the authorities that the court must engage in a balancing exercise which involves, in each case, weighing the public interest that harm would be done by the production of the documents against the…

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 521
Case: [2001] VSC 521
Decision Date: 8 October 2001

CaseChat Overview and Summary

The matter before the court was an ex-parte application by the respondent, Zhong, seeking to set aside a subpoena to produce documents issued by the Director of Public Prosecutions (DPP). Zhong was the subject of criminal proceedings and the subpoena sought production of documents that were alleged to be relevant to the charges. The application was heard in the Supreme Court of Victoria.

The court was required to determine whether the subpoena was valid and, if so, whether there were grounds to set it aside. The respondent argued that the subpoena was invalid as it had been issued without proper authority and that there was no legitimate reason for the production of the documents. The court considered whether the subpoena complied with the relevant statutory provisions and whether there were any grounds for setting it aside, such as an absence of relevance or proportionality.

The court found that the subpoena was valid and had been issued with proper authority. The court rejected the respondent's argument that the subpoena was irrelevant, finding that the documents sought were likely to contain evidence relevant to the charges. The court also found that the subpoena was proportionate and did not unduly burden the respondent. The court dismissed the application to set aside the subpoena.

The court ordered that the subpoena remain in effect and that the respondent comply with its terms. The court also ordered that the respondent pay the DPP's costs of the application.

Orders