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Zhang v R

Zhang v R

Case [2023] NSWCCA 98 28 April 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zhang v R [2023] NSWCCA 98
Hearing dates: 25 November 2022
Date of orders: 25 November 2022
Decision date: 28 April 2023
Before: Davies J at [1];
Ierace J at [2];
R A Hulme AJ at [75]
Decision:
Reasons for order made on 25 November 2022:
(1) Leave to appeal refused.

Catchwords:
CRIME – Appeals – Interlocutory appeal – Application for leave to appeal two interlocutory decisions pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) – Where trial judge refused applications to adjourn trial and recuse himself for apprehended and actual bias – Whether refusal of adjournment application infected by House v The King error –Whether recusal decision amenable to s 5F appeal

Legislation Cited:
Bail Act 2013 (NSW), ss 69, 74
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Code 1995 (Cth), s 135.4(3)

Cases Cited:
Barakat v Goritsas [2012] NSWCA 8
Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182
Dietrich v The Queen (1999) 177 CLR 292; [1992] HCA 57
Gurung v R [2012] NSWCCA 201
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Alexandroaia (1995) 81 A Crim R 286
R v Rogerson (1990) 45 A Crim R 253
R v Zhang [2020] NSWSC 478
Zhang v R [2021] NSWCCA 266
Zhang v R [2022] NSWCCA 100

Category: Principal judgment
Parties: Li Zhang (Applicant)
Rex (Respondent)
Representation:
Counsel:
In person (Applicant)
K Ginges (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/34635; 2015/258606
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

26 October 2022

Before:

Blackmore SC ADCJ

File Number(s):

2014/34635; 2015/258606

Judgment

DAVIES J: My reasons for joining in the order of the Court on 25 November 2022 are the reasons set out in the judgment of Ierace J.
IERACE J: At the time this application was heard, the applicant was the subject of a trial by jury that commenced before Acting Judge Blackmore SC (the trial judge) on 21 November 2022.
The application was for leave to appeal against two pre-trial decisions made by the trial judge, refusing an application to adjourn the trial for a period of about nine months (on 26 October 2022) and for the trial judge to recuse himself for apprehended and actual bias (on 15 November 2022). The applicant appeared on the applications before his Honour and in this Court without legal representation and, at times, with the assistance of an interpreter in a Chinese language.
At the time the application to vacate the trial commencement date was filed in the District Court, it was set down to commence on 31 October 2022 with an estimate of 10 months. In the event, the trial date was adjourned to 21 November 2022, due to an issue with the applicant’s health that required immediate attention and difficulties in arranging a jury panel of a suitable size.…

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 Zhang v R

Details

AGLC: Zhang v R [2023] NSWCCA 98
Case: [2023] NSWCCA 98
Decision Date: 28 April 2023

CaseChat Overview and Summary

The appellant, Zhang, sought leave to appeal two interlocutory decisions made during his criminal trial, pursuant to section 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). The trial judge had refused Zhang's applications to adjourn the trial and to recuse himself due to apprehended and actual bias. The primary issue before the court was whether the refusal of the adjournment application was tainted by the House v The King error and whether the recusal decision was subject to appeal under section 5F.

The court examined the legal principles governing interlocutory appeals and the grounds for recusal and adjournment in criminal proceedings. It considered whether the trial judge's decision to refuse the adjournment was influenced by an error akin to that identified in House v The King, where the court held that a trial judge's refusal to adjourn a trial due to a lack of preparation could lead to a miscarriage of justice. Additionally, the court assessed whether the trial judge's refusal to recuse himself was subject to appeal under section 5F, which allows for appeals on questions of law arising from interlocutory decisions.

The court found that the refusal of the adjournment application was not infected by the House v The King error, as the trial judge's decision was based on the timing of the application and the impact on the court's resources, rather than a lack of preparation. Regarding the recusal decision, the court determined that it was not amenable to appeal under section 5F, as the question of whether a judge should recuse themselves due to actual or apprehended bias is typically a matter for the trial judge's discretion and not one of law. Consequently, the court denied Zhang's application for leave to appeal the interlocutory decisions.

Orders