Zhang v R

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.