JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 19 & 21 November & 10 December 2019
DATE OF JUDGMENT:	29 May 2020
CASE MAY BE CITED AS:	Zhong v Attorney-General
MEDIUM NEUTRAL CITATION:	[2020] VSC 302	First revision: 1 June 2020

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JUDICAL REVIEW — In 2001, plaintiff found guilty by jury of incitement of another (an undercover policeman) to murder his wife — Conviction application refused by Court of Appeal in 2003 — Special leave application refused by High Court in 2005 — Plaintiff filed petition for mercy with Attorney in 2010 seeking referral of whole case to Court of Appeal — Petition, and requests for reconsideration, rejected — In 2018, Attorney refused to consider new petition — Plaintiff sought judicial review — Matter settled with Attorney agreeing to consider new petition — After doing so, Attorney declined to refer case to Court of Appeal — Governor also denied petition — Whether Attorney and Governor’s decisions reviewable — Whether plaintiff’s grounds seeking impermissible merits review — Whether grounds previously adjudicated or otherwise not made out — Whether evidence submitted by plaintiff “new” or “fresh” — Whether Attorney’s decision afflicted with Wednesbury unreasonableness — Whether Attorney required to give reasons for decision — Whether plaintiff requested reasons — Applications dismissed — Incomplete record of trial before Attorney and Court — Court recommends Attorney might consider fresh petition with complete record — Second appeal to Court of Appeal based on “fresh and compelling evidence” may be open — Criminal Procedure Act 2009 (Vic), ss 326A-326E & 327; Crimes Act 1958 (Vic), s 321G; Administrative Law Act 1978 (Vic), s 8; Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8, 21, 24, 25, 38 & 39.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person	N.A.
For the Defendant	Ms s Gory	Victorian Government Solicitor

HIS HONOUR:

Overview

Nearly twenty years ago, in August 2000, Zhanyu[1] Zhong was arrested and charged with inciting “Mark James” to murder his de facto wife Rong Hua Maio.[2] Happily, no harm ever came to Ms Maio. Nor was that ever a realistic prospect. This is because, as is often the way in these cases, Mark was not a real hitman at all but an undercover policeman playing a role.
[1]In materials he has drawn, Mr Zhong is named Zhanyu Zhong. In his trial and appellate proceedings, he was named Zhan Yu Zhong. I have assumed the former is correct.
[2]Contrary to s 321G(1) of the Crimes Act 1958 (Vic) and the common law of murder.

In October 2001, the jury empanelled on Mr Zhong’s trial in this Court found him guilty as charged. He was sentenced to six years’ imprisonment with a non-parole period of three-and-a-half years.

Ever since, however, by every channel available at law, Mr…

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 Zhong v Attorney-General

Details

AGLC: Zhong v Attorney-General [2020] VSC 302
Case: [2020] VSC 302
Decision Date: 29 May 2020

CaseChat Overview and Summary

The plaintiff, Zhong, sought judicial review of decisions made by the Attorney-General of Victoria and the Governor of Victoria to refuse to consider a petition for reconsideration of his criminal conviction. Zhong had been convicted in 2001 of inciting an undercover policeman to murder his wife. The conviction was upheld on appeal in 2003 and by the High Court in 2005. Zhong filed a petition for mercy with the Attorney-General in 2010, which was rejected. He subsequently sought judicial review of the Attorney-General's decision, and the matter was settled with the Attorney-General agreeing to consider a new petition. The Attorney-General declined to refer the case to the Court of Appeal, and the Governor also denied the petition. Zhong sought judicial review of these decisions, arguing that they were reviewable and that he had presented new evidence. The court found that the decisions were not reviewable under the Administrative Law Act 1978 (Vic), and that the grounds for review were either previously adjudicated or not made out. The court also found that the evidence submitted by Zhong was not new or fresh, and that the Attorney-General's decision was not afflicted with Wednesbury unreasonableness. The court noted that the record of the trial before the Attorney-General and the Court of Appeal was incomplete and recommended that the Attorney-General might consider a fresh petition with a complete record. The second appeal to the Court of Appeal based on "fresh and compelling evidence" may be open.

The legal issues in this case centred around the reviewability of the decisions made by the Attorney-General and the Governor, and the merits of the grounds for review put forward by the plaintiff. The court had to determine whether the decisions were reviewable under the Administrative Law Act 1978 (Vic), and whether the grounds for review were impermissible merits review. The court also had to consider whether the evidence submitted by the plaintiff was new or fresh, and whether the Attorney-General's decision was afflicted with Wednesbury unreasonableness. Finally, the court had to determine whether the Attorney-General was required to give reasons for his decision, and whether the plaintiff had requested reasons. The court found that the decisions were not reviewable, and that the grounds for review were either previously adjudicated or not made out. The court also found that the evidence submitted by the plaintiff was not new or fresh, and that the Attorney-General's decision was not afflicted with Wednesbury unreasonableness. The court noted that the record of the trial before the Attorney-General and the Court of Appeal was incomplete and recommended that the Attorney-General might consider a fresh petition with a complete record.

Orders