Zhong v Attorney-General

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00725

Between:

ZHANYU ZHONG	Plaintiff
-and-
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Defendant

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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 Zhong has repeatedly attempted to clear his name. His quest started conventionally enough, when he sought leave to appeal against his conviction. That application, however, was refused by the Court of Appeal in 2003. Undeterred, and despite his release on parole in early-2004, when the vast majority probably would have desisted, he applied for special leave to appeal to the High Court, appearing without legal representation. But that application was refused too, in 2005.

Still, he did not rest there. Next, despite the expiry of his head sentence in 2006, and having exhausted his appellate rights, in 2010, Mr Zhong filed with the Attorney-General a petition for mercy (which he drew himself) requesting that the whole case be referred to the Court of Appeal pursuant to s 327(1)(a) of the Criminal Procedure Act 2009 (Vic) (“the CPA”). In 2012, the Governor advised Mr Zhong that his petition had been denied.

In the years that followed, Mr Zhong kept firing off letters to successive Attorneys, in effect seeking reconsideration of his petition. But, each time, he was told that his petition would not be reconsidered because it contained no new or fresh evidence.

Yet again, in January 2018, Mr Zhong wrote to the Attorney seeking consideration of his latest petition. The next month, he was advised once more that the petition would not be considered because it raised no new or fresh evidence. Still dissatisfied, Mr Zhong, under his own steam, filed an originating motion in this Court seeking judicial review of that decision. Ultimately, the proceedings settled in August 2018, with the Attorney agreeing to “consider, according to law, including the Charter of Human Rights and Responsibilities Act 2006” (“the Charter”), the petition of January 2018, together with any other material he wished to file. At last, Mr Zhong thought he was getting somewhere.

In April 2019, however, the current Attorney advised Mr Zhong that, after considering his petition, she had declined to refer the case to the Court of Appeal. In June 2019, the Governor also advised him that his petition had been declined.

Now, Mr Zhong is back in this Court again, still unrepresented, seeking judicial review of those most recent decisions. The amended originating motion,[3] supporting affidavits and submissions in this Court were all drawn by Mr Zhong. Those documents contain a farrago of claims, some of which are hard to follow or are misconceived. Many are just scurrilous and should not have been made. Nevertheless, among his many complaints, Mr Zhong contends that his conviction makes about as much sense as the trial, conducted in Switzerland in 1474, at which a rooster was convicted of laying an egg. While nicely put, the difficulty with that complaint, and several others, is that they tend impermissibly to invite merits review. Mr Zhong also appears, at times, to think that merely to utter such a submission means that it must be accepted. That said, I have taken complaints like those, in substance, to be grounds alleging something akin to “Wednesbury unreasonableness”.[4] Mr Zhong also claims that, despite his written and oral requests, the Attorney erroneously has declined to provide reasons for her decision.
[3]In fact, Mr Zhong commenced the current applications by way of an Originating Motion (together with a supporting affidavit) filed on 12 February 2019, immediately after the previous Attorney declined (on 6 February 2019) to consider his “second” petition (of 9 January 2019), but before the current Attorney had declined that petition (of which she advised Mr Zhong by letter of 18 April 2019) (Court Book at 1‑5, 197 & 427-428). On 13 May 2019, Mr Zhong filed an Amended Originating Motion (and then a supporting affidavit on 16 May 2019), in which he sought judicial review of the current Attorney’s April 2019 decision refusing to refer his petition to the Court of Appeal (Court Book at 110-117). On 11 June 2019, by letter of the same date, the Governor informed Mr Zhong that his petition for the exercise of the royal prerogative of mercy had been denied. That letter was sent again to Mr Zhong on 26 August 2019, this time by email. (Court Book at 602-608.) As explained below, this matter has been conducted as if Mr Zhong is also seeking judicial review of the Governor’s decision.
[4]See, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (per Brennan J); von Einem v Griffin (1998) 72 SASR 110 at 143-144 & 151-152 (per Lander J).

The Attorney makes three principal responses. First, she submits that neither decision is reviewable. Secondly, it is submitted that, even if the decisions — or the processes by which those decisions were reached — are reviewable, Mr Zhong’s claims, in substance, impermissibly invite merits review, have previously been adjudicated on appeal or are otherwise not made out. Thirdly, while it is conceded by the Attorney that no reasons were provided to Mr Zhong, it is submitted that he made no request for reasons under s 8 of the Administrative Law Act 1978 (Vic) (“the ALA”) and that neither the common law nor the Charter requires the giving of any such reasons.

The state of the law binding on this Court appears to be that the Governor’s exercise of the prerogative of mercy in not reviewable at all.[5] Some recent decisions, however, in other jurisdictions with analogues of s 327 of the CPA, have allowed that at least the process by which the Attorney’s decision to decline to refer a case to the Court of Appeal is reviewable.[6] But those decisions are not binding on this Court. That said, it is unnecessary to determine those issues finally, because I am satisfied that none of Mr Zhong’s grounds can succeed in any event. In consequence, the answers to the important questions concerning reviewability should await a case in which they might be determinative of the outcome. Similarly, while the applications raise nice questions concerning whether the Attorney has an obligation to provide reasons under s 8 of the ALA, I am not satisfied that Mr Zhong made a request for reasons. Nor am I persuaded that the Attorney has a duty to provide reasons at common law or pursuant to the Charter.
[5]Horwitz v Connor (1908) 6 CLR 38. See also, for example, von Einem v Griffin (1998) 72 SASR 110 at 112-113 (per Prior J, Wicks J agreeing); Osland v Department of Justice (2005) 23 VAR 378 at 385[25] (per Morris J); and Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 297-298[47] (per Gleeson CJ, Gummow, Heydon and Kiefel JJ).
[6]See, for example, Martens v Commonwealth of Australia (2009) 174 FCR 114; Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; and Ogawa v Attorney-General (No 2) [2019] FCA 1003.

Accordingly, I would dismiss these applications.

Whether Mr Zhong has persisted in seeking to overturn his conviction out of a genuine sense of outrage, or in pursuit of forgiveness, or to play Jesus to the lepers in his head,[7] or perhaps just in the hope of rebuilding his relationship with his daughter, I cannot say. Nor, of course, is it mine to reason why. But, whatever his motive, no one could deny that he has been dogged in what has turned out to be a long and losing fight.
[7]Apologies to the Irish rock band U2. I have taken these words from among the aching lyrics of their 1991 song One: “Have you come here for forgiveness?/Have you come to raise the dead?/Have you come here to play Jesus/To the lepers in your head?”.

That said, perhaps all is not lost for Mr Zhong. Despite the orders I must make, I am nevertheless concerned about aspects of his trial and the safety of his conviction. I am also troubled that neither the Attorney nor this Court had access to the complete trial transcript or trial exhibits. These matters have driven me to the unusual course of making an unsolicited recommendation to the Attorney that she might consider a fresh petition in any event.[8] Indeed, I would go so far as to say that, even on the limited material before this Court, if, as a member of the Trial Division, I had been asked (along with other judges) to provide an opinion to the Attorney pursuant to ss 327(1)(b) and (3) of the CPA, I would have opined that she should refer the whole case to the Court of Appeal pursuant to s 327(1)(a).[9]
[8]Such a suggestion by a court, however, is not unprecedented. See, for example, von Einem v Griffin (1998) 72 SASR 110 at 116-117 (per Prior J, Wicks J agreeing); and R v Home Secretary; Ex parte Bentley [1994] QB 349 at 365G-366A (per Watkins LJ, speaking also for Neil LJ and Tuckey J, the other members of the Divisional Court).
[9]Another alternative would be for the Attorney, pursuant to ss 327(1)(b) and (3), to refer a question or questions to the judges of the Trial Division of this Court so that any three could consider the point or points and provide her with their opinion or opinions. See, for example, Re Ross (2007) 19 VR 272. See also below.

If a new petition is to be filed, this time, it must include the complete trial transcript and all trial exhibits. Also, it should be far more targeted than previous petitions, and should exclude the reams of drivel and bile with which Mr Zhong has burdened Attorneys past and present. I think he would need (and it would be preferable for all if he had) expert legal help to achieve that. Maybe a kindly barrister or two would pitch in.

Whether any of these suggestions is taken up is, of course, a matter entirely for Mr Zhong, the Attorney and Victoria Legal Aid (“VLA”) (or perhaps the Bar’s Pro Bono Scheme).

Another avenue to appeal may be open to Mr Zhong. While the present applications were on foot, the legislature introduced into the CPA a new Part 6.4, which makes provision for second or subsequent appeals to the Court of Appeal by those whose appeal rights have been exhausted.[10] It may well be that Mr Zhong could produce evidence establishing the effective unavailability at trial of the evidence he put before the Attorney and this Court. If so, he may be able to satisfy the Court of Appeal that this seemingly new evidence is in fact “fresh and compelling evidence that should, in the interests of justice, be considered on an appeal”. In that event, he would have a basis for obtaining leave to prosecute a second appeal to the Court of Appeal, pursuant to s 326A of the CPA.[11] If leave were granted, Mr Zhong may also be given leave to agitate a couple of his error points on an appeal, provided they are reasonably arguable.[12] Again, this is all entirely in the hands of Mr Zhong and, if it comes to it, the Court of Appeal.
[10]The provisions were introduced by s 35 of the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic), which received Royal Assent on 19 November 2019.
[11]As Osborn and T Forrest JJA and Taylor AJA explained in their joint judgment in Roberts v The Queen [2020] VSCA 58 at [44], the Court must be satisfied that the fresh evidence has the qualities prescribed by s 326C(3) of the Criminal Procedure Act 2009 (Vic); it will not be sufficient for the purpose of leave to establish that it is reasonably arguable that the evidence has these qualities.
[12]See Roberts v The Queen [2020] VSCA 58 at [50]-[51] (per Osborn and T Forrest JJA and Taylor AJA).

I shall return to these matters at the end of this judgment.

In the meantime, my detailed reasons for refusing Mr Zhong’s applications for judicial review follow.

Preliminary matters

Before turning to a more detailed summary of the other proceedings and events that preceded these applications for judicial review, and then to the required approach to, and the substance of, the complaints agitated, I wish to make two preliminary points.

First, English is not Mr Zhong’s first language. Nor is he legally trained. In the result, I found it difficult to decipher precisely what he meant at times, both in his written materials and in his oral presentation. In the end, however, I am satisfied that I understood him sufficiently to do his case justice.

Secondly, I have been able to do so in large part because of the considerable assistance of Ms Gory, counsel who appeared for the Attorney. While Ms Gory pressed her client’s position with a high level of skill and appropriate vigour, she also — very fairly and responsibly, in my view — assisted the Court and Mr Zhong by seeking to distil his arguments and by pointing to authorities and acknowledging considerations that might be contrary to her submissions.

Mr Zhong’s trial

I turn now to Mr Zhong’s trial.

It is convenient to extract a summary of the evidence before the jury from the judgment of Buchanan JA, who, with Winneke P and Phillips JA, heard Mr Zhong’s application for leave to appeal against conviction.[13]
[13]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 222[6]-223[14] (my emphasis in bold italics).

[6] On 10 October 2001, [Mr Zhong] was arraigned and pleaded not guilty to a presentment containing one count that between 23 March 2000 and 3 August 2000 he incited Mark James to murder Rong Hua Maio. [Ms] Maio was the former de facto wife of [Mr Zhong] and mother of his daughter.
[7] The Crown led evidence from [Ms] Maio, two undercover members of the police force, a member of a police surveillance unit and the arresting officer. The evidence disclosed that in 1986, when [Mr Zhong], then aged 30 years, was studying at the university in Beijing, he placed an advertisement in a relationship section of a women’s magazine. [Ms] Maio, who was then aged 21 years, a teacher living in the country, responded to the advertisement. The pair corresponded for a few months and in 1987 [Mr Zhong] travelled to the province in which [Ms] Maio lived. A relationship developed between them and in 1989 they became engaged. In 1990, [Mr Zhong] migrated to Australia. He invited [Ms] Maio to come to Australia to live with him and she agreed.
[8] [Mr Zhong] returned to China in order to accompany his fiancée to Australia. She discovered, however, that [Mr Zhong] had a gambling problem and she returned to her family. [Mr Zhong] came back to Australia without her, but finally, as a result of his constant entreaties and promises to reform, she left China in November 1995 and arrived in Australia.
[9] The couple lived in a flat in Footscray. [Mr Zhong] worked as a taxi-driver and [Ms] Maio commenced an English course at a language school. By the end of December 1995, [Ms] Maio discovered that she was pregnant. She was disappointed by the news and investigated the possibility of an abortion. [Mr Zhong] was extremely angry with her as a result of her attempting to obtain an abortion and took away her passport, bank account and medical card in order to isolate her. [Mr Zhong] continued to have a problem with gambling. Overall, the relationship between [Mr Zhong] and [Ms] Maio deteriorated. [Mr Zhong] discovered an old love letter from a friend of his de facto wife in China. This led to a fight. The police were called and [Ms] Maio moved to a women’s refuge and obtained an intervention order against [Mr Zhong].
[10] The couple remained in contact with each other and [Mr Zhong] was present at the birth of his child in September 1996. Soon after the birth, [Ms] Maio resumed cohabitation with [Mr Zhong]. In two months, the relationship broke down again and [Ms] Maio left [Mr Zhong] and obtained a flat of her own. [Ms] Maio and [Mr Zhong] co-operated to some extent in the care of the child and sometimes [Mr Zhong] stayed the night, in another bed, in [Ms Maio’s] flat. Conflict, however, persisted between them and in June 1997 [Mr Zhong] was charged with breaching the intervention order. The Family Court made orders granting [Mr Zhong] access to the child in August 1997. In March 1998, [Ms] Maio complained to the police that [Mr Zhong] had breached the intervention order. [Mr Zhong] then stopped seeing his daughter for approximately one year. There were difficulties between [Mr Zhong] and [Ms] Maio in relation to access to the child and the parties attended counselling sessions. These difficulties, which involved intervention by the Family Court, continued until early 2000. It appears that [Mr Zhong] became disillusioned and depressed and developed plans to dispose of [Ms] Maio, which, so it would appear, he discussed with an acquaintance who informed the police.
[11] On 22 March 2000, an undercover policeman calling himself “Mark” contacted [Mr Zhong]. [Mr Zhong] said that he wanted to see him, but it was not “that urgent”, although he still wanted to “go ahead with it”. The next day, Mark and [Mr Zhong] met in a park. A price of $10,000 was agreed and [Mr Zhong] said he was really sure that he wanted to go ahead. He discussed with Mark how his de facto wife was to be killed, of making her “disappear”, having her “raped and killed” or staging an apparent accident. [Mr Zhong] said that he did not want it done straight away because of his financial problems and his daughter’s emotional ties to her mother, but it was to be done at least within four months. [Mr Zhong] wanted to be shown a photograph of [Ms] Maio’s dead body.

[12] Thereafter, there were a number of meetings and conversations on the telephone between [Mr Zhong] and Mark. On one occasion, [Mr Zhong] gave Mark a casino chip for $1,000 for the murder he was to perform. On another occasion, [Mr Zhong] confirmed the identity of his de facto wife from photographs shown to him by Mark and handed Mark $200. He said that he still wanted to go through with it but that he did not want everything to come back to him if he changed his mind. He said that he wanted Mark to make her apologise, to “make a suicide note”, and said he did not want to get into trouble. He did not want her to have a chance to “scream out”. [Mr Zhong] gave Mark detailed information as to the address and daily routine of [Ms] Maio.
[13] [Mr Zhong] and Mark agreed that the price of $10,000 could be satisfied by a payment of $5,000 before the murder and payment of the balance when the murder had been committed.
[14] Later, [Mr Zhong] said to Mark that he wanted to cancel the whole thing. The following day, he met Mark and told him that he was really scared and money was the main problem. He said that he had had a bad dream in which he was caught. He said the best option was for an accident, the second to make her disappear. Approximately two weeks later, Mark telephoned [Mr Zhong] to arrange for a meeting with another undercover policeman with respect to a heroin deal. A week later, the undercover policeman called “Dale” telephoned [Mr Zhong] and arranged to meet him three days later. At the meeting [Mr Zhong] told Dale that he had never sold drugs before but he had friends who did and spoke about getting a sample for $50. About two weeks later, [Mr Zhong] met Mark and told him that he had been “fucking very nervous” although he still wanted him to “do it”, that he wanted it done as soon as possible but that he did not have enough money. He suggested to Mark that he take [Ms] Maio’s key-card and withdraw money from her account. He wanted it to look as if she had been robbed and raped. Three weeks later [Mr Zhong] was arrested.

Mr Zhong’s principal defence at the trial proper was that he did not possess the necessary intent for incitement to murder.[14] Thus, in her final address, counsel said the following (among other things) to the jury:[15]

There are many occasions that there is an element of condition or conditionality in the discussions, it’s a hypothetical plan, and it’s one that keeps changing … So he has a safety net, he’s safe in the knowledge that [Mark James] won’t activate anything without further meetings and forward planning, he has been able to use the language of “if” and “but” to inject a bit of uncertainty in the discussions, “If I had the money I would be going ahead but I haven’t got the money”, in other words “There is no prospect of me having the money …”

[14]See ss 321G(1) and (2) of the Crimes Act 1958 (Vic).

[15]See R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 225[22] (per Buchanan JA).

Evidently, the jury rejected those and other defence arguments, for Mr Zhong was found guilty as charged. Significantly, however, and consistently with the passage I have highlighted above in the reasons for judgment of Buchanan JA, the trial judge’s summary of the evidence given in the course of his sentencing remarks also included a passage suggesting real doubts about whether Mr Zhong possessed the requisite intent in May 2000. In particular, the trial judge said this:[16]

[11] At the same time [as Mr Zhong was] negotiating access arrangements with [Ms] Maio and attending the Family Court, [he] came into contact with an undercover police officer posing as a hit man. A series of meetings took place between [Mr Zhong] and the undercover operative between 23 March 2000 and 3 August 2000. The substance of the Crown case was contained in five meetings which took place between those dates and which were tape recorded and transcribed.
[12] In broad terms, they disclosed that [Mr Zhong] wanted [his] wife killed because [he] felt that [he] had no choice. [He] demonstrated hostility towards her because [he] believed she had cost [him] a great deal of money, she had framed [him], put [him] before the courts, and turned [his] daughter against [him].
[13] [Mr Zhong] said [he] had been looking at killing her for two to three years and had been put in touch with some Italians two-and-a-half years earlier who might do the job. The price for killing [his] wife was $10,000. During the course of the meetings, [he] discussed various methods for her disposal. Although [his] primary concern was that she disappear without any suspicion falling on [him], [he] did discuss alternative methods, albeit at the request of the undercover operative. These methods included disappearance, suicide with an apology, and the suggestion that a condom obtained from a brothel with foreign semen in it be planted at the scene to give the impression of rape by a stranger.
[14] [Mr Zhong] also took practical steps to engage the services of the undercover operative. At the second meeting on 6 April 2000, [he] gave him a casino chip to the value of $1,000. Later, at the third meeting of 5 May 2000, [he] paid a further $200 cash. [Mr Zhong] took ineffective steps to raise money by dealing in drugs with another undercover operative who posed as a drug dealer. At that second meeting, [he] provided information as to the address, routine and movements of [Ms] Maio which facilitated her identification and the taking of photographs.
[15] It is fair to say that the voice mail message of 22 May 2000, followed by the fourth meeting of 24 May 2000, indicated that there was a real question as to whether [Mr Zhong] wished to proceed with the plan to have [his] wife killed. Whatever reservations [he] may have had in May, however, [his] resolve to proceed was made clear in the final meeting of 3 August 2000. At this time, [he was] looking at alternative ways of raising the money, including again the option of trafficking in drugs and also the possibility of using the undercover operative to extract money from the intended victim’s bank account.

[16]R v Zhan Yu Zhong [2001] VSC 524 at [11]-[15] (per Flatman J) (my emphasis).

Thus, it seems plain enough that, whatever else may be said of his words or intention at other times during the relevant period, at least in May 2000, there was real doubt about Mr Zhong’s intention “to proceed with the plan to have [his] wife killed”. As will be seen later, it may well be that this doubt is reflected in Mr Zhong’s apparent feeling of injustice and in his particular concern, which he has sought to raise repeatedly, about the judge’s directions to the jury on the requisite intention for incitement to murder.

As I indicated earlier, the trial judge went on to impose a sentence of six years’ imprisonment with a non-parole period of three-and-a-half years.[17]
[17]R v Zhan Yu Zhong [2001] VSC 524 at [23] (per Flatman J).

His Honour also made an order that Mr Zhong provide a forensic sample to police.[18] Troublingly, and without so much as a hint as to why, it is only in relatively recent times that the police have sought to enforce that order. Mr Zhong complained about the order in his petition, and in this Court challenges the Attorney and/or the Governor’s decisions to decline to set it aside.

Application to Court of Appeal for leave to appeal conviction

[18]R v Zhan Yu Zhong [2001] VSC 524 at [24]-[25] (per Flatman J).

Introduction

I turn now to Mr Zhong’s application for leave to appeal against conviction, which was heard by the Court of Appeal on 26 March 2003. On 15 May 2003, a unanimous Court refused the application.[19]
[19]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 221[1] (per Winneke P), 222[5] (per Phillips JA) & 227[34] (per Buchanan JA).

At the hearing, at which Mr Zhong was represented by counsel (but not counsel who appeared at trial), four grounds of appeal were taken:[20]

(1)The conviction was unsafe and unsatisfactory in that a reasonable jury could not have excluded the reasonable possibility that the applicant never formed a concluded intention that the offence allegedly incited be committed.
(2)The learned trial judge erred in refusing to stay the prosecution on the basis of improper conduct of the police investigators.
(3)The applicant was deprived of a fair trial by being refused access to the registered informer and to the records of the dealings between the police and that informer.
(4)The learned trial judge erred in that he did not sufficiently put the defence case to the jury in his charge, and in particular did not sufficiently relate the law to the evidence such that the trial miscarried.

[20]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 223-224[16] & 225[21] (per Buchanan JA).

Ground 1: Unsafe verdict/conditional intent

Under Ground 1, it was submitted that the fact that Mr Zhong and Mark contemplated that the murder would not take place unless $5,000 was paid meant that Mr Zhong had not formed the intent required by s 321G(2) of the Crimes Act. It was contended that the sub-section did not embrace an intention which was subject to the performance of a condition by the inciter. Counsel also submitted that there could not be incitement within the meaning of s 321G(1) if a request was subject to a condition.[21]
[21]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 224[19] (per Buchanan JA).

In the leading judgment, Buchanan JA (with whom Winneke P and Phillips JA agreed) rejected those submissions. His Honour said the following:[22]

[20] I can perceive no warrant for importing into either sub-section the requirement that the command, request, proposal, advice, encouragement or authorization must be free from any condition. In my view, it could hardly be said that a request by a person to another to kill the first person’s wife but only after the first person has left the matrimonial home cannot amount to incitement. It might be responded that the requirement that the inciter first leave the house is not a condition but a mere term with respect to the time of performance. Such an analysis renders the operation of the section dependent upon the characterisation of stipulations according to the law of contract. In my opinion, legal niceties from the civil law are not to be imported into the section. The existence of qualifications is a matter to be considered by the jury in deciding whether there has been incitement and whether the accused did intend that the offence be committed. A request might be hedged about by so many qualifications or dependent on so many events or so remote an event that a jury might find that the commission of the crime was unlikely to occur and accordingly there was no incitement or no settled intention on the part of the accused that the crime be committed, as distinct from a mere hypothesis and a desire to explore it. In my view, the question is not to be determined by characterising qualifications or stipulations as conditions precedent, conditions or mere terms in accordance with principles of contract law.

[22]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 224[20] (per Buchanan JA).

Ground 4: Failure adequately to put defence case

Under Ground 4, counsel submitted that there was a substantial issue as to whether Mr Zhong and Mark were parties to an unconditional incitement, and that the trial judge failed adequately to deal with that issue in his charge. Counsel contended that the defence was neither clearly nor fully presented, in the sense that the main points raised before the jury were not explained in a manner calculated to focus their attention on what the defence said in answer to the prosecution case.

In rejecting this ground, Buchanan JA pointed out that the judge told the jury that “[t]he accused is charged with inciting and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested and encouraged shall be done”.[23] After extracting the passage from trial counsel’s final address set out above,[24] his Honour also said the following in disposing of this ground:

[22] … In his charge the trial judge reiterated defence counsel’s statement in her address that the jury were required to be satisfied that [Mr Zhong] had made a decision that he definitely wanted his wife killed. The trial judge said that in considering that question the jury were to have regard to the relationship between [Mr Zhong] and [Ms] Maio and the signs of reconciliation upon which defence counsel relied. The jury were also to pay attention to the words used by [Mr Zhong] in his taped conversations with Mark and the fact that, at times, he expressed conflicting emotions. His Honour reminded the jury that defence counsel said that there was an air of conditionality, of hypothesis about the scheme.
[23] For the reasons I have stated, I consider that counsel for [Mr Zhong] and the trial judge dealt appropriately with the fact that the request was conditional upon payment of the sum of $5,000 by [Mr Zhong] by inviting the jury to consider it together with other circumstances, such as the fact that [Mr Zhong] appeared to be at war with his conscience, was fearful of arrest and at times expressed reluctance, in determining whether [he] intended that [Ms] Maio be murdered. The trial judge dealt with each of the significant taped conversations and reminded the jury of the construction which the defence placed upon them.
[24] In my opinion, the trial judge adequately identified the only substantial issue in the trial, which was whether, when he proposed [Ms] Maio’s death, [Mr Zhong] intended that it should in fact occur. His Honour reminded the jury of the evidence that related to that issue. No greater elaboration was required. Neither counsel for [Mr Zhong] nor the Crown required any further expatiation on the law or the facts by the trial judge.

[23]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 225[22] (per Buchanan JA).

[24]Above at [19]; see also R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 225[22] (per Buchanan JA).

Ground 2: Failure to order permanent stay; Ground 3: Subpoena issued but set aside

At trial, Mr Zhong’s solicitors caused a subpoena to be issued to the Chief Commissioner of Police requiring production of notes and recordings of all contacts between all investigating police and the registered informer referred to by the informant in evidence at the committal. The purpose of the subpoena was to ascertain the identity and activities of two informers who spoke to Mr Zhong before he was introduced to Mark, with a view to requesting the Crown to call them as witnesses.[25]
[25]R v Zhan Yu Zhong (Ruling No 1) [2001] VSC 521 (per Flatman J).

After the judge examined the subpoenaed material, listened to the tape recordings between Mark and Mr Zhong and heard evidence ex parte concerning the safety of the informers, save in one respect, the Chief Commissioner persuaded his Honour to set aside the subpoena on the ground of public interest immunity on the basis that the material would identify and thereby endanger police informers. The judge then considered whether the administration of justice would be frustrated if the subpoena were set aside by depriving Mr Zhong of material which would assist him in his defence to the Crown case. His Honour said that, having considered the material, he was satisfied that, “rather than being capable of assisting the defence, the material would be of assistance to the Crown”.[26]
[26]See R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 226[25]-[27] (per Buchanan JA).

The documents released by the judge nevertheless included material relating to an undercover police operative, because the identity of the operative was not revealed and the material was arguably capable of assisting the defence. In reliance in part on that material, trial counsel applied for a permanent stay of the proceeding on the ground of improper conduct by the police in that they exerted pressure on Mr Zhong to agree to the murder of his wife. Mr Zhong also gave evidence (in open court) on a voir dire in support of that application. He spoke of inter alia the behaviour of, and the pressure he felt from, the undercover police.

The judge refused the application,[27] holding that the conversations did not suggest a man who was being pressured into becoming involved but one who was driven by his own reasons.[28] His Honour concluded that the police did not encourage or induce Mr Zhong to commit an offence but merely provided an opportunity for him to do so. Further, the judge rejected the submission that the registered informer induced Mr Zhong to commit a crime, and said that, in any event, he could not see any basis for attributing the responsibility for any impropriety by the informer to the police.[29]
[27]R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 (per Flatman J).
[28]See R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 226[27]-227[28] (per Buchanan JA); R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at [12] (per Flatman J).
[29]See R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 226-227[28] (per Buchanan JA); R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at [13]-[15] (per Flatman J).

In the Court of Appeal, counsel contended that the evidence given in open court by Mr Zhong supported his contention that the undercover operative exerted improper pressure upon him and the trial judge could only have come to the opposite conclusion by relying on the evidence he heard in camera, and that that was unfair, for Mr Zhong had no means of countering the effect of that evidence as counsel knew nothing of it.[30]
[30]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 227[29] (per Buchanan JA).

In the opinion of Buchanan JA, however, the trial judge was careful to base his decision on material known to Mr Zhong and his advisers, for the judge said:[31]

Limiting myself to the evidence disclosed in open court, I do not find that the evidence given on the voir dire considered in the context of all the taped conversations between [Mr Zhong] and [the undercover operatives] give rise to the conclusion that [Mr Zhong] was induced by [the informer] to commit the crime alleged.

[31]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 227[30] (per Buchanan JA); R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at [15] (per Flatman J).

Counsel for Mr Zhong submitted that the trial judge could not put out of his mind the evidence he had heard in camera. In Buchanan JA’s view, however, the question was not whether the trial judge could forget the evidence given in camera, but whether he was capable of excluding it from consideration in determining the application to stay the proceeding. His Honour observed that “judges are not infrequently required to take only particular factors into account in reaching a decision”, and held that he could see “no basis for concluding that the trial judge in this case failed to have regard only to the evidence heard in open court”.[32] Accordingly, Ground 2 failed.
[32]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 227[30] (per Buchanan JA).

Since no separate argument was advanced in support of Ground 3, that ground also failed.[33]
[33]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 227[31] (per Buchanan JA).

Other grounds and submissions

At the conclusion of argument on the application, the Court reserved its decision. As Winneke P noted in his judgment, several days later, the Registrar received from Mr Zhong further submissions in writing. These submissions had obviously been prepared by Mr Zhong himself, and without the assistance of a legal practitioner. Copies of the submissions were forwarded to the Director of Public Prosecutions and VLA (who were Mr Zhong’s solicitors at trial and in the Court of Appeal). No submissions in response were received from the Director.[34]
[34]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 221[2] (per Winneke P).

The President went on to say that he was satisfied that the submissions raised no argument of substance which would suggest that the trial was unfair or that the verdict was unsafe.[35] Justice Buchanan, who observed that the submissions concerned both existing grounds and new grounds, reached a similar conclusion. In particular, his Honour said that those further submissions “do not reveal any error on the part of the trial judge nor any matter which might render the verdict unsafe and unsatisfactory or constitute a miscarriage of justice”.[36] Justice Phillips expressed his agreement with both of the other members of the Court.[37]
[35]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 221[3] (per Winneke P).
[36]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 227[32]-[33] (per Buchanan JA).
[37]R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 222[5] (per Phillips JA).

These particular written submissions were not before this Court on the applications for judicial review. I gave Mr Zhong the opportunity to put them before the Court, but he declined. Nevertheless, at least part of their contents can be inferred from the transcript of the hearing of Mr Zhong’s subsequent application for special leave to appeal to the High Court, to which I now turn.

Application for special leave to appeal to High Court

Introduction

On 11 February 2005, Mr Zhong appeared before Kirby and Hayne JJ in the High Court, unrepresented,[38] on an application for special leave to appeal against the orders of the Court of Appeal. The Director was represented by senior counsel with a junior.
[38]On 29 January 2004, Mr Zhong was released on parole, which made it possible for him to appear in person in the High Court in February 2015.

Neither Mr Zhong’s application for special leave to appeal nor his summary of argument on that application is before this Court. Transcript of the oral hearing (including an ex tempore judgment), however, was part of the material Mr Zhong put before the Attorney, and is also before this Court.[39]
[39]See, for example, Court Book at 509-518.

High Court’s reasons

At the conclusion of Mr Zhong’s oral submissions, counsel for the Director were not called upon to respond. Justice Kirby then delivered the judgment of the Court:[40]

[1] The applicant has raised a number of grounds in support of this application for special leave to appeal to this Court from the Court of Appeal of the Supreme Court of Victoria. That court dismissed the application for leave to appeal from the order of the trial judge convicting the applicant on the charge of inciting an undercover police officer to murder his wife. That order of conviction followed a guilty verdict of a jury.
[2] The applicant complains of the failure of the trial judge to explain the offence and fairly to put the defence case to the jury. The complaint of an unfair charge was not, as such, before the Court of Appeal. However, in any case, the Court of Appeal adequately demonstrated the contrary.
[3] The complaint about the refusal to stay the proceedings, which is raised in the written submissions, raises no point of principle and, in our view, is not made out.
[4] The complaint of incompetent counsel in the courts below was never previously raised, nor was it the subject of evidence or argument before the Court of Appeal. There is no foundation for this complaint in the record before this Court.
[5] The complaint that the jury verdict and the conviction were unsafe is not established. The Court of Appeal examined the evidence. We are not convinced that any error has been shown in that review. Nor are we persuaded that there has been any miscarriage of justice in this case. Special leave is therefore refused.

[40]Zhong v The Queen [2005] HCATrans 58 at lines 290-316. (For ease of reference, I have inserted paragraph numbers in the extract.)

These reasons suggest that Mr Zhong took at least four major points in the High Court.

Unsafe verdict

First, paragraph [5] of the reasons reveals that Mr Zhong complained that the Court of Appeal erred in failing to conclude that the verdict was unsafe. This, of course, reflected Ground 1 taken in the Court of Appeal.

Failure to order a permanent stay

Second, paragraph [3] reveals that he also agitated the ground that the trial judge erred in failing to order a permanent stay. This complaint reflected Ground 2 taken in the Court of Appeal.

Incompetence of counsel and/or solicitor

Third, paragraph [4] raises a complaint of incompetence of counsel and/or solicitors. Justice Kirby said this complaint was not raised, nor was it the subject of evidence or argument, before the Court of Appeal. When his Honour put that to Mr Zhong during oral argument, the following exchange occurred:[41]

MR ZHONG:In the Court of Appeal I was going to raise up my hand to complain, want to dismiss my appeal legal team. However, the security guard beside me put hand on my shoulder and said “Sit down and just be quiet” and now I was scared so I waved subtly to the judges, the ... had the decision reserved and then I wrote my complaint. The Court of Appeal allowed me to submit the further written submission. That is the scenario.
KIRBY J:Yes, but you see normally where somebody complains about incompetence of their barrister or lawyer, that is the subject of evidence and elucidation by the Court of Appeal. It is not something that would normally come to the High Court straight away without any previous consideration of it because sometimes there are questions of fact to be made clear and the problem is you are raising it in this Court, effectively, for the first time, so all we have is the record. We do not have any factual details as to what you complain of is the incompetence of the lawyers.
MR ZHONG:That is matter I complain in my written submission which I submitted to the Court of Appeal but the Court of Appeal, I believe, they just bullied me; ignored the facts and without legitimate reasoning to support their assertion …

[41]Zhong v The Queen [2005] HCATrans 58 at lines 116-135 (my emphasis).

Earlier, I mentioned that the written submissions Mr Zhong drafted himself and filed in the Court of Appeal after the oral hearing were not before this Court. However, it seems clear enough, from his exchange with Kirby J, that Mr Zhong was asserting that the complaint of incompetence of counsel in fact was raised in the Court of Appeal in those written submissions.

Later in the oral argument before the High Court, Mr Zhong asserted that his “legal team” (in the Court of Appeal) had a conflict of interest. He said he had a “really bad argument” with his solicitor, who told him that he would resign if he pursued the incompetence and erroneous direction grounds. He said that “Legal Aid” (meaning, a solicitor or solicitors from VLA) came to see him at the gaol and told him that they would pursue those grounds, but did not do so when the matter came on for hearing. He went on to say, however, that incompetence was not his major ground. Instead, the error in the judge’s directions on the elements was his principal complaint.[42]
[42]Zhong v The Queen [2005] HCATrans 58 at lines 224-280 (my emphasis).

Failure to put defence case fully and fairly

Finally, paragraph [2] of High Court’s reasons reveals that Mr Zhong complained of a failure by the trial judge to explain the offence and to put the defence case fairly to the jury. While Kirby J said that the complaint of an unfair charge was not, as such, before the Court of Appeal, as we have seen, there was before that Court a complaint that the defence case on intention was not put adequately to the jury. This was reflected in Ground 4 taken in the Court of Appeal.

Section 321(2)(b) of the Crimes Act

However, it is also apparent from the transcript of the oral argument that Mr Zhong raised a discrete complaint about the directions on intention. That point had not been taken by counsel in the Court of Appeal, but Mr Zhong himself took the point in his own submissions filed after the conclusion of oral argument in that Court. So much is apparent from the following discussion in the High Court, which followed immediately upon the exchange extracted above:[43]

MR ZHONG: … and also as an error of the law that the Court of Appeal has partially applied Crimes Act … section 321G in that, if they impartially applied that law to me, they are supposed to apply the section 321 – I think (2)(b) [meaning s 321G(2)(b)]. However, they did not apply that section and I believe that they really ignored the error of the law that trial judge made and they tried to just put the blind eyes on the error of the law.
KIRBY J:And you complain that the judge did not explain the defence to the jury but the judge did say that they had to decide that you were charged with inciting and that the crime consists of the act of inciting done with the necessary intention. That is the intention, but what is requested and encouraged shall be done. Now, that is a very short and clear instruction to the jury.
MR ZHONG:However, with most of respect to your Honours, I believe as in my written submission I submit yesterday, I think everybody, that is what I submitted, what I here say, at page 2 of 5 about, I think, line 87 or line 88 I submit one point which I said Crimes Act … section [321G(1)] is a true and a correct statement of law about the matters for the prosecution to prove me guilty of the offence. The prosecution, the trial judge, and the Court of Appeal should all know that simple matter, or otherwise, I believe they should not have their position for their incompetence to grieve the innocent people. However, the record of procedure disclose the error of law in relieving the prosecution of the onus of proving me guilty of the offence to convict me, that is, all the parties of the prosecution, the trial judge and the Court of Appeal had deliberately, incorrectly, partially applied Crimes Act (Vic) 1958 section 321G against me, and further, they all, what I believed, dishonestly, unethically, applied their own political inclination without the statement of section 321G(1) against me when they had no judicial power to do so.
Therefore, I claim the error of this law must be rectified before this Court because it is my right to have applied section 321G(1) in my case as a true, correct, and adequate statement of law about the matters that the prosecution had to prove me guilty of the offence. …
Further, I do not believe that the respondent can and they should be allowed to claim that one element of the offence as the so-called key issue is enough to equal the four elements of the offence as the onus of proof that the prosecution had to discharge after the trial judge, I believe, dishonestly erred in this matter in his direction to the jury.

[43]Zhong v The Queen [2005] HCATrans 58 at lines 135-169 & 180-184 (my emphasis).

Thus, it is apparent that Mr Zhong raised in both the Court of Appeal and the High Court his complaint about the failure to direct in accordance with s 321(2)(b) of the Crimes Act.

Foregoing grounds pursued before Attorney and in this Court

It will be seen that Mr Zhong’s complaint of a failure by the trial judge to direct the jury in accordance with s 321G(2)(b) also features again before the Attorney and in these applications for judicial review, as does the complaint of incompetence of counsel and/or solicitors. The same is true of Mr Zhong’s complaints that the verdict is unsafe and that the judge was wrong to fail to order a permanent stay.

In particular, it will be seen that Mr Zhong asserts, in effect, that the Attorney was simply manifestly wrong to fail to refer the case to the Court of Appeal because there was no other result available in view of these (and other) alleged defects in his trial, as well as the availability of new (or perhaps fresh) evidence.

Reviewability of the decisions at issue

Introduction

Before turning to those and other grounds, I wish to address the antecedent questions concerning whether the decisions (or at least the decision-making processes) of the Attorney and the Governor are reviewable.

I indicated earlier that, despite being logically prior, I find it unnecessary to determine these questions finally. Nevertheless, for the following reasons, I think that it is appropriate to record the parties’ submissions on these questions.

First, Ms Gory’s submissions provide a scholarly survey of the leading authorities in this area of legal discourse, and put clearly the arguments in support of the Attorney’s position on the major questions.

Secondly, I expect that those submissions will be helpful to any court that might have to consider this question in the future.

Thirdly, a consideration of these questions also tends to inform the proper approach to the errors that Mr Zhong asserts were made in particular by the Attorney (and, by extension, the Governor), which I shall address separately before moving to the substance of Mr Zhong’s complaints.

A summary of those submissions follows.

Attorney’s submissions on the prerogative of mercy and reviewability

I turn first to the survey of the law and submissions put by Ms Gory on behalf of the Attorney.

The prerogative of mercy

A petition for the exercise of the prerogative of mercy is a request made to the Sovereign by an individual seeking release from the effects of a conviction where all avenues of appeal have been exhausted or where the courts have no jurisdiction to review the conviction.[44]
[44]Osland v Department of Justice (2005) 23 VAR 378 at 384[22]-385[24] (per Morris J). See also Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 282-283[8] (per Gleeson CJ, Gummow, Heydon and Kiefel JJ).

In this State, the power of mercy is exercisable under the royal prerogative and, in so far as is relevant in this case, is in part regulated by statute as it relates to a referral to the Court of Appeal, pursuant to s 327(1)(a) of the CPA.

The prerogative is reposed in the Governor. The Governor exercises the prerogative as a representative of the Queen.[45] In accordance with constitutional convention, the Governor acts on the advice of the Premier (who, in accordance with practice, is advised by the Attorney).[46] The Governor may question the advice given, seek further information or request that the advice be reconsidered; but, in the last resort, the advice must be accepted.[47]
[45]Australia Act 1986 (Cth), s 7; Letters Patent relating to the Office of the Governor, cl 3.
[46]Constitution Act 1975 (Vic), s 87E(b). See Osland v Department of Justice (2005) 23 VAR 378 at 384[22]-385[24] (per Morris J).
[47]FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 365 (per Mason J).

In aid of the prerogative power, certain statutory powers are conferred on both the Governor and the Attorney.

In so far as the Governor is concerned, Part 9 of the Sentencing Act 1991 (Vic) provides as follows. First, the Act expressly provides that it does not affect in any manner Her Majesty’s royal prerogative of mercy.[48] Second, the Governor may, in any case in which she is authorised on behalf of Her Majesty to extend mercy to any person under sentence of imprisonment, do so by directing that the person be released, even before the end of a non-parole period, on certain specified conditions.[49] Third, the Governor may remit any sum of money imposed under any Act as a penalty or forfeiture or order the discharge from prison of any person who is imprisoned for non-payment of any sum of money so imposed.[50]
[48]Sentencing Act 1991 (Vic), s 106.
[49]Sentencing Act 1991 (Vic), s 107.
[50]Sentencing Act 1991 (Vic), s 108.

Section 327(1)(a) of the CPA, which is central to Mr Zhong’s case, provides that the Attorney may refer a petition of mercy to the Court of Appeal. In particular, s 327 reads in this way:[51]
[51]My emphasis.

Reference by Attorney-General
(1)If a person convicted on indictment or found unfit to stand trial or found not guilty because of mental impairment petitions for the exercise of Her Majesty’s mercy in relation to the conviction or finding, or the sentence imposed on the person, the Attorney-General—
(a)may refer the whole case to the Court of Appeal; or
(b)may refer any point arising in the case to the judges of the Trial Division of the Supreme Court for their opinion.

(2)If the Attorney-General refers the whole case to the Court of Appeal, the Court of Appeal must hear and determine the case as if it were an appeal by the person.
(3)If the Attorney-General refers a question to the judges of the Trial Division of the Supreme Court, those judges or any [three] of them must consider the point and provide the Attorney-General with their opinion.
(4)Nothing in this Chapter affects the prerogative of mercy.

The equivalent statutory referral power in s 672A of the Criminal Code 1899 (Qld) (“the Code (Qld)”) was described by Muir JA in Pepper v Attorney-General (Qld) (No 2) (“Pepper”) as “a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal”.[52]

Reviewability of the prerogative of mercy

[52]Pepper v Attorney-General (Qld) (No 2) [2008] 2 Qd R 353 at 360[11] (per Muir JA, with whom de Jersey CJ and Fraser JA agreed).

Mr Zhong seeks review of the Attorney’s decision to decline to refer his case to the Court of Appeal under s 327(1)(a). That power, Ms Gory submitted, is inextricably linked to the prerogative of mercy.

Before turning to the reviewability of the referral power, Ms Gory outlined the principles applicable to the judicial review of the prerogative.

The leading case as to whether the exercise of the prerogative of mercy is amenable to judicial review is Horwitz v Connor (“Horwitz”), which was decided about 112 years ago. The High Court held that it had no jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy. Speaking for the Court, Griffith CJ said that:[53]

mandamus to the Governor in Council will not lie, and no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy.

[53]Horwitz v Connor (1908) 6 CLR 38 at 40.

In more recent times, in 1981, Aickin J referred, in R v Toohey; ex parte Northern Land Council (“Toohey”), to the exercise of the prerogative of mercy as a “clear enough example” of a decision not reviewable by any court.[54]
[54]R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 at 261. In Oslandv Secretary to the Department of Justice (2008) 234 CLR 275 at 297-298[47], Gummow, Hayne, Callinan and Heydon JJ found it unnecessary to decide whether Horwitz v Connor (1908) 6 CLR 38 was correctly decided.

Lower courts have followed Horwitz. In Eastman v Attorney General for the ACT (“Eastman”), Lander J (sitting in the Supreme Court of the Australian Capital Territory) observed that he was “constrained by authority to hold that the discretion as to the exercise of the prerogative of mercy is not amenable to judicial review”.[55]
[55]Eastman v Attorney General for the ACT (2007) 210 FLR 440 at 458-459[78].

Justice Logan took a similar view in Ogawa v Attorney-General (No 2) (“Ogawa (No 2)”):[56]
[56]Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [21]-[22] (citations omitted).

[21] In Martens …, I accepted that the High Court’s judgment in Horwitz v Connor … bound me to hold that a decision made by a vice-regal officer in the exercise of the Royal Prerogative of Mercy was not amenable to judicial review. Horwitz v Connor has not since been over-ruled by the High Court.
[22] In Street v Queensland Bar Association …, Brennan J … stated:
the doctrine of stare decisis … is least cogent in its application to those few provisions which are calculated to protect human rights and fundamental freedoms …

… It might be thought that any misconception as to the nature and extent of the Royal Prerogative of Mercy which sounded in the dismissal of a petition for its exercise was likewise capable of diminishing the cogency of the doctrine of stare decisis. Even so, the decision to depart from a considered judgment of the High Court is for that court, not for me. I therefore adhere to the view which I expressed in Martens and hold that a decision by the Governor-General to refuse to exercise the prerogative is not amenable to judicial review.

Nonetheless, some lower courts have found that aspects of the exercise of the prerogative power may be reviewable. In Yasmin v Attorney-General (Cth) (“Yasmin”), for example, the Full Court of Federal Court observed that “the clear trend of authority is towards some degree of judicial supervision of, at least, the process by which the mercy prerogative is exercised”.[57]
[57]Yasmin v Attorney-General(Cth) (2015) 236 FCR 169 at 189-190[88] (per Kenny, Robertson and Mortimer JJ).

In Eastman, Lander J put it in this way:[58]

[79] I think … I am entitled to inquire into whether the decision maker in the Executive discharged its obligations at law in reaching its decision. The decision itself is for the Executive and not subject to review. However, if the Executive has not conducted itself in accordance with the law in reaching that decision and, in particular, not observed the rules of natural justice, the decision must be set aside.

[58]Eastman v Attorney General for the ACT (2007) 210 FLR 440 at 459[79].

Likewise, in Ogawa (No 2), Logan J said that it did not follow from Horwitz that “the process by which a prerogative of mercy decision is reached is immune from judicial review, much less that a related reference decision is immune from judicial review.”[59] His Honour said that he would not, in the face of Horwitz, “go so far as to conclude that the Court … could set aside a pardon related decision of the Governor-General in Council”.[60] But a court could grant declaratory relief that “an applicant for the exercise of the prerogative had not been afforded procedural fairness or that a decision to decline to make a recommendation, if apparent from reasons furnished to an applicant, entailed a misunderstanding as to the nature and extent of the prerogative power”.[61]
[59]Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [37].
[60]Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [39].
[61]Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [39].

Justice Logan went on to do just that. The Governor-General had refused to grant the petition on the basis that he was not satisfied that the petitioner was “morally and technically innocent of the offence”. The judge held that the power was not limited to those cases but was “a flexible power the exercise of which exercise may be adapted to meet the circumstances of the particular case”.[62] Accordingly, the Governor-General had acted on a misunderstanding of the nature of the power. His Honour made a made a declaration to that effect.[63]
[62]Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [48].
[63]Ogawa v Attorney-General (No 2) [2019] FCA 1003, Order 1(a).

Later in these reasons, it will become necessary to examine other aspects of Logan J’s reasoning in Ogawa (No 2) in more detail.

Review of the statutory power of referral

According to Ms Gory’s reading of the authorities, there is a difference of approach in relation to the reviewability of the referral power, depending, at least in some cases, on whether review is sought under the common law prerogative writs or under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).

In earlier cases, courts were reluctant to interfere with the exercise of the referral power on the basis that it was an adjunct to the exercise of the prerogative power, which was not reviewable under the common law. More recent cases, however, have taken a broader approach, holding that the referral power is reviewable, at least under the ADJR Act, in the same way as the exercise of any other statutory power.

An example of the narrow approach is found in von Einem v Griffin (“von Einem”).[64] In the Supreme Court of South Australia, the petitioner was found guilty of murder and was sentenced to life imprisonment. Some years later, his solicitors became aware of material in the possession of police that had not been disclosed to the defence at the trial. The information was inconsistent with the prosecution case and it was said that the failure to disclose it led to a miscarriage of justice. The petitioner presented a petition to the Governor praying for mercy. He also requested the Attorney to refer the matter to the Full Court pursuant to s 369(a) of the Criminal Law Consolidation Act 1935 (SA) (which is the analogue of s 327(1)(a) of the CPA). The Attorney advised the Governor not to grant the petition and refused to refer the matter to the Full Court. The petitioner sought orders quashing both decisions, as well as declaratory relief.
[64]von Einem v Griffin (1998) 72 SASR 110.

The Full Court dismissed the application. Justice Prior (with whom Wicks J agreed) held that the Court was bound by Horwitz to refuse the application in so far as it sought review of the Governor’s decision.[65]
[65]von Einem v Griffin (1998) 72 SASR 110 at 112-113 (per Prior J; Wicks J agreeing). (Lander J found it unnecessary to decide this question (at 126).)

It was also held that there was no jurisdiction to review the Attorney’s refusal to refer the petition to the Full Court. Justice Prior explained that the Attorney’s power under s 369(a) was expressed to be “ancillary to the prerogative”. Thus, in his Honour’s view, “to allow judicial review in this case would involve intrusion by the court into an executive sphere not properly severed from but indeed referable to the prerogative of mercy”.[66]
[66]von Einem v Griffin (1998) 72 SASR 110 at 114 (per Prior J; Wicks J agreeing). (See also Lander J at 129-138, esp. at 133-134 & 138.)

Later cases, however, have distinguished von Einem or taken a different approach.

In Martens v Commonwealth of Australia (“Martens”), Logan J held that a decision under s 68 of the Judiciary Act 1903 (Cth) applying s 672A of the Code (Qld) was amenable to judicial review under the ADJR Act.[67] (It was considered unnecessary to decide whether the decision was reviewable under the prerogative writs or s 39B of the Judiciary Act.) Justice Logan found that, in refusing to refer the petition to the Court of Appeal, the Minister had failed to take into account the relevant consideration that the petitioner’s submission was accompanied by evidence (be it “new” or “fresh”) receivable by the Court of Appeal on a reference under s 672A; had “applied an overly rigorous test in deciding whether or not to refer the case”; and had misconceived the nature and purpose of the discretion conferred on him.[68] His Honour set aside the decision and remitted the matter to the Minister for further consideration according to law.[69]
[67]Martens v Commonwealth of Australia (2009) 174 FCR 114 at 121[25].
[68]Martens v Commonwealth of Australia (2009) 174 FCR 114 at 128[51]-[53], 135[66] & 138[78].
[69]Martens v Commonwealth of Australia (2009) 174 FCR 114 at 138[79].

In Yasmin,[70] the appellant, in 2010, pleaded guilty in the District Court of Western Australia to people smuggling contrary to s 232A of the Migration Act 1958 (Cth). He was sentenced to five years’ imprisonment. At the time, the legislation provided for a mandatory minimum sentence of five years’ imprisonment unless it was established (on the balance of probabilities) that the offender was under 18 years of age.
[70]Yasmin v Attorney-General(Cth) (2015) 236 FCR 169.

In 2012, the appellant requested that he be pardoned under the prerogative of mercy or that the Commonwealth Attorney-General refer his case to the Court of Appeal under s 140 of the Sentencing Act 1995 (WA), another analogue of s 327(1)(a) of the CPA. The basis for the request was that other evidence was capable of showing that the appellant was, in fact, under 18 years of age when the offence was committed.

Two years passed without the Attorney making a decision on the request. The appellant sought mandamus in the Federal Court, contending that the Attorney was under a duty to consider his request for a referral. The trial judge rejected the application. Her Honour found that there was no duty on the Attorney to exercise his discretion under s 140.[71]
[71]Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCA 91 (per Jagot J).

The Full Federal Court disagreed. In a joint judgment, Kenny, Robertson and Mortimer JJ held that the Attorney was under a duty to determine whether or not to refer a petition to the Court of Appeal and that the failure to do so was amenable to judicial review under the ADJR Act. Their Honours observed that the review would also be available under s 39B of the Judiciary Act.[72] In particular, the Court’s conclusions were put in this way: [73]

[118] In our opinion Parliament intends that the Attorney-General, whether personally or through delegates, will consider and determine what, if any, action should be taken in respect of each and every petition seeking an exercise of the mercy prerogative and whether or not a referral under s 140 of the Sentencing Act is expressly sought.
[119] We see no jurisdictional reason therefore, why a petitioner who wishes to allege that the time which has elapsed after the lodging of a petition without a determination by the Attorney-General (whether personally or through a delegate) whether or not to refer the petition to the Court of Appeal in accordance with s 140 should not be the subject of an application pursuant to s 7 of the ADJR Act, or s 39B of the Judiciary Act.

[72]Yasmin v Attorney-General(Cth) (2015) 236 FCR 169 at 197[119] (per Kenny, Robertson and Mortimer JJ).

[73]Yasmin v Attorney-General(Cth) (2015) 236 FCR 169 at 197[119] (per Kenny, Robertson and Mortimer JJ).

Also, in Ogawa (No 2), the exercise of the referral power was successfully challenged on the basis that the Commonwealth Attorney had misapprehended the nature and scope of the power.

The Governor’s decision and the advice given to her are not reviewable

Having set out her survey of the authorities, I turn now to Ms Gory’s specific submissions on behalf of the Attorney.

Ms Gory submitted that Horwitz is binding authority for the proposition that the Governor’s decision to refuse a petition for mercy is not reviewable.[74]
[74]It was only after Mr Zhong had filed his Amended Originating Motion that the Governor refused his petition in exercise of the prerogative power. Ms Gory’s submissions on this point were made on the assumption that Mr Zhong challenged the Governor’s decision as well. That was a correct assumption, because that was the basis on which the matter proceeded before this Court. As will be seen below, however, perhaps on the understanding of the convention that, while the Premier advises the Governor, the Premier takes advice from the Attorney for that purpose, Mr Zhong also asserts that the Attorney “unlawfully … advised the former Governor to refuse [his] petition”. (See, for example, Mr Zhong’s Amended Originating Motion (filed 13 May 2019) (Court Book at 116).) In this case, that convention was observed (see Court Book at 602[3]-603[5]).

In her submission, the same is true of the advice provided to the Governor, since that advice is inextricably linked to the Governor’s decision. The Governor only acts on advice.[75]
[75]FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 352 (per Stephen J, citing Dixon J in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 179) & 365 (per Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 26 (per Brennan J); Dohrmann v Attorney-General (Vic) [1995] 1 VR 274 at 276 (per O’Bryan J).

Ms Gory also submits that the decision in Ogawa (No 2) — to the effect that there are limited circumstances in which the Governor’s decision is reviewable — is inconsistent with Horwitz and should not be followed. In particular, in her submission, a close examination of the reasons in Ogawa (No 2) and the precise orders made show that the judge found error in the substantive decision, which is precisely what Horwitz said a court has no jurisdiction to consider.

If it matters, submitted Ms Gory, in Mr Zhong’s case, there is no basis on which the Governor’s decision could be impugned in any event.

The Attorney-General’s decision under s 327

Ms Gory submits that the decision under s 327(1)(a) to decline to refer a petition to the Court of Appeal is not amenable to judicial review either. This is because the power is “ancillary” to the exercise of the prerogative of mercy.[76] In her submission, to hold otherwise would be to allow an impermissible trespass into an area of executive decision-making that the High Court has held is immune from judicial review.
[76]von Einem v Griffin (1998) 72 SASR 110 at 113-114 (per Prior J, Wicks J agreeing); cfYasmin v Attorney-General (Cth) (2015) 236 FCR 169 at 189-190[88] (per Kenny, Robertson and Mortimer JJ).

Yasmin, in Ms Gory’s submission, does not require a different conclusion. That case concerned the failure to make a decision (concerning a referral) which the Full Federal Court said the decision maker was under a duty to make. The enforcement of a statutory duty to decide an application does not empower the Court to review the resultant decision.

Ms Gory concedes that there are dicta in Yasmin suggesting that an individual would have “at least some rights to judicial review” in respect of a decision to refuse to refer a petition.[77] But those dicta, she submits, are not binding and should not be applied in the present case.
[77]Yasmin v Attorney-General(Cth) (2015) 236 FCR 169 at 196[115] (per Kenny, Robertson and Mortimer JJ).

Nor, in her submission, does either Martens or Ogawa (No 2) require a different conclusion.[78] Martens concerned review under the ADJR Act, not the common law prerogative writs.
[78]In Ms Gory’s submission, it is not entirely clear whether Logan J in Ogawa (No 2) permitted review of the referral power under the ADJR Act or under both the ADJR Act and s 39B of the Judiciary Act (see Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [17] & [51]).

Further, the reasoning in those cases is inconsistent with the reasoning in von Einem, which is to be preferred.

In Ms Gory’s submission, there are four features of the power which suggest that the reasoning in von Einem represents the better view. First, the power in s 327(1)(a) is ancillary to the prerogative, which is not reviewable. Second, the Attorney’s discretion is very broad — much broader than the power in s 327. Third, s 327(1)(a) does not confer a legal right. Finally, the prerogative is analogous to other non-reviewable powers, such as the statutory power of an Attorney to present an ex officio indictment, which was considered in Barton v The Queen.[79]
[79]Barton v The Queen (1980) 147 CLR 75 at 90 & 94 (per Gibbs CJ and Mason J).

Mr Zhong’s submissions on the prerogative of mercy

Mr Zhong’s submissions proceeded on the assumption that the decisions of the Attorney and the Governor, including the Attorney’s (indirect) advice to the Governor,[80] were reviewable.
[80]By which I took him to mean the Attorney’s advice to the Premier, who in turn, by convention, advised the Governor (see Court Book at 602[3]-603[5]).

That said, he did put some submissions that, in effect, asserted that these decisions are reviewable. I shall mention one example. As I understood him, Mr Zhong submitted (at least implicitly) that s 39 of the Charter conferred power on this Court to review the Attorney’s decision to decline to refer the matter to the Court of Appeal under s 327(1)(a) of the CPA, as well as the Attorney’s advice indirectly to the Governor. I say “at least implicitly” because his submission was that the Court had power to declare those decisions unlawful and quash them, and to grant the ultimate remedy he seeks — namely, to order the Attorney to refer the whole of the case to the Court of Appeal.[81] (As I shall explain later, that Mr Zhong seeks the latter order presupposes something beyond mere reviewability. Indeed, if merely judicial review is available, such an order could not be made.)
[81]See, for example, Mr Zhong’s Originating Motion (filed 21 February 2019) (Court Book at 4); Mr Zhong’s Amended Originating Motion (filed 13 May 2019) (Court Book at 116); Mr Zhong’s Written Submissions (filed 30 September 2019) at [16.10] (Court Book at 627); and Mr Zhong’s Oral Submission (filed 11 November 2019) at [12]-[12.1].

Conclusions on reviewability

As I indicated at the outset of these reasons, the state of the law appears to be that I am constrained to hold that the discretion as to the exercise of the royal prerogative of mercy is not amenable to judicial review. This much seems to be so, at least unless and until Horwitz is reconsidered.

In recent years, however, courts in various jurisdictions have been prepared to embrace the notion that at least parts of the process by which a decision made in the exercise of the prerogative is reached is, to some extent, subject to judicial review.

More directly relevant in the present case is whether the Attorney’s decision to decline to refer the whole of a petitioner’s case to the Court of Appeal pursuant to s 327(1)(a) of the CPA, or at least the process by which that decision is reached, is reviewable. Again, apart from von Einem, the trend of recent authority appears to be in favour of at least some form of reviewability.

In Osland v Secretary to the Department of Justice (“Osland”), in their joint judgment, Gleeson CJ, Gummow, Heydon and Kiefel JJ expressly said that they considered it unnecessary to decide: [82]

[47] … whether it is possible to obtain judicial review of a decision to refuse an executive pardon, or the related question whether it is possible to compel reasons for such a decision. …

[82]Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 297-298[47] (per Gleeson CJ, Gummow, Heydon and Kiefel JJ) (footnotes omitted; my emphasis).

In a footnote at the end of that sentence, their Honours cited Horwitz, Toohey, von Einem and other cases.[83] While these remarks in Osland concerned a pardon by the Governor, and not a referral by the Attorney, it seems clear enough that the High Court regards Horwitz as the law in respect of the former, at least at the moment.
[83]The other cases were: Flynn v The King (1949) 79 CLR 1 at 7-9; R v Secretary of State for Home Department; Ex Parte Bentley [1994] QB 349; Reckley v Minister of Public Safety and Immigration [No 2] [1996] AC 527; Lewis v Attorney-General (Jamaica) [2001] 2 AC 50.

The Court, however, has not made any pronouncements on the state of the law with respect to the reviewability of an Attorney’s decision to decline, or the process involved in making a decision to decline, to refer a petitioner’s matter to the Court of Appeal pursuant to a provision like s 327(1)(a). Rather, this seems to be more of an open question.

That there are strong arguments and counter-arguments to be had for the differing approaches to these questions is plain to see from the authorities. I repeat, however, that, in this particular case, it is unnecessary to determine those issues finally, because, like the Full Court in von Einem, I am not satisfied that any of Mr Zhong’s grounds for review should succeed in any event. In the result, the answers to the important questions concerning reviewability should await a case in which they might be determinative of the outcome. In those circumstances, I think it is preferable that I refrain from expressing any preference for one view or another.

But, in the end, I thought better of that. For it is plain enough, from the terms of settlement agreed on 20 August 2018, that the petition filed on 6 (or 9) January 2018, together with any other material Mr Zhong wished to file by 24 August 2018, would be considered afresh, which, after all, is what he was seeking. This was not to be simply a reconsideration of the earlier petition having regard to the Charter. Instead, this was to be consideration of a new petition (even if it made the same or similar claims), plus any additional material, but according to law, including the Charter. Having mutually agreed that that was the Attorney’s task, I think it is to be assumed that Mr Zhong and the Attorney both would regard any past request for reasons as at an end, and reasonably so.

Thus, on the assumption that s 8 of the ALA might apply, if Mr Zhong desired reasons for the current Attorney’s decision to decline his petition filed in January 2018, he was required to make the necessary request at least after the terms of settlement were agreed and otherwise in accordance with the time limit provided for in s 8(2) of the ALA once he was notified of the decision.

The three bases relied on by Mr Zhong

As I have understood his submissions, Mr Zhong relies, implicitly or otherwise, on three separate pieces of ‘evidence’ as establishing that he has made three or more relevant requests for reasons.

First, he relies on his letter of 15 September 2014 to Mr Clark, which is evidenced by the response from the Attorney’s office on 31 October 2014. Since this request was made (four years) before the settlement, it cannot be regarded as a request for reasons for the current Attorney’s decision on the January 2018 petition.

Secondly, Mr Zhong relies on the assertion that he sought reasons orally, but was refused, and no reasons were ever given. In particular, in his written submissions in reply, filed for the fourth (and last) day of the hearing, Mr Zhong said this:[211]

… [T]he defendant submitted that under ALA I never asked the [Attorneys-General] for reasons. Thus, the defendant gave me no reasons why she refused to refer my petition to the [Court of Appeal]. I submit that her debate on this issue is not true at all, because via different ways I have always sought reasons from the [Attorneys-General] including the defendant. But the hard truth is that they always refused to give me any reason, the letter from former Attorney … [Mr] Clark’s office dated [31 October 2014] is a typical example that they refused to give me reasons. In previous oral requests I asked defendant for reasons but I was always told that no reasons provided to me.

[211]Mr Zhong’s Reply (dated 10 December 2019) at [22].

Similarly, in his oral reply on the last day of the hearing, when responding to the submission that no reasons had been requested under s 8 of the ALA, Mr Zhong said the following:[212]

… Now, 3.3. Now, it is clarified (indistinct) I always — in fact I have always sought reasons. But unfortunately at that time I — it’s also — it wasn’t that common sense. I always seek reasons and — but I was always refused. And my opponent may say may not — I did not make my written request according to law, but my orally I (indistinct) through my different way, even some time I went through — I ask a member of parliament for help but I could not solve such issue. They never no reason gave to me. Anyway ‑ ‑ ‑
…
Yes, well, what I’m saying that is I always ask for reason but I was always refused to give reason. …

[212]Transcript (Day 4, 10 December 2019) at 388-389.

I have three difficulties with these assertions. First, they were made from the Bar table or in written submissions. They are not on affidavit or subject to any testing by cross-examination. Secondly, they came in reply, at the very end of the hearing. Equally, Ms Gory did not object to their admissibility on either basis or at all. But perhaps the next point explains why. Thirdly, and in any event, Mr Zhong did not identify precisely when he made his alleged oral requests for reasons. On the version he has given, even if I were to accept the truth and accuracy of his account, I simply cannot determine whether any such request was made in respect of the current Attorney’s decision on the petition.

Accordingly, even when Mr Zhong’s account is put at its highest, I am not — and cannot be — satisfied that he made any relevant oral request for reasons of the Attorney in respect of the decision under challenge.

Finally, that leaves Mr Zhong’s letter of 27 May 2019 as the only remaining candidate for a relevant request for reasons that might attract the operation of s 8 of the ALA. While I did not understand Mr Zhong actually to advance any submission in reliance on that letter, it still must be considered, as Ms Gory has raised it (quite properly).

The first point to make about Mr Zhong’s letter is that it was written 39 days after the date of the Attorney’s letter giving notification of the decision. There was no evidence before me as to when, for the purposes of s 8(2) of the ALA, the Attorney’s letter “c[a]me to the knowledge” of Mr Zhong. He said nothing about when he received it. As a result, it is not clear whether his request was made within or outside the 30-day limit imposed by s 8(2). That said, Ms Gory made no submission that the request, such as it was, was made outside the 30-day time limit.

It is, however, unnecessary to determine this issue, because, for reasons that follow, I am not satisfied that Mr Zhong’s letter contains or amounts to a request for reasons for the current Attorney’s decision to decline to refer his case to the Court of Appeal.

The Attorney’s letter of 18 April 2019

The Attorney’s letter reads in this way:[213]
[213]Court Book at 121.

I write to advise that I have considered your petition for mercy and your request to have your case referred to the Court of Appeal.
I have now carefully considered your petition for mercy. I regret to inform you that I have decided not to refer your case to the Court of Appeal.
As other forms of mercy can be exercised by the Governor, I have referred your petition for mercy to the Premier … The Premier will advise the Governor on the other prerogative of mercy grounds.
Thank you for taking the time to contact me about your case.

Mr Zhong’s letter of 27 May 2019

In the first four paragraphs of his letter of 27 May 2019, Mr Zhong referred to the Attorney’s previous letter; s 87E of the Constitution Act 1975 (Vic); the then-Attorney’s press release concerning the refusal of Mrs Osland’s petition for mercy in September 2001;[214] and his understanding of the operation of s 87E, including that the Attorney provides advice to the Premier for the purposes of advising the Governor. Mr Zhong then said this:[215]
[214]See the summary of that press release in, for example, Osland v Department of Justice (2005) 23 VAR 378 at 384[20] (per Morris J).
[215]My emphasis.

5.In comparing with the procedures that went through the decision making of Mrs Osland’s petition for mercy, I would like to seek the Attorney-General’s clarifications about her decision stated in her letter. Once … I have her clarifications[,] which will help me understand her letter, then … she and I may possibly reach a new settlement to discontinue this judicial review proceeding and avoid a waste of the [Court’s] time.
6.As she has referred my petition to the Premier … for advising the Governor to exercise her power in this matter, I would like to invoke her to clarify my questions as below:
6.1Where the defendant has referred my petition … to the Premier …, she must recommend her legal advice to the Premier about what the Governor be advised to do. My question needs to be clarified as following: Is her recommendation to deny or grant my petition for mercy?
6.2If she recommended that the Governor be advised to grant me the petition for mercy, when she said: “The Premier will advise the Governor on the other prerogative of mercy grounds” did she mean that some of my petition grounds submitted to the former Attorney … [Mr] Pakula in 2018. (Re: OUTLINED GROUNDS FOR RECONSIDERING MY PETITION with this letter.) Or did she mean that some of my grounds listed in my Originating Motion of the current judicial review proceeding whether or not the first version or the amended version of my Originating Motion?
6.3Please clarify and advise me about what other prerogative of mercy grounds … the Governor to be advised.

7.If she prepare to honour the TERMS OF SETTLEMNTS agreed by the former Attorney … [Mr] Pakula and recommend the Governor to grant me the petition for mercy with some of my petition grounds, I think that she and I may likely to reach a new settlement for discontinuing this proceeding.
8.If she recommended that the Premier to advise the Governor to deny my petition then the legal proceeding will go to the end until all the revenues be exhausted in the long journey for rules of law issues. But I invoke her to clarify the vague expression in her letter about her decision.
…

Mr Zhong’s letter contained two more paragraphs: one concerning further procedural steps; the other concerning complaints about his previous lawyers.

The Attorney’s response of 17 June 2019

In a responding letter dated 17 June 2019, the Victorian Government Solicitor’s Office, after referencing Mr Zhong’s letter and the current judicial review proceeding, said this:

We confirm that the Attorney-General has determined not to refer your case to the Court of Appeal under s 327 of the [CPA]. The Attorney-General has referred your petition to the Premier who will advise the Governor on the exercise of the prerogative of mercy.
In your letter, you seek clarification regarding the prerogative of mercy grounds referred to in the Attorney-General’s letter to you dated 18 April 2019. Unfortunately, we are unable to give you legal advice. We again suggest that you obtain legal representation in relation to your matter.
You also seek information about the advice provided from the Attorney-General to the Premier in relation to your petition for mercy. Any recommendation made by the Attorney-General to the Premier is privileged and, in any event, it would not be appropriate to disclose that information.

Discussion

In my opinion, Mr Zhong’s letter does not contain or amount to a request for reasons for the Attorney’s decision to decline to refer his case to the Court of Appeal. There was no express request of that type. Nor can such a request be inferred from the letter, whether considered in isolation or in light of the history of this matter.

Instead, the most that can be said of the letter is that it amounts to a request by Mr Zhong for “clarification” of three things:

(a) first, whether the Attorney recommended to the Governor to deny or grant his petition;

(b) second, on the assumption that the Attorney recommended that the Governor grant the petition, on which of his grounds she made that recommendation; and

(c) third, what other prerogative of mercy grounds (if any) about which the Attorney advised the Governor.

Accordingly, reliance on s 8 of the ALA is not open.

Conclusion and orders

Since none of the grounds for review taken by Mr Zhong, whether considered individually or collectively, have been made out, the applications must be dismissed.

Accordingly, I will order that the each application be dismissed.

I shall hear the parties on costs.

Epilogue

Introduction

Despite my orders dismissing these applications, in fairness to Mr Zhong, and for the purposes of advancing the proper administration of criminal justice, I think it is appropriate that I make the following remarks.

As I indicated earlier in these reasons, all may not be lost for Mr Zhong. There are several reasons.

A troubling conviction

On the material I have examined in the course of this hearing — which, I concede, was limited — whatever he said to the undercover police, and whatever else he may have meant, I have a nagging doubt that Mr Zhong ever really formed a concluded intention that his wife should be killed at all, or that he really intended or believed that his wife would be killed by Mark, the would-be hitman.

As also indicated earlier, I would go so far as to say that, even on the limited material before this Court, if, as a member of the Trial Division, I had being asked (along with other judges) to provide an opinion to the Attorney pursuant to ss 327(1)(b) and (3) of the CPA, I would have opined that she should refer the whole case to the Court of Appeal pursuant to s 327(1)(a).[216]
[216]As also indicated earlier, another alternative would be for the Attorney, pursuant to ss 327(1)(b) and (3), to refer a question or questions to the judges of the Trial Division of this Court so that any three could consider the point or points and provide her with their opinion or opinions. See, for example, Re Ross (2007) 19 VR 272. While, again, this is a matter for the Attorney to judge, it seems to me that it would be a more efficient use of the Court of Appeal’s resources to refer the matter directly to that Court, especially if it turns out that Mr Zhong does in fact have a ground which finds favour with that Court.

There are four main areas of concern.

New evidence in Grounds [1] and [2]

First, it will be remembered that I was persuaded (only just) that it would not be unreasonable (in the Wednesbury sense) for the Attorney to fail to conclude that it was reasonably possible that the new evidence discussed in Grounds [1] and [2], when considered with the evidence at trial, would raise such a doubt about Mr Zhong’s guilt in the mind of the Court of Appeal that the verdict should not be allowed to stand.

As I also indicated, however, my own assessment of that evidence is different. I think it is reasonably possible that both the alteration to the family’s health insurance arrangements and the loan to Mr Hu are, together with other evidence at trial, capable of supporting Mr Zhong’s innocence of the charge or, at least, are capable of raising a reasonable doubt in the minds of the Court of Appeal.

If Mr Zhong is able to gather evidence showing that, in reality, either or both of those pieces of evidence could not, with reasonable diligence, have been led at trial, then the question for the Attorney on a new petition would be whether there was a reasonable possibility of the fresh evidence appellate test being met on appeal, which, as I have explained, has a lower threshold than the new evidence test. In other words, if one or both of those pieces of evidence turns out to be fresh (or there is even some argument about it), then the cause for referring the matter to the Court of Appeal under s 327(1)(a) of the CPA is all the greater.[217]
[217]I note that Mr Zhong was in custody from the time of his arrest on 22 August 2000 until the trial in October 2001 and beyond (until released on parole in 2004). Presumably, there would be difficulties in arranging investigation of the matters raised in Mr Zhong’s Grounds [1] and [2] when in custody. But, of course, that, among other things, is the task of a solicitor in a criminal trial, when properly instructed.

Moreover, I also indicated that, if I applied one of the two tests employed by Logan J in Ogawa (No 2), I would have upheld Grounds [1] and [2]. Whether or not Logan J’s approach or mine, or another altogether, is the correct approach is itself a question fit to be considered by the Court of Appeal on a reference, and indeed is another reason in and of itself why a reference would be an appropriate course in any event.

Section 321G(2)(b) of the Crimes Act and Massie

Secondly, for the reasons I gave earlier, I am troubled that the trial judge did not direct the jury in accordance with the requirements in s 321G(2)(b) of the Crimes Act. Despite my view that his case is distinguishable from Massie and that Brooking JA’s remarks on that provision were only obiter, realistically, this complaint can be resolved only if the Court of Appeal were to reconsider those remarks in Massie.

Uncertainty in the verdict?

A third factor, albeit only the germ of a concern, is that the guilty verdict may be uncertain. This point was not raised by Mr Zhong, whether before the Court of Appeal, the High Court, the Attorney or this Court. I should also stress at once that, without the full trial transcript, I cannot determine whether it might be a good point or not. But, for reasons that follow, there is at least a basis for inquiring into the point.

Read together, the trial judge’s reasons for sentence and Buchanan JA’s judgment disclose that there were five separate meetings between Mr Zhong and Mark upon which the prosecution case was based. In particular, there were meetings on 22 March, 6 April, 5 May, 24 May and 3 August 2000. There was also the voicemail Mr Zhong left on 22 May 2000.[218] There may have been other telephone contact as well. Given the ways in which the evidence is described in those judgments, it appears that Mr Zhong’s utterances and behaviour may have been materially different on each occasion. Indeed, we have already seen that there was real doubt about his intention at the time of the meeting on 24 May 2000 (as well as in the voicemail that preceded it on 22 May 2000).
[218]R v Zhan Yu Zhong [2001] VSC 524 at [11]-[15] (per Flatman J); R v Zhan Yu Zhong (2003) 139 A Crim R 220 at 222[6] & 223[11]-[14] (per Buchanan JA).

In those circumstances, if the case was in fact put and left on the basis that utterances at any one or some of the meetings would suffice as the factual basis for incitement to murder, then, unless there were directions requiring unanimity among the jury as to at least one of those meetings amounting to proof of the offence before a guilty verdict could be returned, there may well be an unacceptable risk that the verdict is uncertain.[219]
[219]See, for example, R v Walsh (2002) 131 A Crim R 299 at 316-317[57] (per Phillips and Buchanan JJA, with whom Ormiston JA agreed); Klamo v The Queen (2018) 18 VR 644 at 661[74]-662[76] (per Maxwell P, with whom Vincent and Neave JJA each agreed).

On the limited material before this Court, however, I simply cannot tell whether the prosecution relied on Mr Zhong’s utterances at all, only some or any one of those meetings for the purposes of an act proving incitement. Nor can I tell precisely how this aspect of the case was left to the jury by the trial judge or what approach was taken by defence counsel. All of these considerations would be relevant to whether there is any such arguable ground of appeal.[220]
[220]R v Walsh (2002) 131 A Crim R 299 at 316-317[57] (per Phillips and Buchanan JJA, with whom Ormiston JA agreed).

Limited material before the Attorney and this Court

The latter point brings me to my fourth and final area of concern.

As I touched on in the overview to these reasons, and then raised again later in the judgment, I am troubled that neither the Attorney nor this Court was favoured with the full transcript of the trial or all of the trial exhibits. Not only did that make it all the more difficult adequately to assess Mr Zhong’s grounds for review, it left me with a sense of unease concerning whether something important might have been missed by either the Attorney or me — for either or both parties.

I said earlier, and I repeat, that, in my view, a serious question arises concerning whether a petition for mercy seeking a referral under s 327(1)(a) of the CPA, in a case like the present, given some of the grounds raised, could ever be fully and adequately considered by the Attorney, or by this Court on purported judicial review, absent the complete trial transcript and trial exhibits.

An obvious illustration of why that may be so is Mr Zhong’s new evidence raised in Grounds [1] and [2]. In my opinion, it is far more preferable that grounds like those be considered with a complete transcript of the evidence at trial, coupled with the trial exhibits (which, importantly, would have included the recordings of the conversations with the undercover policeman, or at least transcript thereof, or both). It is only with the benefit of the complete materials disclosing the whole of the evidence at trial, together with transcript of counsel’s opening and final addresses and the judge’s charge, that a full understanding could be gained as to whether the new evidence disclosed in Grounds [1] and/or [2] might have made any material difference.

Finally, it will be remembered that the previous judicial review proceedings brought by Mr Zhong before Ginnane J settled with an agreement that “[t]he Attorney-General will consider, according to law, including the [Charter], [Mr Zhong’s] petition of [9] January 2018”. I reiterate that, while I did not understand Mr Zhong to take the point, he might have argued, with some force, that, in the circumstances of his case, in the absence of the complete trial transcript and trial exhibits, his petition could not have been considered “according to law”.

Concluding remarks regarding further petition

It is for the foregoing reasons that I am moved to suggest that there are proper bases for the Attorney to consider a further petition by Mr Zhong.

I also refer to, and repeat, the remarks I made in the overview about the desirability of any such fresh petition being drawn in a far more targeted and appropriate fashion than those of the past. I also reiterate my hope — for all concerned — that Mr Zhong might be legally represented in that endeavour (or, for that matter, in any further steps he might seek to take).

Fresh evidence and s 326A of the CPA

Under this penultimate heading, I simply wish to reiterate the point I made earlier. And that is, despite my rejection of Mr Zhong’s Grounds [1] and [2] in the present applications, it may be that, with more information, the evidence upon which those grounds were based, and which I treated as new evidence, may be more properly described as “fresh and compelling evidence” within the meaning of the new “second or subsequent appeal provisions” in ss 326C(1) and (3)(a) of the CPA. If so, Mr Zhong may be able to obtain a grant of leave to appeal. If he succeeded in that endeavour, he may be able to raise, in addition, his better couple of error points, but only if they were reasonably arguable.

Final remarks

Finally, I stress again that whether any of these courses are taken are matters entirely for others, not me. I have made these suggestions only because I think that it is proper to do so, and no more.

To be sure, if Mr Zhong did file a new petition with the Attorney seeking a reference to the Court of Appeal under s 327(1)(a), and she did consider it, or if Mr Zhong made an application for leave directly to the Court of Appeal under s 326A, in either or both cases, that would mean the resumption of what has already been an extremely long-running legal process. It also necessarily would mean that the limited resources of the Attorney and/or the Court of Appeal, and others, would be applied to Mr Zhong’s case yet again.

Some might say that Mr Zhong has already had a fairer go than most. Some might speculate that, given his track record, he will continue to take further action if he is unsuccessful. Some might say that there must be an end to all of this.

Well, some might say a lot of things. In different circumstances, however, I once borrowed from great minds — wise judges — to say the following:[221]

To adapt (and perhaps mangle) the words of Brennan J and Lord Atkin from two separate but related contexts, while “it is a mistake to regard the effect of [a jury’s] verdict as contingent upon confirmation by an appellate court”,[222] and therefore a good thing to pay the highest respect to such a verdict, in the end, “justice is better”.[223]

[221]The Queen v Gant & Siddique [2016] VSC 662 at [212].

[222]Chamberlain v The Queen (No 1) (1983) 153 CLR 514 at 520 (per Brennan J).

[223]Ras Behari Lal v King-Emperor (1933) 102 LJPC 144 at 147 (per Lord Atkin), referred to by Starke J in Ex parte Ryan [1967] VR 522 at 523.

I think similar sentiments may be applied to Mr Zhong’s case when considering the relative importance of finality and justice.

As Lord Atkin said, “Finality is a good thing, but justice is better.”[224]
[224]Ras Behari Lal v King-Emperor (1933) 102 LJPC 144 at 147 (per Lord Atkin), referred to by Starke J in Ex parte Ryan [1967] VR 522 at 523.

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[2020] VSC 302

29 May 2020