Zhong v Attorney-General of Victoria

The matter before the court involved Zhong, the applicant, who sought a review of the Attorney-General of Victoria's decision not to refer his case to the Court of Appeal under section 327(1)(a) of the Criminal Procedure Act 2009. Zhong was convicted of a crime and had petitioned the Court of Appeal for a sentence review under section 321G of the Crimes Act 1958. The legal issues the court needed to resolve were whether the Attorney-General's refusal to refer Zhong's case constituted a jurisdictional error and whether the Attorney-General misconstrued their statutory function.

The court examined whether the Attorney-General's decision involved a jurisdictional error by considering cases such as Minister of Immigration and Citizenship v SZMDS, Minister of Immigration and Citizenship v Li, Minister for Immigration and Border Protection v SZVFW, and Plaintiff S183/2021 v Minister for Home Affairs. It also looked at relevant principles from cases such as Mallard v The Queen, von Einem v Griffin, Martens v Commonwealth, Ogawa v Attorney-General [No 2], Massie v The Queen, Holzinger v Attorney-General (Qld), and Attorney-General (Cth) v Ogawa. The court found that the Attorney-General's decision was not a jurisdictional error but rather an exercise of a statutory discretion, which required a consideration of legal unreasonableness. The court concluded that the Attorney-General's decision did not exhibit any legal unreasonableness and was therefore valid. Additionally, the court noted that the application for judicial review was rendered moot by a fresh petition for mercy, and thus, no practical utility remained in considering the appeal.

The court ultimately dismissed Zhong's application for judicial review, finding no basis for the Attorney-General's decision to be quashed. The decision was consistent with the principles established in Re Olrey Pty Ltd. As a result, the court refused leave to appeal, given the moot nature of the application.