Zhong v The King
[2023] VSCA 35
•2 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0040 |
| ZHANYU ZHONG | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | KYROU, McLEISH and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 February 2023 |
| DATE OF JUDGMENT: | 2 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 35 |
| JUDGMENT APPEALED FROM: | [2001] VSC 524 (Flatman J) |
---
CRIMINAL LAW – Appeal – Application for leave to bring second conviction appeal – Incitement to murder – Whether evidence fresh and compelling – Six categories of evidence – Four categories not fresh – Two categories fresh but not compelling – Leave to bring second appeal refused.
Crimes Act 1958, s 321G; Criminal Procedure Act 2009, ss 326A, 326C, 326D.
Roberts v The Queen (2020) 60 VR 431, applied.
---
| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr BF Kissane KC with Mr T Bourbon | ||
| Chief Commissioner of Police: | Ms D Price | ||
Solicitors | |||
| Applicant: | -- | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA
MCLEISH JA
KENNEDY JA:
The applicant, Mr Zhong, was tried in 2001 on a charge of incitement to murder contrary to s 321G of the Crimes Act 1958. It was alleged that in Footscray, between 23 March and 3 August 2000, the applicant incited ‘Mark James’ to murder the applicant’s former de facto wife, Rong Hua Miao. ‘Mark James’ was a covert police operative.
On 18 October 2001, the applicant was convicted by jury verdict. He was sentenced to a term of 6 years’ imprisonment, with a non-parole period of 3 years and 6 months’ imprisonment. He was released on parole in early 2004.
The case against the applicant
The applicant has already sought leave to appeal his conviction. On 15 May 2003, this Court refused leave to appeal.[1] The reasons of Buchanan JA on that occasion succinctly summarise the offending of which the applicant was convicted:
The Crown led evidence from Rong Hua 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 the applicant, then aged 30 years, was studying at the university in Beijing, he placed an advertisement in a relationship section of a women’s magazine. Rong Hua Miao, 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 the applicant travelled to the province in which Rong Hua Miao lived. A relationship developed between them and in 1989 they became engaged. In 1990, the applicant migrated to Australia. He invited Rong Hua Miao to come to Australia to live with him and she agreed.
The applicant returned to China in order to accompany his fiancée to Australia. She discovered, however, that the applicant had a gambling problem and she returned to her family. The applicant 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.
The couple lived in a flat in Footscray. The applicant worked as a taxi-driver and Rong Hua Miao commenced an English course at a language school. By the end of December 1995 Rong Hua Miao discovered that she was pregnant. She was disappointed by the news and investigated the possibility of an abortion. The applicant 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. The applicant continued to have a problem with gambling. Overall, the relationship between the applicant and Rong Hua Miao deteriorated. The applicant 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 Rong Hua Miao moved to a women’s refuge and obtained an intervention order against the applicant.
The couple remained in contact with each other and the applicant was present at the birth of his child in September 1996. Soon after the birth, Rong Hua Miao resumed cohabitation with the applicant. In two months, the relationship broke down again and Rong Hua Miao left the applicant and obtained a flat of her own. Rong Hua Miao and the applicant co-operated to some extent in the care of the child and sometimes the applicant stayed the night, in another bed, in Rong Hua Miao’s flat. Conflict, however, persisted between them and in June 1997 the applicant was charged with breaching the intervention order. The Family Court made orders granting the applicant access to the child in August 1997. In March 1998, Rong Hua Miao complained to the police that the applicant had breached the intervention order. The applicant then stopped seeing his daughter for approximately one year. There were difficulties between the applicant and Rong Hua Miao 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 the applicant became disillusioned and depressed and developed plans to dispose of Rong Hua Maio, which, so it would appear, he discussed with an acquaintance who informed the police.
On 22 March 2000, an undercover policeman calling himself ‘Mark’ contacted the applicant. The applicant 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 the applicant met in a park. A price of $10,000 was agreed and the applicant 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. The applicant 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. The applicant wanted to be shown a photograph of Rong Hua Miao’s dead body.
Thereafter, there were a number of meetings and conversations on the telephone between the applicant and Mark. On one occasion, the applicant gave Mark a casino chip for $1,000 for the murder he was to perform. On another occasion, the applicant 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’. The applicant gave Mark detailed information as to the address and daily routine of Rong Hua Miao.
The applicant 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.
Later, the applicant 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 the applicant to arrange for a meeting with another undercover policeman with respect to a heroin deal. A week later, the undercover policeman called ‘Dale’ telephoned the applicant and arranged to meet him three days later. At the meeting the applicant 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, the applicant 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 Rong Hua Miao’s keycard and withdraw money from her account. He wanted it to look as if she had been robbed and raped. Three weeks later the applicant was arrested.[2]
[1]R v Zhong (2003) 139 A Crim R 220; [2003] VSCA 56 (‘Zhong First Appeal’). The High Court refused special leave to appeal from this Court’s decision: Zhong v The Queen [2005] HCATrans 58. Since then, the Attorney-General has repeatedly declined to refer the applicant’s case to this Court pursuant to s 327(1)(a) of the Criminal Procedure Act 2009. The applicant unsuccessfully sought judicial review of one of those decisions in the Trial Division: Zhong v Attorney-General [2020] VSC 302.
[2]Zhong First Appeal (2003) 139 A Crim R 220, 222–3 [7]–[14] (Buchanan JA, Winneke P agreeing at 221 [1], Phillips JA agreeing at 222 [5]).
First application for leave to appeal
The main issue on the application for leave to appeal, as at the trial, was whether the applicant had formed the requisite intention that ‘Mark’ carry out the murder they had discussed, and whether the judge’s directions to the jury were sufficient in this respect. This Court found that the fact that any proposal that ‘Mark’ kill Ms Miao was ‘conditional’ on the applicant first paying ‘Mark’ $5,000 did not take the case outside the ambit of the offence of incitement.[3] The conviction, and more particularly the jury’s evident conclusion that the mental element of the offence had been established, was reasonably open on the evidence. The Court also held that the judge had adequately outlined the defence case in this respect in his charge to the jury.[4]
[3]Ibid 224 [20].
[4]Ibid 225 [22].
A second issue raised at trial and in the application for leave to appeal concerned an application made at the trial by the Chief Commissioner of Police seeking to set aside a subpoena directed at providing relevant documents concerning communications between police officers and two persons described as ‘Paul’ and ‘Di’ whom the applicant suspected had brought him to the attention of police. The trial judge examined the subpoenaed material and listened to the audio recordings of conversations between the applicant and ‘Mark’. He also heard evidence in a closed hearing from which the parties and their legal representatives were excluded. The judge found that public interest immunity had been established in relation to ‘Paul’ but not ‘Di’.[5]
[5]R v Zhong [No 1] [2001] VSC 521 [10]–[12] (Flatman J).
The judge then considered whether the administration of justice would be frustrated if the subpoena was set aside by depriving the applicant of material which would assist him in his defence. He held 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’.[6]
[6]Ibid [9].
Counsel for the applicant, having examined the material produced pursuant to that part of the subpoena which had not been set aside, applied to stay the proceeding on the ground of improper conduct by the police in that they exerted pressure on the applicant to agree to the murder of Ms Miao. The trial judge refused the application. He said:
In my view, the tapes of conversations between the accused and Di and Mark show a man who was well able to put his point of view. The conversations do not suggest a man who is being pressured by someone else into becoming involved. On the contrary they suggest a person who is driven by his own reasons.[7]
[7]R v Zhong [No 2] [2001] VSC 522 [12] (Flatman J).
The judge therefore concluded that the police did not encourage or induce the applicant to commit an offence but merely provided an opportunity for him to do so.[8]
[8]Ibid [13].
Counsel for the applicant also contended that ‘Paul’ had exerted pressure upon the applicant to commit the crime. The judge said that he was unable to find that the applicant was induced to commit the crime and, in any event, he could not see any basis for attributing the responsibility for any impropriety on the part of ‘Paul’ to the police.[9]
[9]Ibid [14]–[15].
In the first application to this Court, counsel for the applicant contended that the evidence given by the applicant on a voir dire supported his contention that ‘Paul’ 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 closed court, which was unfair because the applicant’s counsel had no knowledge of that evidence.
Buchanan JA held that the judge had been ‘careful to base his decision on material known to the applicant and his advisers’.[10] The trial judge said:
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 the accused and Mark and Di give rise to the conclusion that the accused was induced by Paul to commit the crime alleged.[11]
[10]Zhong First Appeal (2003) 139 A Crim R 220, 227 [30] (Buchanan JA, Winneke P agreeing at 221 [1], Phillips JA agreeing at 222 [5]).
[11]R v Zhong [No 2] [2001] VSC 522 [15].
Second application for leave to appeal
The applicant now seeks to bring a second appeal against his conviction, pursuant to s 326A of the Criminal Procedure Act 2009. By that section, a person convicted of an indictable offence who has exhausted their right to appeal against conviction (as the applicant has) may appeal to this Court against that conviction if this Court gives leave to appeal.
The provision for a second or subsequent appeal is not simply an opportunity for a person who has been unsuccessful in seeking to appeal against their conviction to have a second attempt. A second or subsequent appeal is an exceptional proceeding, because leave to bring such an appeal is tightly restricted by the statute. The Court may only grant leave if it is satisfied that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’: s 326C(1). It is therefore not determinative that the proposed appeal may have reasonable prospects of success, for example. The gateway to a grant of leave to bring a second or subsequent appeal is much narrower.
The terms ‘fresh’ and ‘compelling’ are defined in s 326C(3), in the following terms:
In this section, evidence relating to an offence of which a person is convicted is—
(a)fresh if—
(i)it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b)compelling if—
(i)it is reliable; and
(ii)it is substantial; and
(iii)either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
Section 326D provides that, on an appeal under s 326A, the Court must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice, but must otherwise dismiss the appeal.
In respect of the requirement that the evidence founding leave to appeal under s 326C(1) be ‘fresh’, this Court said in Roberts v The Queen:[12]
Fourth, the notion of fresh evidence as against new evidence reflects an underlying concept commonly applied by intermediate appellate courts in this country. In Mickelberg v The Queen, Toohey and Gaudron JJ said:
The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available.[13]
[12](2020) 60 VR 431 (‘Roberts’).
[13]Ibid 441 [43] (Osborn and T Forrest JJA and Taylor AJA), quoting Mickelberg v The Queen (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ) (citations otherwise omitted).
In respect of the requirement that the fresh evidence also be ‘compelling’, this Court said:
Seventh, the words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen, the High Court observed (of the equivalent South Australian provision):
Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.
Eighth, when compared with the South Australian statute, the Victorian statute raises as a further alternative to the final component of ‘compelling’ evidence, that which would have eliminated or substantially weakened the prosecution case if it had been presented at trial.[14]
[14]Roberts (2020) 60 VR 431, 441–2 [46]–[47] (Osborn and T Forrest JJA and Taylor AJA), quoting Van Beelen v The Queen (2017) 262 CLR 565, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ) (citations otherwise omitted) (‘Van Beelen’).
As the Court in Roberts went on to point out, jurisdiction under s 326C(1) ‘is further conditioned upon the appellate court’s satisfaction that it is in the interests of justice that the fresh evidence be considered on appeal’.[15] The concept of the ‘interests of justice’ in this context is not to be conflated with the ultimate issue of a substantial miscarriage of justice.[16]
[15]Roberts (2020) 60 VR 431, 442 [48] (Osborn and T Forrest JJA and Taylor AJA).
[16]Ibid 443 [51], citing Van Beelen (2017) 262 CLR 565, 578 [31] (Bell, Gageler, Keane, Nettle and Edelman JJ).
Proposed grounds of appeal
Inevitably, the evidence said to be fresh and compelling will fall to be evaluated having regard to the proposed grounds of appeal. The grounds will be more relevant, however, to the question whether the evidence is ‘compelling’ than to the question whether it is ‘fresh’. As will be seen, some of the evidence the applicant now relies on is not ‘fresh’, irrespective of the content of the proposed appeal. It is convenient, none the less, to summarise the proposed grounds at this point:
1.The trial judge was biased, failed to stop police abusing the trial process, and conspired to enable the audio tape recordings to be tampered with to prevent the applicant advancing his defence.
2.The police investigation and trial were compromised by police corruption, non-compliance with the duty of disclosure and prosecution witnesses who lacked credibility or reliability.
3.Victoria Legal Aid forced the applicant to accept inadequate legal representation at an ‘unfair speedy trial’.
The applicant filed extensive materials in support of the application, which we have considered. The material raises numerous allegations. We do not deal with all of them in these reasons because they do not meet the essential threshold requirement that the evidence advanced in respect of them must be both fresh and compelling. For example, the allegation that the process of jury selection was flawed by reason of gender bias depends on no fresh evidence. That argument could have been raised at the trial. Similarly, the claim of bias on the part of the trial judge arising from his former office as Director of Public Prosecutions could have been raised at trial. We should add that we have seen nothing whatsoever in the material before us to lend credence to either of these claims, and consider them to be baseless.
Similarly, the applicant seeks to argue that the judge’s charge to the jury wrongly concentrated on the mental element of the offence. This is not a ground that can be raised on a second or subsequent appeal. It depends on no fresh evidence.
Evidence relied on by the applicant
The applicant seeks to rely on six categories of material which are said to constitute ‘fresh and compelling evidence’:
(a)the transcript of evidence given by the applicant at the voir dire hearing referred to above, on 1 October 2001 (‘the voir dire evidence’);
(b)the transcript of closed court pre-trial hearings from which the parties and their legal representatives were excluded, conducted on 2, 3, 5 and 8 October 2001 (‘the closed court evidence’);
(c)an affidavit sworn by the applicant on 4 April 2022 (‘the 4 April affidavit’);
(d)an affidavit sworn on 4 January 2006 by Huayu Hu, in which he deposes that he borrowed $5,000 from the applicant on 4 August 2000 (‘the Hu affidavit’);[17]
(e)a letter dated 14 November 2004 from Medibank Private to the applicant confirming that, on 17 August 2000, the applicant requested that the health insurance policy covering the applicant, Ms Miao and their child, be changed from a ‘Healthy Plus’ policy to an ‘Advantage Plus’ policy (‘the Medibank Private letter’); and
(f)a letter dated 19 May 2004 from Victoria Legal Aid to the applicant stating, among other things, the reasons why Victoria Legal Aid refused the applicant’s request for a change of solicitor made one month before the hearing of his first application for leave to appeal against conviction (‘the VLA letter’).
[17]This affidavit was treated as tendered.
In our opinion, as explained below, it has not been established that any of this material is ‘fresh and compelling’ within the meaning of the provisions of the Criminal Procedure Act governing second and subsequent appeals. For that reason, leave to make a second application for leave to appeal in respect of the conviction must be refused. It is unnecessary, therefore, to say more about the proposed grounds of appeal or to spend time on the question whether it is in the interests of justice that the evidence be considered on appeal — plainly, given our conclusions, it is not.
Preliminary rulings
At the hearing of the present application, the applicant made a number of preliminary applications which the Court ruled upon at the time. It is convenient to set the matters out briefly.
First, the applicant sought an order that the respondent engage an appropriate expert to examine the audio tape recordings of meetings between the applicant and undercover operatives, in order to determine whether they had been tampered with. The respondent submitted that the Court lacked power to make such an order. It is unnecessary for us to decide that question. It may be that the inherent jurisdiction of the Court would extend to making such an order if the Court thought it necessary in the interests of justice. Even assuming that to be so, however, questions about discrepancies in the times of the recordings were raised at trial and the defence cast suspicion on the fact that the recording of one critical conversation was of poor quality. We refused the application because, even if the Court had the power to make the order sought, we were not satisfied that such expert evidence could not, with reasonable diligence, have been obtained for use at the trial. As such, it would not qualify as ‘fresh’ evidence, and it would be futile to obtain it.
Secondly, the applicant sought an order that ‘Mark’ and the police informant who gave evidence at the trial attend for cross-examination. The principal subject for cross-examination was whether the applicant had been encouraged or pressured to meet with ‘Mark’ such that, in the applicant’s words, he found himself ‘stuck on a moving train’. Both these witnesses gave evidence at trial and the matters which it was sought to put to them now were within the applicant’s knowledge at trial. Had the defence wished to do so, it could therefore have conducted the cross-examination at trial. The evidence that the two witnesses could now give therefore would not qualify as ‘fresh’. For that reason, the Court refused this application also.
We accept that it is conceivable that cross-examination of the two witnesses may have yielded answers which would not have been available to the applicant at trial, even with the exercise of reasonable diligence, because the basis of some of the questioning which the applicant sought to undertake was the closed court transcript which he did not have at trial. To that extent, the evidence may have qualified as fresh. Even if it is assumed, however, that cross-examination would have yielded answers reflecting aspects of the closed court transcript, it would not be appropriate to have allowed cross-examination for that purpose. The question whether that evidence would have been ‘compelling’ is properly addressed by reference to the transcript itself. Beyond that, it is a matter of speculation what the witnesses might have said and there was no basis for requiring them to be cross-examined in this Court.
We note that the applicant submitted that his counsel was ‘pressured’ at trial to conduct a ‘speedy’ hearing, which prevented the above matters from being raised at trial. We have seen nothing to support this assertion. But even if it be assumed that this was so, that is itself a matter that could have been raised at the trial. It is not the subject of any fresh evidence and it cannot be raised now, for that reason.
Analysis
It is necessary to consider whether each of the six categories of evidence advanced by the applicant qualifies as fresh and compelling evidence.
Category one – the voir dire evidence
In the voir dire, the applicant gave evidence that ‘Paul’ had put pressure on him to speak with ‘Mark’, and made threats to kill him if he reported their dealings to police. He said that ‘Di’ was effectively foisted upon him and demanded that he meet with ‘Mark’, whereupon he felt trapped. He felt he could not make an enemy of ‘Paul’ or ‘Mark’ and that he was stuck on a moving train he did not want to be on.
The applicant did not give evidence at his trial, but the notion that he was subjected to some form of subtle pressure was advanced in his counsel’s opening and closing addresses in reliance on other evidence.
It is impossible to characterise the evidence given by the applicant in the absence of the jury at his trial as ‘fresh’. It was evidence which it was open to him to repeat before the jury but he elected not to do so.
As already noted, the applicant submitted that his counsel was placed under unfair pressure by the trial judge to conduct a ‘speedy trial’. There is, as we have said, no evidence to support that allegation. But even if it were true, the voir dire evidence could, with the exercise of reasonable diligence, have been adduced by his counsel at the trial.
Category two – the closed court evidence
The applicant relied on several passages in the closed court transcript. The respondent properly conceded that this material was ‘fresh’ because it could not have been adduced at the trial since neither the applicant nor his counsel was able to obtain it at that time.[18]
[18]It appears that it was later provided to the applicant by oversight.
The applicant contended that the transcript included evidence that was ‘compelling’ for three reasons. The first was because it showed that the judge ‘conspired’ with the prosecutor to ‘tamper’ with the audio tapes of covertly recorded conversations between the applicant and the undercover operatives.
This submission is misconceived. The closed court hearing was conducted in order to evaluate public interest immunity claims made by the Chief Commissioner of Police in respect of a subpoena directed in part at the activities of undercover operatives. In that context, the judge was concerned to ensure that the applicant would not be prejudiced by the editing of audio tapes that was necessary in order to avoid disclosure of material that was subject to public interest immunity. Having read the transcript, the suggestion of conspiracy is baseless. To the contrary, it is plain that the judge was striving to ensure a fair trial. The evidence in this category is not ‘substantial’. Still less does it damage the prosecution case. It is therefore not ‘compelling’.
The second basis upon which the applicant advanced the closed court transcript was that it was said that it furthered his claim that he had acted under ‘pressure’ or ‘duress’ at the hands of the undercover operatives. None of the passages that the applicant emphasised as advancing his case could be regarded as ‘substantial’ or ‘highly probative’. In some respects, moreover, the evidence that was given in camera was at odds with the evidence of the applicant on the voir dire. As the judge pointed out, the prosecution would have been ‘hamstrung’ if the applicant had given his own account before the jury. We have already mentioned the judge’s conclusion that the subpoenaed material which was the subject of the hearing assisted the prosecution. The transcript would not have been ‘highly probative in the context of the issues in dispute at the trial’. Nor would it have ‘substantially weakened the prosecution case’.
The third basis is that it was submitted that the transcript showed that various answers given in the evidence of the witnesses were false. For example, it was said that the police were wrong to say that they apprehended that the applicant might kill Ms Miao himself. The transcript also reveals that the applicant was not made aware of police methods or the full picture regarding those he was dealing with. Nothing turns on these matters. The latter fact is obvious as soon as it is known that ‘Mark’ and ‘Dale’ were undercover operatives. These matters do not bear on the issues in dispute at the trial.
The evidence in the transcript therefore falls well short of satisfying the definition of ‘compelling’ in s 326C(3)(b).
Category three – the 4 April affidavit
The material in the 4 April affidavit purports to show that the audio recordings of the applicant’s dealings with ‘Mark’ were tampered with in order to prevent evidence going before the jury, in particular evidence of the applicant having told ‘Mark’ in their fourth meeting that he no longer wished to proceed and wanted his money back.
The evidence in question is not ‘fresh’. The applicant was aware at trial that ‘Mark’ had denied, in his evidence, that the applicant asked for a refund at their fourth meeting. It was accepted, however, that the applicant had told ‘Mark’ on that occasion that he was thinking of not proceeding or wanted to cancel. It was put to ‘Mark’ that an unnecessarily noisy location had been chosen for the meeting, and it was suggested that there was some ‘design’ in doing so, in order that the recording equipment would not capture everything the applicant said. ‘Mark’ denied this and said that the place chosen was near the train station and that a park which was quieter was two kilometres away.
The applicant now asserts that the park was only 800 metres from the station and there were quiet locations even closer. There is nothing fresh about this evidence. It could have been obtained at the trial by the exercise of reasonable diligence.
The applicant also deposes to his own measurements of the duration of the relevant tapes, in support of his contention that the tapes had been tampered with. As already mentioned, the applicant had a copy of the audio tapes before the trial commenced. While there was debate at trial about discrepancies in the length of the tapes, the applicant’s counsel confirmed that those issues had been resolved. The additional measurements proffered by the applicant are not ‘fresh’.
For completeness, even if any of this material were fresh, we do not consider it ‘compelling’ that the fourth meeting took place in an unnecessarily noisy environment or that the conversation could not be transcribed at the point where the applicant says he asked for his money back. We add that nothing we have seen in the material lends credence to the applicant’s assertion that the tapes were tampered with.
Category four – the Hu affidavit
The evidence of Mr Hu is not fresh. If the applicant had made a loan to Mr Hu around the time of the alleged offence, this was known to the applicant at trial and evidence of the fact could have been adduced. The applicant contends that he lost contact with Mr Hu while he was in prison after his arrest. But the applicant was legally represented, and there is no evidence of any attempt having been made to locate Mr Hu. We do not accept that Mr Hu could not have been found with reasonable diligence so that his evidence could have been adduced.
Nor is the evidence compelling. Even if it were to be characterised as reliable and substantial (which the respondent contested, in reliance on the scant detail in the affidavit, and contrary evidence advanced by a police officer who spoke subsequently to Mr Hu), it would not have been highly probative or have substantially weakened the prosecution case. The applicant apparently relies on the affidavit to establish that, prior to his arrest, he had the money to pay Mark to kill Ms Miao, but chose to lend the money to Mr Hu instead. However, although the applicant’s financial situation is a matter within his knowledge, he has provided no evidence of his financial circumstances at the time, and certainly no objective evidence.
Given that conclusion, it is not necessary for us to decide whether the contrary evidence advanced by the respondent could be relied on, in circumstances where the respondent did not seek to cross-examine Mr Hu.
Category five – the Medibank Private letter
The letter from Medibank Private confirming an increase in the private health insurance cover for the applicant and Ms Miao is not fresh evidence. While the letter itself is dated after the trial, the request to increase the level of cover was made by the applicant on 17 August 2000, some five days before his arrest. The fact of that request was known to the applicant. Although he asserts that his mental health at the time caused him to forget about the point, we do not accept that evidence of the request could not have been adduced at trial. There is no expert evidence of the applicant’s mental health preventing him from adducing the evidence through the exercise of reasonable diligence.
Nor is the evidence compelling. In our view, although relevant, it is equivocal. The applicant states that he increased the cover to enable Ms Miao to have laser eye surgery and win back her favour. He says that he wrote her a love letter at about the same time. But the suggested inference from the fact of the increase, that he did not intend to have Ms Miao killed, is not compelling. It might just as well be inferred that he sought to disguise his intentions by giving that impression.
Category six – the VLA letter
The evidence that the applicant was refused a different solicitor for his first application for leave to appeal is irrelevant to his trial. While it is fresh evidence, it could have had no bearing on the trial and it is therefore not compelling.
Conclusion
The applicant has produced no evidence that meets the threshold requirement of being ‘fresh and compelling’. The application for leave to bring a second appeal against conviction must therefore be dismissed.
---
5
9
0