Zhong v The King - [2023] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0040

ZHANYU ZHONG	Applicant
v
THE KING	Respondent

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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)

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zhong v The King

Details

AGLC: Zhong v The King [2023] VSCA 35
Case: [2023] VSCA 35
Decision Date: 2 March 2023

CaseChat Overview and Summary

The case of Zhong v The King concerns an appeal brought by the appellant against the decision of the Court of Appeal of the Supreme Court of Victoria. The appellant sought leave to bring a second appeal against a conviction for incitement to murder, arguing that there was fresh and compelling evidence that warranted a review of his conviction. The matter was heard by the High Court of Australia.

The legal issues before the Court were whether the evidence presented by the appellant was both fresh and compelling, and if so, whether it was sufficient to warrant leave to bring a second appeal. The Court was required to examine the six categories of evidence put forward by the appellant to determine if any of them met both criteria. The Court applied the principles set out in Roberts v The Queen to guide its analysis.

The Court found that four of the six categories of evidence were not fresh as they were either already considered by the Court of Appeal or were not sufficiently new. The remaining two categories of evidence were found to be fresh but not compelling. The Court held that even if the evidence was fresh, it was not compelling enough to warrant leave to bring a second appeal. The Court further noted that the appellant had not demonstrated any significant miscarriage of justice that would warrant an exception to the general rule against second appeals. Consequently, the Court refused the appellant leave to bring a second appeal.

No further orders were made by the Court.

Orders