Zhong v The Queen

[2005] HCATrans 58

[2005] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M196 of 2003

B e t w e e n -

ZHAN YU ZHONG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 2.12 PM

Copyright in the High Court of Australia

MR Z. ZHONG appeared in person.

MR P.A. COGHLAN, QC:   If it please the Court, I appear with my learned friend, MS G.T. CANNON, for the respondent.  (instructed by Director of Public Prosecutions (Victoria))

KIRBY J:   Yes, Mr Zhong.  Come to the microphone and speak up if you would, because that is not amplifying, it is simply recording what you have to say.  Do you need an interpreter for the purpose of interpreting the submission that you wish to make?

MR ZHONG:   In most case I can understand but some time expression hard to make, I may need help.

KIRBY J:   Well, if you need the interpreter at any time during the course of what you say or if there is anything that you do not understand in the proceedings before the Court, if you indicate this we will interrupt the proceedings, swear the interpreter and then allow the matter to proceed with the help of the interpreter.  Is that acceptable to you?

MR ZHONG:   Yes, thank you.

KIRBY J:   We have read the written submissions, Mr Zhong, so you do not have to repeat what you have said in those submissions, but you can give emphasis to anything you wish to say.

MR ZHONG:   Just…..that I would like to add some additional, about one minute’s reading.  Is that okay?

KIRBY J:   Yes.  You have 20 minutes to address the Court.

MR ZHONG:   Okay.  Just accept the writing of my oral argument.

KIRBY J:   Well, we will make sure that you can fairly put your case.

MR ZHONG:   Okay.

KIRBY J:   You proceed.

MR ZHONG:   I would say, your Honours, before my formal speech being read out, with the most of my respect to your Honours, please allow me to claim that the respondent should be regarded as that they agreed with my supplementary summary of amended argument because they did not oppose my argument with their further argument of written submission.  That is, they agreed with that the special leave should be granted to me when they could not answer my questions, could not defeat my legal arguments and could not ‑ ‑ ‑

HAYNE J:   I am terribly sorry, Mr Zhong, can I just interrupt you.  You will need to speak a bit louder.  Can you speak a bit louder for me please?

MR ZHONG:   Sorry, my voice a little ‑ ‑ ‑

KIRBY J:   Take a glass of water and then you can – perhaps the interpreter will pour the glass of water out for you and then speak in a loud voice because we have to hear you and it is quite a long distance.

MR ZHONG:   Can I move this?

HAYNE J:   All that does is record.

KIRBY J:   That is recording, it is not amplifying.  Would you explain that to him?

MR ZHONG:   I will just read it again.  Your Honours, before my formal speech being read out with the most of my respect to your Honours, please allow me to claim that the respondent should be regarded as that they agreed with my supplementary summary of amended argument because they did not oppose my argument with their further arguments of written submission, that is they agreed with that the special leave should be granted to me when they could not answer my questions, they could not defeat my legal arguments and could not reject my reasonable claims in matter of the fact if those matters of fact are being judged by the public as a jury.  The rest of them I already submitted them, my written oral submission, I already submitted to the Court, to your Honours so ‑ ‑ ‑

KIRBY J:   Well, you rely on the written document that you have given to the Court?

MR ZHONG:   And the oral argument of my submission I submitted to the Court yesterday.

HAYNE J:   Yes, you have given us this document which is called “Applicant’s Submission Of Oral Argument For The Special Leave Application To Appeal”.  That is the document you are talking about?

MR ZHONG:   That is correct.

HAYNE J:   Yes.

MR ZHONG:   And also I submitted a ‑ ‑ ‑

KIRBY J:   You have seen this, Mr Coghlan, have you, the oral argument?

MR ZHONG:   The “Applicant’s Index Of Citations ‑ ‑ ‑

KIRBY J:   Just a moment.  Mr Coghlan?

MR COGHLAN:   I do not believe we have, your Honour.

KIRBY J:   You have not seen it?  Have you a copy for the representative of the Crown?  Yes.  What does this document add to what you have in the written submissions that we already have?  It seems to say the same thing.

MR ZHONG:   No, I just indicate some indisputable facts which the respondent cannot defeat my argument.  Also, I submitted some precedent as a citation which, the most important thing I think, and, for example, at page 4 of 5, line 145, title is “Amended Ground 3 & 4”.  Now, at line about 170, I said now, according to the law ‑ ‑ ‑

KIRBY J:   You complain here about what you say the trial counsel’s unethical conduct but you did not complain about that in the Court of Appeal, did you?

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 and also as an error of the law that the Court of Appeal has partially applied Crimes Act (Vic) 1958 section 321G in that, if they impartially applied that law to me, they are supposed to apply the section 321 – I think (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 (Vic) 1958 section 321G1 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.  As I think is most of my argument and also the last argument I put, I think, at about line 170 at page 4 of 5 which I submitted, I said now, according to the law and authority in the judgment of High Court of Australia from the citation 8, 11 and 19.  In the brackets I give the reference at page 2, 3, 18 at line 28 to 44 and the page 24 at the line 27 to 29.  My special leave application must be allowed by applying the citation 19 to my special leave application as a precedent, that is, it meets the criteria to grant me special leave to appeal as a clear as black and white and as clear as that one never be enough to equal four.

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.

KIRBY J:   You press on and say anything you wish to say and the Court will hear you.  I know it is a very stressful occasion for you, but we have received all the written material and we have read that carefully.  This is an opportunity for you to say anything that is not in the written document.

MR ZHONG:   And also, in regarding the judicial bias, I think ‑ ‑ ‑

KIRBY J:   This is not something again that you raised in the Court of Appeal.

MR ZHONG:   No, okay.  So it is an error of the law, if just presumably, the trial judge correctly and tell the jury the true and correct statement of the law about the matter for prosecution to prove me guilty of the offence, if the trial judge tell the jury this is four elements of the offence, not just only as one key issue so, in that sense, the trial judge, I believed - also, I have got a record of procedure to support my claim - I believe he deliberately, to relieve the prosecution of the onus and it is really wrong, that is what I believe.  He failed to perform his duty and obligation to direct the jury correctly and truthfully about the matter of law.  So, what he said, as I can recall without reading, he told the jury in this case only one key issue.  It is not right.  And he also admitted in his remarks at the sentencing hearing, he admitted it was not only one key issue case.  What happened for the jury to understand because juries think about “Oh, it is only one key issue case” because of the prosecution with assistance of the trial judge help.  A lot of things they lied because I was told not to give evidence, I had no chance to talk about these things.

KIRBY J:   You had the opportunity to give evidence but you elected not to give evidence.  If you had given evidence you would have been subject to a lot of cross-examination about the arrangements that you had made with the police officer, Mark, that ‑ ‑ ‑

MR ZHONG:   I was told by my trial counsel, I give them direction, they do not listen to me.  At the time, I did not really have much choice but anyway ‑ ‑ ‑

KIRBY J:   You did not complain about that in the Court of Appeal either.

MR ZHONG:   I appealed that because, like I said, the appeal counsel, my legal team, they had a conflict of interest.  I had really bad argument with my instructing solicitor, who is John McLoughlin and he said, if you want me to pursue this matter and the ground incompetence of counsel or the trial judge erred in elements of the law, in direction and he said he want to resign.  I said, “Fine, you resign, I find another person”.  I tried to make application to Legal Aid, asked them to change the solicitor for me because he was undermining my appeal ground.  The Legal Aid played political game, they refused me and then they come to gaol and said, “We will pursue the ground what you told us” and come to appeal courtroom, they lied to me.  They did not do what they promised me and then I get frustrated, I tried to attract their Honours’ attention, the security guard put a hand on my shoulder, make me shut up.  Sorry, I do not mean to ‑ ‑ ‑

KIRBY J:   Yes, but the net result of this is that the matter was not explored in the Court below.  This is an appeal court, we are not ‑ ‑ ‑

MR ZHONG:   Okay.

KIRBY J:   We are reviewing what the Court of Appeal did, and if you do not raise it in the Court of Appeal then you cannot show an error on the part of the Court of Appeal in dealing with it, and all we can do is look at the record which, on the face of the record, does not show any incompetence on the part of your counsel or any bias on the part of the judge.

MR ZHONG:   I gave you some precedent case references, I am not preparing - going to argue further about this incompetent counsel ground because it is not my major appeal ground.  What I am trying to argue is an error of the law the trial judge made.  The trial judge made the error of the law what he said.  Firstly, he gave inadequate direction of the law.  That is I referred a precedent case, as a High Court case which High Court case, please allow me to mention that. 

KIRBY J:   Do not worry about the case, we know the principle.  You press on with your submission.

MR ZHONG:   Yes, okay.  The principle is the trial judge give direction to the jury in regard of the onus of prosecution had to prove.  The effect of his misdirection of whether it is deliberately or just accidentally or whatever it belong to, but it had the effect to let a jury to misunderstand.  The prosecution only had to prove one of the four elements of the offence, then they can find me guilty.  It is wrong because the defence, sorry, the Crown evidence demonstrate the other elements that the Crown evidence failed to disclose.  However, it is wrong for the trial judge because the other elements that the prosecution cannot prove, and through the political game.  The trial judge in some improper way not telling the jury that this prosecution had to prove the other elements as well.  Then the trial judge only said, it is only a key issue offence to prove, but the fact is, at the true and correct statement of law about the matters for the prosecution to prove me guilty of the offence, it is four elements of the offence.  It is obviously inadequate, incorrect and untrue statement of the law.

What I am saying is obvious error of the law because – or what I said as a judicial officer, whether as a trial judge or Court of Appeal, they have no judicial power to apply their own political inclination, but they only have power of judiciary to explain the law to the jury adequately, correctly and according to the written law.  That is ‑ ‑ ‑

KIRBY J:   Yes, well, thank you very much, Mr Zhong.  We understand that submission and we have read your written submission and your time has now expired.

MR ZHONG:   Thank you.

KIRBY J:   The Court does not need your assistance, Mr Coghlan. 

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. 

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. 

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. 

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. 

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. 

I would ask the interpreter to interpret the substance of what I have just said.  The transcript of that statement by the Court will be sent to the applicant within a few days. 

Adjourn the Court. 

AT 2.37 PM THE MATTER WAS CONCLUDED