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

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…

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 Queen

Details

AGLC: Zhong v The Queen [2005] HCATrans 58
Case: [2005] HCATrans 58
Decision Date

CaseChat Overview and Summary

The case of *Zhong v The Queen* concerned an appeal to the High Court of Australia by the applicant, Zhong, against his conviction for murder. The dispute arose from the applicant's conviction in the Supreme Court of Victoria, following a trial by jury.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court considered whether the jury had been properly instructed on the objective elements of provocation, namely whether the provocation was such as to make an ordinary person act in the way the accused did, and the subjective element, which requires the accused to have been actually provoked.

The High Court, comprising Kirby and Hayne JJ, analysed the evidence presented at trial and the judge's summing up. Their Honours concluded that the directions given to the jury regarding provocation were insufficient. They reasoned that the jury may not have fully understood the objective standard required for the defence to succeed, potentially leading to a misapplication of the law to the facts. The judges emphasised that a proper direction on provocation must clearly articulate both the subjective and objective components of the defence, ensuring the jury can properly assess whether the accused's actions were a response to provocation that would have been experienced by an ordinary person in the same circumstances.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders