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Zhu v The Queen

Zhu v The Queen

Case [2013] VSCA 102 3 May 2013

Criminal Liability

Self-Defence

Consciousness of Guilt

Reasonable Apprehension of Bias

Appeal Against Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0292
JIE ZHU	Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH and WHELAN JJA and KAYE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 March 2013
DATE OF JUDGMENT	3 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 102
JUDGMENT APPEALED FROM	[2011] VSC 470 (King J)

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CRIMINAL LAW – Murder – Appellant stabbed victim to death after fighting with victim’s friends – Defence that stabbing was unintentional – Self-defence not relied on – Whether obligation to put any alternate defence of self-defence – Whether trial judge erred in failing to leave self-defence, defensive homicide and manslaughter self-defence to the jury – No self-defence direction required – No evidence to found a claim of self-defence – Pemble v The Queen (1971) 124 CLR 107 discussed – Crimes Act 1958.

CRIMINAL LAW – Post offence conduct – Consciousness of guilt – Appellant fled the scene of the murder, lied to emergency services and planned to obtain a false passport – Whether evidence of post-offence conduct should have been left to the jury – Trial judge properly allowed the evidence to be led – All items of post-offence conduct demonstrated a consciousness of guilt – R v Ciantar (2006) 16 VR 26 discussed.

CRIMINAL LAW – Juries – Reasonable apprehension of bias – Trial judge notified by a juror that the juror knew a key witness – Application to discharge the juror refused – Whether trial judge erred in failing to discharge the jury or the single juror – R v Goodall [2007] VSCA 63; Chung v Rechichi (2005) 20 VR 221 considered – No error in exercise of discretion not to discharge the individual juror or the jury – No high degree of need for discharge – Section 43 of the Juries Act 2000.

CRIMINAL LAW – Appeal against sentence – Manifest excess – Pressing need for general deterrence in respect of violent knife attacks by youthful offenders – Sentence not manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Lethbridges
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

KAYE AJA:

After a trial in the Supreme Court of Victoria, the appellant was convicted of murder on 8 August 2011. He was sentenced to 19 years’ imprisonment with a non-parole period of 15 years. He has been granted leave to appeal against his conviction on the following grounds:

1) The trial judge erred and there was a substantial miscarriage of justice by reason of the failure to leave for consideration of the jury: (a) self-defence; (b) defensive homicide; and (c) manslaughter self-defence.

2) There was been a substantial miscarriage of justice by reason of many items of ‘post-offence conduct’ being left to the jury as capable of amounting to implied admissions of the offence of murder; in particular that the appellant had the requisite mens rea for murder.

3) The trial judge erred…

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 Zhu v The Queen

Details

AGLC: Zhu v The Queen [2013] VSCA 102
Case: [2013] VSCA 102
Decision Date: 3 May 2013

CaseChat Overview and Summary

The appellant, Zhu, appealed against his conviction for murder and the sentence imposed by the trial judge. Zhu was involved in a fight with the victim’s friends and subsequently stabbed the victim to death. Zhu claimed that the stabbing was unintentional and did not rely on self-defence. The court was required to determine whether the trial judge was obligated to direct the jury on any alternate defence of self-defence and whether the judge erred in not leaving self-defence, defensive homicide, and manslaughter self-defence to the jury. The court considered the evidence and concluded that there was no evidence to support a claim of self-defence, and therefore no direction was required. The court also examined the evidence of post-offence conduct, including Zhu’s flight from the scene, his lies to emergency services, and his plan to obtain a false passport. The court found that all of these actions demonstrated a consciousness of guilt and that the trial judge was correct in allowing the evidence to be led. The court also considered whether the trial judge erred in not discharging a juror who knew a key witness. The court found that the trial judge did not err in not discharging the juror or the jury, as there was no high degree of need for discharge. Finally, the court considered Zhu’s appeal against sentence and found that the sentence was not manifestly excessive, given the need for general deterrence in respect of violent knife attacks by youthful offenders. The appeal against sentence was dismissed.

The court held that the trial judge did not err in failing to leave self-defence, defensive homicide, and manslaughter self-defence to the jury, as there was no evidence to support such a claim. The court also held that the trial judge was correct in allowing evidence of post-offence conduct, which demonstrated Zhu’s consciousness of guilt. The court found that the trial judge did not err in not discharging the juror who knew a key witness, as there was no high degree of need for discharge. Finally, the court held that the sentence imposed was not manifestly excessive, given the need for general deterrence in respect of violent knife attacks by youthful offenders. The appeal against conviction was dismissed, and the appeal against sentence was also dismissed.

Orders