AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 28 April 2023

Zhang v R

[2023] NSWCCA 98

Fraud & dishonesty
CRIME APPEALS INTERLOCUTORY APPEAL

Citation: Zhang v R [2023] NSWCCA 98
Court: Court of Criminal Appeal
Date: 28 April 2023
Judge(s): Davies J; Ierace J; R A Hulme AJ

Background

The applicant faced trial in the District Court on two counts of conspiracy to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code 1995 (Cth), relating to two separate property developments between 2004 and 2008. The charges carried a protracted history: the applicant had departed Australia in April 2009 during an Australian Tax Office investigation, remained overseas for years, and was ultimately extradited from New Zealand, arriving back in Australia in September 2019.

The matter had seen multiple pre-trial applications, two earlier unsuccessful applications to the Court of Criminal Appeal for leave to appeal interlocutory rulings, and a series of adjournments. The applicant represented himself at various stages, including before the trial judge and in this Court, at times with the assistance of a Chinese language interpreter.

In late 2022, the applicant sought two further interlocutory orders from the trial judge: a nine-month adjournment of the trial and the recusal of the trial judge for apprehended and actual bias. Both were refused, and the applicant applied to the Court of Criminal Appeal for leave to appeal those decisions under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

Legal Issues

  • Whether the trial judge's refusal of a nine-month adjournment application was infected by error of the kind identified in House v The King (1936) 55 CLR 499, such that leave to appeal the adjournment decision should be granted.
  • Whether a decision by a trial judge to refuse a recusal application constitutes an "interlocutory judgment or order" amenable to appeal under s 5F of the Criminal Appeal Act 1912 (NSW).
  • Whether, even if the recusal decision were amenable to appeal, the applicant had established actual bias or a reasonable apprehension of bias on the part of the trial judge.

Decision

Issue 1: Adjournment Refusal

A refusal of an adjournment is an interlocutory judgment or order for the purposes of s 5F(3), and appellate intervention is only available where the trial judge failed to properly exercise the discretion in one of the ways recognised in House v The King (at [56]). The Court noted that the applicant had not expressly addressed whether any such error had occurred, but, mindful of his self-represented status, the Court examined the circumstances itself (at [57]-[58]).

The Court found no House v The King error. By the time the motion to vacate the trial date was filed, the applicant had possessed the Crown's disclosure material for approximately 30 months (at [61]). His counsel had informed the trial judge, before instructions were withdrawn, that the defence was ready to proceed on 31 October 2022 (at [61]). The proposal to fund a privately represented defence from a term deposit was speculative, as the ATO would not approve release of those funds (at [61]). Taking all relevant factors into account, the Court was satisfied the trial judge had properly exercised the discretion, and leave was refused (at [62]-[63]).

Issue 2: Recusal Decision and Jurisdiction

The Crown submitted that a recusal decision is not an "interlocutory judgment or order" within s 5F(3), and the Court identified this as a threshold issue. The preponderance of authority, including R v Rogerson (1990) 45 A Crim R 253 and Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182, supports the view that a recusal decision is not amenable to appeal under s 5F (at [64]-[68]). Earlier authority had left the question somewhat open, but the Court did not find the present circumstances warranted close examination of whether the recusal decision could come within s 5F (at [70]).

In any event, the Court considered the merits. The applicant's concerns largely reflected adverse rulings made against him over the preceding ten months, some of which had already been the subject of unsuccessful leave applications. The Court found no basis upon which it could reasonably be concluded that the trial judge exhibited actual bias, nor any basis upon which a reasonable bystander might apprehend bias, whether the concerns were considered individually or collectively (at [70]-[73]). The Court observed that some of the applicant's concerns appeared to arise from unfamiliarity with court processes, difficulties with English, and the absence of legal representatives to explain matters (at [72]). Leave was refused (at [74]).

Orders Made

  • Leave to appeal refused (in respect of both the adjournment decision and the recusal decision).

Key Takeaways

  • A trial judge's refusal of an adjournment is an interlocutory judgment or order appealable under s 5F of the Criminal Appeal Act 1912 (NSW), but appellate intervention requires the applicant to demonstrate a House v The King error in the exercise of discretion (at [56]).
  • No error was established in the trial judge's refusal of a nine-month adjournment where the applicant had held the Crown's disclosure material for some 30 months before filing the motion, his counsel had confirmed trial readiness before withdrawing, and the proposal for private funding was speculative (at [61]-[62]).
  • The preponderance of New South Wales authority holds that a trial judge's refusal of a recusal application is not an "interlocutory judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act 1912 (NSW), and the Court again declined to depart from that position (at [64]-[70]).
  • Even where the amenability of a recusal decision to s 5F appeal remains technically unresolved, the Court of Criminal Appeal is prepared to assess the merits and, where no apprehension or actual bias is established on the facts, to refuse leave on that basis as well (at [70]).
  • Adverse rulings made against a party in the course of protracted litigation, without more, do not provide a sufficient foundation for a finding of apprehended or actual bias (at [70]-[73]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 69, 74
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Code 1995 ( Cth), s 135.4(3)

Cases
- Barakat v Goritsas [2012] NSWCA 8
- Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182
- Dietrich v The Queen (1999) 177 CLR 292; [1992] HCA 57
- Gurung v R [2012] NSWCCA 201
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Alexandroaia (1995) 81 A Crim R 286
- R v Rogerson (1990) 45 A Crim R 253
- R v Zhang [2020] NSWSC 478
- Zhang v R [2021] NSWCCA 266
- Zhang v R [2022] NSWCCA 100