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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, NSW
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). The Crown alleged that he conspired with two others to lodge fraudulent Business Activity Statements on behalf of two property development companies, causing the Australian Taxation Office to pay out approximately $19 million in inflated and illegitimate input tax credits and GST refunds.

The matter had a protracted history. The applicant was first investigated in 2008, departed Australia for Hong Kong shortly after search warrants were executed in 2009, and did not return until extradited from New Zealand in September 2019. He was arraigned in the District Court in January 2021 and appeared throughout the proceedings without legal representation, at times assisted by a Chinese-language interpreter.

Before the Court of Criminal Appeal were two interlocutory applications: one challenging the trial judge's refusal to adjourn the trial by approximately nine months (refused on 26 October 2022), and one challenging the trial judge's refusal to recuse himself on grounds of apprehended and actual bias (refused on 15 November 2022). The Court of Criminal Appeal heard the applications on 25 November 2022 and refused leave in respect of both decisions.

  • Whether the trial judge's refusal to adjourn the trial was infected by error of the kind described in House v The King (1936) 55 CLR 499, so as to justify the grant of leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW)
  • Whether a recusal decision is amenable to an interlocutory appeal under s 5F of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge's refusal to recuse himself for apprehended and/or actual bias was otherwise susceptible to review on the leave application

Decision

Adjournment application: The Court considered whether the trial judge's refusal to vacate the trial date disclosed an error of the type identified in House v The King, that is, an error in the exercise of a discretion such as acting on a wrong principle, allowing extraneous matters to guide the decision, or reaching a result that was plainly unreasonable. The Court found no such error had been demonstrated. The applicant's complaints, which centred on his limited access to disclosure material and difficulty preparing his defence while on remand, had been weighed by the trial judge against the lengthy delays already experienced in the matter and the other relevant circumstances. Leave to appeal the adjournment refusal was refused.

Recusal application: The Court examined whether a decision refusing a recusal application fell within the scope of s 5F of the Criminal Appeal Act 1912 (NSW) as an interlocutory decision amenable to appeal. This question raised a degree of uncertainty, and the Court proceeded to consider the merits in any event. The applicant's recusal application was supported by a lengthy affidavit identifying eleven concerns about the trial judge's conduct over the preceding ten months.

On examination, the Court found that the applicant's concerns did not establish a basis for either apprehended or actual bias. Most of the concerns amounted to adverse rulings made against him in the ordinary exercise of the trial judge's functions, not indications of prejudgment or improper motive. Several of the remaining concerns reflected misunderstandings by the applicant. One concern, that the trial judge "held a grudge" against him, was directly contradicted by a transcript passage showing the judge actively assisting the applicant to obtain a copy of a judgment. Leave to appeal the recusal decision was also refused.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal refused leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) in respect of both the adjournment refusal and the recusal refusal, confirming that interlocutory leave applications face a significant threshold.
  • A refusal to adjourn a trial is a discretionary decision; to succeed on appeal, an applicant must demonstrate error of the House v The King kind, such as acting on a wrong principle or reaching a plainly unreasonable result. A generalized complaint about preparation difficulties is insufficient.
  • The judgment leaves open whether a recusal decision is amenable to a s 5F interlocutory appeal at all, as the Court proceeded to consider the merits without definitively resolving that threshold question.
  • Adverse interlocutory rulings made against a party in the ordinary course of proceedings do not, without more, establish apprehended or actual bias on the part of the trial judge.
  • Where an unrepresented accused appears with interpreter assistance and raises numerous grievances about case management, the Court will still apply the same legal tests to each ground and will not treat volume of complaint as a substitute for legal merit.

Legislation and Cases Referenced

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

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Barakat v Goritsas [2012] NSWCA 8
- Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182
- Gurung v R [2012] NSWCCA 201
- 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