Zhang v R (No 4) [2026] NSWCCA 8

Citation: Zhang v R (No 4) [2026] NSWCCA 8
Court: New South Wales Court of Criminal Appeal
Date: 18 February 2026
Judge(s): Kirk JA; Wright J; Cavanagh J

Background

The applicant was convicted by a jury on 9 October 2023 of two counts of conspiring to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code (Cth). The charges arose from an alleged GST fraud scheme involving a corporate group engaged in property development that the applicant was said to effectively control. The Crown case was that false business activity statements (BASs) had been lodged with the Australian Taxation Office (ATO), claiming inflated and false input tax credits (ITCs) in connection with two development projects: a residential and retail development in Chippendale (count 1) and a hotel and golf resort development in the Hunter Valley (count 2). The construction costs were said to have been overstated by approximately $25–30 million and over $100 million respectively.

The fraud was allegedly carried out through a three-tiered corporate structure, all controlled by the applicant. Tier three companies would issue false or inflated invoices — often mimicking genuine sub-contractors — to tier two building contractors, which passed costs up to tier one developers. By exploiting differences between accrual and cash accounting registration, the scheme enabled higher-tier companies to claim ITCs on invoices that were never actually paid, while the tier three companies issuing those invoices had no obligation to remit the corresponding GST until they received payment. Two co-conspirators were also involved; one pleaded guilty, and the other left the country before charges could be laid.

The trial lasted approximately 150 days over ten months and was conducted as an e-trial, with over 200,000 pages of evidence. The applicant represented himself at trial, having declined Legal Aid–funded representation. He was sentenced to a total term of imprisonment of 10 years, with a non-parole period of six years and eight months. He appealed against conviction only, raising 10 grounds. This was the applicant's fourth appearance before the Court of Criminal Appeal in connection with the same proceedings, having previously brought three interlocutory applications.

Legal Issues

The appeal raised the following ten grounds:

Ground 1: Whether the prosecution was malicious, instigated and wrongfully conducted by the ATO
Ground 2: Whether the applicant's extradition from New Zealand was unlawful and constituted an abuse of process
Ground 3: Whether the jury verdicts were unreasonable or could not be supported having regard to the evidence
Ground 4: Whether the "server scheme" used in the e-trial caused a miscarriage of justice by impeding the jury's access to native electronic evidence
Ground 5: Whether the trial judge's interventions during the trial were excessive and undue, occasioning a miscarriage of justice
Ground 6: Whether the trial judge's summing up was unbalanced and unfair
Ground 7: Whether undue pressure was placed on the jury during deliberations
Ground 8: Whether the Crown's reliance on consciousness of guilt reasoning, as permitted by the trial judge, occasioned a miscarriage of justice
Ground 9: Whether the trial commenced at an unjust time given the applicant's medical conditions
Ground 10: Whether the cumulative effect of the errors and procedural unfairness raised in the other grounds caused the trial to miscarry

Decision

The Court granted leave to appeal on all grounds except Ground 2 and dismissed the appeal in its entirety.

On the central question of whether the verdicts were unreasonable (Ground 3), the Court undertook a detailed analysis of the evidence. It found that none of the evidence identified by the applicant contained discrepancies, inadequacies, or deficiencies of a kind that would lead to the conclusion that there was a significant possibility an innocent person had been convicted. The applicant had argued that certain technological anomalies in the documentary evidence indicated that ATO officers had fraudulently created or altered material. The Court rejected this, holding that the absence of an obvious explanation for some anomalies did not mean the only plausible explanation was fraud by ATO officers. The Court emphasised the compelling nature of the Crown's foundational evidence — namely, the enormous disparity between claimed and reasonable construction costs for both developments, which strongly supported the inference that invoices were grossly inflated. Applying established principles from M v The Queen, Pell v The Queen, Dansie v The Queen, and The King v ZT, the Court was satisfied the verdicts were open to the jury.

On Ground 5 (excessive judicial intervention), the Court reviewed the transcript and found nothing that would have created an impression in the jury's mind that the trial judge was acting as an advocate for the prosecution, nor that the judge held any view about the strength of the Crown case. There was no appearance of bias, and the applicant's case was not unfairly undermined. On Ground 6 (unbalanced summing up), the Court held that a fair reading of the summing up as a whole did not support any contention that it demonstrated favour towards either side or revealed a judicial view about the proper outcome. On Ground 7 (undue pressure on the jury), the Court examined three specific complaints — references to the principle that justice must be seen to be done, an alleged direction suggesting guilt, and remarks about the likely end date of the trial — and found none constituted improper or undue pressure.

The remaining grounds were dealt with more briefly. Ground 1 (malicious prosecution) failed because the Crown case did not depend on the validity of the ATO's assessments and there was no foundation for the applicant's assertion of a cover-up. Ground 2 (unlawful extradition) was refused leave entirely because the same abuse of process argument had been determined to be without merit in the applicant's earlier CCA application (Zhang v R [2021] NSWCCA 266), and the Court declined to permit re-agitation. Ground 4 (server scheme) failed for want of any evidence that technological difficulties at trial led to a miscarriage of justice. Ground 8 (consciousness of guilt reasoning) failed because the trial judge's directions were orthodox and there was no demonstrated bias in exchanges with the prosecutor. Ground 9 (unjust commencement time due to medical conditions) was rejected because no miscarriage of justice was demonstrated. Ground 10 (cumulative effect) was characterised as a catch-all ground, but the Court held that assessing the grounds cumulatively made no difference to their individual lack of merit.

Orders Made

Leave to appeal granted on all grounds except Ground 2
Leave to appeal refused on Ground 2
Appeal against conviction dismissed

Key Takeaways

The Court of Criminal Appeal methodically addressed all ten grounds raised by the self-represented appellant and found none, individually or cumulatively, to have merit, holding that a cumulative ground of appeal adds nothing where the individual grounds are without substance.
Where an abuse of process argument based on extradition had already been determined adversely to the applicant in an earlier interlocutory appeal, leave to appeal on that ground was refused, reinforcing that the Court of Criminal Appeal will not permit parties to re-agitate issues already decided.
Unexplained anomalies in documentary evidence do not automatically establish reasonable doubt. The Court held that the mere absence of an obvious benign explanation for technological anomalies did not compel the inference most favourable to the accused, particularly where the overall weight of the Crown case was compelling.
No miscarriage of justice was established in relation to digital evidence access difficulties arising from e-trial procedures, as the applicant failed to point to evidence of actual prejudice despite the Court's willingness to consider the ground.
Consistent with established authority, both the trial judge's interventions and the summing up were assessed holistically rather than by isolating individual passages, and the overall tenor of the trial conduct was found not to be unfair.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5F, 6
- Criminal Code (Cth), s 135.4(3)
- Evidence Act 1995 (NSW), s 41
- Extradition Act 1988 (Cth)
- Extradition Act 1999 (NZ)

Key Cases:
- A v State of New South Wales (