Plaintiff v Defendant

1 Nearly twenty years ago, in August 2000, Zhanyu[1] Zhong was arrested and charged with inciting "Mark James" to murder his de facto wife Rong Hua Maio.[2] Happily, no harm ever came to Ms Maio. Nor was that ever a realistic prospect. This is because, as is often the way in these cases, Mark was not a real hitman at all but an undercover policeman playing a role.

2 In October 2001, the jury empanelled on Mr Zhong's trial in this Court found him guilty as charged. He was sentenced to six years' imprisonment with a non-parole period of three-and-a-half years.

3 Ever since, however, by every channel available at law, Mr Zhong has repeatedly attempted to clear his name. His quest started conventionally enough, when he sought leave to appeal against his conviction. That application, however, was refused by the Court of Appeal in 2003. Undeterred, and despite his release on parole in early-2004, when the vast majority probably would have desisted, he applied for special leave to appeal to the High Court, appearing without legal representation. But that application was refused too, in 2005.

4 Still, he did not rest there. Next, despite the expiry of his head sentence in 2006, and having exhausted his appellate rights, in 2010, Mr Zhong filed with the Attorney-General a petition for mercy (which he drew himself) requesting that the whole case be referred to the Court of Appeal pursuant to s 327(1)(a) of the Criminal Procedure Act 2009 (Vic) ("the CPA"). In 2012, the Governor advised Mr Zhong that his petition had been denied.

5 In the years that followed, Mr Zhong kept firing off letters to successive Attorneys, in effect seeking reconsideration of his petition. But, each time, he was told that his petition would not be reconsidered because it contained no new or fresh evidence.

6 Yet again, in January 2018, Mr Zhong wrote to the Attorney seeking consideration of his latest petition. The next month, he was advised once more that the petition would not be considered because it raised no new or fresh evidence. Still dissatisfied, Mr Zhong, under his own steam, filed an originating motion in this Court seeking judicial review of that decision. Ultimately, the proceedings settled in August 2018, with the Attorney agreeing to "consider, according to law, including the Charter of Human Rights and Responsibilities Act 2006" ("the Charter"), the petition of January 2018, together with any other material he wished to file. At last, Mr Zhong thought he was getting somewhere.

7 In April 2019, however, the current Attorney advised Mr Zhong that, after considering his petition, she had declined to refer the case to the Court of Appeal. In June 2019, the Governor also advised him that his petition had been declined.

8 Now, Mr Zhong is back in this Court again, still unrepresented, seeking judicial review of those most recent decisions. The amended originating motion,[3] supporting affidavits and submissions in this Court were all drawn by Mr Zhong. Those documents contain a farrago of claims, some of which are hard to follow or are misconceived. Many are just scurrilous and should not have been made. Nevertheless, among his many complaints, Mr Zhong contends that his conviction makes about as much sense as the trial, conducted in Switzerland in 1474, at which a rooster was convicted of laying an egg. While nicely put, the difficulty with that complaint, and several others, is that they tend impermissibly to invite merits review. Mr Zhong also appears, at times, to think that merely to utter such a submission means that it must be accepted. That said, I have taken complaints like those, in substance, to be grounds alleging something akin to "Wednesbury unreasonableness".[4] Mr Zhong also claims that, despite his written and oral requests, the Attorney erroneously has declined to provide reasons for her decision.

9 The Attorney makes three principal responses. First, she submits that neither decision is reviewable. Secondly, it is submitted that, even if the decisions - or the processes by which those decisions were reached - are reviewable, Mr Zhong's claims, in substance, impermissibly invite merits review, have previously been adjudicated on appeal or are otherwise not made out. Thirdly, while it is conceded by the Attorney that no reasons were provided to Mr Zhong, it is submitted that he made no request for reasons under s 8 of the Administrative Law Act 1978 (Vic) ("the ALA") and that neither the common law nor the Charter requires the giving of any such reasons.

10 The state of the law binding on this Court appears to be that the Governor's exercise of the prerogative of mercy in not reviewable at all.[5] Some recent decisions, however, in other jurisdictions with analogues of s 327 of the CPA, have allowed that at least the process by which the Attorney's decision to decline to refer a case to the Court of Appeal is reviewable.[6] But those decisions are not binding on this Court. That said, it is unnecessary to determine those issues finally, because I am satisfied that none of Mr Zhong's grounds can succeed in any event. In consequence, the answers to the important questions concerning reviewability should await a case in which they might be determinative of the outcome. Similarly, while the applications raise nice questions concerning whether the Attorney has an obligation to provide reasons under s 8 of the ALA, I am not satisfied that Mr Zhong made a request for reasons. Nor am I persuaded that the Attorney has a duty to provide reasons at common law or pursuant to the Charter.

11 Accordingly, I would dismiss these applications.

12 Whether Mr Zhong has persisted in seeking to overturn his conviction out of a genuine sense of outrage, or in pursuit of forgiveness, or to play Jesus to the lepers in his head,[7] or perhaps just in the hope of rebuilding his relationship with his daughter, I cannot say. Nor, of course, is it mine to reason why. But, whatever his motive, no one could deny that he has been dogged in what has turned out to be a long and losing fight.

13 That said, perhaps all is not lost for Mr Zhong. Despite the orders I must make, I am nevertheless concerned about aspects of his trial and the safety of his conviction. I am also troubled that neither the Attorney nor this Court had access to the complete trial transcript or trial exhibits. These matters have driven me to the unusual course of making an unsolicited recommendation to the Attorney that she might consider a fresh petition in any event.[8] Indeed, I would go so far as to say that, even on the limited material before this Court, if, as a member of the Trial Division, I had been asked (along with other judges) to provide an opinion to the Attorney pursuant to ss 327(1)(b) and (3) of the CPA, I would have opined that she should refer the whole case to the Court of Appeal pursuant to s 327(1)(a).[9]

14 If a new petition is to be filed, this time, it must include the complete trial transcript and all trial exhibits. Also, it should be far more targeted than previous petitions, and should exclude the reams of drivel and bile with which Mr Zhong has burdened Attorneys past and present. I think he would need (and it would be preferable for all if he had) expert legal help to achieve that. Maybe a kindly barrister or two would pitch in.

15 Whether any of these suggestions is taken up is, of course, a matter entirely for Mr Zhong, the Attorney and Victoria Legal Aid ("VLA") (or perhaps the Bar's Pro Bono Scheme).

16 Another avenue to appeal may be open to Mr Zhong. While the present applications were on foot, the legislature introduced into the CPA a new Part 6.4, which makes provision for second or subsequent appeals to the Court of Appeal by those whose appeal rights have been exhausted.[10] It may well be that Mr Zhong could produce evidence establishing the effective unavailability at trial of the evidence he put before the Attorney and this Court. If so, he may be able to satisfy the Court of Appeal that this seemingly new evidence is in fact "fresh and compelling evidence that should, in the interests of justice, be considered on an appeal". In that event, he would have a basis for obtaining leave to prosecute a second appeal to the Court of Appeal, pursuant to s 326A of the CPA.[11] If leave were granted, Mr Zhong may also be given leave to agitate a couple of his error points on an appeal, provided they are reasonably arguable.[12] Again, this is all entirely in the hands of Mr Zhong and, if it comes to it, the Court of Appeal.

17 I shall return to these matters at the end of this judgment.

18 In the meantime, my detailed reasons for refusing Mr Zhong's applications for judicial review follow.

19 Before turning to a more detailed summary of the other proceedings and events that preceded these applications for judicial review, and then to the required approach to, and the substance of, the complaints agitated, I wish to make two preliminary points.

20 First, English is not Mr Zhong's first language. Nor is he legally trained. In the result, I found it difficult to decipher precisely what he meant at times, both in his written materials and in his oral presentation. In the end, however, I am satisfied that I understood him sufficiently to do his case justice.

21 Secondly, I have been able to do so in large part because of the considerable assistance of Ms Gory, counsel who appeared for the Attorney. While Ms Gory pressed her client's position with a high level of skill and appropriate vigour, she also - very fairly and responsibly, in my view - assisted the Court and Mr Zhong by seeking to distil his arguments and by pointing to authorities and acknowledging considerations that might be contrary to her submissions.

23 It is convenient to extract a summary of the evidence before the jury from the judgment of Buchanan JA, who, with Winneke P and Phillips JA, heard Mr Zhong's application for leave to appeal against conviction.[13]

[6] On 10 October 2001, [Mr Zhong] was arraigned and pleaded not guilty to a presentment containing one count that between 23 March 2000 and 3 August 2000 he incited Mark James to murder Rong Hua Maio. [Ms] Maio was the former de facto wife of [Mr Zhong] and mother of his daughter.

[7] The Crown led evidence from [Ms] Maio, two undercover members of the police force, a member of a police surveillance unit and the arresting officer. The evidence disclosed that in 1986, when [Mr Zhong], then aged 30 years, was studying at the university in Beijing, he placed an advertisement in a relationship section of a women's magazine. [Ms] Maio, who was then aged 21 years, a teacher living in the country, responded to the advertisement. The pair corresponded for a few months and in 1987 [Mr Zhong] travelled to the province in which [Ms] Maio lived. A relationship developed between them and in 1989 they became engaged. In 1990, [Mr Zhong] migrated to Australia. He invited [Ms] Maio to come to Australia to live with him and she agreed.

[8] [Mr Zhong] returned to China in order to accompany his fiancée to Australia. She discovered, however, that [Mr Zhong] had a gambling problem and she returned to her family. [Mr Zhong] came back to Australia without her, but finally, as a result of his constant entreaties and promises to reform, she left China in November 1995 and arrived in Australia.

[9] The couple lived in a flat in Footscray. [Mr Zhong] worked as a taxi-driver and [Ms] Maio commenced an English course at a language school. By the end of December 1995, [Ms] Maio discovered that she was pregnant. She was disappointed by the news and investigated the possibility of an abortion. [Mr Zhong] was extremely angry with her as a result of her attempting to obtain an abortion and took away her passport, bank account and medical card in order to isolate her. [Mr Zhong] continued to have a problem with gambling. Overall, the relationship between [Mr Zhong] and [Ms] Maio deteriorated. [Mr Zhong] discovered an old love letter from a friend of his de facto wife in China. This led to a fight. The police were called and [Ms] Maio moved to a women's refuge and obtained an intervention order against [Mr Zhong].

[10] The couple remained in contact with each other and [Mr Zhong] was present at the birth of his child in September 1996. Soon after the birth, [Ms] Maio resumed cohabitation with [Mr Zhong]. In two months, the relationship broke down again and [Ms] Maio left [Mr Zhong] and obtained a flat of her own. [Ms] Maio and [Mr Zhong] co-operated to some extent in the care of the child and sometimes [Mr Zhong] stayed the night, in another bed, in [Ms Maio's] flat. Conflict, however, persisted between them and in June 1997 [Mr Zhong] was charged with breaching the intervention order. The Family Court made orders granting [Mr Zhong] access to the child in August 1997. In March 1998, [Ms] Maio complained to the police that [Mr Zhong] had breached the intervention order. [Mr Zhong] then stopped seeing his daughter for approximately one year. There were difficulties between [Mr Zhong] and [Ms] Maio in relation to access to the child and the parties attended counselling sessions. These difficulties, which involved intervention by the Family Court, continued until early 2000. It appears that [Mr Zhong] became disillusioned and depressed and developed plans to dispose of [Ms] Maio, which, so it would appear, he discussed with an acquaintance who informed the police.

[11] On 22 March 2000, an undercover policeman calling himself "Mark" contacted [Mr Zhong]. [Mr Zhong] said that he wanted to see him, but it was not "that urgent", although he still wanted to "go ahead with it". The next day, Mark and [Mr Zhong] met in a park. A price of $10,000 was agreed and [Mr Zhong] said he was really sure that he wanted to go ahead. He discussed with Mark how his de facto wife was to be killed, of making her "disappear", having her "raped and killed" or staging an apparent accident. [Mr Zhong] said that he did not want it done straight away because of his financial problems and his daughter's emotional ties to her mother, but it was to be done at least within four months. [Mr Zhong] wanted to be shown a photograph of [Ms] Maio's dead body.

[12] Thereafter, there were a number of meetings and conversations on the telephone between [Mr Zhong] and Mark. On one occasion, [Mr Zhong] gave Mark a casino chip for $1,000 for the murder he was to perform. On another occasion, [Mr Zhong] confirmed the identity of his de facto wife from photographs shown to him by Mark and handed Mark $200. He said that he still wanted to go through with it but that he did not want everything to come back to him if he changed his mind. He said that he wanted Mark to make her apologise, to "make a suicide note", and said he did not want to get into trouble. He did not want her to have a chance to "scream out". [Mr Zhong] gave Mark detailed information as to the address and daily routine of [Ms] Maio.

[13] [Mr Zhong] and Mark agreed that the price of $10,000 could be satisfied by a payment of $5,000 before the murder and payment of the balance when the murder had been committed.

[14] Later, [Mr Zhong] said to Mark that he wanted to cancel the whole thing. The following day, he met Mark and told him that he was really scared and money was the main problem. He said that he had had a bad dream in which he was caught. He said the best option was for an accident, the second to make her disappear. Approximately two weeks later, Mark telephoned [Mr Zhong] to arrange for a meeting with another undercover policeman with respect to a heroin deal. A week later, the undercover policeman called "Dale" telephoned [Mr Zhong] and arranged to meet him three days later. At the meeting [Mr Zhong] told Dale that he had never sold drugs before but he had friends who did and spoke about getting a sample for $50. About two weeks later, [Mr Zhong] met Mark and told him that he had been "fucking very nervous" although he still wanted him to "do it", that he wanted it done as soon as possible but that he did not have enough money. He suggested to Mark that he take [Ms] Maio's key-card and withdraw money from her account. He wanted it to look as if she had been robbed and raped. Three weeks later [Mr Zhong] was arrested.

24 Mr Zhong's principal defence at the trial proper was that he did not possess the necessary intent for incitement to murder.[14] Thus, in her final address, counsel said the following (among other things) to the jury:[15]

There are many occasions that there is an element of condition or conditionality in the discussions, it's a hypothetical plan, and it's one that keeps changing ... So he has a safety net, he's safe in the knowledge that [Mark James] won't activate anything without further meetings and forward planning, he has been able to use the language of "if" and "but" to inject a bit of uncertainty in the discussions, "If I had the money I would be going ahead but I haven't got the money", in other words "There is no prospect of me having the money ..."

25 Evidently, the jury rejected those and other defence arguments, for Mr Zhong was found guilty as charged. Significantly, however, and consistently with the passage I have highlighted above in the reasons for judgment of Buchanan JA, the trial judge's summary of the evidence given in the course of his sentencing remarks also included a passage suggesting real doubts about whether Mr Zhong possessed the requisite intent in May 2000. In particular, the trial judge said this:[16]

[11] At the same time [as Mr Zhong was] negotiating access arrangements with [Ms] Maio and attending the Family Court, [he] came into contact with an undercover police officer posing as a hit man. A series of meetings took place between [Mr Zhong] and the undercover operative between 23 March 2000 and 3 August 2000. The substance of the Crown case was contained in five meetings which took place between those dates and which were tape recorded and transcribed.

[12] In broad terms, they disclosed that [Mr Zhong] wanted [his] wife killed because [he] felt that [he] had no choice. [He] demonstrated hostility towards her because [he] believed she had cost [him] a great deal of money, she had framed [him], put [him] before the courts, and turned [his] daughter against [him].

[13] [Mr Zhong] said [he] had been looking at killing her for two to three years and had been put in touch with some Italians two-and-a-half years earlier who might do the job. The price for killing [his] wife was $10,000. During the course of the meetings, [he] discussed various methods for her disposal. Although [his] primary concern was that she disappear without any suspicion falling on [him], [he] did discuss alternative methods, albeit at the request of the undercover operative. These methods included disappearance, suicide with an apology, and the suggestion that a condom obtained from a brothel with foreign semen in it be planted at the scene to give the impression of rape by a stranger.

[14] [Mr Zhong] also took practical steps to engage the services of the undercover operative. At the second meeting on 6 April 2000, [he] gave him a casino chip to the value of $1,000. Later, at the third meeting of 5 May 2000, [he] paid a further $200 cash. [Mr Zhong] took ineffective steps to raise money by dealing in drugs with another undercover operative who posed as a drug dealer. At that second meeting, [he] provided information as to the address, routine and movements of [Ms] Maio which facilitated her identification and the taking of photographs.

[15] It is fair to say that the voice mail message of 22 May 2000, followed by the fourth meeting of 24 May 2000, indicated that there was a real question as to whether [Mr Zhong] wished to proceed with the plan to have [his] wife killed. Whatever reservations [he] may have had in May, however, [his] resolve to proceed was made clear in the final meeting of 3 August 2000. At this time, [he was] looking at alternative ways of raising the money, including again the option of trafficking in drugs and also the possibility of using the undercover operative to extract money from the intended victim's bank account.

26 Thus, it seems plain enough that, whatever else may be said of his words or intention at other times during the relevant period, at least in May 2000, there was real doubt about Mr Zhong's intention "to proceed with the plan to have [his] wife killed". As will be seen later, it may well be that this doubt is reflected in Mr Zhong's apparent feeling of injustice and in his particular concern, which he has sought to raise repeatedly, about the judge's directions to the jury on the requisite intention for incitement to murder.

27 As I indicated earlier, the trial judge went on to impose a sentence of six years' imprisonment with a non-parole period of three-and-a-half years.[17]

28 His Honour also made an order that Mr Zhong provide a forensic sample to police.[18] Troublingly, and without so much as a hint as to why, it is only in relatively recent times that the police have sought to enforce that order. Mr Zhong complained about the order in his petition, and in this Court challenges the Attorney and/or the Governor's decisions to decline to set it aside.

Application to Court of Appeal for leave to appeal conviction

29 I turn now to Mr Zhong's application for leave to appeal against conviction, which was heard by the Court of Appeal on 26 March 2003. On 15 May 2003, a unanimous Court refused the application.[19]

30 At the hearing, at which Mr Zhong was represented by counsel (but not counsel who appeared at trial), four grounds of appeal were taken:[20]

(1) The conviction was unsafe and unsatisfactory in that a reasonable jury could not have excluded the reasonable possibility that the applicant never formed a concluded intention that the offence allegedly incited be committed.

(2) The learned trial judge erred in refusing to stay the prosecution on the basis of improper conduct of the police investigators.

(3) The applicant was deprived of a fair trial by being refused access to the registered informer and to the records of the dealings between the police and that informer.

(4) The learned trial judge erred in that he did not sufficiently put the defence case to the jury in his charge, and in particular did not sufficiently relate the law to the evidence such that the trial miscarried.

31 Under Ground 1, it was submitted that the fact that Mr Zhong and Mark contemplated that the murder would not take place unless $5,000 was paid meant that Mr Zhong had not formed the intent required by s 321G(2) of the Crimes Act. It was contended that the sub-section did not embrace an intention which was subject to the performance of a condition by the inciter. Counsel also submitted that there could not be incitement within the meaning of s 321G(1) if a request was subject to a condition.[21]

32 In the leading judgment, Buchanan JA (with whom Winneke P and Phillips JA agreed) rejected those submissions. His Honour said the following:[22]

[20] I can perceive no warrant for importing into either sub-section the requirement that the command, request, proposal, advice, encouragement or authorization must be free from any condition. In my view, it could hardly be said that a request by a person to another to kill the first person's wife but only after the first person has left the matrimonial home cannot amount to incitement. It might be responded that the requirement that the inciter first leave the house is not a condition but a mere term with respect to the time of performance. Such an analysis renders the operation of the section dependent upon the characterisation of stipulations according to the law of contract. In my opinion, legal niceties from the civil law are not to be imported into the section. The existence of qualifications is a matter to be considered by the jury in deciding whether there has been incitement and whether the accused did intend that the offence be committed. A request might be hedged about by so many qualifications or dependent on so many events or so remote an event that a jury might find that the commission of the crime was unlikely to occur and accordingly there was no incitement or no settled intention on the part of the accused that the crime be committed, as distinct from a mere hypothesis and a desire to explore it. In my view, the question is not to be determined by characterising qualifications or stipulations as conditions precedent, conditions or mere terms in accordance with principles of contract law.

Ground 4: Failure adequately to put defence case

33 Under Ground 4, counsel submitted that there was a substantial issue as to whether Mr Zhong and Mark were parties to an unconditional incitement, and that the trial judge failed adequately to deal with that issue in his charge. Counsel contended that the defence was neither clearly nor fully presented, in the sense that the main points raised before the jury were not explained in a manner calculated to focus their attention on what the defence said in answer to the prosecution case.

34 In rejecting this ground, Buchanan JA pointed out that the judge told the jury that "[t]he accused is charged with inciting and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested and encouraged shall be done".[23] After extracting the passage from trial counsel's final address set out above,[24] his Honour also said the following in disposing of this ground:

[22] ... In his charge the trial judge reiterated defence counsel's statement in her address that the jury were required to be satisfied that [Mr Zhong] had made a decision that he definitely wanted his wife killed. The trial judge said that in considering that question the jury were to have regard to the relationship between [Mr Zhong] and [Ms] Maio and the signs of reconciliation upon which defence counsel relied. The jury were also to pay attention to the words used by [Mr Zhong] in his taped conversations with Mark and the fact that, at times, he expressed conflicting emotions. His Honour reminded the jury that defence counsel said that there was an air of conditionality, of hypothesis about the scheme.

[23] For the reasons I have stated, I consider that counsel for [Mr Zhong] and the trial judge dealt appropriately with the fact that the request was conditional upon payment of the sum of $5,000 by [Mr Zhong] by inviting the jury to consider it together with other circumstances, such as the fact that [Mr Zhong] appeared to be at war with his conscience, was fearful of arrest and at times expressed reluctance, in determining whether [he] intended that [Ms] Maio be murdered. The trial judge dealt with each of the significant taped conversations and reminded the jury of the construction which the defence placed upon them.

[24] In my opinion, the trial judge adequately identified the only substantial issue in the trial, which was whether, when he proposed [Ms] Maio's death, [Mr Zhong] intended that it should in fact occur. His Honour reminded the jury of the evidence that related to that issue. No greater elaboration was required. Neither counsel for [Mr Zhong] nor the Crown required any further expatiation on the law or the facts by the trial judge.

Ground 2: Failure to order permanent stay; Ground 3: Subpoena issued but set aside

35 At trial, Mr Zhong's solicitors caused a subpoena to be issued to the Chief Commissioner of Police requiring production of notes and recordings of all contacts between all investigating police and the registered informer referred to by the informant in evidence at the committal. The purpose of the subpoena was to ascertain the identity and activities of two informers who spoke to Mr Zhong before he was introduced to Mark, with a view to requesting the Crown to call them as witnesses.[25]

36 After the judge examined the subpoenaed material, listened to the tape recordings between Mark and Mr Zhong and heard evidence ex parte concerning the safety of the informers, save in one respect, the Chief Commissioner persuaded his Honour to set aside the subpoena on the ground of public interest immunity on the basis that the material would identify and thereby endanger police informers. The judge then considered whether the administration of justice would be frustrated if the subpoena were set aside by depriving Mr Zhong of material which would assist him in his defence to the Crown case. His Honour said that, having considered the material, he was satisfied that, "rather than being capable of assisting the defence, the material would be of assistance to the Crown".[26]

37 The documents released by the judge nevertheless included material relating to an undercover police operative, because the identity of the operative was not revealed and the material was arguably capable of assisting the defence. In reliance in part on that material, trial counsel applied for a permanent stay of the proceeding on the ground of improper conduct by the police in that they exerted pressure on Mr Zhong to agree to the murder of his wife. Mr Zhong also gave evidence (in open court) on a voir dire in support of that application. He spoke of inter alia the behaviour of, and the pressure he felt from, the undercover police.

38 The judge refused the application,[27] holding that the conversations did not suggest a man who was being pressured into becoming involved but one who was driven by his own reasons.[28] His Honour concluded that the police did not encourage or induce Mr Zhong to commit an offence but merely provided an opportunity for him to do so. Further, the judge rejected the submission that the registered informer induced Mr Zhong to commit a crime, and said that, in any event, he could not see any basis for attributing the responsibility for any impropriety by the informer to the police.[29]

39 In the Court of Appeal, counsel contended that the evidence given in open court by Mr Zhong supported his contention that the undercover operative exerted improper pressure upon him and the trial judge could only have come to the opposite conclusion by relying on the evidence he heard in camera, and that that was unfair, for Mr Zhong had no means of countering the effect of that evidence as counsel knew nothing of it.[30]

40 In the opinion of Buchanan JA, however, the trial judge was careful to base his decision on material known to Mr Zhong and his advisers, for the judge said:[31]

Limiting myself to the evidence disclosed in open court, I do not find that the evidence given on the voir dire considered in the context of all the taped conversations between [Mr Zhong] and [the undercover operatives] give rise to the conclusion that [Mr Zhong] was induced by [the informer] to commit the crime alleged.

41 Counsel for Mr Zhong submitted that the trial judge could not put out of his mind the evidence he had heard in camera. In Buchanan JA's view, however, the question was not whether the trial judge could forget the evidence given in camera, but whether he was capable of excluding it from consideration in determining the application to stay the proceeding. His Honour observed that "judges are not infrequently required to take only particular factors into account in reaching a decision", and held that he could see "no basis for concluding that the trial judge in this case failed to have regard only to the evidence heard in open court".[32] Accordingly, Ground 2 failed.

42 Since no separate argument was advanced in support of Ground 3, that ground also failed.[33]

43 At the conclusion of argument on the application, the Court reserved its decision. As Winneke P noted in his judgment, several days later, the Registrar received from Mr Zhong further submissions in writing. These submissions had obviously been prepared by Mr Zhong himself, and without the assistance of a legal practitioner. Copies of the submissions were forwarded to the Director of Public Prosecutions and VLA (who were Mr Zhong's solicitors at trial and in the Court of Appeal). No submissions in response were received from the Director.[34]

44 The President went on to say that he was satisfied that the submissions raised no argument of substance which would suggest that the trial was unfair or that the verdict was unsafe.[35] Justice Buchanan, who observed that the submissions concerned both existing grounds and new grounds, reached a similar conclusion. In particular, his Honour said that those further submissions "do not reveal any error on the part of the trial judge nor any matter which might render the verdict unsafe and unsatisfactory or constitute a miscarriage of justice".[36] Justice Phillips expressed his agreement with both of the other members of the Court.[37]

45 These particular written submissions were not before this Court on the applications for judicial review. I gave Mr Zhong the opportunity to put them before the Court, but he declined. Nevertheless, at least part of their contents can be inferred from the transcript of the hearing of Mr Zhong's subsequent application for special leave to appeal to the High Court, to which I now turn.

Application for special leave to appeal to High Court

46 On 11 February 2005, Mr Zhong appeared before Kirby and Hayne JJ in the High Court, unrepresented,[38] on an application for special leave to appeal against the orders of the Court of Appeal. The Director was represented by senior counsel with a junior.

47 Neither Mr Zhong's application for special leave to appeal nor his summary of argument on that application is before this Court. Transcript of the oral hearing (including an ex tempore judgment), however, was part of the material Mr Zhong put before the Attorney, and is also before this Court.[39]

48 At the conclusion of Mr Zhong's oral submissions, counsel for the Director were not called upon to respond. Justice Kirby then delivered the judgment of the Court:[40]

[1] The applicant has raised a number of grounds in support of this application for special leave to appeal to this Court from the Court of Appeal of the Supreme Court of Victoria. That court dismissed the application for leave to appeal from the order of the trial judge convicting the applicant on the charge of inciting an undercover police officer to murder his wife. That order of conviction followed a guilty verdict of a jury.

[2] The applicant complains of the failure of the trial judge to explain the offence and fairly to put the defence case to the jury. The complaint of an unfair charge was not, as such, before the Court of Appeal. However, in any case, the Court of Appeal adequately demonstrated the contrary.

[3] The complaint about the refusal to stay the proceedings, which is raised in the written submissions, raises no point of principle and, in our view, is not made out.

[4] The complaint of incompetent counsel in the courts below was never previously raised, nor was it the subject of evidence or argument before the Court of Appeal. There is no foundation for this complaint in the record before this Court.

[5] The complaint that the jury verdict and the conviction were unsafe is not established. The Court of Appeal examined the evidence. We are not convinced that any error has been shown in that review. Nor are we persuaded that there has been any miscarriage of justice in this case. Special leave is therefore refused.

49 These reasons suggest that Mr Zhong took at least four major points in the High Court.

50 First, paragraph [5] of the reasons reveals that Mr Zhong complained that the Court of Appeal erred in failing to conclude that the verdict was unsafe. This, of course, reflected Ground 1 taken in the Court of Appeal.

51 Second, paragraph [3] reveals that he also agitated the ground that the trial judge erred in failing to order a permanent stay. This complaint reflected Ground 2 taken in the Court of Appeal.

52 Third, paragraph [4] raises a complaint of incompetence of counsel and/or solicitors. Justice Kirby said this complaint was not raised, nor was it the subject of evidence or argument, before the Court of Appeal. When his Honour put that to Mr Zhong during oral argument, the following exchange occurred:[41]

MR ZHONG: In the Court of Appeal I was going to raise up my hand to complain, want to dismiss my appeal legal team. However, the security guard beside me put hand on my shoulder and said "Sit down and just be quiet" and now I was scared so I waved subtly to the judges, the ... had the decision reserved and then I wrote my complaint. The Court of Appeal allowed me to submit the further written submission. That is the scenario.

KIRBY J: Yes, but you see normally where somebody complains about incompetence of their barrister or lawyer, that is the subject of evidence and elucidation by the Court of Appeal. It is not something that would normally come to the High Court straight away without any previous consideration of it because sometimes there are questions of fact to be made clear and the problem is you are raising it in this Court, effectively, for the first time, so all we have is the record. We do not have any factual details as to what you complain of is the incompetence of the lawyers.

MR ZHONG: That is matter I complain in my written submission which I submitted to the Court of Appeal but the Court of Appeal, I believe, they just bullied me; ignored the facts and without legitimate reasoning to support their assertion ...

53 Earlier, I mentioned that the written submissions Mr Zhong drafted himself and filed in the Court of Appeal after the oral hearing were not before this Court. However, it seems clear enough, from his exchange with Kirby J, that Mr Zhong was asserting that the complaint of incompetence of counsel in fact was raised in the Court of Appeal in those written submissions.

54 Later in the oral argument before the High Court, Mr Zhong asserted that his "legal team" (in the Court of Appeal) had a conflict of interest. He said he had a "really bad argument" with his solicitor, who told him that he would resign if he pursued the incompetence and erroneous direction grounds. He said that "Legal Aid" (meaning, a solicitor or solicitors from VLA) came to see him at the gaol and told him that they would pursue those grounds, but did not do so when the matter came on for hearing. He went on to say, however, that incompetence was not his major ground. Instead, the error in the judge's directions on the elements was his principal complaint.[42]

55 Finally, paragraph [2] of High Court's reasons reveals that Mr Zhong complained of a failure by the trial judge to explain the offence and to put the defence case fairly to the jury. While Kirby J said that the complaint of an unfair charge was not, as such, before the Court of Appeal, as we have seen, there was before that Court a complaint that the defence case on intention was not put adequately to the jury. This was reflected in Ground 4 taken in the Court of Appeal.

Section 321(2)(b) of the Crimes Act

56 However, it is also apparent from the transcript of the oral argument that Mr Zhong raised a discrete complaint about the directions on intention. That point had not been taken by counsel in the Court of Appeal, but Mr Zhong himself took the point in his own submissions filed after the conclusion of oral argument in that Court. So much is apparent from the following discussion in the High Court, which followed immediately upon the exchange extracted above:[43]

MR ZHONG: ... and also as an error of the law that the Court of Appeal has partially applied Crimes Act ... section 321G in that, if they impartially applied that law to me, they are supposed to apply the section 321 - I think (2)(b) [meaning s 321G(2)(b)]. However, they did not apply that section and I believe that they really ignored the error of the law that trial judge made and they tried to just put the blind eyes on the error of the law.

KIRBY J: And you complain that the judge did not explain the defence to the jury but the judge did say that they had to decide that you were charged with inciting and that the crime consists of the act of inciting done with the necessary intention. That is the intention, but what is requested and encouraged shall be done. Now, that is a very short and clear instruction to the jury.

MR ZHONG: However, with most of respect to your Honours, I believe as in my written submission I submit yesterday, I think everybody, that is what I submitted, what I here say, at page 2 of 5 about, I think, line 87 or line 88 I submit one point which I said Crimes Act ... section [321G(1)] is a true and a correct statement of law about the matters for the prosecution to prove me guilty of the offence. The prosecution, the trial judge, and the Court of Appeal should all know that simple matter, or otherwise, I believe they should not have their position for their incompetence to grieve the innocent people. However, the record of procedure disclose the error of law in relieving the prosecution of the onus of proving me guilty of the offence to convict me, that is, all the parties of the prosecution, the trial judge and the Court of Appeal had deliberately, incorrectly, partially applied Crimes Act (Vic) 1958 section 321G against me, and further, they all, what I believed, dishonestly, unethically, applied their own political inclination without the statement of section 321G(1) against me when they had no judicial power to do so.

Therefore, I claim the error of this law must be rectified before this Court because it is my right to have applied section 321G(1) in my case as a true, correct, and adequate statement of law about the matters that the prosecution had to prove me guilty of the offence. ...

Further, I do not believe that the respondent can and they should be allowed to claim that one element of the offence as the so-called key issue is enough to equal the four elements of the offence as the onus of proof that the prosecution had to discharge after the trial judge, I believe, dishonestly erred in this matter in his direction to the jury.

57 Thus, it is apparent that Mr Zhong raised in both the Court of Appeal and the High Court his complaint about the failure to direct in accordance with s 321(2)(b) of the Crimes Act.

Foregoing grounds pursued before Attorney and in this Court

58 It will be seen that Mr Zhong's complaint of a failure by the trial judge to direct the jury in accordance with s 321G(2)(b) also features again before the Attorney and in these applications for judicial review, as does the complaint of incompetence of counsel and/or solicitors. The same is true of Mr Zhong's complaints that the verdict is unsafe and that the judge was wrong to fail to order a permanent stay.

59 In particular, it will be seen that Mr Zhong asserts, in effect, that the Attorney was simply manifestly wrong to fail to refer the case to the Court of Appeal because there was no other result available in view of these (and other) alleged defects in his trial, as well as the availability of new (or perhaps fresh) evidence.

60 Before turning to those and other grounds, I wish to address the antecedent questions concerning whether the decisions (or at least the decision-making processes) of the Attorney and the Governor are reviewable.

61 I indicated earlier that, despite being logically prior, I find it unnecessary to determine these questions finally. Nevertheless, for the following reasons, I think that it is appropriate to record the parties' submissions on these questions.

62 First, Ms Gory's submissions provide a scholarly survey of the leading authorities in this area of legal discourse, and put clearly the arguments in support of the Attorney's position on the major questions.

63 Secondly, I expect that those submissions will be helpful to any court that might have to consider this question in the future.

64 Thirdly, a consideration of these questions also tends to inform the proper approach to the errors that Mr Zhong asserts were made in particular by the Attorney (and, by extension, the Governor), which I shall address separately before moving to the substance of Mr Zhong's complaints.

Attorney's submissions on the prerogative of mercy and reviewability

66 I turn first to the survey of the law and submissions put by Ms Gory on behalf of the Attorney.

67 A petition for the exercise of the prerogative of mercy is a request made to the Sovereign by an individual seeking release from the effects of a conviction where all avenues of appeal have been exhausted or where the courts have no jurisdiction to review the conviction.[44]

68 In this State, the power of mercy is exercisable under the royal prerogative and, in so far as is relevant in this case, is in part regulated by statute as it relates to a referral to the Court of Appeal, pursuant to s 327(1)(a) of the CPA.

69 The prerogative is reposed in the Governor. The Governor exercises the prerogative as a representative of the Queen.[45] In accordance with constitutional convention, the Governor acts on the advice of the Premier (who, in accordance with practice, is advised by the Attorney).[46] The Governor may question the advice given, seek further information or request that the advice be reconsidered; but, in the last resort, the advice must be accepted.[47]

70 In aid of the prerogative power, certain statutory powers are conferred on both the Governor and the Attorney.

71 In so far as the Governor is concerned, Part 9 of the Sentencing Act 1991 (Vic) provides as follows. First, the Act expressly provides that it does not affect in any manner Her Majesty's royal prerogative of mercy.[48] Second, the Governor may, in any case in which she is authorised on behalf of Her Majesty to extend mercy to any person under sentence of imprisonment, do so by directing that the person be released, even before the end of a non-parole period, on certain specified conditions.[49] Third, the Governor may remit any sum of money imposed under any Act as a penalty or forfeiture or order the discharge from prison of any person who is imprisoned for non-payment of any sum of money so imposed.[50]

72 Section 327(1)(a) of the CPA, which is central to Mr Zhong's case, provides that the Attorney may refer a petition of mercy to the Court of Appeal. In particular, s 327 reads in this way:[51]

Reference by Attorney-General

(1) If a person convicted on indictment or found unfit to stand trial or found not guilty because of mental impairment petitions for the exercise of Her Majesty's mercy in relation to the conviction or finding, or the sentence imposed on the person, the Attorney-General -

(a) may refer the whole case to the Court of Appeal; or

(b) may refer any point arising in the case to the judges of the Trial Division of the Supreme Court for their opinion.

(2) If the Attorney-General refers the whole case to the Court of Appeal, the Court of Appeal must hear and determine the case as if it were an appeal by the person.

(3) If the Attorney-General refers a question to the judges of the Trial Division of the Supreme Court, those judges or any [three] of them must consider the point and provide the Attorney-General with their opinion.

(4) Nothing in this Chapter affects the prerogative of mercy.

73 The equivalent statutory referral power in s 672A of the Criminal Code 1899 (Qld) ("the Code (Qld)") was described by Muir JA in Pepper v Attorney-General (Qld) (No 2) ("Pepper") as "a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal".[52]

74 Mr Zhong seeks review of the Attorney's decision to decline to refer his case to the Court of Appeal under s 327(1)(a). That power, Ms Gory submitted, is inextricably linked to the prerogative of mercy.

75 Before turning to the reviewability of the referral power, Ms Gory outlined the principles applicable to the judicial review of the prerogative.

76 The leading case as to whether the exercise of the prerogative of mercy is amenable to judicial review is Horwitz v Connor ("Horwitz"), which was decided about 112 years ago. The High Court held that it had no jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy. Speaking for the Court, Griffith CJ said that:[53]

mandamus to the Governor in Council will not lie, and no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy.

77 In more recent times, in 1981, Aickin J referred, in R v Toohey; ex parte Northern Land Council ("Toohey"), to the exercise of the prerogative of mercy as a "clear enough example" of a decision not reviewable by any court.[54]

78 Lower courts have followed Horwitz. In Eastman v Attorney General for the ACT ("Eastman"), Lander J (sitting in the Supreme Court of the Australian Capital Territory) observed that he was "constrained by authority to hold that the discretion as to the exercise of the prerogative of mercy is not amenable to judicial review".[55]

79 Justice Logan took a similar view in Ogawa v Attorney-General (No 2) ("Ogawa (No 2)"):[56]

[21] In Martens ..., I accepted that the High Court's judgment in Horwitz v Connor ... bound me to hold that a decision made by a vice-regal officer in the exercise of the Royal Prerogative of Mercy was not amenable to judicial review. Horwitz v Connor has not since been over-ruled by the High Court.

[22] In Street v Queensland Bar Association ..., Brennan J ... stated:

the doctrine of stare decisis ... is least cogent in its application to those few provisions which are calculated to protect human rights and fundamental freedoms ...

... It might be thought that any misconception as to the nature and extent of the Royal Prerogative of Mercy which sounded in the dismissal of a petition for its exercise was likewise capable of diminishing the cogency of the doctrine of stare decisis. Even so, the decision to depart from a considered judgment of the High Court is for that court, not for me. I therefore adhere to the view which I expressed in Martens and hold that a decision by the Governor-General to refuse to exercise the prerogative is not amenable to judicial review.

80 Nonetheless, some lower courts have found that aspects of the exercise of the prerogative power may be reviewable. In Yasmin v Attorney-General (Cth) ("Yasmin"), for example, the Full Court of Federal Court observed that "the clear trend of authority is towards some degree of judicial supervision of, at least, the process by which the mercy prerogative is exercised".[57]

81 In Eastman, Lander J put it in this way:[58]

[79] I think ... I am entitled to inquire into whether the decision maker in the Executive discharged its obligations at law in reaching its decision. The decision itself is for the Executive and not subject to review. However, if the Executive has not conducted itself in accordance with the law in reaching that decision and, in particular, not observed the rules of natural justice, the decision must be set aside.

82 Likewise, in Ogawa (No 2), Logan J said that it did not follow from Horwitz that "the process by which a prerogative of mercy decision is reached is immune from judicial review, much less that a related reference decision is immune from judicial review."[59] His Honour said that he would not, in the face of Horwitz, "go so far as to conclude that the Court ... could set aside a pardon related decision of the Governor-General in Council".[60] But a court could grant declaratory relief that "an applicant for the exercise of the prerogative had not been afforded procedural fairness or that a decision to decline to make a recommendation, if apparent from reasons furnished to an applicant, entailed a misunderstanding as to the nature and extent of the prerogative power".[61]

83 Justice Logan went on to do just that. The Governor-General had refused to grant the petition on the basis that he was not satisfied that the petitioner was "morally and technically innocent of the offence". The judge held that the power was not limited to those cases but was "a flexible power the exercise of which exercise may be adapted to meet the circumstances of the particular case".[62] Accordingly, the Governor-General had acted on a misunderstanding of the nature of the power. His Honour made a made a declaration to that effect.[63]

84 Later in these reasons, it will become necessary to examine other aspects of Logan J's reasoning in Ogawa (No 2) in more detail.

85 According to Ms Gory's reading of the authorities, there is a difference of approach in relation to the reviewability of the referral power, depending, at least in some cases, on whether review is sought under the common law prerogative writs or under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act").

86 In earlier cases, courts were reluctant to interfere with the exercise of the referral power on the basis that it was an adjunct to the exercise of the prerogative power, which was not reviewable under the common law. More recent cases, however, have taken a broader approach, holding that the referral power is reviewable, at least under the ADJR Act, in the same way as the exercise of any other statutory power.

87 An example of the narrow approach is found in von Einem v Griffin ("von Einem").[64] In the Supreme Court of South Australia, the petitioner was found guilty of murder and was sentenced to life imprisonment. Some years later, his solicitors became aware of material in the possession of police that had not been disclosed to the defence at the trial. The information was inconsistent with the prosecution case and it was said that the failure to disclose it led to a miscarriage of justice. The petitioner presented a petition to the Governor praying for mercy. He also requested the Attorney to refer the matter to the Full Court pursuant to s 369(a) of the Criminal Law Consolidation Act 1935 (SA) (which is the analogue of s 327(1)(a) of the CPA). The Attorney advised the Governor not to grant the petition and refused to refer the matter to the Full Court. The petitioner sought orders quashing both decisions, as well as declaratory relief.

88 The Full Court dismissed the application. Justice Prior (with whom Wicks J agreed) held that the Court was bound by Horwitz to refuse the application in so far as it sought review of the Governor's decision.[65]

89 It was also held that there was no jurisdiction to review the Attorney's refusal to refer the petition to the Full Court. Justice Prior explained that the Attorney's power under s 369(a) was expressed to be "ancillary to the prerogative". Thus, in his Honour's view, "to allow judicial review in this case would involve intrusion by the court into an executive sphere not properly severed from but indeed referable to the prerogative of mercy".[66]

90 Later cases, however, have distinguished von Einem or taken a different approach.

91 In Martens v Commonwealth of Australia ("Martens"), Logan J held that a decision under s 68 of the Judiciary Act 1903 (Cth) applying s 672A of the Code (Qld) was amenable to judicial review under the ADJR Act.[67] (It was considered unnecessary to decide whether the decision was reviewable under the prerogative writs or s 39B of the Judiciary Act.) Justice Logan found that, in refusing to refer the petition to the Court of Appeal, the Minister had failed to take into account the relevant consideration that the petitioner's submission was accompanied by evidence (be it "new" or "fresh") receivable by the Court of Appeal on a reference under s 672A; had "applied an overly rigorous test in deciding whether or not to refer the case"; and had misconceived the nature and purpose of the discretion conferred on him.[68] His Honour set aside the decision and remitted the matter to the Minister for further consideration according to law.[69]

92 In Yasmin,[70] the appellant, in 2010, pleaded guilty in the District Court of Western Australia to people smuggling contrary to s 232A of the Migration Act 1958 (Cth). He was sentenced to five years' imprisonment. At the time, the legislation provided for a mandatory minimum sentence of five years' imprisonment unless it was established (on the balance of probabilities) that the offender was under 18 years of age.

93 In 2012, the appellant requested that he be pardoned under the prerogative of mercy or that the Commonwealth Attorney-General refer his case to the Court of Appeal under s 140 of the Sentencing Act 1995 (WA), another analogue of s 327(1)(a) of the CPA. The basis for the request was that other evidence was capable of showing that the appellant was, in fact, under 18 years of age when the offence was committed.

94 Two years passed without the Attorney making a decision on the request. The appellant sought mandamus in the Federal Court, contending that the Attorney was under a duty to consider his request for a referral. The trial judge rejected the application. Her Honour found that there was no duty on the Attorney to exercise his discretion under s 140.[71]

95 The Full Federal Court disagreed. In a joint judgment, Kenny, Robertson and Mortimer JJ held that the Attorney was under a duty to determine whether or not to refer a petition to the Court of Appeal and that the failure to do so was amenable to judicial review under the ADJR Act. Their Honours observed that the review would also be available under s 39B of the Judiciary Act.[72] In particular, the Court's conclusions were put in this way: [73]

[118] In our opinion Parliament intends that the Attorney-General, whether personally or through delegates, will consider and determine what, if any, action should be taken in respect of each and every petition seeking an exercise of the mercy prerogative and whether or not a referral under s 140 of the Sentencing Act is expressly sought.

[119] We see no jurisdictional reason therefore, why a petitioner who wishes to allege that the time which has elapsed after the lodging of a petition without a determination by the Attorney-General (whether personally or through a delegate) whether or not to refer the petition to the Court of Appeal in accordance with s 140 should not be the subject of an application pursuant to s 7 of the ADJR Act, or s 39B of the Judiciary Act.

96 Also, in Ogawa (No 2), the exercise of the referral power was successfully challenged on the basis that the Commonwealth Attorney had misapprehended the nature and scope of the power.

The Governor's decision and the advice given to her are not reviewable

97 Having set out her survey of the authorities, I turn now to Ms Gory's specific submissions on behalf of the Attorney.

98 Ms Gory submitted that Horwitz is binding authority for the proposition that the Governor's decision to refuse a petition for mercy is not reviewable.[74]

99 In her submission, the same is true of the advice provided to the Governor, since that advice is inextricably linked to the Governor's decision. The Governor only acts on advice.[75]

100 Ms Gory also submits that the decision in Ogawa (No 2) - to the effect that there are limited circumstances in which the Governor's decision is reviewable - is inconsistent with Horwitz and should not be followed. In particular, in her submission, a close examination of the reasons in Ogawa (No 2) and the precise orders made show that the judge found error in the substantive decision, which is precisely what Horwitz said a court has no jurisdiction to consider.

101 If it matters, submitted Ms Gory, in Mr Zhong's case, there is no basis on which the Governor's decision could be impugned in any event.

102 Ms Gory submits that the decision under s 327(1)(a) to decline to refer a petition to the Court of Appeal is not amenable to judicial review either. This is because the power is "ancillary" to the exercise of the prerogative of mercy.[76] In her submission, to hold otherwise would be to allow an impermissible trespass into an area of executive decision-making that the High Court has held is immune from judicial review.

103 Yasmin, in Ms Gory's submission, does not require a different conclusion. That case concerned the failure to make a decision (concerning a referral) which the Full Federal Court said the decision maker was under a duty to make. The enforcement of a statutory duty to decide an application does not empower the Court to review the resultant decision.

104 Ms Gory concedes that there are dicta in Yasmin suggesting that an individual would have "at least some rights to judicial review" in respect of a decision to refuse to refer a petition.[77] But those dicta, she submits, are not binding and should not be applied in the present case.

105 Nor, in her submission, does either Martens or Ogawa (No 2) require a different conclusion.[78] Martens concerned review under the ADJR Act, not the common law prerogative writs.

106 Further, the reasoning in those cases is inconsistent with the reasoning in von Einem, which is to be preferred.

107 In Ms Gory's submission, there are four features of the power which suggest that the reasoning in von Einem represents the better view. First, the power in s 327(1)(a) is ancillary to the prerogative, which is not reviewable. Second, the Attorney's discretion is very broad - much broader than the power in s 327. Third, s 327(1)(a) does not confer a legal right. Finally, the prerogative is analogous to other non-reviewable powers, such as the statutory power of an Attorney to present an ex officio indictment, which was considered in Barton v The Queen.[79]

Mr Zhong's submissions on the prerogative of mercy

108 Mr Zhong's submissions proceeded on the assumption that the decisions of the Attorney and the Governor, including the Attorney's (indirect) advice to the Governor,[80] were reviewable.

109 That said, he did put some submissions that, in effect, asserted that these decisions are reviewable. I shall mention one example. As I understood him, Mr Zhong submitted (at least implicitly) that s 39 of the Charter conferred power on this Court to review the Attorney's decision to decline to refer the matter to the Court of Appeal under s 327(1)(a) of the CPA, as well as the Attorney's advice indirectly to the Governor. I say "at least implicitly" because his submission was that the Court had power to declare those decisions unlawful and quash them, and to grant the ultimate remedy he seeks - namely, to order the Attorney to refer the whole of the case to the Court of Appeal.[81] (As I shall explain later, that Mr Zhong seeks the latter order presupposes something beyond mere reviewability. Indeed, if merely judicial review is available, such an order could not be made.)

110 As I indicated at the outset of these reasons, the state of the law appears to be that I am constrained to hold that the discretion as to the exercise of the royal prerogative of mercy is not amenable to judicial review. This much seems to be so, at least unless and until Horwitz is reconsidered.

111 In recent years, however, courts in various jurisdictions have been prepared to embrace the notion that at least parts of the process by which a decision made in the exercise of the prerogative is reached is, to some extent, subject to judicial review.

112 More directly relevant in the present case is whether the Attorney's decision to decline to refer the whole of a petitioner's case to the Court of Appeal pursuant to s 327(1)(a) of the CPA, or at least the process by which that decision is reached, is reviewable. Again, apart from von Einem, the trend of recent authority appears to be in favour of at least some form of reviewability.

113 In Osland v Secretary to the Department of Justice ("Osland"), in their joint judgment, Gleeson CJ, Gummow, Heydon and Kiefel JJ expressly said that they considered it unnecessary to decide: [82]

[47] ... whether it is possible to obtain judicial review of a decision to refuse an executive pardon, or the related question whether it is possible to compel reasons for such a decision. ...

114 In a footnote at the end of that sentence, their Honours cited Horwitz, Toohey, von Einem and other cases.[83] While these remarks in Osland concerned a pardon by the Governor, and not a referral by the Attorney, it seems clear enough that the High Court regards Horwitz as the law in respect of the former, at least at the moment.

115 The Court, however, has not made any pronouncements on the state of the law with respect to the reviewability of an Attorney's decision to decline, or the process involved in making a decision to decline, to refer a petitioner's matter to the Court of Appeal pursuant to a provision like s 327(1)(a). Rather, this seems to be more of an open question.

116 That there are strong arguments and counter-arguments to be had for the differing approaches to these questions is plain to see from the authorities. I repeat, however, that, in this particular case, it is unnecessary to determine those issues finally, because, like the Full Court in von Einem, I am not satisfied that any of Mr Zhong's grounds for review should succeed in any event. In the result, the answers to the important questions concerning reviewability should await a case in which they might be determinative of the outcome. In those circumstances, I think it is preferable that I refrain from expressing any preference for one view or another.

The applicable tests for considering grounds for review

117 Before dealing with the substance of each ground taken by Mr Zhong, I must deal with another issue. In so far as it must be assumed, for the purposes of argument, that judicial review of some description is available, it is necessary to set out the applicable tests for assessing the available grounds for review of this type of decision, and then the orders that might be made upon success of any such ground.

118 This is potentially an artificial and unsatisfactory exercise. This is because the nature of the grounds for review and the tests to be applied in reviewing the Attorney's decision may well be affected by the reasons for which it is concluded that judicial review is available, and whether it is the process only or the decision as well that is reviewable, and yet none of those things will be determined in this judgment. Nevertheless, some attempt must be made in order properly to consider the grounds.

119 While Mr Zhong challenges the Attorney's decision to decline to refer his case to the Court of Appeal under s 327(1)(a) of the CPA, he also asserts that the Attorney "unlawfully ... advised the former Governor to refuse [his] petition".[84] I have understood the latter complaint in truth to be a complaint about the advice that, by convention, the Attorney gave to the Premier, who in turn advised the Governor.[85]

120 That said, Mr Zhong's grounds of appeal, as I see them, all (bar one) ultimately go to the Attorney's decision to decline to refer the case to the Court of Appeal. None - perhaps with the exception of the complaint about the forensic sample order - exclusively or alone attacks the Governor's decision. In those circumstances, putting aside the attack on the forensic sample order, since none of the grounds could succeed against the Governor's decision unless they also succeeded against the Attorney's decision in any event, it is sufficient - and also simpler - to deal with each of the grounds only as they might apply to the impugned decision by the Attorney under s 327(1)(a) of the CPA.

121 As Ms Gory pointed out, unlike in von Einem, Eastman, Martens, Yasmin and Ogawa (No 2), where reasons were given (to a greater or lesser extent) for the relevant decisions, no reasons were given by the Attorney to decline to refer Mr Zhong's case to the Court of Appeal.

122 Ms Gory submitted that, where no reasons for the decision at issue have been provided, the applicable test is (or is similar to) that which was set out by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation ("Avon Downs"):[86]

Moreover, the fact that he [i.e. the Commissioner of Taxation] has not made known the reasons why he was not satisfied will not prevent any review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

123 Thus, in Ms Gory's submission, in the case of the Attorney's decision to decline to refer the case to the Court of Appeal, this Court must ask itself whether the only available conclusion is that the Attorney reached her decision on the basis of either a misconception of the law or some other relevant error. Put another way, to find reviewable error absent reasons, the Court must conclude that, having regard to the material before her, the Attorney could not lawfully have exercised her discretion to decline to refer the case to the Court of Appeal.

124 As I indicated earlier, given the nature of most of Mr Zhong's grounds, it seems that he is in effect asserting that the Attorney's decision is afflicted with something akin to Wednesbury unreasonableness.[87] Lest I stumble into the forbidden territory of merits review myself, it may be that I should be applying a test of that kind. As Brennan J said in Attorney-General (NSW) v Quin ("Quin"):[88]

... Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: ... Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined. ...

125 Thus, hereafter, whenever I say that it cannot be said that Attorney was wrong, or manifestly wrong, or acting unlawfully or unreasonably, in declining to refer the case to the Court of Appeal on any given basis, or whenever I mention Dixon J's test in Avon Downs, it should be taken that I am simply using shorthand for considering the question through the lens of Wednesbury unreasonableness, as explained by Brennan J in Quin.

126 I also understood Ms Gory's further submission to be that such a test must be combined with tests that relate to the Court of Appeal's function upon a reference and which have regard to the particular complaint at hand. Accordingly, it must be understood that s 327(1)(a) provides that the Attorney may refer "the whole case" to the Court of Appeal and that s 327(2) provides that, if she does refer the matter, that Court must "hear and determine the case as if it were an appeal".

127 Guidance on these concepts can be gained from, for example, the High Court's decision in Mallard v The Queen ("Mallard"). In their joint judgment, Gummow, Hayne, Callinan and Heydon JJ explained the history of provisions for the referral of petitions for clemency by reference to s 140(1)(a) of the Sentencing Act 1995 (WA):[89]

[4] Provision for the referral of petitions for clemency to the courts owes its modern origin to public adverse reaction to the excessive imposition of capital punishment in the nineteenth and earlier centuries. As the capital statutes were repealed so as to apply the death penalty to fewer offences, appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime. The importance of this avenue of recourse to justice, effectively controlled by the Executive, declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day.

[5] The provision with which the Court is concerned in this case is similar in substance to provisions in other States.

[6] The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Act provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require.

128 After setting out the common form appeal provisions from the Western Australian Criminal Code and passages from the judgment below, their Honours opined that the Court of Appeal's "whole approach thereafter proceeded ... as if there were serious inhibitions upon that Court's jurisdiction to consider, not just the evidence adduced at the trial, but also its relevance to the further evidence that the appellant sought to introduce and rely upon on in the reference".[90] Their Honours continued:[91]

[10] It seems to us that the approach was an erroneous one. Subject only to what we will say later about the words "as if it were an appeal" which appear in s 140(1)(a) of the Act, the explicit reference to "the whole case" conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think[s] it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.

[11] This construction of Pt 19 of the Act is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen:[92]

The words of s 21(a) of the Code, so far as they require "the whole case ... [to] be heard and determined", permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious.[93] However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented.

129 Accordingly, upon a reference, the Court of Appeal is obliged to conduct "a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings". Further, in so far as the Court of Appeal is confined to "the procedures apposite to an appeal" and that it is "the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals", I take this to mean, among other things, that the usual tests are applied to whether there is a substantial miscarriage of justice.[94]

130 Further guidance may be obtained from the judgments of Lander J in von Einem and Logan J in Martens and Ogawa (No 2), and by seeking to adapt their Honours' remarks to the principal test proposed by Ms Gory to be applied by this Court, namely that of Dixon J in Avon Downs.

131 As I understand Logan J's reasons in Martens and Ogawa (No 2), if a petitioner relies on fresh evidence, the Attorney, as part of the referral decision under the Queensland analogue of s 327(1)(a) of the CPA, must consider whether the fresh evidence "might, arguably, when the whole of the case [is] considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted [the petitioner]".[95]

132 It follows that, when the Avon Downs overlay is imposed, this Court, on judicial review of the decision to decline to refer a petitioner's matter to the Court of Appeal, must ask itself, among other things, whether it was unreasonable for the Attorney to fail to conclude that the fresh evidence "might, arguably, when the whole of the case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted [the petitioner]".

133 The latter (quoted part of the) passage is taken from the judgment of Logan J in Martens, in which his Honour picked up the fresh evidence test as propounded by Mason CJ in Mickelberg v The Queen ("Mickelberg").[96] Justice Logan, however, went on to say a good deal more, including the following:[97]

[51] ... Not to consider such evidence at all or to fail to evaluate it by reference to such a test would, in my opinion, be to fail to take into account considerations made relevant by the subject matter, scope and purpose of s 672A. Were the evidence presented not, strictly speaking, "fresh", as opposed to "new", that circumstance would not, in itself, warrant a Minister to refuse a reference, for the Court of Appeal is not bound in such a proceeding to act only upon fresh evidence.

[52] Further, it seems to me to follow from the role consigned to the Court of Appeal on a reference under s 672A that it is no part of the role of the Minister, in deciding as a matter of discretion whether to refer a case himself, to apply a test to the whole of the case, including the new evidence, higher than that which the court would itself apply in evaluating the case were it to be referred.

[53] The existence of a discretion undoubtedly means that a convicted offender has no right to the reference of his case. That the reference power is discretionary indicates that it was contemplated that the Minister would make some evaluative judgment as to whether a reference ought to be made but not in so doing usurp the role that was consigned to an appeal court in the event of a reference. In this sense, the Minister is a "gatekeeper" who has a role in ensuring that the public interest in the administration of justice as furthered by the efficient allocation of judicial resources is not subverted by the referring of cases to the Court of Appeal which must inevitably fail. That the Court of Appeal on a reference itself had power to disregard grounds which it considered frivolous would not, in my opinion, prevent a Minister from refusing to refer a case where there was neither any new evidence nor even a ground of challenge not previously adversely considered, but care would need to be taken not to treat as frivolous a reasonable argument with which the Minister happened to disagree.

[54] Such considerations would not be exhaustive of matters to which the Minister might, without committing the error of taking into account an irrelevant consideration, advert in deciding whether or not to refer a case. Because, in making the decision, the Minister acts administratively, he might take into account material which would not be admissible on the consideration of a reference by the Court of Appeal. Thus, as for example, Mason CJ apprehended in his judgment in Mickelberg, he might note public concern as to the propriety of the conviction. His sources of information in this regard might, for example, be reports in the media, a petition presented to Parliament, a representation from a parliamentary colleague, or perhaps hearsay evidence as to the reliability of a complainant or other information in an application for a pardon which did not constitute admissible evidence which could be considered by an appellate court on a reference. None of these would though be considerations that he was obliged to take into account, i.e. "relevant considerations".

134 Notable in those passages, among other things, is Logan J's view that the fact that the evidence was "new" (as opposed to "fresh") "would not, in itself, warrant [an Attorney] to refuse a reference, for the Court of Appeal is not bound in such a proceeding to act only upon fresh evidence". (I shall return to the distinction between fresh evidence and new evidence later in these reasons.)

135 Similarly, picking up the language of Lander J in von Einem, Logan J in Ogawa (No 2) opined that "[the Attorney's] role was to determine whether ... there was a reasonable possibility that there had been a miscarriage of justice".[98]

136 Given the terms of the appellate provisions in s 276(1)(b) and (c) of the CPA, it may be that the word "substantial" would need to be added to the phrase "miscarriage of justice" in matters heard in this State. (I do not stay to consider whether the fact that Mr Zhong was tried and convicted at a time when the common form criminal appeal provisions in s 568 of the Crimes Act were in vogue ought to be considered when framing such questions[99] or, if so, whether that might make any difference to the resolution of his case.)

137 When combined with Dixon J's test in Avon Downs, the equivalent question for this Court, in cases of, for example, alleged error concerning the admissibility of evidence or the judge's directions to the jury, would be whether the only available conclusion to the Attorney was that it was reasonably possible that "as a result of the error or irregularity in, or in relation to, the trial [or for any other reason] there has been a substantial miscarriage of justice".[100]

138 Finally, and again where the Attorney has not given reasons, if the complaint is that the verdict is "unsafe" - in the sense that it is unreasonable or cannot be supported having regard to the evidence[101] - presumably the test would be whether the only available conclusion to the Attorney was that it is reasonably possible on the evidence at trial that one or more of the elements of the offence charged was not established beyond reasonable doubt (or that the jury was compelled to have a reasonable doubt about one or more elements).

139 Whether the complaint be that the verdict is unsafe or that the trial was afflicted with some sort of error or irregularity, any new or fresh evidence that might be raised in a petition, along with the evidence adduced at trial, would have to be taken into account as well.

140 Ms Gory accepted that another consideration that would be relevant to the Attorney's decision whether to refer a case to the Court of Appeal under s 327(1)(a) was where the law had changed in a material way in favour of the petitioner since the original trial. As Lander J said in von Einem, s 369 (i.e. the South Australian analogue of s 327(1)(a) of the CPA) "contemplates that perhaps a restatement of the law may require the revisiting of a previous decision or the conviction".[102]

141 As I see it, in Ogawa (No 2), Logan J, again, went somewhat further than that. For his Honour held that the Attorney's decision not to refer a case to the Court of Appeal of Queensland under the equivalent of s 327(1)(a) of the CPA in respect of two convictions for harassment offences was "affected by a material jurisdictional error" on the footing that there was an argument, based on a decision of the High Court after the trial in question on a provision closely analogous to the one under which Dr Ogawa was convicted, as well as two decisions of District Court judges, that the applicable provision should be read differently.[103]

142 While it will be seen that I have taken the view that a similar argument concerning the applicability of s 321G(2)(b) of the Crimes Act to Mr Zhong's case does not avail him on the present application, nevertheless, that there is perhaps an arguable case that the law should be reconsidered by the Court of Appeal might be one among a combination of reasons why, on a further petition, the Attorney might consider referring his case to that Court in any event. More about that later.

143 Finally, Ms Gory also referred to Re MJR.[104] In that case, which concerned a sentencing matter referred to the Court of Appeal in this State pursuant to s 584(a) of the Crimes Act (which was the predecessor of s 327(1)(a) of the CPA), in their joint judgment, Winneke P, Batt JA and Hampel AJA said this:[105]

[1] ... It is not in dispute that, upon such a reference, the Court acts in a judicial and not in an administrative or advisory capacity and that, subject to a qualification as regards grounds disposed of by any previous appeal, it should determine the case referred by applying the same legal principles and exercising the same broad judicial discretions as it would in an ordinary criminal appeal brought pursuant to s 567(d) [i.e. a sentence appeal] and determined in accordance with s 567(d) of the Act: ...

[2] Where the "whole case" has been referred pursuant to s 584(a), prima facie the Court is required to consider the case in its entirety subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal. Thus, although all the material which accompanies the petition will be considered by the Court, only that part which is relevant and admissible will influence the result: ... Accordingly, the Court will have regard to the entire record of the proceedings in various courts together with any new matter properly admissible upon the hearing. Where, however, the record shows that an appeal has already been heard and determined and that is one aspect of the case referred, it is not contemplated that, if the matter has already been dealt with regularly and disposed of in that appeal, it should be re-adjudicated upon the same or similar grounds in the absence of some new matter which makes reconsideration of those grounds necessary or desirable: ...

144 As foreshadowed earlier, some of the points taken on Mr Zhong's petition, and again in his applications for judicial review, concern grounds the same as or similar to those taken in, and adjudicated upon, by the Court of Appeal and/or the High Court.

145 In Ms Gory's submission, it is important to recognise that this Court is neither sitting as a second Court of Appeal nor reviewing the merits of the Attorney's decision nor making the preferable decision. Instead, on the assumption that the decision is reviewable at all, this Court is confined to considering reviewable error.

146 Accordingly, when there are no reasons given, as here, and when regard is had to the exquisitely discretionary nature of the decision, it is a very high hurdle for a petitioner to clear to establish that the Attorney could not have lawfully exercised that discretion to decline to refer a case to the Court of Appeal under s 327(1)(a) of the CPA - or, to return to Brennan J's turn of phrase in Quin, that it was "so unreasonable that no reasonable repository of the power could have taken the impugned decision or action".

147 On the further assumption that there is reviewable error in the Attorney's refusal to refer the case to the Court of Appeal, Mr Zhong seeks a declaration that that decision was unlawful; an order in the nature of certiorari to set aside that decision; and an order in the nature of mandamus to compel the Attorney to refer the whole of the case to the Court of Appeal.[106]

148 In Martens, Logan J was prepared to set aside the Minister's decision not to refer the case to the Court of Appeal and to remit the matter to the Minister for further consideration according to law.[107] However, in so far as the further orders sought included that the matter be referred to the Court of Appeal (as well as orders that the Minister instruct counsel briefed for the Crown on the reference to consent to the quashing of the conviction), his Honour said this:[108]

[81] No case was cited as authority for the existence of a power to make such orders and none of any worth could be. For such orders are quite beyond the powers granted to the Court under s 16 of the ADJR Act. They are most certainly not, contrary to the Applicant's submission, authorised by s 16(1)(d) of that Act. To make such an order would be fundamentally to violate the role of a reviewing court on judicial review, qv Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

149 While Martens was a case concerning the ADJR Act, it is clear, given his citation of Quin, that his Honour thought that the common law had no greater scope.

150 I agree with Logan J's approach. If the Attorney's refusal to refer Mr Zhong's case to the Court of Appeal (or the process by which that decision was reached) is, for present purposes, regarded as reviewable and as afflicted with material error, while a declaration that error has been established and an order in the nature of certiorari setting aside the decision may well be available, it is difficult to see how this Court could have the power or jurisdiction to make an order in the nature of mandamus compelling the Attorney to refer the matter to the Court of Appeal. Given the very broad discretion reposed in the Attorney, the most that this Court could do is remit the matter to the Attorney for her reconsideration according to law.

151 I turn now to give an overview of the grounds taken and which I have considered in some detail. As part of this overview, however, I shall point also to some other matters raised by Mr Zhong that cannot sensibly amount to arguable grounds for review.

152 In summary, the grounds that I have considered in detail include the following. Some grounds rely on evidence that was not led at trial; others challenge conclusions of fact or law made or not made; two, in particular, challenge the trial judge's directions to the jury; one alleges incompetence of lawyers; a collection asserts breaches of Charter rights; others make miscellaneous complaints, including alleging bias in the trial judge; one complains that the Attorney provided no reasons for her decision; and another attacks the judge's forensic sample order.

Overview of parties' submissions on the grounds for review

153 In the result, Ms Gory submitted, when the tests set out earlier are applied to the grounds taken by Mr Zhong, it is apparent that the applications must be refused. In her submission, there is nothing to suggest that the Attorney misapprehended the applicable tests or otherwise erred. In essence, Mr Zhong seeks impermissible merits review. He is unhappy with the Attorney's decision. Further, most of his grounds have been adjudicated by the Court of Appeal or the High Court. None of the grounds, in her submission, either gives rise to a reasonable possibility that there was a miscarriage of justice or suggests that that was the only lawful conclusion which the Attorney could have reached.

154 Mr Zhong, of course, disagrees. He says he has "overachieved" his grounds - meaning that he has easily cleared the hurdle of judicial review. In effect, he submits that the Attorney's decision to decline to refer the matter to the Court of Appeal is afflicted with Wednesbury unreasonableness.

155 There are numerous other matters raised in Mr Zhong's written materials that are simply irrelevant to his case or are completely nonsensical, and cannot reasonably be dealt with in any detail in this judgment. Nor were they addressed in detail in Ms Gory's submissions. Suffice it to say that I have considered, and rejected, all of them. I should also say the following.

156 First, these other complaints are without merit. I trust that the mere mention of a few of them will serve to explain why that is so. They include matters ranging from alleged gender bias in the jury, to unequal treatment before the law,[109] to public utterances by Attorneys past and present in respect of matters that have nothing to do with Mr Zhong's case, to allegations of police corruption in general, to (unrelated) findings made at IBAC, to the Royal Commission concerning so-called "Informer 3838", and to generalised - and sometimes quite improper and offensive - criticisms of the successive Attorneys, lawyers, judges, police, the courts and the legal system.

157 Secondly, while this Court strives to give a full and fair hearing to all litigants, whether legally represented or not, this is not Speakers' Corner. No one has the right to come along to a court and demand that the judge pay regard to whatever irrelevancy or bile-ridden thought happens to pop into that litigant's head. There is no legitimate purpose to be served in seriously entertaining such drivel. These complaints necessarily are heard and considered, but are then given the short shrift that they deserve.

158 Thirdly, while this case concerns the intersection of concluded criminal proceedings, prerogative power reposed in the hands of the Attorney (and the Governor), and civil proceedings (the evident purpose of which, from Mr Zhong's standpoint, is ultimately to allow the setting in train of further appellate proceedings aimed at causing an allegedly wrongful conviction for a very serious offence to be set aside), and is not about mere filthy lucre or the like, the applications before this Court are nevertheless civil proceedings in nature. In those circumstances, it is as well to reiterate the terms of s 7(1) of the Civil Procedure Act 2010 (Vic):[110]

The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.

159 While the parties, in the main, set the parameters for the issues in dispute, I accept that it is difficult - perhaps impossible - for Mr Zhong, in his particular circumstances, to know which issues might qualify reasonably as "the real issues in dispute". I expect it is even harder for him to resist the temptation to be over-inclusive of complaints for fear that the one left out might have been the only winning point. (Indeed, on occasions, even highly trained and skilled members of counsel have been unable to resist that temptation.) But many of the points Mr Zhong has sought to agitate cannot sensibly be said to come within a bull's roar of what might reasonably be described as the real issues in dispute.

160 Fourthly, while, of necessity, a deal of latitude is given to unrepresented litigants, there must be limits. Albeit some were only short days (because of other Court commitments of mine), this case occupied four separate sitting days, several folders of closely-typed affidavits and submissions, and a goodly amount of judicial time out of Court, and has resulted in what is likely to be regarded as an inordinately long judgment. That, to my way of thinking, does not sound much like an "efficient, timely and cost‑effective resolution of the real issues in dispute". I do hope, however, that it is a "just" resolution.

161 Finally, it is a great pity that Mr Zhong did not have legal representation in this matter. At the commencement of the hearing, I gave him the opportunity to seek pro bono representation. Justice Ginnane did the same on Mr Zhong's previous application for judicial review. But, on each occasion, he declined. If he had been legally represented, I expect that his case could have been dealt with far more expeditiously, and without the need to sluice through seemingly endless rivers of irrelevance searching for whatever elusive golden nugget might be buried in the silt of this sad affair.

162 While Mr Zhong, at times, employed a numbering system in his many different documents, that system was not always consistent or helpful in identifying what could be distilled as his separate (albeit, often overlapping) complaints. Accordingly, so as to give the matter some sense of order, I shall employ my own numbering system (namely, Grounds [1], [2], [3] and so on).

163 I should mention one final matter before turning to each of the grounds for review in detail.

164 As I touched on in the overview to these reasons, the material before the Court is, to my way of thinking, incomplete. In short, I have not been favoured with either a complete transcript of the trial or the trial exhibits. More particularly, there is before this Court no complete transcript of the pre-trial voir dire or submissions, the viva voce evidence before the jury, the recorded conversations between Mr Zhong and the undercover police, counsel's addresses (either opening or final), the judge's charge, discussion generally between the judge and counsel, or the plea in mitigation. I have not even seen the presentment. There is no trial exhibit list. Instead, there are just bits and pieces of transcript of some of these aspects of the trial (plus the judge's rulings and reasons for sentence), along with seemingly endlessly repetitive and difficult-to-follow affidavits and submissions filed by Mr Zhong, together with the affidavits filed on behalf of the Attorney and some other documents.

165 That I was without the full transcript and all exhibits has made it all the more difficult adequately to assess Mr Zhong's grounds for review. In the result, I am left with a sense of unease as to whether something important might have been missed - for either or both parties.

166 I should say that Mr Zhong advised that he had a complete transcript of the trial, and he appeared content that I should have it too.[111] Ms Gory was instructed that the complete trial transcript was not before the Attorney.[112] All that was before the Attorney (other than privileged documents) was before this Court; and that, in her submission, is what I should be confined to considering.[113] Indeed, Ms Gory submitted that, unless there were consent to do so, I would be in error to consider material that was not before the Attorney and to take it into account in assessing whether or not she erred in making her decision.[114]

167 In my view, a serious question arises concerning whether a petition for mercy in a case like the present, given some of the grounds raised, could ever be fully and adequately considered by the Attorney, or by this Court on purported judicial review, absent the complete trial transcript and trial exhibits, including transcript (if not recordings) of the conversations between Mr Zhong and the undercover police. After all, experience tells that this material is likely to have been before the Court of Appeal on Mr Zhong's original appeal. Moreover, the same material - plus any new or fresh evidence plus any other relevant materials that had been before the appellate courts - necessarily would be put before the same Court on a referral under s 327(1)(a) of the CPA.[115]

168 In those circumstances, it might be said that, when a petitioner is requesting the Attorney to act under s 327(1)(a) with the evident aim that his conviction ultimately might be set aside, for the purposes of considering whether "the whole case" should be referred to the Court of Appeal so that it can "hear and determine the case as if it were an appeal", the Attorney would need to have before her the full trial transcript and all trial exhibits (as well as any additional materials that were before the appellate courts and any records of those proceedings).

169 While such extensive material may not be required in every petition for a referral under s 327(1)(a), I should have thought that at least the full trial transcript and all trial exhibits, together with his new evidence, had to be placed before the Attorney in Mr Zhong's case. This is especially so given the grounds he agitated before the Attorney, which included that his conviction was not open on the evidence at trial, and that that submission was enhanced when his new evidence was brought into the mix (which will be examined under cover of Grounds [1] and [2]). (I should have thought that the Attorney also would need to have the additional materials that were before the appellate courts in order to assist in understanding what grounds of appeal had been agitated and rejected by those courts, especially if these things were not entirely apparent from the reasons of those courts.)

170 I hasten to add that, as I understood him, Mr Zhong did not take any ground alleging error in the Attorney's decision, or in the process of reaching her decision, by failing to have the complete trial transcript and exhibits before her upon the petition. Nor, it seems, did he insist that all such material be before the Attorney. It may be that he assumed that that material was indeed before the successive Attorneys. But, if that is so, I did not understand him to have made any point of it in the applications before this Court.

171 While I shall return to this issue later, in the meantime I shall also indicate, when dealing with each ground, the extent to which, if at all, I was hampered in completing my task by reason of the limited materials.

[1] Increased health insurance for Ms Maio; [2] Letter from Mr Hu; [3] Love letter

172 It is convenient to deal with the first three grounds together.

173 All of those grounds concern what Mr Zhong described as "fresh" evidence. It will be seen, however, that the first two grounds involve "new" - not "fresh" - evidence, and that the third involves neither new nor fresh evidence.

[1] Letter and cards regarding health insurance uptake/increase for Ms Maio

174 In pursuit of the first of those grounds, Mr Zhong produced a letter, dated 16 November 2004, from Medibank Private to him setting out his membership history. Among other things, the letter made the following points:[116]

(a) On 29 June 2000, Mr Zhong, Ms Maio and their daughter joined "Healthy Plus" and a membership card was sent out to Mr Zhong showing those details.

(b) On 17 August 2000, Mr Zhong telephoned Medibank Private requesting the cover be changed to Advantage Package Plus and to be backdated to the start of the membership. This change was made and a new membership card was sent to him on 18 August 2000. (As I understood it, this change represented an increase in coverage.)

(c) On 28 November 2000, Medibank Private sent Mr Zhong a Package Plus confirmation.

(d) On 9 January 2001, Medibank Private sent Mr Zhong and Ms Maio Lifetime Health Cover letters.

175 It was alleged that Mr Zhong incited Mark James between 23 March and 3 August 2000. He was arrested on 22 August 2000. His trial was conducted in October 2001.

176 While the nature and the dates of creation of this information suggest that it could have been obtained from Medibank Private and/or Mr Zhong himself prior to trial, as I understood the submission, this evidence was not led at trial. Thus, without more information from Mr Zhong about the accessibility (or otherwise) of this evidence prior to or at the time of the trial, I shall proceed on the assumption that it is properly classified as "new" - not "fresh" - evidence; or, more importantly, that it was open to the Attorney to treat it as new evidence.[117]

177 Mr Zhong explained that the background to these events is that his wife needed a laser eye operation, but that it would be quite expensive. So he took up, and then increased, their private health insurance so that the operation would be covered.

178 In Mr Zhong's submission, his actions in joining a health fund with Ms Maio on 23 June 2000 (i.e. in the middle of the alleged offending period), and in increasing the level of that cover on 17 August 2000 (i.e. soon after that alleged offending period ceased but before his arrest), is behaviour consistent with innocence and inconsistent with a man who intended that his wife should (and would) be killed at his instigation.

[2] Letter from Mr Hu regarding loan for $5,000

179 On 4 January 2006, Huayu Hu swore[118] a statement saying this:

On 4th of August 2000, I borrowed $5,000 Australian Dollars from Mr Zhanyu Zhong. I made agreement with him that I would pay him back the money with 5% interest rate of the money in six months term.

180 Self-evidently, this letter was created after the trial. On the other hand, the nature and timing of the loan agreement to which Mr Hu deposes suggests that this information might have been obtained prior to trial. Thus, again, without more information from Mr Zhong and/or Mr Hu about the accessibility (or otherwise) of this evidence back at that time, I shall proceed on the assumption that it was open to the Attorney to classify this as new - not fresh - evidence.

181 In Mr Zhong's submission, instead of using that money to pay at least part of the allegedly agreed contract price to kill his wife, which thereby would be capable of evincing an intention that she should be killed at a time when he is alleged to have had an intention that she be killed, the fact that he was willing and able to lend $5,000 to Mr Hu instead shows the contrary, namely that he neither intended that his wife should be killed nor intended or believed that she would be killed.

182 At some stage after 3 August 2000 and before 29 September 2000, Mr Zhong wrote (in Mandarin) what he called a "blood love letter" to Ms Maio. On 29 September 2000, at the instance of police, the letter was translated into English. The translation reads in this way:

Page 1: Because of love, you, child(ren) and family are more important than life. I will definitely correct my mistakes and wrongdoing.

Page 2: We need forgiveness if there are misunderstandings between us.

183 Contrary to Mr Zhong's original assertion in argument, this letter was neither new nor fresh evidence. Instead, as he conceded subsequently in the course of submissions, it had been part of the depositions (which was apparent on the face of the document) and it was placed before the jury at his trial.[119]

184 In Mr Zhong's submission, the letter shows that, while he acknowledged there had been wrongdoing in the past (which, in fact, did coincide with the couple's family law and related disputes during and around the charged period), he loved his wife, which was inconsistent with a man who had intended that she be killed. He also accepted that the letter shows that he "wanted to remove possible misunderstanding at that time".[120]

185 Ms Gory submitted that it was open to the Attorney to conclude that the changes to the family's health insurance plan did not point unequivocally or at all to innocence. Instead, it might have been concluded that that behaviour represented, for example, no more than a ruse by Mr Zhong designed to cover up his involvement in the expected killing of his wife.

186 As for the evidence that Mr Zhong loaned Mr Hu $5,000 on 4 August 2000, Ms Gory submitted that it was open to the Attorney to reason that this was not sufficient evidence of a miscarriage of justice to warrant a referral. Mr Zhong, she said, gave other reasons for his reluctance to go ahead with the alleged plan to have his wife killed, including fear of being caught and the possible impact on his daughter. There was also evidence that he asked Mark to take his wife's key-card and withdraw money from her account. In her submission, the evidence of the loan is also inconsistent with what was argued on his behalf at trial - that he had not formed a concluded intent to have his wife killed as he lacked the finances to put the contract into effect. In Ms Gory's submission, Mr Zhong "cannot have it both ways".

187 As for the love letter, it was submitted that it is neither new nor fresh evidence. Further, Ms Gory submitted that the letter is not evidence of innocence or of a miscarriage of justice. Instead, it could have been written in an attempt to cover up what he had done or, consistently with the trial judge's reasons for sentence, it could be consistent with some hesitation and reluctance at certain points.

188 Overall, in Ms Gory's submission, none of the matters raised in these three grounds compelled the Attorney to conclude that there was a reasonable possibility of a miscarriage of justice or otherwise to refer the case to the Court of Appeal.

189 While I do not necessarily accept all aspects of Ms Gory's submissions under these grounds, I do accept that none of these points compelled the Attorney to conclude that there was a reasonable possibility of a substantial miscarriage of justice such that the matter should be referred to the Court of Appeal.

Grounds [1] and [2]: Health insurance and loan

190 To be sure, despite the foregoing, I accept that both the alteration to the family's health insurance arrangements and the loan to Mr Hu are, together with other evidence at trial, capable of supporting Mr Zhong's innocence of the charge, or are at least enough to give rise to the reasonable possibility of a reasonable doubt. For example, to increase the health insurance coverage of Ms Maio suggests a belief by Mr Zhong, at the relevant time, that she would remain alive, which, of course, is inconsistent with either an intention that she should be killed or a belief that she would be killed.

191 Similarly, in his summary of his meeting with Mr Zhong on 6 April 2000 (which was one of the few aspects of the trial exhibits before this Court), Mark had asserted, inter alia, that he told Mr Zhong they would probably meet once or twice more; that, "when he wanted it done", they would meet on that day "to find out if he wanted to go ahead with it"; and that Mr Zhong said that he was still saving money and that he "will try and save $2,000 [in three weeks] and then ring [Mark]".[121] It might reasonably be said that the fact that Mr Zhong had $5,000 to lend to Mr Hu within four months of that date, and his preparedness to do so, in view of his failure to pay anything substantial to Mark, was powerful evidence that he had no intention of having, or of agreeing to have, his wife killed.

192 But, on the other hand, I also accept that it was open to treat those things either as possibly redolent of guilt or, in the latter case, at least as neutral. In particular, it was open to the Attorney to form the view that the health insurance arrangements represented an attempt by Mr Zhong to cover his tracks.

193 In the absence of any more detail from Mr Hu or Mr Zhong, it might also be suspected that the loan had a similar motive. But, even if that is a stretch, it could be seen as neutral. Mr Zhong may simply have been a bit tight, and preferred to lend his money to Mr Hu, rather than pay the $5,000 to the would-be hitman. In other words, he may have thought he could get away with the alleged arrangement going ahead without having to pay full price.

194 Without more information, I think that it would not have been unreasonable for the Attorney to conclude - or at least to act on the basis - that both of these pieces of evidence were new evidence, not fresh evidence.

195 The distinction between the two categories of evidence was described in this way by the Court of Appeal of Western Australia in Mallard v The Queen:[122]

[11] Subject to questions of non-disclosure ..., evidence which has not been produced at trial falls into two broad categories. One is evidence which was available at the trial or which could, with reasonable diligence, have then been discovered. The other consists of evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. Only the second category comprises "fresh" evidence. The first category is frequently described as "new" evidence.

196 The importance of the distinction between these two categories of evidence for appellate purposes can be seen from Priest JA's pithy summary of the law on the two concepts in Bowden (a pseudonym) v The Queen. His Honour said this:[123]

[36] In cases involving fresh evidence, it has been held that an appellate court will conclude that there has been a miscarriage of justice because the fresh evidence was not put before the jury if there is a 'significant possibility' (or, perhaps, a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial. In the case of new evidence, however, it has been held that an appellate court will set aside a conviction only if the material shows the convicted person to be innocent, or raises such a doubt about his or her guilt in the mind of the court, that the verdict should not be allowed to stand. ...

197 Thus, on the assumption that both pieces of evidence are new evidence, I think it follows that the question for this Court, on the present applications, is whether it would be unreasonable (in the Wednesbury sense) for the Attorney to fail to conclude that it was reasonably possible that this new evidence (when considered with the evidence led at trial) shows that Mr Zhong is innocent or would raise such a doubt about his guilt in the mind of the Court of Appeal that the verdict should not be allowed to stand.

198 For the reasons I have given, while I think that this evidence does raise such a reasonable possibility, I am persuaded (but only just) that that was not the only available conclusion. On the contrary, given the broad discretion reposed in the Attorney, it would not be unreasonable for her to conclude that this evidence was not sufficiently cogent and unequivocal (if there are degrees of unequivocality) to meet that particular test of reasonable possibility.

199 In coming to this view, I acknowledge that, in Martens, Logan J said that, "[w]ere the evidence presented not, strictly speaking, 'fresh', as opposed to 'new', that circumstance would not, in itself, warrant [an Attorney] to refuse a reference, for the Court of Appeal is not bound in such a proceeding to act only upon fresh evidence".[124] I have also considered that his Honour opined additionally that "it is no part of the role of the [Attorney], in deciding as a matter of discretion whether to refer a case [herself], to apply a test to the whole of the case, including the new evidence, higher than that which the court would itself apply in evaluating the case were it to be referred".[125]

200 But, as I understood Ms Gory to submit, and as I indicated earlier, I think that the test applied by the Attorney must take into account the particular test that a Court of Appeal would be expected to apply if the type of complaint being considered were before that Court. While the Attorney might have applied the fresh evidence test to her consideration, she was not required to do so if she concluded that the evidence was only new, which, as I have said, on the material presented, plainly was a conclusion open to her.

201 Further, given that these pieces of evidence were arguably equivocal in their potential effect, and indeed, for the reasons I have listed above, might even be thought to be consistent with guilt, then it would not be unreasonable for the Attorney to reason that neither trial counsel nor appellate counsel (nor the solicitors), acting reasonably (and assuming they knew about it), would be prepared to take the risk of leading the evidence before a jury. That, then, would be yet another reason justifying a decision by the Attorney that a referral should be declined.

202 At this point, I turn to consider in more detail the decision of Logan J in Ogawa (No 2). The judgment, in my opinion, discloses powerfully persuasive reasoning on several topics relevant to this case. Indeed, many of his Honour's remarks have given me considerable cause to doubt important aspects of my own reasons and conclusions in this matter. In those circumstances, I think it is proper that I expose my thinking on these issues in some detail. In the end, however, and with a good deal of hesitation, I have taken a different view from his Honour on these issues. Let me explain.

203 In 2009, Dr Ogawa was found guilty at a jury trial in the District Court of Queensland of two offences of using a carriage service to make a threat to kill (contrary to s 474.15(1) of the Criminal Code (Cth) ("the Code (Cth)")), two offences of using a carriage service to menace, harass or cause offence (contrary to s 474.17(1) of the Code (Cth)) and one offence of contempt of court. Her convictions (for the threats and harassment) arose out of utterances she made during emails and telephone calls to or in respect of officers of the Federal Court in 2006. She was imprisoned on all counts.

204 In 2010, Dr Ogawa's appeal against conviction to the Court of Appeal of Queensland failed, as did her subsequent application for special leave to appeal to the High Court.

205 In 2014, she lodged with the Commonwealth Attorney-General's Department a petition for mercy seeking either a pardon in the exercise by the Governor-General of the royal prerogative of mercy or, alternatively, the referral of her case to the Court of Appeal pursuant to s 672A(a) of the Code (Qld).

206 In March 2018, the Attorney advised Dr Ogawa that he declined to recommend to the Governor-General that he exercise the prerogative in her favour. The Attorney also advised that he declined to refer her case to the Court of Appeal.

207 In November 2018, Logan J, in the Federal Court, heard Dr Ogawa's application for judicial review of both the conduct of the Attorney in declining to recommend to the Governor-General to grant her a pardon and the Attorney's decision to decline to refer the case to the Court of Appeal.

208 In June 2019, in so far as is relevant to this branch of the argument, Logan J upheld Dr Ogawa's grounds for review relating to the threats and the harassment convictions (but not the contempt). His Honour quashed the Attorney's decision to decline to refer her case in relation to those convictions to the Court of Appeal; and directed that the Attorney consider Dr Ogawa's request for referral according to law.[126]

209 As indicated earlier, Logan J upheld the ground touching upon the harassment convictions on the footing that there was an argument, based on the reasoning of three members of the High Court after the trial in question on a provision closely analogous to the one under which Dr Ogawa was convicted, as well as two decisions of District Court judges, that the applicable provision should be read differently.[127] It is, however, his Honour's reasoning in respect of the new evidence concerning the two threat convictions that is of comparative relevance in considering my reasons under cover of Grounds [1] and [2] of Mr Zhong's application, which, as we have seen, also concern new evidence. I turn now to those specific comparisons.

210 First, among other things, Logan J held that, in circumstances where evidence was given at a committal hearing reasonably admitting of exculpation of the intention required for the two threat offences, but that evidence was not adduced at trial (at which Dr Ogawa represented herself but in which she refused to participate), there was a sufficient factual basis for a conclusion that there was a reasonable possibility of a miscarriage of justice justifying a referral to the Court of Appeal.[128]

211 Immediately, such a conclusion invites comparison with the new evidence in Mr Zhong's case concerning the new and increased health insurance and the loan to Mr Hu. It might be said that, even if there are other ways of viewing those pieces of evidence, they still individually or collectively reasonably admit of exculpation of an intent to kill his wife (or to have her killed) or of a belief that she would be killed.

212 Secondly, Logan J also held that the reasons given for declining to refer the case to the Court of Appeal revealed that the Attorney had applied the wrong test in considering that question. In particular, as Logan J explained, the letter advising Dr Ogawa of the Attorney's decision said this:[129]

[68] The Attorney-General has decided that none of the grounds raised in the petition, either individually or collectively, establish a miscarriage of justice. In particular there is no new evidence that has not previously been considered by the courts which establishes a miscarriage of justice or that you were denied a fair trial according to law. Furthermore, the High Court, in dismissing your special leave application, found that 'the Court of Appeal's conclusion that there had been no substantial miscarriage of justice was based on a careful review of the evidence'.

213 In Logan J's view, the emphasised sentence in the foregoing extract showed that the Attorney had taken it upon himself to undertake the role which the Court of Appeal would have to undertake if a reference were made. Instead, the Attorney should have asked himself whether "there was a reasonable possibility of a miscarriage of justice" or "whether there was presented with the application evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted [Dr Ogawa]".[130]

214 Further, Logan J held that the Attorney's application of the wrong test was "material", and amounted to jurisdictional error, because adoption of the correct test would have resulted in the making of a different decision.[131] In essence, his Honour took this view because, when account was taken of the committal evidence, it was arguable that the words used by Dr Ogawa were devoid of threatening intent.[132]

215 It might be argued for Mr Zhong that, in so far as it is open to regard the new evidence concerning the health insurance and the loan as exculpatory (even if it is also open to take the opposite - or a neutral - view of that evidence), either or both of those tests approved by Logan J would be satisfied, such that it would have been open to refer the case to the Court of Appeal on that basis alone. While there are no reasons given by the Attorney in the present matter, applying Dixon J's test in Avon Downs to the foregoing conclusion (with the Wednesbury overlay), it is perhaps arguable that it would be unreasonable for the Attorney to decline to refer the case to the Court of Appeal on that basis. Otherwise, the argument would continue, the Attorney would be assuming the role consigned to the Court of Appeal by deciding the fate of a reasonably arguable reference request in a petition.[133]

216 Thirdly, it is also significant that Logan J upheld this aspect of Dr Ogawa's application (i.e. concerning the threat convictions) in circumstances where Keane JA, speaking for the Court of Appeal of Queensland, had concluded that he had "no doubt" that Dr Ogawa possessed the requisite intent.[134] Further, the High Court had refused special leave to appeal as well. In Logan J's view, however, Keane JA's conclusion (that no substantial miscarriage of justice had occurred) was made by reference to the evidence of the key witness at trial, and not at all by reference to that witness's unused committal evidence.[135]

217 Similarly, in Mr Zhong's case, it is clear enough that the Court of Appeal (and, it seems, the High Court) made their assessments by reference to the evidence before the jury at trial, and not by reference to the new evidence concerning the health insurance and the loan to Mr Hu. (Nor, of course, was it possible to do otherwise, since, unlike Dr Ogawa's case, that new evidence was not even before those courts.)

218 Finally, Logan J also rejected arguments that Dr Ogawa's reliance on the new evidence should be denied because it was her own behaviour at trial (namely, her lack of participation) that caused her to fail to elicit the committal evidence and that, though the unused committal evidence was before the Court of Appeal and though on her appeal she was represented by senior and junior counsel, nothing was made of that evidence on the appeal by counsel. In Logan J's view, however, the evidence "either reasonably admits of exculpation such that it is arguable there was a miscarriage of justice, or it does not". Further, the issue is not whether Dr Ogawa's legal representation was incompetent. Instead, the issue is whether a miscarriage of justice has occurred.[136]

219 Thus, adapting the foregoing reasoning to the present case, it could be said that the possibility that Mr Zhong and/or counsel made forensic choices in declining to elicit the evidence of the health insurance and the loan to Mr Hu would be regarded as an irrelevancy. Instead, the new evidence "either reasonably admits of exculpation such that it is arguable there was a [substantial] miscarriage of justice, or it does not".

220 I turn now to my conclusions about these aspects of Ogawa (No 2). First, as persuasive as Logan J's reasoning is, it is not binding on this Court.

221 Secondly, despite the fact that, if I had been tasked with making the decision on the application to refer under s 327(1)(a), I would have come to a different conclusion, I adhere to the views I expressed earlier about what the Attorney was entitled to conclude about the worth of the new evidence.

222 Thirdly, I adhere to the view that the Avon Downs test (or the Wednesbury unreasonableness test) must be combined with and applied to the particular test that the Court of Appeal would be expected to apply when considering the ground of appeal in issue. Under Grounds [1] and [2], that particular test is the new evidence test, not that which is applicable to fresh evidence. As we have seen, those tests are materially different. The fresh evidence test sets a lower threshold on success by an appellant before a Court of Appeal. Thus, to the extent that Logan J in Ogawa (No 2) may be taken as suggesting that, no matter whether the additional evidence is new or fresh, there is a universal test to be applied by any Attorney in considering a petition to refer a case to the Court of Appeal based on such additional evidence (namely, "whether there was presented with the application evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted [the petitioner]"), I disagree. To be sure, that will be the appropriate test if the evidence is fresh (albeit that the addition of the words "might, arguably" may well understate the threshold for that particular test as well). But it will not be so where only new evidence is being considered.

223 In Lawless v The Queen ("Lawless"),[137] Mason J pointed out that both of the new and fresh evidence concepts are rooted in the notion of a miscarriage of justice resulting from the absence of the evidence in question. His Honour also explained, however, the underlying rationale for the different definitions, appellate tests and resulting orders applicable to the two types of evidence. It is a long passage, but it is instructive to read it in full:[138]

In Ratten v The Queen,[139] ... Barwick CJ observed that when evidence not called at trial, whether or not it be fresh evidence in the strict sense of that expression, when taken in conjunction with the other evidence tendered at the trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside. The Chief Justice went on to point out that when the evidence not called at the trial, though it fails to show that the accused is innocent or fails to raise a doubt as to his guilt, none the less shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the verdict and order a new trial, if and only if the evidence in question is fresh evidence properly so called, that is if it is evidence of which the accused was unaware at the time of his trial and it is evidence which he could not have discovered with reasonable diligence.[140]

In both these cases the newly adduced evidence, considered in conjunction with the evidence tendered at trial, reveals a miscarriage of justice showing, as it does, that it would be unsound or unsatisfactory to allow the conviction to stand, in the one case because the appellant should be acquitted, and in the other because there is a likelihood[[141]] that the accused would be acquitted on a re-trial based on the fresh evidence. The quashing of the conviction by a court of criminal appeal in these cases is based, not on the existence of any irregularity in the conduct of the trial, but on the perceived injustice or unfairness in allowing the conviction to stand when it is viewed against the totality of the evidence including the newly adduced evidence.

However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the newly adduced evidence falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial, should not be allowed to stand. After all, in a criminal appeal uncomplicated by the existence of newly adduced evidence, it is not a ground for the setting aside of a conviction and the ordering of a new trial that the appellate court itself considers that it was unlikely on the evidence that the jury would have convicted. If there was evidence on which the jury could reasonably convict, the verdict must stand, for in such a case there is no miscarriage of justice. So it is when evidence not called at the trial, not being fresh evidence when considered with the evidence given at the trial, leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so. There is then no miscarriage of justice because the jury has arrived at a verdict which is unimpeachable and the new evidence produced on the appeal falls short of establishing that the accused should not have been convicted, it being the fault of the accused that the new evidence was unavailable at the trial.

224 In my view, the same underlying rationale must inform the Attorney's decision whether to refer a case to the Court of Appeal based on new evidence. Put another way, if a person, once convicted, cannot complain on appeal of a miscarriage of justice if he (whether acting on his own judgment or on the advice of counsel) deliberately chose not to adduce or seek out evidence available to him at the time of trial, unless the new evidence should have acquitted him, then, all else being equal, nor should the Attorney refer a matter to the Court of Appeal on the basis of new evidence unless it is reasonably possible that the evidence shows he is innocent or at least that there is a reasonable doubt about his guilt. Nor should the Attorney ask herself whether there is a reasonable possibility that the fresh evidence test is met when the evidence is only new in character. To do so would be to allow a convicted person a second appeal on a ground of appeal which ex hypothesi could not succeed before the Court of Appeal and which is incompatible with the fairness rationale underpinning the fresh evidence appellate test vis-à-vis the new evidence appellate test.

225 Fourthly, for the same reasons, given the discretionary nature of the prerogative, even when being considered in conjunction with a legislative provision like s 327(1)(a), I think it is reasonable for the Attorney to take into account matters such as the forensic choices of counsel. True it is that, if the new evidence is persuasive of a reasonable possibility of either innocence or a reasonable doubt (i.e. the new evidence appellate test), then factors like the forensic decisions of counsel or the petitioner will not - and should not - stand in the way of a referral. This is because there can be no interest in leaving the petitioner without a chance of remedying, on a reference before the Court of Appeal, what might be a substantial miscarriage of justice. And that will be so where there is a reasonable possibility that the additional evidence meets the appellate test for new evidence. However, that does not mean that, where it is open to form the view that there is no reasonable possibility that the new evidence could meet the higher appellate threshold applicable to new evidence but that it might meet the fresh evidence appellate test, it is an irrelevant consideration for an Attorney to take into account the forensic choices of counsel and/or the petitioner in determining whether to refer the matter to the Court of Appeal. Indeed, in my view, that would be a relevant consideration. Were it otherwise, an Attorney's decision to refer a case to the Court on such a basis alone would be misplaced, and thereby would risk undermining the underlying rationale for the distinctions intermediate appellate courts are required to draw between the concepts of new and fresh evidence, the appellate tests relating thereto and the orders that might result from satisfaction of one or other of those tests.

226 Finally, it must be remembered that, in Ogawa (No 2), the Attorney had given reasons for his decision to decline to refer the case to the Court of Appeal in respect of the threat convictions. For what it is worth, I agree with Logan J that those reasons were erroneous. In this case, on the other hand, there are no such reasons. While that difference between the two cases may not explain all of the differences between Logan J's reasoning and conclusions and mine, it goes some way towards such an explanation. But, put simply, as Ms Gory correctly submitted, in the absence of such reasons, I am confined to applying the Avon Downs test or something akin to Wednesbury unreasonableness, which is a much higher hurdle for Mr Zhong to clear.

227 The facts and respective charges are, of course, also somewhat different. Dr Ogawa, it seems, might be said to have uttered some threatening words in the heat of the moment. Mr Zhong, on the other hand, faced a trial in which it was alleged that he had several meetings over a period of four-and-a-half months with undercover police involving discussions, in some detail, about whether the would-be hitman would kill his wife for money, and, if so, how that evil deed might be achieved.

228 Accordingly, it is for these reasons that I would distinguish or otherwise depart from Logan J's reasons and conclusions on like matters concerning new evidence in Ogawa (No 2).

229 I cannot, however, leave Grounds [1] and [2] without making the following point. If, contrary to my view, the correct test for the Attorney to apply to the new evidence disclosed by these two grounds is that which was stated by Logan J in Martens and applied in Ogawa (No 2), then I would have concluded that the decision to decline to refer Mr Zhong's matter to the Court of Appeal does indeed suffer from Wednesbury unreasonableness. This is because not only do I think that that new evidence "might, arguably, when the whole of the case [is] considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted [Mr Zhong]",[142] but, more importantly, I am satisfied that a failure by the Attorney to come to that view would be "so unreasonable that no reasonable repository of the power could have taken the impugned decision or action".[143]

230 Six further things must be said at this point. First, and I repeat, to come to that view I must apply what I perceive to be Logan J's understanding of the fresh evidence appellate test to what is, in this case, only new evidence.

231 Secondly, however, lest I have failed to make myself clear thus far, I do not accept that that is the correct test to apply in Mr Zhong's case. This because the evidence raised in Grounds [1] and [2] is merely new evidence, not fresh evidence. And, as I have been at pains to point out, as I see it, the new evidence appellate test is more stringent than the fresh evidence appellate test.

232 Thirdly, despite the material differences between the stringency of those two tests, there is in the end only a relatively fine line between rejecting and accepting Mr Zhong's submission of reviewable error based on the distinction between new and fresh evidence, particularly when both must be considered through the prism of reasonable possibility on the one hand and Wednesbury unreasonableness on the other.

233 Fourthly, that there is, in my mind, only a fine line between success and failure on Grounds [1] and [2], that I have declined to follow the approach of Logan J and that, had I followed his approach, those grounds would have succeeded, are all additional reasons why the Attorney might reasonably consider referring this case to the Court of Appeal if Mr Zhong filed a new (and more targeted) petition seeking a referral under s 327(1)(a) of the CPA.

234 Fifthly, I have deliberately avoided resolving the antecedent question whether the Attorney's decision under s 327(1)(a), linked as it is to the prerogative, is reviewable simply because I have concluded that, on my understanding of the applicable tests, Mr Zhong's application for judicial review must fail. That there is a finely balanced, but nevertheless alternative, way of viewing the applicable test does not, however, cause me to reconsider whether I should attempt a resolution of that fundamental question.

235 Finally, what I can say, though, is that, if the Attorney's decision under s 327(1)(a) (or the process by which that decision is reached) were indeed held to be reviewable, then, applying Logan J's less stringent test to the new evidence in Grounds [1] and [2], not only would I have upheld those grounds, but I also would have ordered that the decision be set aside and that the matter be remitted to the Attorney for her consideration according to law.

237 Ms Gory is plainly correct to submit that this is neither new nor fresh evidence.

238 Further, given that the love letter was in evidence at trial, the Court of Appeal's previous adjudication of the complaint of an unsafe verdict alone would be enough of a reason entitling the Attorney, as a matter of discretion, to decline to refer the matter to the Court of Appeal on this particular basis.

239 Again, however, it is arguable that it is evidence capable of cutting either way - that is to say, it is arguably as easily explicable as an attempt to cover up what had been done as it is behaviour consistent with innocence. Now, of course, if a jury were driven to such a balanced state of satisfaction on the whole of the evidence, they would be required to acquit. This is because it is not the law that a convicted person can succeed on an appeal (or that a jury can acquit) only if two inferences or hypotheses - one consistent with innocence and the other consistent with guilt - are equally open. Instead, if the innocent inference cannot be excluded, the jury must acquit, as must a court of criminal appeal (on a complaint that the conviction is unsafe).[144]

240 But that is not the question being considered on an application of this type. Instead, the question is whether, given the broad discretion reposed in her, the Attorney was compelled to the view that, on the whole of the evidence (including the love letter), there was a reasonable possibility either that Mr Zhong was innocent or that there would be at least a reasonable doubt in the mind of the Court of Appeal. In my view, however, the Attorney was not compelled to that view.

241 Accordingly, each of these three grounds - individually and collectively - must fail on this application.

242 At this point, I should add that I am (only just) able to make an adequate assessment of these grounds without the complete trial transcript and all trial exhibits. While it is far from perfect, there is enough other material before me about the essential facts and issues agitated at trial to enable me to make that assessment.

243 As will be seen towards the end of these reasons, however, while that is the end of those three grounds for the purposes of these applications, it does not necessarily mean that it is the end of them for all time. As I mentioned earlier, it may be that, perhaps with further evidence, Mr Zhong could establish that the evidence in respect of Grounds [1] and [2] is fresh (instead of new) and compelling, such that he may be able thereby to bring his case within s 326A of the CPA. It is also possible that the Attorney might consider a new petition in any event.

[4] Police coercion/duress; [5] Police corruption

244 It is convenient to deal with these next two grounds together, especially since their subject matter was dealt with in the same ruling by the trial judge.

245 In his petition and in this Court, Mr Zhong repeatedly claimed that he was coerced or placed under duress by the undercover police in various ways. He also made numerous assertions of police corruption in his petition and in his materials before this Court. The principal aspect of this latter complaint involves allegations that the police informer described as "Paul" was involved in selling guns and other illegal behaviour with other corrupt police. Mr Zhong also alleged that Paul threatened him in numerous ways, so as to compel him to maintain his contact with Mark.

246 Mr Zhong gave evidence of these things on the voir dire before the trial judge. His submission was that his account of the behaviour of the undercover police or their agents - whether involving duress or corrupt behaviour or both - should have been accepted and that this should have led to a permanent stay of the trial on public policy grounds.

247 His further submission is that the Attorney was compelled to come to the same view, and that her failure to do so - and thereby her failure to the refer the matter to the Court of Appeal on this basis - was so unreasonable that no reasonable decision maker could have come to that decision.

248 Ms Gory submitted that there are two reasons why there was no error in the Attorney's decision to decline to refer the case to the Court of Appeal as a result of a failure by the trial judge to stay the trial on the basis of alleged police duress and/or corruption.

249 First, the trial judge, having heard evidence from Mr Zhong on a voir dire about his allegations, was in the best position to determine whether to stay the trial on the basis of this alleged behaviour. In the course of his ruling on that topic, the judge also dealt with the allegation that Paul was described by Mr Zhong as "a gun seller who had connections with corrupt police".[145] The Court of Appeal found no error in the judge's ruling on the application for a permanent stay, and the same point was rejected by the High Court on the special leave application. Thus, the matter had been adjudicated previously.

250 Secondly, and in any event, the evidence was not such that the Attorney was compelled to conclude that there was a reasonable possibility of a substantial miscarriage of justice on either basis.

251 In my view, Ms Gory's submissions are to be preferred.

252 That the issue had been thoroughly adjudicated previously at trial (in the judge's pre-trial ruling),[146] in the Court of Appeal, and on the application for special leave to appeal in the High Court, is enough to render the point unmeritorious absent any new or fresh evidence or, say, a significant change in the law. On this basis alone, there could be no error or abuse of power in the Attorney's decision to decline to refer the matter to the Court of Appeal.

253 As I understood it, counsel did not seek exclusion of the evidence at trial on the grounds of illegality. Instead, it was submitted that, because the evidence was obtained through improper conduct by or on behalf of the police in the sense discussed in Ridgeway v The Queen,[147] there should be a permanent stay of proceedings.[148] That said, it might be argued that, because the common law notion of exclusion of evidence on public policy grounds in the face of improper conduct by police was in vogue at the time of Mr Zhong's trial, whereas, now, such questions are governed by the Evidence Act 2008 (Vic), especially s 138, which might have resulted in exclusion of the evidence, that is a change in the applicable law favourable to Mr Zhong that, in turn, should have caused the Attorney to refer this matter to the Court of Appeal. There are several responses.

254 First, the introduction of s 138 of the Evidence Act and other provisions is not a new interpretation of the existing law, but a wholesale substitution of a statutory form of adjectival law for the common law version.

255 Secondly, and in any event, even if such a change is the type of change in the law that would or might attract the operation of the Attorney's exercise of the prerogative in a petitioner's favour, I cannot see anything in s 138 in particular or the Evidence Act in general that might suggest a different approach to the same questions today. Nor is the law any different with respect to the question whether to order a permanent stay. True it is that one difference in the relevant adjectival law is that, whereas under the common law, when the accused was seeking exclusion of the evidence on the basis that it was obtained improperly or illegally, he or she bore the onus of proving the impropriety or illegality and that the evidence should be excluded on public policy grounds, under s 138, while the onus of establishing that the impugned evidence was obtained improperly or unlawfully (or in consequence of an impropriety or contravention) is on the accused, the onus then shifts to the prosecution to prove that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.[149] But that does not strike me as a material difference in the present case.

256 Thirdly, another difference is that, while exclusion under the common law is discretionary, s 138 is expressed in mandatory terms. Thus, upon satisfaction that the evidence was obtained improperly or in contravention of an Australian law, the judge must exclude the evidence, unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[150]

257 But, as I say, I do not think it is arguable that these differences could have made any difference in the present case. In any event, it was open to the Attorney to take that view.

258 On the limited material before me, I am in no position to analyse the matter any more deeply than that.

259 Finally, under these grounds, I should add that Mr Zhong also made more generalised allegations of police corruption and difficulties with police informers with no apparent connection to his case. Thus, to an extent, this complaint overlaps with the complaint discussed under cover of other grounds, as well as those complaints that went well beyond the margins of what is arguable, which were also discussed earlier. Suffice it to say that, for the reasons I gave earlier, there can be nothing in any of these complaints.

260 This point is, in a sense, related to the last point, because it raises the issue of duress.

261 Mr Zhong complains that the trial judge erred in failing to give directions on duress in accordance with s 322O of the Crimes Act. He goes further and complains that neither the Court of Appeal nor the Attorney has "recognised [his] rights to elemental definitions [under this provision and others]".[151]

262 His ultimate submission is that the Attorney's decision to decline to refer the case to the Court of Appeal based on the failure to leave the defence of duress is manifestly unreasonable.

263 Ms Gory did not address this complaint separately. However, given the substance of her other submissions, it can be assumed that she would have submitted that the ground is not made out.

264 The difficulties with this complaint are manifold and, in my view, insurmountable for Mr Zhong.

265 First, while it is not fatal to the ground, s 322O of the Crimes Act was not applicable to Mr Zhong's case. He was not to know, but the provision did not come into operation until 1 November 2014.[152] It was preceded by s 9AG of the Crimes Act, which did not come into operation until 23 November 2005.[153]

266 Prior to that time, which is the period applicable to Mr Zhong's case, only the common law of duress applied in this State, if it applied at all to the case at hand.

267 In R v Goldman,[154] Redlich J held that duress at common law was a defence available on a charge of attempted murder. In those circumstances, I am prepared to assume, without deciding, that duress, at the relevant time, was an available common law defence to the statutory offence of incitement to murder.

268 Secondly, and in any event, as Mr Zhong would have it, the factual basis for duress, if there at all, presumably came from his sworn viva voce evidence on the voir dire. While there may have been some concessions gained in cross-examination of the undercover police in the presence of the jury, which may or may not have been significant (but which I cannot determine fully, given the limited material before me), I did not understand that Mr Zhong's evidence on the voir dire was placed before the jury. Nor did Mr Zhong otherwise give evidence in the presence of the jury. Thus, unless the voir dire evidence is somehow to be treated as if it were new evidence, this ground must be assessed without such evidence in mind.

269 Thirdly, based on the limited transcript of the trial before me, it seems that the judge was not asked to leave the defence of duress. That is not surprising, as it would be a rare case in which evidence sufficiently raising the defence of duress would come from those who were said have coerced the accused. Instead, the more critical evidence usually would have to come from the accused himself, whether on oath or at least in a police record of interview or via admissions to another. Of course, if evidence of duress were admitted in the trial proper, a failure by defence counsel to request that the defence be left, particularly in the days before the Jury Directions Act 2015 (Vic), would not necessarily relieve the judge of leaving the defence to the jury, and, more importantly, would not necessarily avert a substantial miscarriage of justice. But that experienced defence counsel appears not to have urged that duress be left to the jury as a defence is a factor that an appellate court still would be likely to take into account in determining whether the ground has any merit.

270 So too would the Attorney be entitled to have regard to all of the foregoing matters in concluding that there was no reasonable possibility of a substantial miscarriage of justice in failing to leave the defence of duress. Such a conclusion could not, in my opinion, be regarded as unreasonable.

271 Finally, I should add that I am somewhat hampered in considering this ground absent the complete transcript of the evidence of the undercover police who dealt with Mr Zhong and who, on his account, were said to be the source of the pressure which amounted to duress. Of course, the same is true of the recordings of their conversations and Mr Zhong's own evidence on the voir dire. Nevertheless, the foregoing points, coupled with the materials that are before this Court, are enough for me to be satisfied that this is a complaint that must be rejected.

272 Experience and common sense tell that duress is a defence that is extremely difficult to run, even at the best of times. Here, the allegations spanned a period of months, during which, it must be assumed, Mr Zhong had oodles of opportunities to complain to police that he was being forced to commit a crime. In those circumstances, the prospect of successfully running a defence of duress is, I think, fanciful, at least without an account - from Mr Zhong before the jury in some fashion - of the behaviour said to give rise to the defence. Even if Mr Zhong's evidence on the voir dire (such as it is known) were treated as new evidence to be thrown into the mix, there still could be no error in the Attorney's decision to decline to refer the matter to the Court of Appeal, for she was far from compelled to the view that the only conclusion open was that there was a reasonable possibility of a substantial miscarriage of justice as a result of the trial judge's failure to leave the defence of duress to the jury.

273 I should raise another aspect of duress, which I did not perceive that Mr Zhong raised in his submissions.

274 As Redlich J explained in R v Goldman:[155]

[8] Whether or not duress amounted in law to a defence to attempted murder, the accused's account of the coercion under which he was allegedly placed by the criminal associate, Nikolai Radev, was a relevant circumstance that the jury would need to consider. The defence of duress undoubtedly applied to the second count of intentionally causing serious injury. If the jury accepted or entertained as a reasonable possibility that the accused committed the actus reus of the offences as a direct consequence of the threats made to him by Radev, such facts were relevant to whether the accused had the intent required for each offence. It was the accused's account that he discharged the pistol because he was under compulsion to do so as a result of the threats of Radev but that it was not his intention to shoot the victim. He testified that he aimed to miss the victim on each occasion upon which he discharged the firearm. The defence of duress may bear upon his asserted lack of intent. R v Harding.[156]

275 Unfortunately, without the benefit of transcript of the whole charge, I am unable to assess whether the judge's directions to the jury on intent included any reference to the need to consider, as a relevant circumstance, any evidence of coercion under which Mr Zhong was allegedly placed.

276 Again, however, that Mr Zhong did not give evidence before the jury at all, and that his voir dire evidence of coercion was not otherwise before jury, make it very unlikely that the evidence before the jury was such that the judge was required to give such a direction.

277 Even if there were some evidence of pressure apparent in the recordings of the conversations between Mr Zhong and undercover police, and/or even if such evidence were elicited in cross-examination of those police witnesses, that does not necessarily mean that a direction of the type suggested by Redlich J was required in this case. For example, that evidence of coercion may have been very thin, and a direction of the type in question might be regarded by defence counsel as serving only to undermine other aspects of the defence of lack of intent.

278 In view of the foregoing, and on the assumption that the direction suggested by Redlich J was not given, I am satisfied that the Attorney was not compelled to conclude that there was a reasonable possibility of a substantial miscarriage of justice as a result of the trial judge's failure to direct the jury that any pressure placed upon Mr Zhong by the undercover police was relevant to their consideration of whether intent was proved beyond reasonable doubt.

[7] Failure to direct jury in accordance with s 321G(2)(b) of the Crimes Act

279 As I indicated earlier, perhaps Mr Zhong's major complaint in the Court of Appeal (in his own written submissions), in the High Court, in his petition and in this Court is that the judge did not direct the jury on the intention required for incitement to murder pursuant to s 321G(2)(b) of the Crimes Act. I understood him to make a related complaint about the directions required by s 321G(1) as well.

280 Section 321G provides as follows:[157]

Incitement

(1) Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by -

(a) the person incited;

(b) the inciter; or

(c) both the inciter and the person incited -

if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement.

(2) For a person to be guilty under sub-section (1) of incitement the person -

(a) must intend that the offence the subject of the incitement be committed; and

(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place.

(3) A person may be guilty under sub-section (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible.

281 Section 2A(1) of the Crimes Act also provides that "incite" includes command, request, propose, advise, encourage or authorise.

282 In Mr Zhong's submission, the Crown were required to prove, beyond reasonable doubt, all of the following three elements:

(a) first, that Mr Zhong incited (here, requested or encouraged) Mark to pursue a course of conduct that involved Mark murdering (i.e. intentionally killing) Ms Maio at a given point (s 321G(1));

(b) second, that, at the time of that alleged incitement, Mr Zhong intended that Mark would murder (i.e. intentionally kill) Ms Maio (s 321G(2)(a)); and

(c) third, that, at the time of that alleged incitement, Mr Zhong also intended or believed that, at the point when the murder was to take place, Mark would in fact murder (i.e. intentionally kill) Ms Maio (s 321G(2)(b)).

283 In Mr Zhong's submission, however, at most, the jury directions achieved part of the first element, perhaps all of the second, and none of the third.

284 Further, Mr Zhong submitted that these were material errors, particularly given the following matters. First, intention was the principal issue at trial. Second, there was general uncertainty in the evidence as to whether Mr Zhong intended Mark to go ahead with any plan to murder Ms Maio. Third, as is apparent from the trial judge's reasons for sentence and Buchanan JA's judgment in the Court of Appeal, in May 2000, there was real doubt about Mr Zhong's intention "to proceed with the plan to have [his] wife killed". Fourth, there was no evidence that, at the time of the alleged incitement, Mr Zhong intended or believed that, at the point when the murder was to take place, Mark would in fact go through with it and murder Ms Maio.

286 First, she relied on the Court of Appeal's decision in R v Massie ("Massie")[158] as conclusive of the point.

287 As Ms Gory pointed out, Brooking JA said that, in a case in which there is a simple and direct incitement to commit a crime, there is no point in giving directions to the jury about either the pursuit of a course of conduct that will involve the commission of the offence (s 321G(1)) or the matters set out in s 321G(2)(b).[159] Instead, it would have been enough to instruct the jury that, to prove that Mr Massie incited Mr Black to murder (for example) his brother, the Crown must prove that Mr Massie, with the intention of having Mr Black kill his brother, incited Mr Black to kill his brother.[160]

288 In Brooking JA's view, recourse to the report of the Criminal Law Working Group ("the Working Group"), which recommended the abolition of the common law of incitement and its replacement with s 321G, shows that s 321G(2)(b) was not intended, by the Working Group at all events, to have any scope for operation in a case like Mr Massie's. Instead, the idea behind paragraph (b) was to deal with cases where criminal liability as regards the offence which someone was incited to commit depended merely upon the existence of certain circumstances, ignorance of them not affecting liability, and to prevent those who incited conduct in such a case from becoming liable as inciters unless they believed that the circumstances existed.[161]

289 In Ms Gory's submission, Mr Zhong's case is not meaningfully different from Massie. In each case, the principal issue at trial was whether the requisite intention was proved. And in Mr Zhong's case, a simple instruction of the type that Brooking JA suggested was in fact given by the trial judge, and was adequate to encompass the issue in dispute.

290 Further, Massie had been decided only two years before Mr Zhong's trial; was binding on the trial judge and remains binding on this Court; and has not been challenged or overruled at any stage.

291 In those circumstances, submitted Ms Gory, there could be no error in failing to direct the jury in the ways Mr Zhong urged. It follows that it could not be unreasonable for the Attorney to have concluded that there was no error of this type and therefore no basis for referring the matter to the Court of Appeal.

292 Ms Gory's second point was that it can be inferred from the transcript of Mr Zhong's application for special leave to appeal in the High Court that he pursued these points in both that Court and the Court of Appeal. In each case, the points were adjudicated against him and no miscarriage of justice was established. Thus, there is another discretionary reason for the Attorney to have declined to refer the case back to the Court of Appeal.

293 In his reply, Mr Zhong made several submissions, including the following.

294 First, he submitted that Massie was distinguishable. For example, in Massie, there was evidence of a concluded agreement between Mr Massie and the would-be hitman to kill the proposed victims on a given date and that the hitman was to bring proof of the commission of his evil deeds, which he did later on the appointed day (by handing Mr Massie his brother's watch and some transfers of land purportedly signed by his brother). There was no such evidence in Mr Zhong's case.

295 Secondly, he submitted that s 321G(2)(b) was not confined in its application to the types of offence mentioned by Brooking JA and by the Working Group (which I shall come to shortly).

296 Thirdly, the directions actually given in Massie were in accordance with s 321G(2)(b).

297 Finally, what is more, whether or not those directions had a relevant purpose in Massie, they were necessary in Mr Zhong's case.

298 Before addressing Massie and the parties' submissions, it is as well to commence by setting out the directions the judge gave the jury on intention at Mr Zhong's trial.

299 Fortunately, among the very few pages of the judge's charge in the materials before this Court are two that include what appears to be a large part of his Honour's directions on the elements of incitement to murder. In particular, the following directions were given (to which, for convenience, I have assigned paragraph numbers):[162]

[1] To prove that the accused incited [Mark] to murder [Ms Maio] requires the Crown to prove that the accused, with the intention of having [Mark] kill [Ms] Maio, incited [Mark] to kill her.

[2] Now, the accused must have requested or encouraged [Mark] to kill [Ms] Maio. Inciting for the purposes of this case means requesting or encouraging.

[3] Now, the suggestion need not have originated with the inciter, the inciter being the person accused. It can originate with some third person, or even with the person alleged to have been incited. But the accused must have incited the person he is alleged to have incited by requesting or encouraging him to commit the crime of murder.

[4] Now, this next passage is probably the key passage in the issues in this trial. The accused is charged with inciting, and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested and encouraged shall be done. I will read that again. The accused is charged with inciting and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested and encouraged shall be done.

[5] It is not necessary that the person incited should take any steps with a view to doing what he is incited to do. He may, as in this case, have no intention whatever of doing what he is incited to do. He may even be an undercover operative.

[6] Now, as I said, the key issue in this case is whether or not the accused actually had or reached that stage of intention. An individual's intention may be deduced by the jury from what was said and what was done. However, before you draw any inference adverse to the accused, you must be satisfied beyond reasonable doubt that there is no other reasonable inference open on the evidence other than that the accused intended that [Mark] would kill [Ms] Maio.

[7] Now, in this case, the Crown argues that the intention can be inferred from all the conversations, the persistence and all the steps that had been taken by the accused man. The defence, on the other hand, say that the material discloses that he had not yet reached that intention and that he was really ambivalent about wanting the killing done.

[8] Now, that is put very much in broad terms, in a nutshell, of what the two positions are. In due course I will be coming to summarise the defence and the Crown arguments that were put to you yesterday and today.

[9] That brings me to the conclusion of the matters of law which I am required to instruct you on and the next step is to move on to a summary of counsel's arguments.

[10] But if you want me to repeat any of those issues of law after the break, feel free to ask, especially the definition of incitement to murder. ...

300 While, as I have said, the complete transcript of the judge's charge to the jury was not before this Court, I understand that it is accepted by the parties that the judge did not give any directions in accordance with s 321G(2)(b).

302 Mr Massie was convicted of two counts of incitement to murder (his brother and his own former de facto wife) and one of incitement to cause serious injury intentionally (to his brother's wife).

303 There was evidence at trial that Mr Massie felt great animosity towards his brother and his own former wife, and that he had formed a strong dislike of his brother's wife. This was said to stem from a belief that properties in his brother's name should be in his name and from his brother's having complained to police that he had forged his brother's signature on documents, principally relating to land.

304 Evelyn Burton said that Mr Massie asked her if she knew anyone who could "bump off" somebody, and that he added that, if his brother "was not around", he (Mr Massie) could have all the properties. Ms Burton contacted police, who arranged that Mr Massie would be introduced to "Joe Black" (an undercover policeman posing as a hitman). Shortly before the meeting took place, Mr Massie asked Ms Burton: "Do they have any qualms about doing the same thing to women?"

305 A number of meetings took place between Mr Massie and Mr Black over three consecutive days. The meetings were taped. The agreed fee was $25,000, $5,000 of which was paid on the second day, with the rest to come subsequently. The murders (and the serious injury) were to happen later on the third day of the meetings. Mr Massie asked Mr Black to force his brother to sign blank transfers before he was killed. He added that, if his brother's wife was around, she had to be killed as well, and suggested that he make it look like a murder/suicide. Mr Massie was to receive from Mr Black tangible evidence of death. At the end of the day, Mr Black (falsely) told Mr Massie that his brother was dead, and handed him his brother's watch and the three transfers signed by him. These Mr Massie received with apparent elation.

306 In his evidence at trial, Mr Massie said that he had not meant what he said when he spoke of having persons killed or injured. He said he did all of that by way of pretence to entrap Ms Burton into committing criminal acts by providing a self-proclaimed assassin so that he would then be able to exert pressure on her in order to get back from her $15,000 she had borrowed from his former wife. He produced copies of documents alleged to have been signed by his former wife evidencing, among other things, an agreement to employ him as an agent provocateur in respect of Ms Burton. The prosecution alleged these documents were manufactured after the event to support a false defence case.

307 In her directions to the jury, the trial judge gave the jury a document which contained all parts of s 321G (i.e. including s 321G(2)(b)) and directions on murder, incitement and intentionally causing serious injury.[163] Among the grounds taken on appeal was a complaint that, because the judge defined the intention for murder to be "an intention to kill or do grievous bodily harm", the jury would have understood - because they were not directed otherwise - that the intention for incitement to murder could be satisfied by an intention to do grievous bodily harm. It was held that, although intention to do grievous bodily harm should not have been mentioned, in all the circumstances, the jury could have been in no doubt that incitement to murder required proof of incitement to kill.[164]

308 In the course of considering this ground, Brooking JA (with whom Winneke P and Batt JA agreed) said a good deal about s 321G of the Crimes Act. In order to pick up all of the relevant remarks, and to place them in their context, it is necessary to set out the following several paragraphs (with only some passages excluded) from his Honour's judgment:[165]

[15] The section [i.e. s 321G] is a modified version of the provision drafted by the Working Group already mentioned. In a case in which there is a simple and direct incitement to commit a crime, the judge may and should instruct the jury in terms of incitement to commit the offence, without bothering the jury about the pursuit of a course of conduct which will involve the commission of the offence. There is no point in talking about the commission of a crime by the inciter, or by both the inciter and the person incited, in the ordinary straightforward case of the incitement of someone to murder another, and it is unfortunate that the Charge Book gives a model direction which sets out most of s 321G(1). There is no point in telling the jury about impossibility (s 321G(3)) where no question of impossibility arises. There is no point in troubling the jury about para (b) of s 321G(2) in the ordinary case. Counsel and the judge racked their brains, searching for the intention behind this paragraph, and its relationship with para (a). Unfortunately, counsel did not go to the Parliamentary Debates in search of the origin of the legislation.

[16] Recourse to the report of the Working Group ... shows that para (b) was not intended, by it at all events, to have any scope for operation in a case like the present. The idea was to deal with cases where criminal liability as regards the offence which someone was incited to commit depended merely upon the existence of certain circumstances, ignorance of them not affecting liability (R v Churchill [1967] 2 AC 224 is given as an example of such an offence in para 11), and to prevent those who incited conduct in such a case from becoming liable as inciters unless they believed that the circumstances existed.

[17] Understandably, the present jury, para (b) having been introduced into the case by the charge and the written directions, sought "a layman's explanation" of para (b). The judge gave them an explanation in terms which had previously been declared by counsel to be acceptable. This explanation was that the paragraph meant that at the time of the incitement the accused must have intended or believed (in the case of incitement to murder) that the murder would take place, that is, that all the elements of the crime of murder would exist and (in the case of incitement to injure) that serious injury would be done, that is, that all the elements of that crime would exist. In repeating for this purpose her definition of the crime of murder, the judge again told the jury that the necessary intent was either to kill or to do grievous bodily harm.

[18] In this particular case the jury could have been charged fairly briefly about the elements of the offences. Directions along the following lines would have been adequate:

Now I must tell you as a matter of law what the Crown must prove to establish the offences charged. You may take murder, for the purposes of this case, as meaning killing, in the sense of intentionally causing someone's death. To prove that the accused incited Joe Black to murder his brother requires the Crown to prove that the accused, with the intention of having Black kill his brother, incited Black to kill his brother. ... The two offences of inciting to murder and inciting to intentionally cause serious injury have this in common: the accused must have requested or encouraged Black to intentionally harm the victim, and the accused must have done this with the intention of having Black harm the victim. The distinction between the two offences lies in the nature of the harm, that is, the harm which the accused must have incited Black to do to the victim and which the accused must have intended should be done to the victim. With inciting to murder, the harm is death. With inciting to cause serious injury, the harm is serious injury. For both offences, inciting to murder and inciting to intentionally cause serious injury, inciting means requesting or encouraging. The suggestion need not have originated with the inciter. It can originate with some third person or even with the person alleged to have been incited. But the accused must have incited the person he is alleged to have incited by requesting or encouraging him to commit the crime of murder, for counts 1 and 2, ... The accused is charged with inciting and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested or encouraged shall be done. It is not necessary that the person incited should take any steps with a view to doing what he is incited to do. He may - as in this case - have no intention whatever of doing what he is incited to do, and even be a police undercover agent. ...

[19] This is intended only to give a general impression of the appropriate approach in the present case: I have not pored over each word of what I have suggested.

[20] ... This jury could have been told: "You must be satisfied that the accused was not pretending, but really intended that Black should kill his brother and sister-in-law ..." "Kill" for the first two counts ... would have served on the facts of this case, where subtleties like cutting the brake hoses, or electrocution in the bath, or running the victim down, were never in contemplation.

[21] If there is any danger that the applicant was convicted of incitement to murder because the jury were satisfied that he intended that Black should seriously injure the brother and his wife, then obviously the convictions cannot stand. The charge must be described as an unhappy one, having regard to its unnecessary reference to intent to cause grievous bodily harm as part of the definition of murder; its use of the terms of s 321G as the framework for the definition of incitement, with the resulting introduction of complications with which the facts of the case had nothing to do; its failure to give the relatively simple definitions that were appropriate to the facts and were much to be preferred; and its reference to the requirement contained in para (b) of s 321G(2).

[22] But after careful consideration I have concluded that the directions about the elements of the offences should not bring these verdicts down. ... In the second place, there is the answer which the judge constructed, with the aid of counsel, to the jury's question about the meaning of para (b) of s 321G(2). This answer, while not directed to the point which the framers of that paragraph had in mind, did serve to make it clear that, as the judge put it, the jury must be satisfied beyond reasonable doubt:

• as to the brother, Franco, that "[at] the time when he [the accused] incited Joe Black, he intended or believed ... that Franco's death would be substantially caused by an act or acts of Joe Black";
• as to the sister-in-law, Carol, that "when he incited Joe Black he intended or believed that Carol's death would be substantially caused by an act or acts of Joe Black";
• as to Bourke, that "at the time he incited Joe Black he intended or believed that an act or acts of Joe Black would cause serious injury to Marguerite Bourke".

[23] I do not think that the jury could have been in any doubt that the Crown had to prove incitement to kill Franco and his wife. The jury in convicting must have been satisfied of the facts necessary in law to constitute the respective offences charged. As regards the counts of incitement to murder, the evidence made it plain, and the defence accepted, that the words spoken and acts done by the applicant, taken at their face value, amounted to a request to Black to kill both victims. There was never any suggestion, in evidence or argument, that the request, taken at its face value, was only for the infliction of serious injury, or that the actual intention of the applicant, or, for that matter, of Black, was that injury not resulting in death should be inflicted. ... With all three offences, it was clear that the applicant was to be convicted if the jury were satisfied that what I might call the prima facie incitement (the existence of which was conceded) had been proved to be genuine as opposed to pretended incitement.

The Criminal Law Working Group's Report on Incitement

309 In the foregoing reasons, Brooking JA referred to paragraph 11 of the Working Group's Report on Incitement.[166] It is convenient to set out paragraphs 10 to 13 of that report, as well as the draft s 321G(2) recommended by the Working Group:[167]

[10] The question of the state of mind of the inciter is one which the Working Group believes requires most careful examination, though the principles which ought to be applied are fairly clear. There are, in fact, a number of different situations to be considered.

[11] The first is where the definition of the offence which the inciter incites a person to commit requires the existence of certain facts or circumstances, or the occurrence of certain consequences, but may be committed without knowledge of the existence of those facts or circumstances, or without the intention of bringing about those consequences. An example of an offence requiring the existence of certain facts or circumstances is provided by the case of Churchill v Walton [1967] 2 AC 224, which was a case of an alleged conspiracy and to which reference was made in the Working Group's Report on Conspiracy. In that case, it was an offence to use a particular type of fuel oil in trucks without a payment having been made to the Government. The defendant was charged with conspiracy to commit that offence because he had made an agreement to use fuel oil of that type without making the necessary payment. The defendant did not in fact know that a payment was required, and he was acquitted of conspiracy. The Working Group agrees with the decision and recommends that it should apply in relation to incitement as well as conspiracy. The Working Group considers that it would be wrong to convict a person of incitement, which is an offence clearly requiring some specific intention to bring about an illegal result, in a case where the person charged was not fully aware of the relevant facts and circumstances. This is not to say, of course, that the inciter must be aware that the conduct that he is inciting is against the law - ignorance of the law is no excuse - but he must be aware of all the facts and circumstances which make the proposed course of conduct illegal.

[12] The crime of murder illustrates the point regarding intention to bring about consequences. A person may be convicted of murder even if he intended only to inflict grievous bodily harm upon the victim, provided that death actually results. It would be wrong, however, to convict a person of incitement to murder if all he did was to incite another to inflict grievous bodily harm.

[13] The Working Group's recommendations about knowledge of facts and circumstances and intention to bring about consequences are embodied in sub-section (2) of proposed section 321G in the draft Bill.

310 Sub-section (2) of s 321G in the draft Bill in the report is set out below. In bold italics within brackets at the end of each paragraph, for ease of contrast, I have inserted the words actually employed in s 321G(2) as enacted:

(2) For a person to be guilty under sub-section (1) of incitement the person -

(a) must intend to bring about any consequence which is a necessary element of the offence in question even where that offence may be committed without the consequence being intended by the person committing the offence [must intend that the offence the subject of the incitement be committed]; and

(b) must intend or believe that any fact or circumstance the existence of which is a necessary element of the offence in question will exist at the time when the conduct constituting the offence is to take place, even where the offence in question may be committed without the existence of the fact or circumstance being known to the person committing the offence [must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place].

311 In view of the foregoing, several questions are raised, including the following. What directions does Massie require on intention in a case of incitement to murder? Do the directions given by the trial judge comply with those requirements? Is Mr Zhong's case distinguishable from Massie? Are the remarks on s 321G(2)(b) in Massie only obiter? Is it arguable that Massie was wrongly decided? I shall deal with each of these issues in turn.

312 The extracts from Massie show that, in Brooking JA's opinion, "[i]n a case in which there is a simple and direct incitement to commit a crime, the judge may and should instruct the jury in terms of incitement to commit the offence".[168] In Mr Massie's case, which, evidently, was regarded as a case of that nature, his Honour said that it would have been sufficient to direct to the effect that, "[t]o prove that the accused incited Joe Black to murder his brother requires the Crown to prove that the accused, with the intention of having Black kill his brother, incited Black to kill his brother".[169]

Whether trial judge's directions on intention comply with Massie

313 As we have seen, in Mr Zhong's case, the judge directed, almost in terms, in the same way as suggested by Brooking JA in Massie. His Honour said:[170]

To prove that the accused incited [Mark] to murder [Ms Maio] requires the Crown to prove that the accused, with the intention of having [Mark] kill [Ms] Maio, incited [Mark] to kill her.

314 The trial judge also directed that Mr Zhong "is charged with inciting and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested and encouraged shall be done". His Honour described that passage as "probably the key passage in the issues in the trial", and then repeated it.[171]

315 The judge also went on and related that direction on "the key issue in this case" to the standard direction on inferences, by directing in this way:[172]

However, before you draw any inference adverse to the accused, you must be satisfied beyond reasonable doubt that there is no other reasonable inference open on the evidence other than that the accused intended that [Mark] would kill [Ms] Maio.

316 In those circumstances, I think it is clear that the judge's directions on intention were in accordance with the law as it was understood in Massie.

317 Moreover, to hark back (and to look ahead) to other grounds alleging bias in the trial judge or criticisms of Mr Zhong's lawyers, subject only to a couple of points I shall raise shortly, it is perfectly understandable that the judge would direct in this way, and that counsel would expect him to do so, given that Massie was (or appeared to be) a binding decision of the Court of Appeal made only very recently. Again, in one of the few pieces of transcript before this Court, it is also apparent that the trial judge was aware of Massie, as he referred to it in the course of discussion prior to counsel's final addresses.[173] For the same reasons, it is perfectly understandable that Mr Zhong's lawyers would not challenge directions along these lines as being inadequate on the requisite intention for incitement to murder.

318 Mr Zhong, however, submits that his case is distinguishable from Massie, and ought to have attracted further directions on intention, particularly directions of the type contemplated by s 321G(2)(b).

319 In my opinion, Mr Zhong is arguably correct, for several reasons. First, Massie was a vastly stronger case than his. The defence accepted that the words spoken and the acts done by Mr Massie, taken at their face value, amounted to a request that Mr Black kill both victims.[174] The meetings at which the incitement alleged occurred were conducted over a relatively short space of time - over three consecutive days. The incitement alleged was concrete: the killings were to happen later on the third day of the meetings, and Mr Massie was to be shown proof of the killings. Further, and most tellingly, Mr Massie expressed elation when Mr Black returned, told him (falsely) it was done and showed him his brother's watch and the signed papers. Finally, Mr Massie's defence seemed to be preposterous and obviously manufactured. In Mr Zhong's case, by contrast, his general ambivalence, his failure to give Mark a clear instruction to go ahead at any time (let alone on a fixed date), his purported lack of funds, the fact that it was arguable that any action was contingent upon coming up with such funds, and the grave doubts about his intention in May 2000, all meant that it was strongly arguable that there was no actual incitement of a killing and at least no concluded intention or belief that there should or would be a killing at all, let alone on an appointed date.

320 Secondly, the directions actually given in Massie, both initially and in answer to the jury's question about them, were in accordance with s 321G(2)(b). Thus, as Brooking JA pointed out, for example, following the jury's question, the judge redirected them that, as to the brother, Franco:[175]

At the time when [Mr Massie] incited Joe Black, he intended or believed ... that Franco's death would be substantially caused by an act or acts of Joe Black.

321 No such directions were given in Mr Zhong's case.

322 Finally, it is arguable that, while those particular directions might not have been necessary to the issues in Mr Massie's case, and had only a seemingly inadvertent benefit in that they helped save the verdict (because, unlike some other directions given, they did not include any erroneous reference to an intention to cause grievous bodily harm), directions of a similar type were necessary in Mr Zhong's case, given the state of the evidence (or lack of it) and the matters that remained in issue at his trial.

323 That said, it is also arguable that, despite those differences between the cases, the directions the judge gave in Mr Zhong's trial were sufficient to bring home the essential requirements of incitement to murder. After all, his Honour did direct that the prosecution were required to prove that Mr Zhong, "with the intention of having [Mark] kill [Ms] Maio, incited [Mark] to kill her". In particular, it might be argued that that pithy instruction necessarily implied that there must be proof that, in Mr Zhong's mind, there was an intention or belief that, at the time the killing was to occur, Mark would go through with what he was being encouraged to do, and intentionally kill her. The rival view, however, is that this requirement is neither express nor implied in such a direction, and that such express directions were necessary in Mr Zhong's case, given the uncertain state of the evidence and the matters in issue.

324 I think it is also strongly arguable that, strictly speaking, Brooking JA's remarks about s 321(2)(b) (and some other aspects of s 321G) were obiter dicta. The ratio decidendi, in so far as the ground at issue was concerned, was that, while the jury should not have been told that murder is causing death with the intention of killing or doing grievous bodily harm, there was no material error in the directions on incitement to murder because other directions (including the redirection given on s 321G(2)(b)), and the particular context in which the issues at trial sat, meant that the jury could have been in no doubt that the prosecution had to prove incitement to kill and not merely incitement to do grievous bodily harm.

325 That said, when the Court of Appeal makes unanimous considered obiter remarks of the type made by Brooking JA with respect to s 321G(2)(b) (and other aspects of s 321G), with the concurrence of no lesser judges than Winneke P and Batt JA, a trial judge would be expected to follow them.

326 Nevertheless, whether Brooking JA's remarks in Massie on s 321G(2)(b) are binding or are merely obiter, I think that Mr Zhong was right to complain that he was entitled to directions in accordance with that provision. This is because I happen to think that Massie is wrongly decided on this particular point, or is at least attended by significant doubt, and that it should be reconsidered by the Court of Appeal.

327 This is not the occasion to set out all of the competing arguments, let alone purport to determine them finally. Only the Court of Appeal (or the High Court) can do that. Instead, it is preferable that I simply explain, in relatively brief terms, why I think it is at least arguable that Massie is wrong on the point in issue.

328 In my opinion, the better view of s 321G(2)(b) is that, at least in a case like Mr Zhong's, directions of the kind spelt out in the provision must be given on a charge of incitement to murder. Thus, despite the reasoning and vast wisdom and learning of the three eminent judges who, apparently after careful consideration in a reserved judgment, decided otherwise in Massie, I respectfully disagree with them.

329 As I mentioned earlier, Brooking JA determined that the purpose of the provision, as revealed by the report of the Working Group, was only to address a perceived gap concerning situational offences of strict or absolute liability.[176] But, while I acknowledge the force of his Honour's reasoning, there are, in my view, nevertheless manifold arguable difficulties with that analysis. Suffice it to mention a few here.

330 First, as can be seen from the extracts set out earlier in these reasons, the legislature did not use the words employed by the Working Group in its report. Once the legislature chose to alter the Working Group's draft paragraph (a) so drastically (by removing any reference to "any consequence [and so on]" and replacing it with "the offence"), and once the almost equally drastic alterations were made to Working Group's draft paragraph (b), the task of construction was made all the more difficult. The result is that there is no express attempt in s 321G(2)(b), as enacted, to distinguish between different types of offences that might be thought to have been within the contemplation of the Working Group. Instead, the words chosen by the legislature are, on their face, of general application. Indeed, I think it can be said of any offence (and not just an offence of absolute or strict liability) that it involves "fact[s] or circumstance[s] the existence of which is [or are] an element of the offence".

331 Secondly, it is at least arguable that resort to the then-Attorney's second reading speech in support of the Bill that introduced the conspiracy and incitement provisions into the Crimes Act, and the debate that followed, supports this construction of s 321G(2)(b). To be sure, the Attorney Mr Kennan said that the Bill "gives effect, in substance, to the reports of the [Working Group] on conspiracy and incitement".[177] But, on the other hand, the Attorney's description of the mental element of incitement suggests that it was indeed designed to be of general application, for he said this:[178]

The necessary mental element is that the incitor must intend that the offence be committed and intend [or] believe that any fact or circumstance, the existence of which is an element of the offence in question, will exist at the time when the conduct constituting the offence is to take place.

332 The debate that followed six days later - principally between the Attorney and the former Attorney Mr Storey[179] - shed some light on the matter but might be thought to have raised as many questions as it answered. That debate was conducted mostly by reference to the conspiracy provisions. Section 321(2), which concerns the mental element of conspiracy, contains almost identical wording to s 321G(2), and is also broken down into two paragraphs. Also, the conspiracy and the equivalent incitement provisions proposed by the Working Group were relevantly identical. Apart from making another specific point concerning whether it is necessary to intend to commit the offence as defined in an Act or at common law, Mr Storey noted the departure in the Bill from the words proposed by the Working Group, which he also described (presciently) as involving "a rather elusive concept".[180] The Attorney responded in this way:[181]

The Government was anxious to put proposed section 321(2) in as clear language as it could and it has expressed it in some sense in shorthand by saying, of course, that the necessary element is the intention to commit the offence.

The necessary facts, acts, omissions or circumstances that must go to make up the offence are those that are created.

The Government does not intend to suggest there must be a mental element to breach a particular section of an Act, but, rather, if there is a conspiracy to commit murder, that murder is committed and is accompanied by the necessary intention and so on. In proposed section 321(2) all the necessary facts going to the commission of the offence are intended and, to put it baldly, it is a conspiracy to commit murder. It is murder that is intended with a death resulting and, if it is a conspiracy to enter into some fraudulent conspiracy, that offence must be intended to be ultimately carried out.

333 While they do not directly answer the specific question raised here, those remarks are, I think, at least arguably consistent with the view that paragraph (b) of s 321(2) sets out an element that necessarily would require proof on a charge of conspiracy to murder. By parity of reasoning, the same must be true of s 321G(2)(b) and incitement to murder.

334 Thirdly, the conjunctive "and" appears between paragraphs (a) and (b) of s 321G(2). Thus, it is to be assumed, at least as a starting point, that both provisions have work to do in every case. Surely, it might be said, given that the Government did depart from the draft recommended by the Working Group, if it were thought that the requirements of paragraph (b) were to be confined to offences of absolute or strict liability or some such, and not to be regarded as of general application, the Government's advisers, the Opposition and/or Parliament in general would have insisted on a form of words that made that clear. For example, it would have been a simple matter to use the disjunctive "or", or perhaps to preface paragraph (b) with the words "only in cases of [X]" or something similar. There are oodles of ways (no doubt, many preferable to these off-the-cuff suggestions) in which it could have been achieved, if that were in fact that desired result. Whatever the intention, would that it were so. But, that it did not occur suggests powerfully that the "and" was to be read conjunctively and that paragraph (b) was intended to be of general application.

335 Fourthly, the work that paragraph (b) must do is apparent in a case like Mr Zhong's. While it is of course gravely morally wrong to intend that another be killed (which would be required by ss 321G(1) and (2)(a)), I think it is inapt to describe, as one who has incited murder, an accused who, at the same time, might not intend or believe that the alleged victim ever actually would be killed (with an intent to kill) by the would-be hitman when the time came, or as not having a concluded intention or belief about the actual occurrence of such an event. Such a state of mind suggests that the accused has not really thought through whether, or conclusively decided that, he actually intends or expects the potential victim to be murdered by the person allegedly incited, or when.

336 Like other inchoate offences, the rationale for criminalising incitement is that it risks the commission of substantive offences and, in any event, is a grave moral wrong. Indeed, as the Working Group said in its Report on Incitement:[182]

The Working Group considers that there is a need for an offence of incitement. It is, like Conspiracy and Attempt, a "preliminary" offence, i.e. essentially an offence which is committed at the outset of a criminal enterprise. The existence of such offences enables the law to prevent the commission of substantive offences and is therefore a valuable weapon in the law enforcement armoury. They enable the law to intervene at an early stage. The argument against the preliminary offences is the actual conduct of the persons committing them does not necessarily involve any direct harm to person or property. However, mere incitement may well create a situation of danger, the magnitude of the danger depending upon the proximity of the incitement to the substantive offence the commission of which is incited. The mental element in incitement is, of course, of paramount importance. The offence of incitement can only be committed by a person who actually wishes to bring about the commission of a crime. The Working Group recommends that incitement should continue to be an offence. The offence should be as the present common law offence is, indictable.

337 But incitement is, arguably, the least culpable of the inchoate offences, and the furthest-removed from any substantive offending. An attempt is so close to committing a substantive offence that its danger, usually, is plain. Conspiracy requires an agreement between at least two persons to commit an offence, and to that extent is both further removed from the commission of a substantive offence than is attempt and yet still has an inherent dangerousness because of the requirement of a concluded agreement with at least one other to commit a substantive offence. But, in general, incitement is further removed from committing - or, to use the Working Group's turn of phrase, less proximate to the commission of - a substantive offence than is either attempt or conspiracy. While the equivalent of s 321G(2)(b) is also included in each of the conspiracy and attempt provisions,[183] the requirements laid down by the legislature to establish incitement still must be considered against that background.

338 Putting aside the fact that, at worst, he was only ever dealing with an undercover policeman who, on any view, was engaged in a four-and-a-half-month campaign of deception designed to entrap him, if he did not have an intention or belief that, when the time came, Mark actually would murder Ms Maio, or if there may have been a reasonable doubt about that, then, at least from Mr Zhong's point of view, the risk that his behaviour would result in his wife's death is virtually non-existent. Further, when one adds the fact that Mark was an undercover policeman playing a role, the alleged incitement was both subjectively and, in point of fact, wholly removed from the danger of the commission of a substantive offence. Thus, the rationale for criminalising his behaviour arguably falls away substantially, if not entirely. Instead, in those circumstances, Mr Zhong's behaviour amounts to little more than musings and/or inquiries as to the possibility of the murder of another, rather than a concluded act of incitement accompanied by the necessary intent.

339 None of this is to deny that, by virtue of s 321G(3), factual impossibility is no defence to incitement. Accordingly, that Mark, as a "plant", would never murder Ms Maio cannot excuse Mr Zhong's behaviour, such as it was. Further, to the extent that parts of Mr Zhong's case and submissions seem to suggest otherwise, they must be rejected.[184] But the fact that no murder could ever occur as a result of any purported incitement of Mark points up the fact that there was simply no danger in a substantive offence resulting from the behaviour alleged against Mr Zhong. In those circumstances, I think it is reasonably arguable that it is all the more important to ensure that there is proof that the inciter intended or believed that, when the time came, the person incited actually would murder the target of the alleged offence.

340 Fifthly, as we have seen, despite Brooking JA's criticism of the giving of any directions under s 321G(2)(b) in Massie, and while I would adapt them slightly (including by excluding the reference to "substantial cause"), in my opinion, apart from helping to save the directions from otherwise being erroneous on the ground agitated in that Court, the trial judge's redirections on that provision made sense to me. Thus, to have directed that it must be proved that, "[at] the time when [Mr Massie] incited Joe Black, he intended or believed ... that Franco's death would be substantially caused by an act or acts of Joe Black",[185] went pretty close to achieving what I consider is the purpose behind paragraph (b). And that is to bring home the importance of proving the intention or belief that the allegedly incited offence (in this case, the murder) will in fact be committed by the person incited. Instead of her Honour's redirection in Massie, I would prefer to put it more or less in the way I understood Mr Zhong to submit that it should have been put (which I set out earlier). In particular, it should read something like this:

The third element requires proof, beyond reasonable doubt, that, at the time of the alleged incitement, Mr Zhong also intended or believed that, at the point when the murder was to take place, Mark would in fact murder (i.e. intentionally kill) Ms Maio - in other words, he intended or believed that Mark actually would murder her.

341 In that way, the firmness of the inciter's intention or belief not only that the murder should occur, but that it will in fact occur, ensures that his state of mind is sufficiently morally blameworthy to be punishable as an incitement to murder despite the fact that, unknown to the inciter, there is no danger that the murder ever could have happened because the person he sought to incite was an undercover policeman merely playing a role.

342 Finally, that the words of s 321(2)(b) have work to do in cases like Mr Zhong's is consistent with the terms of s 321G(1). Indeed, it is arguable that the words in paragraph (b) are, in a sense, no more than epexegetical of the requirements of the intention incorporated in s 321G(1). Thus, to require that the accused "incites [another] to pursue a course of conduct which will involve the commission of an offence by ... the person incited ... if the inciting is acted on in accordance with the inciter's intention" suggests that, in a case of incitement to murder, the inciter must not only intend that the intended victim will be killed, but also that, at the time of inciting the course of conduct that is to involve the commission of the murder, the inciter intends or believes that the person incited actually will kill the intended victim (with an intention to kill) when the time comes.

343 All of that said, I do not think that it can be concluded that the Attorney would have been acting unreasonably to conclude, first, that the directions given in Mr Zhong's case were sufficient to deal with the issues in dispute at his trial; and, secondly, that that conclusion was supported by Massie; and, thirdly, that both the Court of Appeal and the High Court could be taken to have adjudicated these questions adversely to Mr Zhong. Thus, to that extent, I accept Ms Gory's submissions.

344 Further, while I think Massie is wrongly decided on s 321G(2)(b), I do not think that that alone is a basis for setting aside the Attorney's decision to decline to refer the matter to the Court of Appeal pursuant to s 327(1)(a) of the CPA. Nor do I think that the fact that the Court's remarks on s 321G(2)(b) are strictly obiter, or that Mr Zhong's case is distinguishable from Massie, are additional reasons compelling that course. Whether or not Logan J was correct to rely on a change in the understanding of the applicable law as a basis for setting aside the Attorney's referral decision on the harassment convictions in Ogawa (No 2), the reality confronting his Honour was that the reasoning of three members of the High Court in one case on a closely-aligned provision, plus the considered decisions of two District Court judges, suggested a strong argument that the provision in question should be read differently. Here, on the other hand, there is merely my view of s 321G(2)(b) in the face of the considered reasoning of a unanimous Court of Appeal comprised by three eminent judges, even if the remarks in question were only obiter.

345 Accordingly, I am not satisfied that the Attorney acted unreasonably in failing to refer Mr Zhong's case to the Court of Appeal on the basis of an absence of directions by the trial judge in accordance with s 321G(2)(b) of the Crimes Act (or, for that matter, in accordance with s 321G(1), as I construe that provision).

346 As I understood him, Mr Zhong also submitted that, for a host of reasons, the jury's verdict of guilty was simply not open on the evidence and that the Attorney was manifestly wrong in failing to recognise this and refer the matter to the Court of Appeal. This is the basis for his catchy submission about the rooster who was found to have laid an egg.

347 Among Mr Zhong's points supporting his submission were the following:

• on the assumption that proof, beyond reasonable doubt, of each of the elements in ss 321G(1) and (2)(a) and (b) of the Crimes Act is required, an absence of evidence amounting to such proof;

• the duress placed upon him, and corrupt behaviour engaged in, by undercover police mentioned under cover of Grounds [4] and [5];

• the other evidence suggesting that there was no concluded agreement that Ms Maio should be killed, including the trial judge's observations in his sentencing remarks; and

• the new evidence mentioned under cover of Grounds [1] and [2], as well as the existing evidence mentioned in Ground [3].

348 In Mr Zhong's submission, on all the evidence, both existing and new, the Attorney was compelled to conclude that he was not guilty, or that it was reasonably possible either that he was innocent or that there was a reasonable doubt about his guilt, and that, in consequence, she was compelled to refer the case to the Court of Appeal on that basis.

349 While I did not understand this particular ground of review to be addressed separately by Ms Gory in oral submissions, it follows from other aspects of her submissions that the conclusion Mr Zhong urges was not the only available conclusion on the evidence. Further, Ms Gory's submissions about previous adjudication must be taken to have been made here too.

351 First, in so far as the complaint of duress is concerned, as we have seen already, Mr Zhong's viva voce evidence of duress was given on a voir dire, and not before the jury. Thus, unless his voir dire evidence is somehow to be treated as new evidence, this ground must be assessed without such evidence in mind. (As it happens, I do not have a transcript of that evidence before me. Nor, as I understand it, did the Attorney. Instead, I have only a brief summary of that evidence via, for example, the trial judge's rulings.)

352 Secondly, given my ultimate conclusion about s 321G(2)(b) (and s 321G(1)), this ground cannot be assessed on the assumption in Mr Zhong's submission that proof of the matters contained in those provisions is required.

353 Thirdly, however, the ground can be assessed on all of the other bases put forward. When that is done, on the limited material before this Court, I am unable to conclude that there was any Wednesbury unreasonableness in the Attorney's decision or actions. There was evidence supporting the prosecution case that Mr Zhong did indeed incite Mark to murder Ms Maio and that he had the requisite intent, at least as required by Massie.

354 Fourthly, like some of the other grounds, the complaint that the conviction was not open on the evidence was pursued and determined adversely to Mr Zhong in the Court of Appeal and the High Court.

355 For these reasons, it was not unreasonable for the Attorney to decline to refer the matter to the Court of Appeal on the basis that it was reasonably possible that the conviction is unsafe (in the M v The Queen[186] sense).

356 As I remarked when dealing with Grounds [1], [2] and [3], so too when dealing with the collective complaints under this ground, I think I was able (only just) to make an adequate assessment of the complaint without the complete trial transcript and exhibits. Again, while it was far from perfect, there was enough other material before me about the essential facts and issues agitated at trial to enable me to make that assessment.

357 Under this ground, I understood Mr Zhong to complain variously about the competence of trial counsel, appellate counsel and his solicitors. The particulars of these complaints ranged from an asserted failure by trial counsel to pursue particular challenges to the police witnesses and the judge's directions at trial (including the failure to object to the absence of directions to the jury pursuant to s 321G(2)(b) of the Crimes Act), to appellate counsel and solicitors' failure to pursue on appeal complaints about the foregoing asserted failings of trial counsel and the trial judge and to pursue other points.

358 Ms Gory submitted that it is plain from the transcript of the application for special leave to appeal that the complaints of incompetence of counsel and solicitors were before both the Court of Appeal (in Mr Zhong's own written submissions) and the High Court, but that each court rejected those complaints.

359 Further, she submitted that there is nothing of substance in the materials before this Court to suggest that the Attorney was required to conclude there is a reasonable possibility of a miscarriage of justice by reason of any such asserted incompetence.

360 In my view, there are several reasons why this complaint must fail.

361 First, on the material before this Court, I can see nothing in the conduct of either trial or appellate counsel, or solicitor, suggesting incompetence.

362 So far as I can tell, trial counsel wisely sought to subpoena material that might impact on whether Mr Zhong's complaints about the undercover police could be supported. Based in part on the material that was released, and on Mr Zhong's evidence on the voir dire, counsel urged the judge to stay the proceedings. So far as can be gleaned from the incomplete materials before me, counsel focussed her final address on the real issue at trial - namely, Mr Zhong's intention. Similarly, appellate counsel took the same points on appeal.

363 That these points failed at both levels is no fault of counsel. There was, after all, damning evidence against Mr Zhong of taped discussions between him and undercover police about having his wife killed for a fee, including discussions about how she might be killed.

364 Similarly, that neither appellate counsel nor the solicitor saw fit to run a point alleging incompetence of trial counsel is hardly surprising, since, on the material before this Court, it would have been scurrilous to have done so.

365 Secondly, that a convicted person might be disappointed with decisions taken by his counsel at trial or on appeal is hardly novel. Nor is it evidence that counsel has done anything other than his or her duty to the required standard. Counsel often make decisions within his or her duty that differ markedly from the (usually uniformed) views of the client - whether for reasons of sound forensic judgment, in order to save the client from his or her own lack of understanding or forensic judgment, or because counsel knows that the client's point is contrary to binding authority and that any attempt to take the point would be futile. In this particular case, for example, as we have seen under cover of Ground [7], had a direction been sought in accordance with the terms of s 321G(2)(b), or had the lack of such a direction been the subject of a complaint by counsel in the Court of Appeal, both trial counsel and appellate counsel would have been met with the Court of Appeal's own relatively recent decision in Massie.

366 Thirdly, it will be remembered that, in giving the Court's ex tempore reasons on the special leave application, Kirby J said this:[187]

The complaint of incompetent counsel in the courts below was never previously raised, nor was it the subject of evidence or argument before the Court of Appeal. There is no foundation for this complaint in the record before this Court.

367 It was also apparent, however, from the transcript of the hearing in the High Court, that Mr Zhong was asserting that he had alleged incompetence in his own written submissions filed in the Court of Appeal. Thus, while the ground may not have been developed in that Court in the way that it might have been had it been pursued by experts (for example, with the evidence, at least on affidavit, from Mr Zhong and from those whose conduct was impugned), I think it is reasonable to proceed on the assumption that the Court of Appeal considered and rejected that complaint.[188] Thus, in addition to Kirby J's remark (on behalf of the Court) that there was no foundation for the complaint of incompetence in the record before the High Court, it can be inferred there was also an adverse adjudication of the substance of that complaint by the Court of Appeal. That, alone, would be sufficient reason for the Attorney to decline to refer the matter back to the Court of Appeal on such a basis, and for this Court to reject this ground for review.

368 Finally, in this Court, Mr Zhong said that, after his solicitor came to see him at the prison before the Court of Appeal hearing and told him that he did not wish to pursue the "ground of incompetent counsel", he (Mr Zhong) "totally underst[ood] that". He said they argued but then, as Mr Zhong said, he "accepted that. Not pursue that. ... Not pursue that because I understood".[189] I took this to be a concession that, at least at the time counsel was involved in the application, Mr Zhong acquiesced in the decision to decline to pursue the complaint of incompetence of trial counsel in the Court of Appeal. That, in my view, is another reason justifying rejection of the complaint in this Court.

369 Again, while it would have been preferable to have had the complete trial transcript - as well as the documents Mr Zhong put before the Court of Appeal and the High Court - I am satisfied that I had sufficient material properly to consider and dispose of this ground of review.

370 I found Mr Zhong's complaints under this ground rather difficult to follow.

371 Nevertheless, I understood his submissions to include, among other things, complaints that his human rights under s 8 (equality before the law), s 21 (the right to liberty), s 24 (the right to a fair hearing) and s 25 (rights in criminal proceedings) of the Charter were breached at trial and were ignored by the Attorney, despite her obligation, under s 38, to give proper consideration to those rights in making her decision. Further, in Mr Zhong's submission, s 39 of the Charter empowers this Court to grant him the relief he seeks on account of the Attorney's unlawful failure to give proper consideration to those human rights.

372 More particularly, Mr Zhong submitted that the most important violation of his rights in criminal proceedings (s 25(1)) was that his verdict was not reached according to law. This, as I understood it, was no more than another way of saying that his conviction was unsafe and/or that the judge should have stayed his trial permanently.

373 Mr Zhong also referred to s 25(4), which deals with a right of review by a higher court in accordance with law. Again, his principal complaint under this provision was his argument about the applicability of s 321G(2)(b) of the Crimes Act, and the failure of the judge to direct in accordance with that provision.

374 Ms Gory explained that, on the assumption that the Attorney's decision is reviewable, it is accepted that s 38 of the Charter would require the Attorney, in making her decision under s 327(1)(a) of the CPA, to give proper consideration to any relevant human right. This duty arises under s 39(1) of the Charter, which provides as follows:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

375 If, in making her decision, the Attorney did not give proper consideration to evidence that, say, Mr Zhong did not receive a fair hearing in accordance with s 24(1) of the Charter, then that would be a ground of error which may, depending upon discretionary factors, permit the Court to set aside the decision.

376 But, in Ms Gory's submission, there is nothing to suggest that the Attorney failed properly to consider any of Mr Zhong's human rights; or that, having regard to the substantive matters raised by him, there is nothing to require the Attorney to conclude that there is a reasonable possibility of a miscarriage of justice.

377 In my view, there is nothing in Mr Zhong's appeals to the Charter. All of the rights that he seeks to invoke are those that are already ingrained in the criminal law.

378 Further, in several (if not all) cases, he seems to be arguing points already taken under other grounds as if they are of greater force because somehow they might be brought within a human right protected under the Charter. In this regard, I note his appeals to the Charter in respect of his complaints that the verdict is unsafe, that a stay of proceedings should have been granted and that directions should have been given in accordance with s 321G(2)(b) of the Crimes Act. Whether or not such complaints might be regarded as enhanced by resort to the Charter, I cannot see that there is any suggestion in the materials before me that the Attorney has failed to consider Mr Zhong's human rights in deciding whether to refer his case to the Court of Appeal on those grounds.

379 Further, I am not persuaded that the only conclusion open to the Attorney was to find that one or more of Mr Zhong's rights under ss 8, 21, 24 and 25 - or any other provision - of the Charter was or were breached and thereby required her to refer the matter to the Court of Appeal under s 327(1)(a) of the CPA.

Notice to Victorian Equal Opportunity & Human Rights Commission

380 I note, for completeness, that, pursuant to s 35(1)(a) of the Charter, Mr Zhong gave notice[190] to the Victorian Equal Opportunity and Human Rights Commission ("the Commission") regarding questions of law said to arise relating to the application of the Charter or questions said to arise with respect to the interpretation of statutory provisions in accordance with the Charter. The Commission advised[191] the Court and the parties that it would not be intervening in this matter.

No referral to the Court of Appeal under s 33 of the Charter

381 Finally, as I understood Mr Zhong, he submitted that, on the assumption that any interpretation questions concerning the Charter "cannot be settled in this [C]ourt's jurisdiction", ss 33(1) and (3) of the Charter required that I should consider referring, or that I must refer, the matter to the Court of Appeal, and stay this proceeding until that Court determines that question or questions.[192]

382 Section 33 of the Charter is in the following terms:[193]

Referral to Supreme Court

(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if -

(a) a party has made an application for referral; and

(b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under sub-section (1), the court or tribunal referring the question must not -

(a) make a determination to which the question is relevant while the referral is pending; or

(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

(3) If a question is referred under sub-section (1) by the Trial Division of the Supreme Court or by the County Court, the referral is to be made to the Court of Appeal.

(4) Despite anything contained in any other Act, if a question arises of a kind referred to in sub-section (1), that question may only be referred to the Supreme Court in accordance with this section.

383 In particular, Mr Zhong put the matter in the following way:[194]

If interpreting [s 39] of the Charter cannot be settled in this [C]ourt's jurisdiction, according to [s 33] of the Charter, the issue shall be referred to the [Court of Appeal] for deciding whether [s 39] can be interpreted consistently with human rights to empower the [C]ourt to examine the records of jurisdictional errors of violating my human rights and empower the [C]ourt to review and find whether the [Attorney's] decision to refuse me a referral to the [Court of Appeal] is compatible and consistent with my human rights.

384 I should say, at once, that I think s 39 can be, and is, interpreted consistently with the human rights to which Mr Zhong has referred in the course of his submissions. So far as I can tell, and for reasons I have given above and will give below, none of those rights have been violated by the Attorney's decision to decline to refer the matter to the Court of Appeal.

385 In any event, I do not consider any of the Charter questions arising in this matter as either necessary or appropriate for determination by the Court of Appeal at this stage of proceedings. In coming to that view, I say nothing about what the Court of Appeal might say on any appeal from this judgment that might relate to such questions. Equally, I accept that this case in general raises issues that the Court of Appeal may well, if asked, find important and interesting, some of which may well involve Charter considerations. Instead, what I mean is that, in my mind, there is not sufficient doubt about any Charter question that would warrant fragmenting this proceeding by referring the matter to the Court of Appeal. The preferable course is for this Court to decide the controversy between the parties. Then, should Mr Zhong or the Attorney be dissatisfied with any aspect of this decision which is thought to touch upon my resolution of (or failure to resolve) any such Charter question, he or she can seek to pursue that matter before the Court of Appeal on an appeal against this decision.

386 Accordingly, in so far as Mr Zhong may be taken to have made an application under s 33 to refer any Charter question in this matter to the Court of Appeal, and in so far as he may be taken to have sought a stay for that purpose, I decline to make that referral or order that stay.

387 Mr Zhong also makes miscellaneous assertions of goings-on that infected his trial, his appeals and/or his petition. These include allegations of systemic corruption; his prison telephone calls being unlawfully intercepted; his legal documents being stolen; inconsistent committal hearing transcript, suggesting fabrication; police tampering with and withholding tapes; being forced on for trial too quickly; bias in the trial judge, the Court of Appeal, the High Court and the Attorney; and so forth.

388 Ms Gory submitted that, to the extent that any of these points have been raised in other courts, they have been adjudicated previously either expressly or implicitly. In any event, in her submission, there is otherwise no basis either for any such complaint or for any assertion that the Attorney erred in failing to refer the case to the Court of Appeal on account of any such allegations.

389 The way in which I have described Mr Zhong's miscellany of complaints might be regarded as anodyne compared with the full extent of those allegations and the language he has used to describe them in his written materials. I have done so deliberately, for such baseless yet putrid claims do not deserve repetition in a public document like this.

390 Again, while I would have preferred to have had the complete trial transcript and other materials before me for the purposes of considering these complaints, I am able to say that, on the material before me, I can see no basis for any of these assertions.

391 In particular, I cannot detect even the slightest hint of bias - whether actual or apprehended - in any of the behaviour, decisions or reasons of those attacked by this ground in the (limited) transcript of the hearing before, or rulings of, the trial judge; in the reasons of the Court of Appeal; in the transcript of the hearing before, and the reasons of, the High Court; or in the Attorney's decision.

392 While it must be difficult for Mr Zhong to navigate this area of the law without legal training, and perhaps it is understandable that he might wish to fire a verbal scattergun at all and sundry given his asserted belief that he is the victim of a grave miscarriage of justice, it is simply wrong to sink to the depths of alleging corruption and/or bias (and worse) against these institutions or individuals - or anyone, for that matter - without any basis for doing so. And there is no basis for any such allegation.

393 Mr Zhong complained that he had been unfairly harassed by police in respect of their attempted execution of the forensic sample order made by the trial judge. I did not understand, however, whether his complaint was that that order should fall with his conviction upon a successful reference to the Court of Appeal, whether it should have been set aside in any event by the Attorney or the Governor, or whether it was meant to be a discrete ground for setting aside the decision to decline to refer the matter to that Court.

394 In Ms Gory's submission, any complaint made about the forensic sample order is not a ground for challenging the Attorney's decision to decline to refer the matter to the Court of Appeal. Instead, it is merely an order that would be set aside if Mr Zhong ever succeeded in having his conviction set aside.

395 Ms Gory also submitted that, in so far as the matter of the forensic sample order was before the Attorney, it should be inferred that she took it into account.

396 Equally, however, she submitted that, since the Governor's powers are broader than the Attorney's, the question whether to set aside this order independently of the conviction was really a matter for the Governor. That said, as I understood Ms Gory's submission, there was no basis for concluding that the Governor's failure to set aside the order was in error.

397 While the chronology is not precise, it is clear enough that the police did not seek to execute the order for a forensic sample against Mr Zhong until many years after his sentence expired and he had filed his first petition for mercy, and even longer after his appeal rights were exhausted.

398 On 16 August 2019, another judge of this Court heard an application by Mr Zhong for a temporary stay of the forensic sample order. While Mr Zhong's supporting affidavit (and annexures) and the judge's order refusing that application are before this Court,[195] the transcript of that hearing is not. Nevertheless, her Honour's order (in the "Other Matters" part) helpfully summarises the events that led to the application and the making of the order.

399 On 7 August 2019, police attended Mr Zhong's residence and asked him to provide a forensic sample. He refused. Police produced the forensic sample order made by the trial judge and explained that he could provide the sample by consent or they would come back with a warrant for his arrest and compel him to provide the sample. In his affidavit in support, Mr Zhong deposed that he had not seen police since that time.[196]

400 The judge did not consider that there was any proper basis for granting the relief sought by Mr Zhong. Her Honour did note, however, that Mr Zhong would have recourse available to him if and when the police obtained a warrant and chose to arrest him. She went on to say that she did not see any basis in law or fact to grant a stay of the execution of the forensic sample order, which is a regular and perfected order of this Court.[197]

401 During the hearing of these applications, I asked the Attorney, via counsel, to request the Chief Commissioner of Police to refrain from executing the order while these matters were being determined. As I understand it, happily, that request was made and has been honoured. Particularly since Mr Zhong was unrepresented, I did not want him distracted or hampered in the presentation of his case by concerns about police pursuing him over the order. I could see no harm, and only good, in the police deferring the execution of the order until the conclusion of this matter in circumstances where, inexplicably, they already had waited an inordinately long time before bothering to do anything about it.

402 No explanation has been given to me as to why the police waited so long before seeking to execute this order. In the absence of any such explanation, and without any positive reason put forward by, or on behalf of, the Chief Commissioner (who, I hasten to add, is not a party to this proceeding) as to why the order is still justified, other than the obvious fact that it is an extant order of this Court, it is difficult to see what utility there could be in seeking to enforce the order some twenty years after the events that gave rise to its making.

403 Equally, however, Mr Zhong has not put any persuasive argument to me as to why the order should be set aside independently of the setting aside of his conviction. Less still has he put any argument as to how the making and existence of the order might be relevant to the question whether the Attorney committed reviewable error in failing to refer his case to the Court of Appeal.

404 True it is that he has described harassment and unfair treatment when police have sought to execute the order. If that is accurate (a matter about which I need make no finding at this stage), it is, obviously, unacceptable. But that is not a ground for impugning either the Attorney or the Governor's failure to set aside the order or the Attorney's failure to refer the case to the Court of Appeal.

405 Thus, this ground fails in so far as it attacks the forensic sample order independently and in so far as it attacks the Attorney's decision to decline to refer the case to the Court of Appeal.

406 That said, in my opinion, this order should not be executed in the event that Mr Zhong pursues an appeal against my orders, a fresh petition or an application for leave to commence a second appeal to the Court of Appeal. This is not a stay, but simply a suggestion as to a sensible way in which to approach this issue in the interim.

407 If Mr Zhong wishes formally to apply for a stay of the execution of the order pending one or more of the foregoing eventualities, or on any other basis, I will hear that application after this judgment is delivered.

408 Finally, I turn to Mr Zhong's complaints about reasons, or the lack of them.

409 Mr Zhong asserts that he has never received any reasons for the Attorney's refusal to refer his case to the Court of Appeal, but that he was entitled to such reasons. He says that, in different ways, he has always sought reasons from the successive Attorneys who have been in office from the time of his first petition, including the present Attorney. He claims also to have sought reasons in oral requests, but has been refused each time.

410 In Mr Zhong's submission, the following letter (dated 31 October 2014), from the office of the former Attorney Mr Clark, is a typical example of a refusal to give reasons. The letter, signed by the Attorney's Chief of Staff, reads in this way:[198]

Thank you for your letter of 15 September 2014 to the Attorney-General, the Hon Robert Clark MP, regarding issues relating to your conviction and the order for a forensic procedure made at the same time. The Attorney-General has asked that I reply on his behalf.

You have requested that the Attorney-General reconsider your petition for mercy and provide reasons for why it was refused. It is standard practice that a petition will not be reconsidered unless new or fresh evidence is presented since it was last considered. As this is not the case, there is nothing further that the Attorney-General can do. Further, a decision by the Governor to grant or deny a petition for mercy is completely discretionary, and is not subject to review or appeal of any kind. Reasons are therefore not provided for a decision to grant or deny a petition.

With regard to the making of the forensic procedure order, that is a decision made by the Supreme Court. Matters regarding the appropriateness or otherwise of a court decision are to be resolved through the legal system. However, if you are concerned with how you were spoken to by the Management Unit of Victoria Police, you may make a complaint to the Police Conduct Unit, which can be contacted as follows [address provided].

The Attorney-General is unable to assist you further with these matters.

411 In Ms Gory's submission, there is no obligation on the Governor to give reasons for the exercise of the prerogative of mercy.

412 Ms Gory conceded, however, that since the Attorney's referral decision is made under or by reference to a statutory provision, it is at least arguable that the position is different with respect to the Attorney's obligation to give reasons. She offered that there are, then, three possible sources for a duty to give reasons - the common law, the Charter and s 8 of the ALA - but submitted that none could avail Mr Zhong in this case.

413 In Ms Gory's submission, it is clear that there is no common law duty imposed on the Attorney to give reasons. She relied on Public Service Board of New South Wales v Osmond ("Osmond"), where Gibbs CJ said that no general rule of the common law or principle of natural justice requires reasons to be given for administrative decisions, even those made in the exercise of a statutory discretion and liable adversely to affect the interests, or defeat the legitimate reasonable expectations, of others.[199]

414 While the Attorney (as a Minister) is a public authority to whom the Charter applies, in Ms Gory's submission, that fact does not alter the position that she is not required to give reasons for her decision to decline to refer Mr Zhong's case to the Court of Appeal. Two arguments were put.

415 First, while it is accepted that ss 38 and 39 have the effect of adding to the potential grounds of review in judicial review proceedings, none of the human rights conferred by the Charter require the Attorney to give reasons for her decision. Thus, while s 24 of the Charter, for example, might be regarded as including a right to procedural fairness in criminal or civil proceedings, the process by which the Attorney reaches her decision whether to refer a case to the Court of Appeal under s 327(1)(a) is neither a criminal nor a civil proceeding and therefore does not attract the operation of s 24.

416 Secondly, returning to Osmond, there is no failure to accord natural justice in failing to provide reasons for administrative decisions, including those made in the exercise of a statutory discretion and liable adversely to affect the interests, or defeat the legitimate reasonable expectations, of others.

417 While Ms Gory submitted that there is no authority on the point, she accepted that it may be arguable that a person who is adversely affected by the Attorney's decision is entitled to reasons under s 8 of the ALA, if a valid request is made.

418 In her further submission, however, it was unnecessary to decide the point, because, for reasons that follow, there was no request by Mr Zhong for reasons for the Attorney's decision to decline to refer the matter to the Court of Appeal.

419 After Mr Zhong drew Ms Gory's attention to the letter of 31 October 2014, which I have extracted above, she sought instructions on whether any other request of the type referred to in that letter might have been made in respect of the most recent decision of the Attorney, of which Mr Zhong was notified by letter dated 18 April 2019.[200] Implicit in her submission was that it was only the most recent decision that mattered for this purpose. I did not understand Mr Zhong to submit the contrary. For reasons I shall set out below, I think that is the correct position.

420 Ms Gory was given what she described as a request by Mr Zhong (dated 27 May 2019) for "clarification of certain aspects of the Attorney's letter [of 18 April 2019] and the Attorney's response [by letter dated 17 June 2019]".

421 In Ms Gory's submission, Mr Zhong's letter of 27 May 2019 does not amount to a request for reasons. Rather, it was a request for clarification of certain matters, and those matters were addressed in the responding letter of 17 June 2019.

422 Earlier in these reasons, I extracted a short passage from a paragraph of the plurality judgment of the High Court in Osland. In full, that paragraph reads as follows:[201]

[47] It is not necessary for present purposes to decide a question about which there was some division of opinion in the Court of Appeal, that is to say, whether it is possible to obtain judicial review of a decision to refuse an executive pardon, or the related question whether it is possible to compel reasons for such a decision. Although the topic was raised, it was not the subject of substantial argument. The Victorian practice was described in a passage from the Tribunal's reasons set out above, and it is clear that the general practice is that reasons for such decisions are not made public. By hypothesis, a petitioner has exhausted his or her legal rights. The terms "pardon" and "mercy" may create a misleading impression. The power may be invoked in a case where it is alleged that there has been a miscarriage of justice, or in a case where the grounds relied upon are purely compassionate, or in some intermediate situation. The person in question may, or may not, claim to be technically and/or morally innocent. An application for a pardon does not imply an admission of guilt; on the contrary, it may be accompanied by an assertion that there has been a wrongful conviction. Nor does it necessarily imply an assertion of innocence; it may be based upon a contention that the law is unduly harsh either generally or in its application to the particular case, or that there are personal grounds for compassion. The pardon, if granted, may be absolute or conditional. In every case, however, the petition is based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative. The practice is not to give reasons for such a decision. Whether or not, in the circumstances of a particular case, or more generally, that practice is open to challenge is beside the present point. The practice formed part of the context in which the Attorney-General acted. If the appellant has a legal right to seek review of the Governor's decision, or to obtain the reasons for that decision, these present proceedings are not appropriately constituted to vindicate such a right. They are proceedings for review, and consequent appeal, in respect of a decision under the Act; and the point in question is whether the Attorney-General, being otherwise entitled to maintain the confidentiality of certain legal advice, waived that entitlement by his conduct. Whether the practice ought to be different, and whether it could be challenged in judicial review proceedings or otherwise, is not relevant to whether the Attorney-General waived privilege.

423 Thus, the High Court left open the question whether it is possible to compel reasons for a decision to refuse an executive pardon. In this case, however, the decision at issue is the Attorney's decision on a petition to decline to refer a case to the Court of Appeal pursuant to s 327(1)(a) of the CPA, which may require a different approach. But at least three things may be said about that.

424 First, the discretionary power conferred upon the Attorney to refer such a case, to borrow from the plurality judgment in Osland, is still "based, not upon a claim of legal right, but upon an appeal to an executive discretion originating in the royal prerogative".

425 Secondly, since the Governor, for the purposes of her decision, acts on the advice of the Premier, who in turn has been advised by the Attorney, the reasons for the Governor's decision will be those contained in the Attorney's advice in any event.

426 Thirdly, consistently with the practice in this State in respect of decisions of the Governor involving the prerogative, it also appears to be the practice of Attorneys to refrain from giving reasons for declining to refer cases to the Court of Appeal under s 327(1)(a) of the CPA (or its predecessor in s 584 of the Crimes Act).

427 Finally, on the other hand, as we have seen, it seems that reasons are given by at least some Attorneys for their decisions under the analogue provisions in other jurisdictions in the Commonwealth. This occurred in von Einem (South Australia), Eastman (the ACT), Martens (the Commonwealth via the Queensland analogue), Yasmin (the Commonwealth via the West Australian analogue) and Ogawa (No 2) (the Commonwealth via the Queensland analogue).[202]

428 Whatever the practice may be elsewhere, when the other foregoing factors are considered, as well as the fact that Osmond is still good law binding on this Court, it seems to me that the answer to the question whether it is possible, at common law, to compel the Attorney to give reasons for her decision to decline to refer a case under s 327(1)(a) must be no, unless and until the High Court (or at least the Court of Appeal) says otherwise.

429 Thus, in so far as Mr Zhong may be taken to have submitted that he was entitled to reasons pursuant to common law, I reject that submission.

430 I also accept, for the reasons advanced by Ms Gory, that, while the Attorney is a public authority to whom the Charter applies, that fact does not alter the position that she is not required to give reasons for her decision. There is no need to repeat those arguments here. I accept them.

431 That leaves only s 8 of the ALA. In short, however, I am not satisfied that Mr Zhong made a request, within the requirements of that provision, for reasons for the current Attorney's decision to decline to refer his case to the Court of Appeal. In those circumstances, it becomes unnecessary to determine whether such a decision by the Attorney is caught by the provision.

432 In order properly to explain why I take this view, it is necessary to set out s 8 of the ALA, as well as a chronology of events. Section 8 is in the following terms:

Reasons for decision to be furnished by tribunal on request by party concerned

(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.

(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.

(3) The statement of reasons shall be in writing and furnished within a reasonable time.

(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.

(5) Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision and to furnish the reasons would, in the opinion of the Court, be against the interests of a person primarily concerned.

(6) Nothing in this section applies to the Victorian Civil and Administrative Tribunal or the Business Licensing Authority.

434 In his affidavit of 12 February 2019, Mr Zhong explains that he initially filed a petition for mercy on 24 May 2010.[203] Mr Hulls was the Attorney at that time. That petition was ultimately refused by the Governor on 29 May 2012, when Mr Clark was the Attorney.[204]

435 In the same affidavit, Mr Zhong says that Mr Clark refused the petition "without giving [him] any lawful reason". He says that he made "several attempts to ask [Mr Clark] and the [next] Attorney-General [Mr] Pakula to reconsider [his] petition, but [he] had always been ignored without lawful and truthful reasons".[205]

436 It is apparent, from the terms of the letter penned in the Attorney's office on 31 October 2014, that Mr Zhong's letter of 15 September 2014 (which is not before the Court) was regarded by the Attorney as a request for "reasons for why [the petition] was refused".

437 While there may be some ambiguity in the language used in the same letter, it may be inferred that, in saying that "[r]easons are therefore not provided for a decision to grant or deny a petition", the Attorney intended those remarks to apply both to the Governor's decision and the Attorney's decision to decline to refer the matter to the Court of Appeal. Such an understanding is consistent with the submissions made by Ms Gory on behalf of the current Attorney.

438 Whatever may have happened between October 2014 and January 2018, it seems to be accepted by the parties that Mr Zhong was regarded as having filed a fresh petition on or about 9 January 2018. Thus, in his affidavit of 12 February 2019, Mr Zhong speaks of sending a letter on 9 January 2018 to the then-Attorney Mr Pakula "to apply [his] latest petition ... [which the Attorney's] office claimed ... as [his] second petition", and of being notified of the rejection of that petition on 6 February 2018.[206]

439 Further, after Mr Zhong commenced judicial review proceedings in this Court seeking to review Mr Pakula's decision, it was agreed between the parties, on 20 August 2018, that those proceedings would be discontinued and the terms of settlement would be placed on the Court file. On 21 August 2018, Ginnane J made orders dismissing the proceeding and placing the terms of settlement on the Court file.[207] Clause 3 of those terms included the following:[208]

The Attorney-General will consider, according to law, including the [Charter]:

(a) [Mr Zhong's] petition of 6 January 2018; and

(b) such additional written material in support of that petition as [Mr Zhong] has posted to the Attorney-General's office by 24 August 2018.

440 As we have seen, the current Attorney notified Mr Zhong of her decision in her letter of 18 April 2019.[209] It is to be inferred, I think, that the Attorney's consideration of the petition and her decision were made in consequence of the promise made (by or on behalf of her predecessor) in the terms of settlement.

Any (effective) request for reasons must be made after the terms of settlement

441 Given the foregoing history of the matter, the question whether Mr Zhong made a request for reasons must be assessed by reference to the fresh consideration of the petition of 6 January 2018[210] (coupled with the additional material to be filed) and the decision made by the current Attorney.

442 In coming to that view, I have considered whether, in light of Mr Zhong's request for reasons (on 15 September 2014) and the fact that Mr Zhong has been pursing common (or mostly common) points for several years across at least two petitions, it might be reasonable to treat that earlier written request for reasons in respect of the previous petition as having carried over to the agreement to consider, and the notification of the decision concerning, the current petition.

443 But, in the end, I thought better of that. For it is plain enough, from the terms of settlement agreed on 20 August 2018, that the petition filed on 6 (or 9) January 2018, together with any other material Mr Zhong wished to file by 24 August 2018, would be considered afresh, which, after all, is what he was seeking. This was not to be simply a reconsideration of the earlier petition having regard to the Charter. Instead, this was to be consideration of a new petition (even if it made the same or similar claims), plus any additional material, but according to law, including the Charter. Having mutually agreed that that was the Attorney's task, I think it is to be assumed that Mr Zhong and the Attorney both would regard any past request for reasons as at an end, and reasonably so.

444 Thus, on the assumption that s 8 of the ALA might apply, if Mr Zhong desired reasons for the current Attorney's decision to decline his petition filed in January 2018, he was required to make the necessary request at least after the terms of settlement were agreed and otherwise in accordance with the time limit provided for in s 8(2) of the ALA once he was notified of the decision.

445 As I have understood his submissions, Mr Zhong relies, implicitly or otherwise, on three separate pieces of 'evidence' as establishing that he has made three or more relevant requests for reasons.

446 First, he relies on his letter of 15 September 2014 to Mr Clark, which is evidenced by the response from the Attorney's office on 31 October 2014. Since this request was made (four years) before the settlement, it cannot be regarded as a request for reasons for the current Attorney's decision on the January 2018 petition.

447 Secondly, Mr Zhong relies on the assertion that he sought reasons orally, but was refused, and no reasons were ever given. In particular, in his written submissions in reply, filed for the fourth (and last) day of the hearing, Mr Zhong said this:[211]

... [T]he defendant submitted that under ALA I never asked the [Attorneys-General] for reasons. Thus, the defendant gave me no reasons why she refused to refer my petition to the [Court of Appeal]. I submit that her debate on this issue is not true at all, because via different ways I have always sought reasons from the [Attorneys-General] including the defendant. But the hard truth is that they always refused to give me any reason, the letter from former Attorney ... [Mr] Clark's office dated [31 October 2014] is a typical example that they refused to give me reasons. In previous oral requests I asked defendant for reasons but I was always told that no reasons provided to me.

448 Similarly, in his oral reply on the last day of the hearing, when responding to the submission that no reasons had been requested under s 8 of the ALA, Mr Zhong said the following:[212]

... Now, 3.3. Now, it is clarified (indistinct) I always - in fact I have always sought reasons. But unfortunately at that time I - it's also - it wasn't that common sense. I always seek reasons and - but I was always refused. And my opponent may say may not - I did not make my written request according to law, but my orally I (indistinct) through my different way, even some time I went through - I ask a member of parliament for help but I could not solve such issue. They never no reason gave to me. Anyway ‑ ‑ ‑

...

Yes, well, what I'm saying that is I always ask for reason but I was always refused to give reason. ...

449 I have three difficulties with these assertions. First, they were made from the Bar table or in written submissions. They are not on affidavit or subject to any testing by cross-examination. Secondly, they came in reply, at the very end of the hearing. Equally, Ms Gory did not object to their admissibility on either basis or at all. But perhaps the next point explains why. Thirdly, and in any event, Mr Zhong did not identify precisely when he made his alleged oral requests for reasons. On the version he has given, even if I were to accept the truth and accuracy of his account, I simply cannot determine whether any such request was made in respect of the current Attorney's decision on the petition.

450 Accordingly, even when Mr Zhong's account is put at its highest, I am not - and cannot be - satisfied that he made any relevant oral request for reasons of the Attorney in respect of the decision under challenge.

451 Finally, that leaves Mr Zhong's letter of 27 May 2019 as the only remaining candidate for a relevant request for reasons that might attract the operation of s 8 of the ALA. While I did not understand Mr Zhong actually to advance any submission in reliance on that letter, it still must be considered, as Ms Gory has raised it (quite properly).

452 The first point to make about Mr Zhong's letter is that it was written 39 days after the date of the Attorney's letter giving notification of the decision. There was no evidence before me as to when, for the purposes of s 8(2) of the ALA, the Attorney's letter "c[a]me to the knowledge" of Mr Zhong. He said nothing about when he received it. As a result, it is not clear whether his request was made within or outside the 30-day limit imposed by s 8(2). That said, Ms Gory made no submission that the request, such as it was, was made outside the 30-day time limit.

453 It is, however, unnecessary to determine this issue, because, for reasons that follow, I am not satisfied that Mr Zhong's letter contains or amounts to a request for reasons for the current Attorney's decision to decline to refer his case to the Court of Appeal.

454 The Attorney's letter reads in this way:[213]

I write to advise that I have considered your petition for mercy and your request to have your case referred to the Court of Appeal.

I have now carefully considered your petition for mercy. I regret to inform you that I have decided not to refer your case to the Court of Appeal.

As other forms of mercy can be exercised by the Governor, I have referred your petition for mercy to the Premier ... The Premier will advise the Governor on the other prerogative of mercy grounds.

Thank you for taking the time to contact me about your case.

455 In the first four paragraphs of his letter of 27 May 2019, Mr Zhong referred to the Attorney's previous letter; s 87E of the Constitution Act 1975 (Vic); the then-Attorney's press release concerning the refusal of Mrs Osland's petition for mercy in September 2001;[214] and his understanding of the operation of s 87E, including that the Attorney provides advice to the Premier for the purposes of advising the Governor. Mr Zhong then said this:[215]

1. In comparing with the procedures that went through the decision making of Mrs Osland's petition for mercy, I would like to seek the Attorney-General's clarifications about her decision stated in her letter. Once ... I have her clarifications[,] which will help me understand her letter, then ... she and I may possibly reach a new settlement to discontinue this judicial review proceeding and avoid a waste of the [Court's] time.
2. As she has referred my petition to the Premier ... for advising the Governor to exercise her power in this matter, I would like to invoke her to clarify my questions as below:

6.1 Where the defendant has referred my petition ... to the Premier ..., she must recommend her legal advice to the Premier about what the Governor be advised to do. My question needs to be clarified as following: Is her recommendation to deny or grant my petition for mercy?

6.2 If she recommended that the Governor be advised to grant me the petition for mercy, when she said: "The Premier will advise the Governor on the other prerogative of mercy grounds" did she mean that some of my petition grounds submitted to the former Attorney ... [Mr] Pakula in 2018. (Re: OUTLINED GROUNDS FOR RECONSIDERING MY PETITION with this letter.) Or did she mean that some of my grounds listed in my Originating Motion of the current judicial review proceeding whether or not the first version or the amended version of my Originating Motion?

6.3 Please clarify and advise me about what other prerogative of mercy grounds ... the Governor to be advised.

1. If she prepare to honour the TERMS OF SETTLEMNTS agreed by the former Attorney ... [Mr] Pakula and recommend the Governor to grant me the petition for mercy with some of my petition grounds, I think that she and I may likely to reach a new settlement for discontinuing this proceeding.
2. If she recommended that the Premier to advise the Governor to deny my petition then the legal proceeding will go to the end until all the revenues be exhausted in the long journey for rules of law issues. But I invoke her to clarify the vague expression in her letter about her decision.

456 Mr Zhong's letter contained two more paragraphs: one concerning further procedural steps; the other concerning complaints about his previous lawyers.

457 In a responding letter dated 17 June 2019, the Victorian Government Solicitor's Office, after referencing Mr Zhong's letter and the current judicial review proceeding, said this:

We confirm that the Attorney-General has determined not to refer your case to the Court of Appeal under s 327 of the [CPA]. The Attorney-General has referred your petition to the Premier who will advise the Governor on the exercise of the prerogative of mercy.

In your letter, you seek clarification regarding the prerogative of mercy grounds referred to in the Attorney-General's letter to you dated 18 April 2019. Unfortunately, we are unable to give you legal advice. We again suggest that you obtain legal representation in relation to your matter.

You also seek information about the advice provided from the Attorney-General to the Premier in relation to your petition for mercy. Any recommendation made by the Attorney-General to the Premier is privileged and, in any event, it would not be appropriate to disclose that information.

458 In my opinion, Mr Zhong's letter does not contain or amount to a request for reasons for the Attorney's decision to decline to refer his case to the Court of Appeal. There was no express request of that type. Nor can such a request be inferred from the letter, whether considered in isolation or in light of the history of this matter.

459 Instead, the most that can be said of the letter is that it amounts to a request by Mr Zhong for "clarification" of three things:

(a) first, whether the Attorney recommended to the Governor to deny or grant his petition;

(b) second, on the assumption that the Attorney recommended that the Governor grant the petition, on which of his grounds she made that recommendation; and

(c) third, what other prerogative of mercy grounds (if any) about which the Attorney advised the Governor.

460 Accordingly, reliance on s 8 of the ALA is not open.

461 Since none of the grounds for review taken by Mr Zhong, whether considered individually or collectively, have been made out, the applications must be dismissed.

462 Accordingly, I will order that the each application be dismissed.

464 Despite my orders dismissing these applications, in fairness to Mr Zhong, and for the purposes of advancing the proper administration of criminal justice, I think it is appropriate that I make the following remarks.

465 As I indicated earlier in these reasons, all may not be lost for Mr Zhong. There are several reasons.

466 On the material I have examined in the course of this hearing - which, I concede, was limited - whatever he said to the undercover police, and whatever else he may have meant, I have a nagging doubt that Mr Zhong ever really formed a concluded intention that his wife should be killed at all, or that he really intended or believed that his wife would be killed by Mark, the would-be hitman.

467 As also indicated earlier, I would go so far as to say that, even on the limited material before this Court, if, as a member of the Trial Division, I had being asked (along with other judges) to provide an opinion to the Attorney pursuant to ss 327(1)(b) and (3) of the CPA, I would have opined that she should refer the whole case to the Court of Appeal pursuant to s 327(1)(a).[216]

469 First, it will be remembered that I was persuaded (only just) that it would not be unreasonable (in the Wednesbury sense) for the Attorney to fail to conclude that it was reasonably possible that the new evidence discussed in Grounds [1] and [2], when considered with the evidence at trial, would raise such a doubt about Mr Zhong's guilt in the mind of the Court of Appeal that the verdict should not be allowed to stand.

470 As I also indicated, however, my own assessment of that evidence is different. I think it is reasonably possible that both the alteration to the family's health insurance arrangements and the loan to Mr Hu are, together with other evidence at trial, capable of supporting Mr Zhong's innocence of the charge or, at least, are capable of raising a reasonable doubt in the minds of the Court of Appeal.

471 If Mr Zhong is able to gather evidence showing that, in reality, either or both of those pieces of evidence could not, with reasonable diligence, have been led at trial, then the question for the Attorney on a new petition would be whether there was a reasonable possibility of the fresh evidence appellate test being met on appeal, which, as I have explained, has a lower threshold than the new evidence test. In other words, if one or both of those pieces of evidence turns out to be fresh (or there is even some argument about it), then the cause for referring the matter to the Court of Appeal under s 327(1)(a) of the CPA is all the greater.[217]

472 Moreover, I also indicated that, if I applied one of the two tests employed by Logan J in Ogawa (No 2), I would have upheld Grounds [1] and [2]. Whether or not Logan J's approach or mine, or another altogether, is the correct approach is itself a question fit to be considered by the Court of Appeal on a reference, and indeed is another reason in and of itself why a reference would be an appropriate course in any event.

Section 321G(2)(b) of the Crimes Act and Massie

473 Secondly, for the reasons I gave earlier, I am troubled that the trial judge did not direct the jury in accordance with the requirements in s 321G(2)(b) of the Crimes Act. Despite my view that his case is distinguishable from Massie and that Brooking JA's remarks on that provision were only obiter, realistically, this complaint can be resolved only if the Court of Appeal were to reconsider those remarks in Massie.

474 A third factor, albeit only the germ of a concern, is that the guilty verdict may be uncertain. This point was not raised by Mr Zhong, whether before the Court of Appeal, the High Court, the Attorney or this Court. I should also stress at once that, without the full trial transcript, I cannot determine whether it might be a good point or not. But, for reasons that follow, there is at least a basis for inquiring into the point.

475 Read together, the trial judge's reasons for sentence and Buchanan JA's judgment disclose that there were five separate meetings between Mr Zhong and Mark upon which the prosecution case was based. In particular, there were meetings on 22 March, 6 April, 5 May, 24 May and 3 August 2000. There was also the voicemail Mr Zhong left on 22 May 2000.[218] There may have been other telephone contact as well. Given the ways in which the evidence is described in those judgments, it appears that Mr Zhong's utterances and behaviour may have been materially different on each occasion. Indeed, we have already seen that there was real doubt about his intention at the time of the meeting on 24 May 2000 (as well as in the voicemail that preceded it on 22 May 2000).

476 In those circumstances, if the case was in fact put and left on the basis that utterances at any one or some of the meetings would suffice as the factual basis for incitement to murder, then, unless there were directions requiring unanimity among the jury as to at least one of those meetings amounting to proof of the offence before a guilty verdict could be returned, there may well be an unacceptable risk that the verdict is uncertain.[219]

477 On the limited material before this Court, however, I simply cannot tell whether the prosecution relied on Mr Zhong's utterances at all, only some or any one of those meetings for the purposes of an act proving incitement. Nor can I tell precisely how this aspect of the case was left to the jury by the trial judge or what approach was taken by defence counsel. All of these considerations would be relevant to whether there is any such arguable ground of appeal.[220]

Limited material before the Attorney and this Court

478 The latter point brings me to my fourth and final area of concern.

479 As I touched on in the overview to these reasons, and then raised again later in the judgment, I am troubled that neither the Attorney nor this Court was favoured with the full transcript of the trial or all of the trial exhibits. Not only did that make it all the more difficult adequately to assess Mr Zhong's grounds for review, it left me with a sense of unease concerning whether something important might have been missed by either the Attorney or me - for either or both parties.

480 I said earlier, and I repeat, that, in my view, a serious question arises concerning whether a petition for mercy seeking a referral under s 327(1)(a) of the CPA, in a case like the present, given some of the grounds raised, could ever be fully and adequately considered by the Attorney, or by this Court on purported judicial review, absent the complete trial transcript and trial exhibits.

481 An obvious illustration of why that may be so is Mr Zhong's new evidence raised in Grounds [1] and [2]. In my opinion, it is far more preferable that grounds like those be considered with a complete transcript of the evidence at trial, coupled with the trial exhibits (which, importantly, would have included the recordings of the conversations with the undercover policeman, or at least transcript thereof, or both). It is only with the benefit of the complete materials disclosing the whole of the evidence at trial, together with transcript of counsel's opening and final addresses and the judge's charge, that a full understanding could be gained as to whether the new evidence disclosed in Grounds [1] and/or [2] might have made any material difference.

482 Finally, it will be remembered that the previous judicial review proceedings brought by Mr Zhong before Ginnane J settled with an agreement that "[t]he Attorney-General will consider, according to law, including the [Charter], [Mr Zhong's] petition of [9] January 2018". I reiterate that, while I did not understand Mr Zhong to take the point, he might have argued, with some force, that, in the circumstances of his case, in the absence of the complete trial transcript and trial exhibits, his petition could not have been considered "according to law".

Concluding remarks regarding further petition

483 It is for the foregoing reasons that I am moved to suggest that there are proper bases for the Attorney to consider a further petition by Mr Zhong.

484 I also refer to, and repeat, the remarks I made in the overview about the desirability of any such fresh petition being drawn in a far more targeted and appropriate fashion than those of the past. I also reiterate my hope - for all concerned - that Mr Zhong might be legally represented in that endeavour (or, for that matter, in any further steps he might seek to take).

485 Under this penultimate heading, I simply wish to reiterate the point I made earlier. And that is, despite my rejection of Mr Zhong's Grounds [1] and [2] in the present applications, it may be that, with more information, the evidence upon which those grounds were based, and which I treated as new evidence, may be more properly described as "fresh and compelling evidence" within the meaning of the new "second or subsequent appeal provisions" in ss 326C(1) and (3)(a) of the CPA. If so, Mr Zhong may be able to obtain a grant of leave to appeal. If he succeeded in that endeavour, he may be able to raise, in addition, his better couple of error points, but only if they were reasonably arguable.

486 Finally, I stress again that whether any of these courses are taken are matters entirely for others, not me. I have made these suggestions only because I think that it is proper to do so, and no more.

487 To be sure, if Mr Zhong did file a new petition with the Attorney seeking a reference to the Court of Appeal under s 327(1)(a), and she did consider it, or if Mr Zhong made an application for leave directly to the Court of Appeal under s 326A, in either or both cases, that would mean the resumption of what has already been an extremely long-running legal process. It also necessarily would mean that the limited resources of the Attorney and/or the Court of Appeal, and others, would be applied to Mr Zhong's case yet again.

488 Some might say that Mr Zhong has already had a fairer go than most. Some might speculate that, given his track record, he will continue to take further action if he is unsuccessful. Some might say that there must be an end to all of this.

489 Well, some might say a lot of things. In different circumstances, however, I once borrowed from great minds - wise judges - to say the following:[221]

To adapt (and perhaps mangle) the words of Brennan J and Lord Atkin from two separate but related contexts, while "it is a mistake to regard the effect of [a jury's] verdict as contingent upon confirmation by an appellate court",[222] and therefore a good thing to pay the highest respect to such a verdict, in the end, "justice is better".[223]

490 I think similar sentiments may be applied to Mr Zhong's case when considering the relative importance of finality and justice.

491 As Lord Atkin said, "Finality is a good thing, but justice is better."[224]

[1] In materials he has drawn, Mr Zhong is named Zhanyu Zhong. In his trial and appellate proceedings, he was named Zhan Yu Zhong. I have assumed the former is correct.

[2] Contrary to s 321G(1) of the Crimes Act 1958 (Vic) and the common law of murder.

[3] In fact, Mr Zhong commenced the current applications by way of an Originating Motion (together with a supporting affidavit) filed on 12 February 2019, immediately after the previous Attorney declined (on 6 February 2019) to consider his "second" petition (of 9 January 2019), but before the current Attorney had declined that petition (of which she advised Mr Zhong by letter of 18 April 2019) (Court Book at 1‑5, 197 & 427-428). On 13 May 2019, Mr Zhong filed an Amended Originating Motion (and then a supporting affidavit on 16 May 2019), in which he sought judicial review of the current Attorney's April 2019 decision refusing to refer his petition to the Court of Appeal (Court Book at 110-117). On 11 June 2019, by letter of the same date, the Governor informed Mr Zhong that his petition for the exercise of the royal prerogative of mercy had been denied. That letter was sent again to Mr Zhong on 26 August 2019, this time by email. (Court Book at 602-608.) As explained below, this matter has been conducted as if Mr Zhong is also seeking judicial review of the Governor's decision.

[4] See, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (per Brennan J); von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 143-144 & 151-152 (per Lander J).

[5] Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38. See also, for example, von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 112-113 (per Prior J, Wicks J agreeing); Osland v Department of Justice [2005] VCAT 1648; (2005) 23 VAR 378 at 385[25] (per Morris J); and Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 297-298[47] (per Gleeson CJ, Gummow, Heydon and Kiefel JJ).

[6] See, for example, Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114; Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169; and Ogawa v Attorney-General (No 2) [2019] FCA 1003.

[7] Apologies to the Irish rock band U2. I have taken these words from among the aching lyrics of their 1991 song One: "Have you come here for forgiveness?/Have you come to raise the dead?/Have you come here to play Jesus/To the lepers in your head?".

[8] Such a suggestion by a court, however, is not unprecedented. See, for example, von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 116-117 (per Prior J, Wicks J agreeing); and R v Home Secretary; Ex parte Bentley [1994] QB 349 at 365G-366A (per Watkins LJ, speaking also for Neil LJ and Tuckey J, the other members of the Divisional Court).

[9] Another alternative would be for the Attorney, pursuant to ss 327(1)(b) and (3), to refer a question or questions to the judges of the Trial Division of this Court so that any three could consider the point or points and provide her with their opinion or opinions. See, for example, Re Ross [2007] VSC 572; (2007) 19 VR 272. See also below.

[10] The provisions were introduced by s 35 of the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic), which received Royal Assent on 19 November 2019.

[11] As Osborn and T Forrest JJA and Taylor AJA explained in their joint judgment in Roberts v The Queen [2020] VSCA 58 at [44], the Court must be satisfied that the fresh evidence has the qualities prescribed by s 326C(3) of the Criminal Procedure Act 2009 (Vic); it will not be sufficient for the purpose of leave to establish that it is reasonably arguable that the evidence has these qualities.

[12] See Roberts v The Queen [2020] VSCA 58 at [50]- [51] (per Osborn and T Forrest JJA and Taylor AJA).

[13] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 222[6]-223[14] (my emphasis in bold italics).

[14] See ss 321G(1) and (2) of the Crimes Act 1958 (Vic).

[15] See R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 225[22] (per Buchanan JA).

[16] R v Zhan Yu Zhong [2001] VSC 524 at [11]- [15] (per Flatman J) (my emphasis).

[17] R v Zhan Yu Zhong [2001] VSC 524 at [23] (per Flatman J).

[18] R v Zhan Yu Zhong [2001] VSC 524 at [24]- [25] (per Flatman J).

[19] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 221[1] (per Winneke P), 222[5] (per Phillips JA) & 227[34] (per Buchanan JA).

[20] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 223-224[16] & 225[21] (per Buchanan JA).

[21] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 224[19] (per Buchanan JA).

[22] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 224[20] (per Buchanan JA).

[23] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 225[22] (per Buchanan JA).

[24] Above at [19]; see also R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 225[22] (per Buchanan JA).

[25] R v Zhan Yu Zhong (Ruling No 1) [2001] VSC 521 (per Flatman J).

[26] See R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 226[25]-[27] (per Buchanan JA).

[27] R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 (per Flatman J).

[28] See R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 226[27]-227[28] (per Buchanan JA); R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at [12] (per Flatman J).

[29] See R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 226-227[28] (per Buchanan JA); R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at [13]- [15] (per Flatman J).

[30] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 227[29] (per Buchanan JA).

[31] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 227[30] (per Buchanan JA); R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at [15] (per Flatman J).

[32] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 227[30] (per Buchanan JA).

[33] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 227[31] (per Buchanan JA).

[34] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 221[2] (per Winneke P).

[35] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 221[3] (per Winneke P).

[36] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 227[32]-[33] (per Buchanan JA).

[37] R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 222[5] (per Phillips JA).

[38] On 29 January 2004, Mr Zhong was released on parole, which made it possible for him to appear in person in the High Court in February 2015.

[39] See, for example, Court Book at 509-518.

[40] Zhong v The Queen [2005] HCATrans 58 at lines 290-316. (For ease of reference, I have inserted paragraph numbers in the extract.)

[41] Zhong v The Queen [2005] HCATrans 58 at lines 116-135 (my emphasis).

[42] Zhong v The Queen [2005] HCATrans 58 at lines 224-280 (my emphasis).

[43] Zhong v The Queen [2005] HCATrans 58 at lines 135-169 & 180-184 (my emphasis).

[44] Osland v Department of Justice [2005] VCAT 1648; (2005) 23 VAR 378 at 384[22]-385[24] (per Morris J). See also Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 282-283[8] (per Gleeson CJ, Gummow, Heydon and Kiefel JJ).

[45] Australia Act 1986 (Cth), s 7; Letters Patent relating to the Office of the Governor, cl 3.

[46] Constitution Act 1975 (Vic), s 87E(b). See Osland v Department of Justice [2005] VCAT 1648; (2005) 23 VAR 378 at 384[22]-385[24] (per Morris J).

[47] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 365 (per Mason J).

[48] Sentencing Act 1991 (Vic), s 106.

[49] Sentencing Act 1991 (Vic), s 107.

[50] Sentencing Act 1991 (Vic), s 108.

[52] Pepper v Attorney-General (Qld) (No 2) [2008] QCA 207; [2008] 2 Qd R 353 at 360[11] (per Muir JA, with whom de Jersey CJ and Fraser JA agreed).

[53] Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 at 40.

[54] R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 261. In Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 297-298[47], Gummow, Hayne, Callinan and Heydon JJ found it unnecessary to decide whether Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 was correctly decided.

[55] Eastman v Attorney General for the ACT [2007] ACTSC 28; (2007) 210 FLR 440 at 458-459[78].

[56] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [21]- [22] (citations omitted).

[57] Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169 at 189-190[88] (per Kenny, Robertson and Mortimer JJ).

[58] Eastman v Attorney General for the ACT [2007] ACTSC 28; (2007) 210 FLR 440 at 459[79].

[59] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [37].

[60] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [39].

[61] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [39].

[62] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [48].

[63] Ogawa v Attorney-General (No 2) [2019] FCA 1003, Order 1(a).

[64] von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110.

[65] von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 112-113 (per Prior J; Wicks J agreeing). (Lander J found it unnecessary to decide this question (at 126).)

[66] von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 114 (per Prior J; Wicks J agreeing). (See also Lander J at 129-138, esp. at 133-134 & 138.)

[67] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 121[25].

[68] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 128[51]-[53], 135[66] & 138[78].

[69] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 138[79].

[70] Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169.

[71] Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCA 91 (per Jagot J).

[72] Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169 at 197[119] (per Kenny, Robertson and Mortimer JJ).

[73] Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169 at 197[119] (per Kenny, Robertson and Mortimer JJ).

[74] It was only after Mr Zhong had filed his Amended Originating Motion that the Governor refused his petition in exercise of the prerogative power. Ms Gory's submissions on this point were made on the assumption that Mr Zhong challenged the Governor's decision as well. That was a correct assumption, because that was the basis on which the matter proceeded before this Court. As will be seen below, however, perhaps on the understanding of the convention that, while the Premier advises the Governor, the Premier takes advice from the Attorney for that purpose, Mr Zhong also asserts that the Attorney "unlawfully ... advised the former Governor to refuse [his] petition". (See, for example, Mr Zhong's Amended Originating Motion (filed 13 May 2019) (Court Book at 116).) In this case, that convention was observed (see Court Book at 602[3]-603[5]).

[75] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 352 (per Stephen J, citing Dixon J in Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 179) & 365 (per Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 26 (per Brennan J); Dohrmann v Attorney-General (Vic) [1995] VicRp 19; [1995] 1 VR 274 at 276 (per O'Bryan J).

[76] von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 113-114 (per Prior J, Wicks J agreeing); cf Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169 at 189-190[88] (per Kenny, Robertson and Mortimer JJ).

[77] Yasmin v Attorney-General (Cth) [2015] FCAFC 145; (2015) 236 FCR 169 at 196[115] (per Kenny, Robertson and Mortimer JJ).

[78] In Ms Gory's submission, it is not entirely clear whether Logan J in Ogawa (No 2) permitted review of the referral power under the ADJR Act or under both the ADJR Act and s 39B of the Judiciary Act (see Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [17] & [51]).

[79] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 90 & 94 (per Gibbs CJ and Mason J).

[80] By which I took him to mean the Attorney's advice to the Premier, who in turn, by convention, advised the Governor (see Court Book at 602[3]-603[5]).

[81] See, for example, Mr Zhong's Originating Motion (filed 21 February 2019) (Court Book at 4); Mr Zhong's Amended Originating Motion (filed 13 May 2019) (Court Book at 116); Mr Zhong's Written Submissions (filed 30 September 2019) at [16.10] (Court Book at 627); and Mr Zhong's Oral Submission (filed 11 November 2019) at [12]-[12.1].

[82] Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 297-298[47] (per Gleeson CJ, Gummow, Heydon and Kiefel JJ) (footnotes omitted; my emphasis).

[83] The other cases were: Flynn v The King [1949] HCA 38; (1949) 79 CLR 1 at 7-9; R v Secretary of State for Home Department; Ex Parte Bentley [1994] QB 349; Reckley v Minister of Public Safety and Immigration [No 2] [1996] UKPC 1; [1996] AC 527; Lewis v Attorney-General (Jamaica) [2000] UKPC 35; [2001] 2 AC 50.

[84] See, for example, Mr Zhong's Amended Originating Motion (filed 13 May 2019) (Court Book at 116).

[85] See the Attorney's letter (dated 18 April 2019) to Mr Zhong (Court Book at 121).

[86] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360.

[87] See, for example, von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 143-144 & 151-152 (per Lander J).

[88] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36.

[89] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at 128[4]-129[6] (footnotes omitted; my emphasis).

[90] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at 129[7]-131[9].

[91] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at 131[10]-[11] (my emphasis).

[92] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 312.

[93] Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335; Metropolitan Bank v Pooley (1885) 10 App Cas 210.

[94] See Re MJR [2000] VSCA 44; (2000) 1 VR 119 at 120[1] (per Winneke P, Batt JA and Hampel AJA). See below.

[95] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 128[51] (per Logan J, who referred to the fresh evidence test as propounded by Mason CJ in Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 273); Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [72] (per Logan J).

[96] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 273 (per Mason CJ).

[97] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 128[51]-129[54] (my emphasis).

[98] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [72]; von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 139-140 (per Lander J).

[99] See, for example, Re Ross [2007] VSC 572; (2007) 19 VR 272 at 274[6]-275[7] (per Teague, Cummins and Coldrey JJ).

[100] Again, see s 276(1)(b) and (c) of the Crimes Act 1958 (Vic).

[101] See s 276(1)(a) of the Crimes Act 1958 (Vic); M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

[102] von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110 at 138 (per Lander J).

[103] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [80]- [91].

[104] Re MJR [2000] VSCA 44; (2000) 1 VR 119.

[105] Re MJR [2000] VSCA 44; (2000) 1 VR 119 at 120[1]-121[2] (my emphasis); see also 127[17] (citations omitted).

[106] See, for example, Mr Zhong's Originating Motion (filed 21 February 2019) (Court Book at 4); Mr Zhong's Amended Originating Motion (filed 13 May 2019) (Court Book at 116); Mr Zhong's Written Submissions (filed 30 September 2019) at [16.10] (Court Book at 627); and Mr Zhong's Oral Submission (filed 11 November 2019) at [12]-[12.1].

[107] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 138[79].

[108] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 139[81].

[109] Mr Zhong relied on s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

[111] Transcript (Day 1, 15 November 2019) at 109-110.

[112] Transcript (Day 1, 15 November 2019) at 119-120.

[113] Transcript (Day 1, 15 November 2019) at 120.

[114] Transcript (Day 4, 10 December 2019) at 374-375.

[115] See, for example, Re MJR [2000] VSCA 44; (2000) 1 VR 119 at 121[2] (per Winneke P, Batt JA and Hampel AJA), where their Honours said that the Court on a referral "will have regard to the entire record of the proceedings in various courts together with any new matter properly admissible on the hearing".

[116] Court Book at 404 & 645; Mr Zhong's affidavit of 7 November 2019 at [3]-[4].

[117] This point is discussed further below.

[118] The statement is witnessed by a Deputy Registrar of the Magistrates' Court.

[119] Transcript (Day 1, 15 November 2019) at 61.

[120] Transcript (Day 1, 15 November 2019) at 61-62.

[122] Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 at 6[11] (per Parker, Wheeler and Roberts-Smith JJ).

[123] Bowden (a pseudonym) v The Queen (2017) 54 VR 135 at 144[36] (my emphasis); see also at 137[1]-[4] (per Maxwell P and Kidd AJA).

[124] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 128[51].

[125] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 128[52].

[126] Ogawa v Attorney-General (No 2) [2019] FCA 1003, Orders 2(a) and (b).

[127] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [80]- [91].

[128] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [59]- [79].

[129] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [68] (emphasis in original).

[130] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [72].

[131] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [68]- [74].

[132] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [74]- [78].

[133] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [73].

[134] R v Ogawa [2011] 2 Qd R 350 at 388[149]-[150] (per Keane JA, with whom Chesterman JA and Jones J agreed); Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [65].

[135] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [66].

[136] Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [61] & [64], his Honour citing TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 and R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162.

[137] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 674-675 (per Mason J)

[138] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 674-676 (per Mason J)

[139] Ratten v The Queen (1974) 131 CLR 510.

[140] Ratten v The Queen (1974) 131 CLR 510 at 516-519 (per Barwick CJ).

[141] The references by Mason J to "likely" and "likelihood" are to be contrasted with his Honour's later use, as Chief Justice, of the term "significant possibility" instead, in Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 273. As his Honour pointed out in Mickelberg, the latter turn of phrase was endorsed by four of the five members of the Court in Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 (Gibbs CJ at 399; Mason and Deane JJ at 402; and Dawson J at 421).

[142] Martens v Commonwealth of Australia [2009] FCA 207; (2009) 174 FCR 114 at 128[51] (per Logan J); Ogawa v Attorney-General (No 2) [2019] FCA 1003 at [72] (per Logan J).

[143] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (per Brennan J).

[144] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 503-505 (per Mason CJ, Dawson and Toohey JJ).

[145] R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at [6]; see also [15] (per Flatman J).

[146] R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 (per Flatman J).

[147] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 36 & 37. See R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at, for example, [4] (per Flatman J).

[148] R v Zhan Yu Zhong (Ruling No 2) [2001] VSC 522 at, for example, [1]-[5] (per Flatman J).

[149] See, for example, Wu (a pseudonym) v The Queen [2020] VSCA 94 at [42], [45] & [71] (per T Forrest and Emerton JJA and Croucher AJA).

[150] Wu (a pseudonym) v The Queen [2020] VSCA 94 at [72] (per T Forrest and Emerton JJA and Croucher AJA).

[151] See, for example, Mr Zhong's Reply (dated 10 December 2019) at [2]; see also [1.2.3], [1.6], [4], [5], [5.5], [10] & [17].

[152] See the Crimes (Homicide) Act 2005 (Vic).

[153] See the Crimes (Abolition of Defensive Homicide) Act 2014 (Vic).

[154] R v Goldman [2004] VSC 291; (2004) 147 A Crim R 472 at 475[7].

[155] R v Goldman [2004] VSC 291; (2004) 147 A Crim R 472 at 475[8].

[156] R v Harding [1976] VicRp 11; [1976] VR 129.

[158] R v Massie [1998] VSCA 82; [1999] 1 VR 542 (Winneke P, Brooking and Batt JJA).

[159] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 546-547[15] (per Brooking JA).

[160] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 546-547[18] (per Brooking JA).

[161] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 547[16] (per Brooking JA).

[162] Charge at 625-626 (Court Book at 252-253) (my emphasis).

[163] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 553[43]-556[62] (per Booking JA).

[164] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 548[22]-549[24] (per Booking JA).

[165] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 546[15]-549[23] (per Booking JA) (my emphasis).

[166] The Criminal Law Working Group comprised Professor Louis Waller, the Honourable Dr T W Smith QC (a former judge of this Court), his Honour Judge P R Mullaly (then of the County Court) and Mr R A Brett (of the Victorian Bar).

[167] The Criminal Law Working Group, Report on Incitement, 15 November 1983, at [10]-[13] (my emphasis).

[168] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 546[15].

[169] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 547[18].

[170] Charge at 625 (Court Book at 252). (See also paragraph [1] of the directions extracted above.)

[171] Charge at 625 (Court Book at 252). (See also paragraph [4] of the directions extracted above.)

[172] Charge at 626 (Court Book at 253). (See also paragraph [6] of the directions extracted above.)

[173] Trial discussion (16 October 2001) at 493 (Court Book at 246).

[174] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 549[23] (per Brooking JA).

[175] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 549[22] (per Brooking JA).

[176] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 546[15]-547[16] (per Brooking JA).

[177] Hansard, Legislative Council, 21 March 1984, p 1931.

[178] Hansard, Legislative Council, 21 March 1984, p 1933.

[179] In fact, in 1979, Mr Storey, as Attorney-General, had asked the Working Group to consider and report on the offences of conspiracy, incitement and attempt (Hansard, Legislative Council, 21 March 1984, p 1931).

[180] Hansard, Legislative Council, 27 March 1984, pp 2011-2013.

[181] Hansard, Legislative Council, 27 March 1984, pp 2013-2014.

[182] Criminal Law Working Group, Report on Incitement, 15 November 1983, at [3] (underlining in original). See also the Attorney-General Mr Kennan's second reading speech (Hansard, Legislative Council, 21 March 1984, p 1933).

[183] See the Crimes Act 1958 (Vic), s 321(2)(b) (conspiracy) and ss 321N(2)(b) and (2A) (attempt). Also, see the discussion above concerning the second reading and debate concerning the conspiracy and incitement provisions.

[184] For example, while he referred to s 321G(1) of the Crimes Act, and not to s 321G(3), on this point in his Amended Originating Motion (Court Book at 114[1.1.1]), Mr Zhong asserts as follows: "If Mark pursued the course of conduct incited, the murder by him would occur where he would actually kill my ex-wife by or after [3 August 2000] because I incited him to pursue such particular conducts to murder my ex-wife". This, to me, suggests that he submits that he could not be guilty because his wife was not killed. However, given that Mark was an undercover police officer who, of course, was never going to act on any such incitement (which fact Mr Zhong must be taken to know, at least once he was charged), his submission must mean that he is not guilty because the offence was never going to happen, which, in turn, must be a resort to factual impossibility, which, by virtue of s 321G(3), is no defence.

[185] R v Massie [1998] VSCA 82; [1999] 1 VR 542 at 549[22] (per Brooking JA).

[186] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

[187] Zhong v The Queen [2005] HCATrans 58 at lines 307-310.

[188] See R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 221[2]-[3] (per Winneke P), 222[5] (per Phillips JA) & 227[32]-[33] (per Buchanan JA).

[189] Transcript (Day 1, 15 November 2019) at 77-78.

[190] The notice is dated 21 February 2019 (Court Book at 78-79).

[191] Via emailed letters on 21 October 2019.

[192] See Mr Zhong's Reply (dated 10 December 2019) at [5.6]-[5.7].

[194] Mr Zhong's Reply (dated 10 December 2019) at [5.6].

[199] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662 (per Gibbs CJ, with whom Wilson, Brennan, Deane and Dawson JJ each separately agreed).

[200] See the Attorney's letter (dated 18 April 2019) to Mr Zhong (Court Book at 121).

[201] Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at 297-298[47] (per Gleeson CJ, Gummow, Heydon and Kiefel JJ) (footnotes omitted; my emphasis).

[202] In Ogawa v Attorney-General (No 2) [2019] FCA 1003, reasons were given to the petitioner, not only for the Attorney's decision to decline to refer the case to the Court of Appeal, but also for the Attorney's decision to decline to recommend that the Governor-General exercise the prerogative to pardon.

[204] Court Book at 5[1] & 191[3].

[206] Court Book at 5[2]; see also 191[4]-192[5].

[207] Court Book at 453-461 & 700-703.

[208] Court Book at 457 (my emphasis).

[209] See the Attorney's letter (dated 18 April 2019) to Mr Zhong (Court Book at 121).

[210] The reference, in the terms of settlement, to the petition of "6 January 2018" may be an error. Instead, it perhaps should be 9 January 2018. But nothing turns on this.

[211] Mr Zhong's Reply (dated 10 December 2019) at [22].

[212] Transcript (Day 4, 10 December 2019) at 388-389.

[214] See the summary of that press release in, for example, Osland v Department of Justice [2005] VCAT 1648; (2005) 23 VAR 378 at 384[20] (per Morris J).

[216] As also indicated earlier, another alternative would be for the Attorney, pursuant to ss 327(1)(b) and (3), to refer a question or questions to the judges of the Trial Division of this Court so that any three could consider the point or points and provide her with their opinion or opinions. See, for example, Re Ross [2007] VSC 572; (2007) 19 VR 272. While, again, this is a matter for the Attorney to judge, it seems to me that it would be a more efficient use of the Court of Appeal's resources to refer the matter directly to that Court, especially if it turns out that Mr Zhong does in fact have a ground which finds favour with that Court.

[217] I note that Mr Zhong was in custody from the time of his arrest on 22 August 2000 until the trial in October 2001 and beyond (until released on parole in 2004). Presumably, there would be difficulties in arranging investigation of the matters raised in Mr Zhong's Grounds [1] and [2] when in custody. But, of course, that, among other things, is the task of a solicitor in a criminal trial, when properly instructed.

[218] R v Zhan Yu Zhong [2001] VSC 524 at [11]- [15] (per Flatman J); R v Zhan Yu Zhong [2003] VSCA 56; (2003) 139 A Crim R 220 at 222[6] & 223[11]-[14] (per Buchanan JA).

[219] See, for example, R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 at 316-317[57] (per Phillips and Buchanan JJA, with whom Ormiston JA agreed); Klamo v The Queen (2018) 18 VR 644 at 661[74]-662[76] (per Maxwell P, with whom Vincent and Neave JJA each agreed).

[220] R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 at 316-317[57] (per Phillips and Buchanan JJA, with whom Ormiston JA agreed).

[221] The Queen v Gant & Siddique [2016] VSC 662 at [212].

[222] Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 at 520 (per Brennan J).

[223] Ras Behari Lal v King-Emperor (1933) 102 LJPC 144 at 147 (per Lord Atkin), referred to by Starke J in Ex parte Ryan [1967] VicRp 56; [1967] VR 522 at 523.

[224] Ras Behari Lal v King-Emperor (1933) 102 LJPC 144 at 147 (per Lord Atkin), referred to by Starke J in Ex parte Ryan [1967] VicRp 56; [1967] VR 522 at 523.