R v Zhan Yu Zhong [2003] VSCA 56

Court of Appeal (Vic)|2003-05-15|Before: WINNEKE, P., PHILLIPS and BUCHANAN, JJ.A.

Criminal law - Incitement to murder - Conditional request capable of amounting to incitement with requisite mens rea - Charge sufficient to describe defence case and relate the law to the evidence - Subpoena endangering police informers set aside on the ground of public interest immunity - Stay of proceedings not warranted on the ground of improper conduct by police in inducing applicant to commit incitement - Crimes Act 1958 s. 321G.

At the conclusion of argument on the appeal, the Court reserved its decision. Several days later, the Registrar received from the applicant, for the attention of the Court, further submissions in writing. These submissions had obviously been prepared by the applicant in person, and without the assistance of a legal practitioner. Copies of these submissions were forwarded by the Registrar to the Director of Public Prosecutions and Victoria Legal Aid. No submissions in reply have been received from the Crown.

The members of the Court have read those submissions. For my own part, I am satisfied that they raise no argument of substance which would suggest that the trial was unfair or the verdict recorded by the jury unsafe.

Whilst the Court was prepared to accept, in this case, the written submissions which the applicant forwarded following the hearing of his appeal, it should not be assumed that this is a practice or procedure which is either appropriate or to be encouraged in appeals, particularly where the applicant has been represented by counsel. It is true that the Crimes Act 1958 (s.572) and the Supreme Court (Criminal Procedure) Rules 1998 (Rule 2.28.2(1)) prescribe that an appellant may present his argument and case in writing. However, it is the contemplation of the Act and the Rules that such a procedure should be followed as an alternative, and not as an addition, to the oral presentation of a case on appeal. Where argument has been presented to the Court by counsel on behalf of a party to an appeal, that will, other than in exceptional circumstances, put an end to that party's rights to present argument to the Court. Of course, there will always be exceptions to "the rule" because, in the long run, the system of criminal justice is concerned to ensure that miscarriages have not occurred in the trials of convicted persons. Thus, from time to time, the Court of Appeal of its own motion will call for further submissions,

following reservation of judgment, from the parties, or their representatives, on material matters which either have not arisen during the hearing of the appeal, or need clarification. But it will be a rare occasion upon which the Court will entertain further unbidden submissions (whether written or otherwise) from the parties to an appeal which has been reserved for decision.

On 10 October 2001, the applicant 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. Rong Hua Maio was the former de facto wife of the applicant and mother of his daughter.

The Crown led evidence from Rong Hua 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 the applicant, then aged 30 years, was studying at the university in Beijing, he placed an advertisement in a relationship section of a women's magazine. Rong Hua Miao, 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 the applicant travelled to the province in which Rong Hua Miao lived. A relationship developed between them and in 1989 they became engaged. In 1990, the applicant migrated to Australia. He invited Rong Hua Miao to come to Australia to live with him and she agreed.

The applicant returned to China in order to accompany his fiancée to Australia. She discovered, however, that the applicant had a gambling problem and she returned to her family. The applicant 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.

The couple lived in a flat in Footscray. The applicant worked as a taxi-driver and Rong Hua Miao commenced an English course at a language school. By the end of December 1995 Rong Hua Miao discovered that she was pregnant. She was disappointed by the news and investigated the possibility of an abortion. The applicant 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. The applicant continued to have a problem with gambling. Overall, the relationship between the applicant and Rong Hua Miao deteriorated. The applicant 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 Rong Hua Miao moved to a women's refuge and obtained an intervention order against the applicant.

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

On 22 March 2000, an undercover policeman calling himself "Mark" contacted the applicant. The applicant 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 the applicant met in a park. A price of $10,000 was agreed and the applicant 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. The applicant 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. The applicant wanted to be shown a photograph of Rong Hua Miao's dead body.

Thereafter, there were a number of meetings and conversations on the telephone between the applicant and Mark. On one occasion, the applicant gave Mark a casino chip for $1,000 for the murder he was to perform. On another occasion, the applicant 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". The applicant gave Mark detailed information as to the address and daily routine of Rong Hua Miao.

The applicant 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.

Later, the applicant 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 the applicant to arrange for a meeting with another undercover policeman with respect to a heroin deal. A week later, the undercover policeman called "Dale" telephoned the applicant and arranged to meet him three days later. At the meeting the applicant 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, the applicant 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 Rong Hua Miao's keycard and withdraw money from her account. He wanted it to look as if she had been robbed and raped. Three weeks later the applicant was arrested.

At the conclusion of the trial, the jury returned a verdict of guilty. After hearing a plea the trial judge sentenced the applicant to a term of six years' imprisonment and fixed a minimum term of three years and six months before he was to be eligible for parole.

The applicant has applied for leave to appeal against his conviction. The three grounds for the application are:

"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."

Section 321G(1) of the Crimes Act 1958 provides that where a person incites any other person "to pursue a course of conduct which will involve the commission of an offence ... if acted on in accordance with the inciter's intention", the inciter is guilty of the indictable offence of incitement. Sub-section (2) provides that for a person to be guilty of incitement the person "must intend that the offence the subject matter of the incitement be committed".

The actus reus of the crime is incitement to commit an offence. Section 2A of the Act provides:

"'incite' includes command, request, propose, advise, encourage or authorize, ..."[1]

The section does not require that the person incited form the mens rea for the crime to be committed. It appears that the incitement need not have any effect upon the person incited, other than to come to the latter's knowledge.

Counsel for the applicant submitted that the fact that the applicant and Mark contemplated that the murder would not take place unless the applicant paid $5,000 meant that the applicant had not formed the intent required by s.321G(2). 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.

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.

Counsel for the applicant submitted that there was a substantial issue as to whether the applicant and Mark were parties to an unconditional incitement, and the trial judge failed to deal adequately with that issue in his charge. He contended that the defence was neither clearly nor fully presented, in the sense of the main points being raised before the jury in a manner calculated to focus their attention on what the defence said in answer to the prosecution case.[2] Counsel applied for leave to add a new ground to the application as follows:

"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."

The trial judge told the jury the issue they were to decide. He said:

"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."

In her address to the jury, the applicant's counsel drew the jury's attention to the qualifications to which the applicant's request was subject. She said:

"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 Covert Operative No. 1 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 ....'"

In his charge the trial judge reiterated defence counsel's statement in her address that the jury were required to be satisfied that the applicant 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 the applicant and Rong Hua Miao and the signs of reconciliation upon which defence counsel relied. The jury were also to pay attention to the words used by the applicant 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.

For the reasons I have stated, I consider that counsel for the applicant and the trial judge dealt appropriately with the fact that the request was conditional upon payment of the sum of $5,000 by the applicant by inviting the jury to consider it together with other circumstances, such as the fact that the applicant appeared to be at war with his conscience, was fearful of arrest and at times expressed reluctance, in determining whether the applicant intended that Rong Hua Miao 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.

In my opinion, the trial judge adequately identified the only substantial issue in the trial, which was whether, when he proposed Rong Hua Miao's death, the applicant 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 the applicant nor the Crown required any further expatiation on the law or the facts by the trial judge.

The applicant issued a subpoena to the Chief Commissioner of the Victoria Police requiring her to produce:

"all notes in relation to and recordings and transcripts of all contacts between all investigating police and the registered informer referred to by the informant in evidence at the committal."

Counsel for the applicant said that the object of this subpoena was to ascertain the identity and activities of two informers who spoke to the applicant before he was introduced to Mark, with a view to requesting the Crown to call them as witnesses. The Commissioner applied 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 trial judge examined the subpoenaed material and listened to the tape-recordings of conversations between the applicant and Mark. He also heard evidence relating to the safety of the informers in a hearing from which the public, the applicant and his legal representatives were excluded. His Honour balanced the public interest in protecting informers and the utility of the material to the applicant in answering the Crown case. He said:

"Having inspected the documents and heard further evidence in the ex parte application and listened to all the tapes of the conversations between the accused and undercover operative, Mark, I am satisfied that there is clearly an issue of public interest immunity in relation to the person identified as Paul. I am satisfied that the disclosure of the information could lead to the identification of the informer and place him at risk of retribution; it would undermine the confidence of both the informer and others who become aware of it. It would also undermine confidence in the protection and security that such people could expect from the police."

His Honour then considered whether the administration of justice would be frustrated if the subpoena was set aside by depriving the applicant 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."

The trial judge set aside the subpoena save for material relating to an undercover police operative as the identity of the operative was not revealed and the material was arguably capable of assisting the defence. Counsel for the applicant examined the material produced pursuant to that part of the subpoena which had not been set aside and applied to stay the proceeding on the ground of improper conduct by the police in that they exerted pressure on the applicant to agree to the murder of Rong Hua Miao.

The trial judge refused the application. He said:

"In my view, the tapes of conversations between the accused and [the undercover operative] and Mark show a man who was well able to put his point of view. The conversations do not suggest a man who is being pressured by someone else into becoming involved. On the contrary they suggest a person who is driven by his own reasons."

Accordingly, his Honour concluded that the police did not encourage or induce the accused to commit an offence but merely provided an opportunity for him to commit an offence. Counsel for the applicant also contended that the informer exerted pressure upon the applicant to commit the crime. The trial judge said that he was unable to find that the applicant was induced by the informer to commit the crime and in any event said that he could not see any basis for attributing the responsibility for any impropriety by the informant to the police.

On appeal, counsel for the applicant contended that the evidence given in open court by the applicant supported his contention that the informer 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 was unfair, for the applicant's counsel had no means of countering the effect of that evidence as he knew nothing of it.

In fact his Honour was careful to base his decision on material known to the applicant and his advisers. He said:

"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 the accused and [the undercover operative] give rise to the conclusion that the accused was induced by [the informer] to commit the crime alleged."

Counsel for the applicant submitted that the trial judge could not put out of his mind the evidence he had heard in camera. In my view, the question is 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. Judges are not infrequently required to take only particular factors into account in reaching a decision, and I can see no basis for concluding that the trial judge in this case failed to have regard only to the evidence heard in open court.

No separate argument was advanced in support of ground 3.

At the conclusion of oral argument we reserved our decision. Several days later the applicant delivered to the Court further written submissions which he had prepared, apparently without the assistance of a legal practitioner. The submissions concerned existing grounds of the application and new grounds. Copies of the submissions were sent by the Registrar to the Director of Public Prosecutions and Victoria Legal Aid. No submissions in reply have been received from the respondent.

I have considered the further submissions of the applicant. In my opinion they 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.

I would refuse the application for leave to appeal.

[1] See also R. v. Crichton [1915] S.A.L.R. 1; R. v. Massie [1998] VSCA 82; [1999] 1 V.R. 542.

[2] R. v. Defrutos [1998] 2 V.R. 589; R. v. Schmahl [1965] VicRp 95; [1965] V.R. 745.

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