Thursday, 31 AUGUST 2000
R v Ju Sheng ZHANG
JUDGEMENT
1 FOSTER AJA: I agree with Dunford J.
2 DUNFORD J: This is an appeal by the appellant, Ju Sheng Zhang, against his conviction before Dowd J and a jury on one count of murder, one count of attempted murder, one count of use an offensive weapon with intent to prevent lawful apprehension and one count of malicious wounding, for all of which he was sentenced to effective terms of imprisonment totalling a minimum term of 19 years with an additional term of 5 years.
3 The Crown case was that the appellant was a tenant of premises at Fairfield of which the deceased, Guiseppe Arena, was the managing agent for the landlord. On 21 May 1997, the appellant attended the agency in order to pay his rent, which he did, and he then asked to speak to the deceased about his perceived difficulties with the replacement of locks consequent upon his advice to the agency that his premises had been broken into. A brief conversation followed which gave rise to an argument and the appellant produced a long bladed carving knife from a black bag he was carrying, whereupon the deceased ran into a rear office at the premises, chased by the appellant who was kicking at the door in order to gain entry.
4 In due course the appellant gained entry to the office area through a side door and charged at the deceased violently stabbing at him with the knife whilst two other employees, Stephen Jurinic and Fabio Lamalfa, attempted to disarm him and they were eventually able to get the appellant away from the deceased who was bleeding heavily. They assisted the deceased out of the office and down an alley way a short distance where he was subsequently treated by the ambulance crew.
5 The appellant remained in the office holding the knife whilst attempting to re-assure female staff that he would not harm them. When Mr Jurinic returned to the office the appellant, still wielding the knife, chased him out of the office and across the road. Meanwhile, a motorist observing the appellant's obvious intentions towards Mr Jurinic drove his car at the appellant and collided with him, causing him minimal injuries. The police arrived, but the appellant held them at bay with the knife, taunting them, saying, "come on, come on, dead man, dead man, so what I mean is shoot me to death I'm a dead man". Police eventually subdued the appellant but in the course of the struggle some of the officers including Senior Constable Russell were injured.
6 The appellant was interviewed by way of ERISP and offered an explanation for his actions, which explanation he expanded upon in his evidence. It was to the effect that his premises had been broken into at least twice and he did not consider that the agency had dealt with the problem adequately or appropriately. He also described at least two occasions when he had reported other unrelated incidents to police and police had not in his view responded in a manner which he considered appropriate. He said he knew his actions were wrong but he carried out his right to protect himself.
7 The only ground of appeal relied on was as follows:
The learned trial judge erred in not conducting a fitness inquiry. By reason of the failure to conduct a fitness inquiry the conviction is a miscarriage of justice.
8 The appellant was arrested on 21 May 1997 and remanded in custody where he has remained ever since. He was first seen by a lawyer when he appeared at the Local Court at Fairfield on 22 May 1997 and a solicitor with the Legal Aid Commission, took an application for legal aid from him. He also arranged for the appellant to be seen by Dr Bruce Westmore, a forensic psychiatrist, who saw him on 31 May 1997.
9 It appears from Dr Westmore's report of 3 June 1997 that the appellant was not co-operative in that interview and declined to discuss the case in any detail except to the extent of saying that he intended to plead guilty, and accordingly there was no need for the interview to proceed any further. He also indicated that he did not wish to have legal assistance but wished to speak to the judge himself. On the history obtained, Dr Westmore could not identify or exclude the presence or absence of mental illness, but said that although he did not appear to be depressed, there were other features of a bipolar affective disorder and suggested that he should be seen again by a psychiatrist when he was more amenable to such an assessment.
10 When the matter came back before the Local Court on 18 June 1997 the appellant informed the solicitor who was to appear for him that he wished to represent himself, and the proceedings were adjourned for a paper committal on 25 June 1997. He was not at any time thereafter represented by a lawyer until the hearing of the appeal.
11 He was committed for trial on 25 June 1997 and appeared in person at pre-trial mentions before Barr J on 2 February 1998, and on 20 April, 9 June and 16 July 1998 before Dowd J, the trial judge.
12 Concern relating to the appellant's mental health was first raised by the Crown at a directions hearing before Dowd J on 20 April 1998. After discussion, his Honour ordered a psychiatric report and requested that the accused undergo a psychiatric examination. He was therefore seen by Dr Andrew Walker on 5 June 1998. Once again the appellant provided very little information to the psychiatrist. He declined to give any answers as to whom he had killed or why, except that he had a good reason, and that he recognised that the offence that he had committed was regarded as wrong. He refused to give any detailed information concerning his personal history. Dr Walker reported that there was no evidence of cognitive defect and his short term memory was satisfactory, but that he refused further formal cognitive examination, that no psychiatric disorder was elicited and there was no evidence of brain dysfunction, although it was not impossible that he might be suffering from a psychiatric condition such as delusional (paranoid) disorder which it would be possible to conceal under interview conditions, and that he was able to judge right and wrong.
13 When the matter came on again on 9 June 1998 the Crown tendered the psychiatric report (the transcript notes the report being dated "15" June 1998 but that apparently should read "5" June 1998 according to Annexure "E" to Mr Barrow's affidavit). The appellant made some submissions about the report which was admitted into evidence. The Crown Prosecutor said that "it would seem, despite the limitations of the report, that there is nothing before this court to indicate that the accused is not fit to stand trial".
14 When the matter came on for trial on 20 July 1998, the appellant insisted on appearing for himself. He asserted that he had killed the deceased but that it was not "wrong" to do so. He said that because he knew that he did it and the matter had been fully explored in the Local Court it was not necessary that it be examined once more, and his Honour appeared unable to bring the appellant to an understanding that the Local Court was not a final procedure and that the jury had the responsibility to determine guilt.
15 He appeared not to understand the necessity for him to plead to the charges and asserted that he had no interest in what the witnesses would say, not so much because they were unlikely to be truthful or reliable, but because they were irrelevant to the procedure as he perceived it to be. Upon arraignment on the first (murder) count he said, "whether it is guilty or not guilty, the issue of the plea is not in existence. I have already stated yesterday, I only want to tell the court what I did and my attitude toward it." His Honour directed that a plea of not guilty be entered on behalf of the accused. A similar response occurred when arraigned on each of the remaining counts.
16 As the trial progressed the appellant began to question his Honour's conduct of the trial, constantly repeating that the matter had been dealt with in the Local Court and accordingly there was no need for any further proceedings in the Supreme Court. He questioned why jurors without legal knowledge should be involved and declined to cross-examine any of the witnesses, maintaining that he was not interested in anything they said. After a number of witnesses had given evidence, the appellant sought that his Honour disqualify himself for bias, the ostensible reason being that the trial judge was insisting on the calling of evidence in circumstances that the appellant considered unnecessary.
17 On the morning of the fourth day of the trial, 23 July 1998, before the jury came into court the Crown Prosecutor said he wished to raise a matter in relation to the Mental Health (Criminal Procedure) Act 1990 and referred his Honour in particular to s 9 of that Act and the decision of the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 and to R v Presser [1958] VR 45.
18 The Crown Prosecutor said, inter alia,
"It is of concern to me, and that is why I make the submission, that the accused by what he stated yesterday has indicated to the court, that apart from what he stated on previous occasions, he does not want to participate in these proceedings. But yesterday particularly he was indicating to the court through what he was saying that he does have . . . some problem in understanding what is going on, and his statements concerning the way the case has been conducted by the Crown indicates that he has little understanding, . . . of what is occurring."