Secretary, Department of Justice and Regulation v Zhong [2017] VSCA 18

Secretary, Department of Justice and Regulation v Zhong [2017] VSCA 18 - VSCA 2017 case summary — Zoe

[91]

I have reviewed the material before me in light of each of the statutory tests and ultimately I have formed the view, on each occasion, that the Applicant has satisfied the applicable test.

I acknowledge that the most concerning aspect of the Applicant's application is his express lack of remorse for inciting the murder of his wife. He does not agree that he is criminally liable. That is the position that the Applicant has consistently maintained since his arrest in 2001 and until now. I have no doubt that the Applicant will continue to maintain his innocence and justify, perhaps primarily to himself, how it is that he came to be convicted for such a serious crime.

Although there is no shortage of authorities in which a lack of remorse has caused the Tribunal to find that a person is an unjustifiable risk, each case must be considered on its merits. Lack of remorse is a highly relevant consideration when determining whether there is unjustifiable risk of repeat or similar offending, but it is not the only factor.

I have given significant weight to the passage of time since the offending took place, and the clean record that the Applicant has maintained during that period. The Applicant has had no involvement with the law other than his failed legal appeals - which he is entitled to pursue. The clean record is also inconsistent with the suggestion of continuing anger management problems.

The preponderance of expert evidence is also in the Applicant's favour. Dr Carroll's report of June 2004 suggested that the Applicant was low risk, but that the risk might increase if the Applicant failed in his quest to clear his name. It is now 12 years since Dr Carroll's report and there have been multiple failed appeals and further protestations of innocence. Nonetheless, the potential risk flagged by Dr Carroll has not eventuated. Nor did the Applicant develop a depressive illness.

Dr Remy Glowinski's 2015 report suggests there might be future risk of violence but he considered it more likely that any violence committed would be towards individuals well known to him, and that there was 'little obvious connection between these factors and a risk of violence if working as a taxi or bus driver'. I have considered Dr Glowinski's suggestion that the Applicant might react from a slight from a passenger, but I have concluded that the Applicant does not have any anger management issue, and that the Applicant's violent reaction in the past, resulting in the offence of 'recklessly cause injury' arose from circumstances which are not analogous to a slight from a passenger.

Dr Byron Rigby's 2015 [report] also concludes that the Applicant is of no greater risk than would be estimated in any other eligible person if he was granted a licence. I concur with that view. I also do not consider the Applicant to have any significant risk of responding violently to a slight or other provocation from a child.[109]

[114]

The difficulty and uncertainty inherent in this form of stating grounds of appeal was explored by Ryan J in Australian Telecommunications Corporation v Lambroglou,[116] a judgment which, if I may say so, would repay study by all those undertaking to draft a notice of appeal (as also the judgment of Brooking J in Motor Accidents Board v Coutts,[117] in which the statement of grounds (which were grounds of review) was criticised after a most comprehensive review of the Victorian cases; see also his Honour's criticism of the grounds as stated in Victorian Workcover Authority v C.E Heath Underwriting & Insurance Pty Ltd.[118]).

More specifically, as Ryan J pointed out in Lambroglou, to allege error in the drawing of some particular conclusion (or as in that case to pose the question whether error lay in the drawing of that conclusion) will often simply cloak what it is sought to put in issue. That the judge erred in making some particular finding, if of fact, may mean, inter alia, that there was no evidence at all to support that finding, or that the primary facts were not proved from which an inference was drawn, or that though there was evidence of those primary facts that evidence ought to have been rejected, or that the inference, though open, ought not to have been drawn. Where the finding under attack is in truth of mixed fact and law, the allegation of error in arriving at the stated conclusion may conceal a contention that the judge misunderstood the law or, though properly understanding the principles, misapplied them; and where as here a statute is involved, the possibilities are often multiplied. This notice of appeal did nothing at all to resolve those difficulties.

Indeed, what Ryan J dubbed in Lambroglou at 529 'the irritating tendentious formulary which recurs in the prefatory words' of these so-called grounds of appeal is such as to suggest that the notice of appeal was framed in ignorance of the provisions of s 130 of the Act under which the right of appeal arises [only on a question of law].[119]

[126]

In my view, it is necessary to distinguish the offences. The offence of incitement to murder, and the complex relationship breakdown which accompanied that offence, is completely remote from any situation the Applicant is going to encounter driving buses or taxis. Similarly, the offences of stalking and breach of intervention orders have no nexus to driving taxis or buses.

The offence which may have some relevance is the assault against the Applicant's wife on 14 June 1997, described above. In this situation the Applicant admits he lost his temper and reacted violently. The Applicant may well have the misfortune of meeting demanding or violent passengers while driving. To this end, it is arguable that the Applicant might respond in a similarly violent manner towards such passengers. Dr Glowinski flagged this risk in his report where he stated that 'there are scenarios which can be plausibly considered in which AA might react to a perceived slight from a passenger'.

On closer analysis, it is clear that the recklessly cause injury offence was precipitated by a unique set of circumstances beyond a mere slight from his wife. As I have set out above, the Applicant had an argument with his wife about babysitting arrangements. The Applicant was not violent to his wife on the first occasion. The police attended and told the Applicant to return his key and leave the house, effectively making him homeless. He then returned to the house after wandering in the streets aimlessly for a number of hours. A further argument ensued, on this occasion the Applicant did respond violently. The events leading up to the Applicant, in his own words, losing control, are much more significant and cumulative than a simple insult or disrespectful comment from a passenger on a bus.

I also note that the recklessly cause injury offence occurred over 18 years ago, and once again, in the context of a domestic relationship. In a taxi or bus driving situation, passengers would usually be strangers and any interactions would be superficial and transient. I have no evidence before me to suggest that the Applicant has any violent history towards members of the public generally.[122]

[136]

So rather than say calling the police or reporting it you decided that you would chase that person?---When - when you call the police everything too late.

So you thought you would take it upon yourself to correct that injustice by going after the person who is trying to run away from you after having not paid the fare?---I run - I run after - no physical ultimatum, no - I never start initial - anything physical - - -

We're not talking about physical. There's someone here who fled your taxi because he didn't want to pay your fare. You chased them, didn't you?---Yes I did, I have a few time.

Right. There's no threat to your safety when someone doesn't pay a fare, runs away from the taxi, far away from you, is there?---That - that's - that's only - is not assault. When I chase them I never - I never have any - any assault on passengers. That's true. Even - even if you can recall last time we talk about one - one Greek young boy, he (indistinct) my chest but I never use my physical - and he ambush me, he black my eyes - blackened my eyes but I only ask if you don't money, give me your ID, I take the number down. He didn't give me but he ambush me, blackened my eyes. Then I didn't let him go, with some stand by, asked them to call the police. The police come - the police come then he has - he had to tell his ID, identity and then the police officer wanted to charge him, want to charge him for reckless causing injury for my black eyes and also want to charge him threat to kill, he threat to kill me and also want to charge him for fare evading. But at that stage, that young Greek man, he begged me, he begged me and said, 'Oh please forgive me. Forgive me. Don't charge me'. And that police officer is, 'Up to you if you want him charge I can charge him, lock him up', but I decided he may - he did wrong thing but he also deserve a second chance. I let him go and he promised, he promised he would pay the fare back. I let him go. I gave - I gave him a second chance.

So essentially the police let him go because you told them to, is that right?---Sorry?

The police let him go because you told - you told them to?---Yeah.

You decided to give him a second chance, not the police?---Not decided, the police officer ask me.

Right?---Not what I decided. The police officer said, 'Now, up to you, now if you want him to be charged', he can charge him.

I suggest to you AA that as a taxi driver you shouldn't have engaged in any physical retaliation, you shouldn't have run to chase down fare evaders, you should always call the police?---Is that - - -

Do you agree with that?---I can see if I learn from transport staff, I have never done that in my life, only colleagues, they've done slam young girl out to the ground. They chase - they chase a fare. They chase fare evaders. If - if I were them I could never done that. I - I was - regard myself - I done much better than - than your colleagues.

So you don't trust those entrusted by the State to look out for the passengers of public transport - - -?---No, no, I mean the taxi - sorry, inspectors. Can't you see the news. White young girl, slam young girl on to the ground - - -

[148]

Did you assess whether he had an anger management issue?---No, not directly, because he indicates emphatically that the offences did not happen, so he's not - he can't be angry.

If you accept this proposition, if you accept that on 14 June 1997 he had a verbal dispute with his de facto about the child and living arrangements, he lost control, pushed her to the floor, choked her around the throat with both hands, then grabbed her - one of her arms and stuck it behind her back, and then six days later broke into the house, assaulted her again, threatened her with the knife, and then a year later stalked her outside a travel agent, and then in August of 2000 tried to attempt to have somebody kill her, would you not agree with me, if those things were factually correct, that he suffered from some serious anger issues?---Yes.

And that he may have had an anger management problem?---Yes.

It would seem that, given that long history, he would have required some psychological assistance to overcome those issues, those anger issues?---Yes.

They won't go away by themselves, given that long history of anger?---Well, one wouldn't expect them to disappear.

No. So one would expect that, seeking psychological help - first of all, concealing that there is an anger management problem would be the first step towards recovery?---Yes.

The second step would be getting help?---Yes.

The third step would be attending help regularly and putting into place the tools to manage that anger?---Yes.

Then the fourth step would be proving or demonstrating that those tools were working by being in situations where anger is not lost?---A lot of other steps, but those are some steps.

Indeed. But if one placed a person on that sort of road map, one would have expected at the end of that map that they would have addressed their anger issues?---Well, that's a logical sequence, but it's not necessarily what happens, unfortunately.

Yes?---This man got locked up and was put into an institution, which is predicated on anger and aggression and antisocial behaviour.

That may have exacerbated the fact and - - -?---May have exacerbated it.

[156]

The mental state and possible mental disorders affecting the Applicant became the primary focus of evidence before the Tribunal. Dr Glowinski made the following assessment:

I agree with the Respondents that AA carries mistrust of authority and a strong sense of being victimised. I think that AA has a significant personality disorder, most likely with narcissistic and paranoid elements.

Dr Glowinski was asked to clarify his comments with respect to whether the Applicant had a paranoid personality disorder. In his Addendum Report, Dr Glowinski wrote:

I think that the volume of evidence available regarding AA points to the ICD-10 definition of paranoid personality being a reasonably accurate description of AA's behaviours.

The Applicant strongly disagrees that he has a paranoid personality disorder. He points to the fact that he was assessed in 2004 by Dr Carroll at Forensicare and no such paranoid personality disorder was diagnosed. Such finding was supported by Mr Joblin in his report dated 20 April 2004:

The preoccupation AA has does not amount to a litigious paranoia, which is a diagnosable abnormality. Because it is AA's firm belief that he was wrongly convicted he can make application for a petition for mercy. He has been preparing a document in support of that. He certainly has feelings of injustice and is simply pursuing those issues. It is very difficult under those conditions to indicate that this represents a diagnosable psychological abnormality.

Dr Byron Rigby provided a report at the request of Applicant for the purpose of the current proceeding. The Applicant has consulted with Dr Rigby on at least 10 occasions, assisting him with his distress in trying to obtain a commercial bus driver's licence and over matters relating to his former marital relations. I give substantial weight to the opinions of Dr Rigby; given that he is a treating practitioner. Dr Rigby's evidence was comprehensive and consistent in all relevant respects under cross examination.

Dr Carroll, Mr Joblin and Dr Rigby all found no diagnosable personality disorder. Dr Rigby stated:

Throughout this extensive review, I have found no evidence that AA can be categorised as having a 'Paranoid Personality Disorder'. ... I consider that imputing a psychiatric diagnosis, let alone a highly speculative categorisation of a personality disorder, to AA is a serious error... It appears wholly erroneous from a clinical point of view.

Having reviewed the extensive written and oral expert evidence and viewed the Applicant's conduct at the Tribunal over several days, including time in the witness box, in my view, the Applicant exhibited some paranoid personality traits, especially in his dealings with authority. Indeed, the Applicant seems to accept that he has some paranoid personality traits.

All experts agree that the Applicant has devoted extensive energy into clearing his name. In my view, that devotion has become like an obsession and it is that obsession that primarily drives the Applicant, rather than any diagnosable psychiatric personality disorder. I concur with Mr Joblin's view that it is a pre-occupation rather than a psychiatric paranoid condition.

Significantly, in my view, to the extent that the Applicant exhibits features of a paranoid personality disorder, they arise exclusively in consequence of his perceived mistreatment within the criminal justice system. Even if it were the case that I accepted the Applicant had a paranoid personality disorder, the space in which the paranoia arises is in relation to his dealings with the law. There is no compelling evidence that such predilection has or would have any adverse impact on his ability to drive commercial passenger vehicles or that his paranoid personality traits would cause any distress, danger or discomfort to a passenger in his vehicle....

I do not consider the Applicant's paranoid tendencies, howsoever described, are serious enough to make a finding that he is not sufficiently fit and healthy to provide commercial passenger vehicle services.[133]

[160]

It is clear that the Applicant is not remorseful for the incitement to murder offence for the simple reason that he cannot be remorseful for a crime he ardently believes he did not commit. Mr Joblin explained during crossexamination that concepts of responsibility, remorse and contrition can only be discussed in the context of the perpetrator having acknowledged the commission of an offence. When a person maintains their innocence, they cannot then say they are sorry and express remorse. Mr Joblin states that 'AA believes he is innocent of the offence, so these matters can't be an issue'.

Although not remorseful, the Applicant has expressed an understanding that inciting murder is very serious and wrong, and he has expressed an understanding of the consequences which flowed to his daughter and wife. He described incitement to murder as 'horrible'. He cannot come to terms in his own mind that he has been found guilty because he believes that he never formed an intention to have his wife killed, even though he openly discussed the topic with the undercover officers on a number of occasions. For the avoidance of doubt, I do not accept the Applicant's position that he is not guilty of the incitement to murder offence.

In relation to the 'recklessly cause injury' offence, he expressed shame for choking his wife and admits that he lost control. Even though he says he was provoked by his wife's initial assault against him, which could be interpreted as an attempt to minimise the significance of the offence, he has still admitted that his violent retaliation was still not justified. He has consistently admitted and acknowledged that the retaliation on his wife was unjustified. It would be a different matter if he were to say words to the effect that she deserved it. He has not expressed any such sentiment.

In my view, the likelihood of the Applicant inciting the murder of another person is virtually nil. The offence was the final act in a fraught domestic relationship. It is clear that the Applicant has moved on from that episode and sought to rebuild his life. He has effectively given up on reconnecting with his now ex-defacto wife and accepted that his daughter is no longer in his life.[134]

At a glance

Court

Decision date

Before

Source

Judgment (213 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (4)