Zhang v R

The application for a bail variation heard by R A Hulme AJ

1. On 25 October 2022, which was the day before the trial judge formally refused the application to vacate the trial date, the applicant's application to the Supreme Court to vary his conditions of bail was heard by R A Hulme AJ. The applicant complained that the "house arrest" conditions prevented him from engaging in certain activities that he wished to pursue, which included locating and engaging experts in about 20 areas of expertise; finding employment that would not detract from his preparation for and participation in the trial; and attempting to find persons prepared to make donations of funds to him to finance his defence.
2. The applicant also sought to have removed a condition that obliged him to not approach places of international departure, because he might need to attend airports to meet experts flying into Australia to assist his case. He wished to move from his current residence but not be obliged to provide the address of an alternative location. He requested the removal of a surety condition of $200,000, that had been deposited by his sister. R A Hulme AJ refused the variations sought, except for one that the applicant be permitted to consume alcohol.

The recusal application

1. On 11 November 2022, the applicant filed a notice of motion in the District Court requesting the trial judge recuse himself on the basis of apprehended bias. The applicant's notice of motion was supported by a 13 page affidavit of the same date with 520 pages of annexures. In his affidavit in support, the applicant also contended actual bias, submitting that the trial judge had: "… displayed a significant level of bias to the disadvantage of me as a defendant in the current court proceedings, which will undermine a fair hearing and render the trial might be (sic) unfair."
2. The affidavit is a mixture of evidence and submissions. Essentially, the applicant's concerns related to decisions that had been made by the trial judge over the previous 10 months that were adverse to him. A distillation of these concerns are as follows: 1. During the February/March pre-trial hearing, his Honour declined to adjourn the trial to allow the applicant further time to review the disclosure material and the 462 emails and had declined to assist him to obtain the original versions of the 462 emails. 2. The prosecution brief, which is contained on a USB drive, comprised over 80,000 pages of documents. The applicant required access to the prison computers to access both types of material. Prison log books record that he had access to the prison computers, which he required to examine the prosecution brief and disclosure material, for a total of 48 hours. It was obvious to the trial judge that the applicant could not access the prosecution brief and the disclosure material whilst on remand. Cavanagh J took into account those difficulties in determining to grant the applicant bail. 3. The applicant had filed a further bail application with the Supreme Court in January 2022. The Registrar referred it to the District Court at the suggestion of the Crown solicitor. When the bail application was heard by the trial judge, on 21 February 2022, the Crown then challenged the application on the basis that the District Court lacked jurisdiction to hear it, with which the trial judge agreed. The applicant stated: "The jurisdiction issues were just a façade, his Honour as a trial judge has the power to release me on bail if his Honour wants a fair trial". The applicant referred to the trial judge having described him as an "extreme flight risk" when, two months later, he was granted bail in the Supreme Court. 4. The applicant extracted passages from the transcript of 4 March 2022 in which the trial judge stated that he intended to inform the jury that the applicant was in custody but that it is the usual situation, which they should disregard. The applicant said: "His Honour wanted to try me when I was in jail, the jury would be notified. How could his Honour let the jury accept I am innocent when I am in jail? I was placed in a disadvantaged position before even the trial started …" 1. The applicant referred to a notice of motion dated 2 March 2022 seeking the instructing solicitor appearing in his matter for the CDPP be removed, and a determination by the trial judge that certain material obtained by search warrants could be tendered by the Crown. He submitted that both of the trial judge's decisions were against "the hard facts". 2. The applicant stated that the trial judge "held a grudge" against him when he learned on 14 March 2022 that the applicant had filed appeals to this Court, relying upon a comment by the judge in response to the applicant requesting a copy of the trial judge's judgment: "You didn't need much judgement. I've just refused it, okay. That's the judgement". 3. The applicant referred to the voluminous nature of the Crown case and submitted that the issues of fact and law were complex and noted that the trial judge had commented that he was an acting judge. The applicant stated that according to the website of the District Court there were 16 acting judges who shared one associate, and submitted that therefore his Honour should not hear his matter since "a retired, part-time judge is not suitable to hear the current case" and would not be paid for reading time. 4. The applicant stated that at the mention of the matter on 19 August 2022, when a trial date of 31 October 2022 was set, the trial judge initially contemplated a start date on 16 January 2023. He stated: "I believe his Honour was biased in favour of the prosecutor or pressed by a third party (someone did break into the courtroom whispering something to his Honour during the court hearing)." 1. The applicant said that at the hearing of his application for an adjournment that was heard on 14 October 2022 the trial judge responded by "turning a blind eye to the hard facts". He continued: "His Honour could not change his position knowing his Honour was wrong in the first place to try me while I was in jail, and his Honour still ignores the facts now to try me regardless of if I am ready or not to prepare my case. The fair trial has never been in his Honour's mind." 1. The applicant stated that, at the time of his affidavit, he was "in the middle of waiting for my bowel-positive treatment to eliminate the possibility of catching cancer", and that the trial judge's decision to commence the trial in 2022 was "a more personal and emotional decision rather than the rational one as a fair judge. There are strong biases in his Honour's mind against me". 2. The applicant referred to the trial judge's rejection of his pre-trial application that was determined on 22 March 2022, stating: "To bring the impartial mind to the trial, his Honour must deny or correct his wrong judgements made in relation to the pre-trial issues, his Honour faces a great challenge to do that, and in fact, his honour indicated, he is not prepared to do that, said on 14 October 2022 in the court mention claiming the judgements for the pre-trial issues were closed."
3. On 15 November 2022, the trial judge heard the application for recusal. In oral submissions, the applicant referred to some of the issues that were dealt with in the February/March pre-trial hearing and his belief that he was unfairly investigated and charged. However, the applicant's primary focus was on the trial judge's refusal of the applicant's application that the trial commence in 2022, which he believed to be unfair.
4. The Crown opposed the application, submitting that some of the issues raised by the applicant in his affidavit had been the subject of unsuccessful applications for leave to appeal to this Court. In relation to whether the applicant had been wrongly or unfairly assessed by the trial judge as an "extreme flight risk" on 10 March 2022, the Crown noted that on 25 October 2022, R A Hulme AJ had denied the applicant's application to vary his bail conditions, other than that he be permitted to consume alcohol, concluding that he had "very grave concerns" about the applicant's preparedness to appear in court. The Crown noted that the reason that the proposal of a trial start date in January 2023 was abandoned during the course of the hearing of the adjournment application on 19 August 2022, was because an administrative officer informed the trial judge while he was on the Bench that the January date was not practically available.
5. The Crown submitted that whether the applicant's concerns are considered separately or together, he had failed to establish a reasonable apprehension of bias.
6. The trial judge informed the applicant that he would not review rulings he had made previously but he would hear a fresh objection in relation to evidence tendered by the Crown in the trial, at the time of the tender, if it was submitted that the facts had changed.
7. In a short ex tempore judgment, his Honour refused the application (the recusal decision). His Honour concluded that the observations attributed to him in the affidavit were taken out of context and that it was unnecessary to address the applicant's concerns in detail. His Honour noted that the applicant had succeeded in some of his applications for adjournments during the course of the year and, when unsuccessful, the interests of justice had determined that outcome.

Subsequent developments

1. On the same date (15 November 2022), the Crown tendered a letter from the applicant's specialist who stated that the colonoscopy would be performed on 18 November 2022. The trial judge was informed that the applicant had filed the notice of appeal to this Court in respect of the refusal of an adjournment. His Honour stood the matter over to 21 November 2022 to empanel the jury, cognisant of a possible delay in light of the further appeal to this Court.
2. On 18 November 2022, the applicant underwent a gastroscopy and a colonoscopy. No significant health concern was detected.
3. On 21 November 2022, the trial commenced. The applicant informed the court that he had sought emergency treatment in hospital for stomach pain and a heart issue. After the arraignment, the trial judge adjourned the trial to 23 November 2022 to enable the applicant to seek medical assistance.
4. On the same day, 21 November 2022, the applicant filed a fresh notice of appeal in the Registry of this Court, together with written submissions, combining his earlier notice of appeal concerning the adjournment decision with an appeal against the recusal decision.
5. On 22 November 2022, the applicant emailed the trial judge's associate attaching two letters from general practitioners, a discharge summary from Campbelltown Hospital and two photographs. He stated that on medical advice he would not subject himself to stressful events, such as attending Court, for 48 hours.
6. On 23 November 2022, the applicant did not attend Court. At 11:15am, the trial judge indicated that he did not accept the applicant's reasons for non-attendance and issued a warrant for his arrest. The trial judge ordered that the warrant lie in the Registry until 3pm that day. The matter was stood over to 28 November 2022, for empanelment and the Crown opening. The arrest warrant was revoked when the applicant phoned the court at 3:30pm, stating that he was in hospital.
7. On 24 November 2022, the applicant filed in the Registry of this Court a bundle of material concerning the state of his physical health, including the email and annexures that he forwarded to the trial judge's associate on 22 November. The material was not accompanied by an interpretive medical report.

The hearing of the application for leave

1. On 20 November 2022, five days before the hearing and when the composition of the Bench became publicly known, the applicant filed in the Registry of this Court a request that R A Hulme AJ recuse himself, on the basis that his Honour had rejected the applicant's application for a bail variation on 25 October 2022. At the outset of the hearing, the applicant withdrew the request.
2. The application in respect of the adjournment decision to refuse the application to vacate the trial date proceeded on the basis that it occurred on 26 October 2022 and not the date nominated by the applicant in his notice of appeal, which was 10 November 2022.
3. In his written submissions, the applicant provided a brief overview, from his perspective, of the investigation and extradition process, and alleged that the brief of evidence served upon him by the Crown had material in it that had been "altered, manipulated and amended". His submissions from that point onwards essentially covered the same ground as the content of his affidavits in support of the notices of motion filed in the District Court seeking vacation of the trial date and the trial judge's recusal.
4. Some of those aspects were couched in more forceful terms. For example, the plaintiff alleged the trial judge had a motive to refuse his bail application on 10 March 2022, which was to "cover up tampered evidence" (apparently a reference to the 462 emails), since if he was tried while bail refused, "it would be more obstruction for him to prove it".
5. The Crown submitted that the recusal decision was not an interlocutory judgment or order and thus was not amenable to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). Even if the Court had jurisdiction, the Crown submitted that leave to appeal should be refused. The Crown further submitted that leave should be refused in respect of the adjournment decision.

The adjournment decision

1. It is now well established that a decision by a trial judge to refuse an application for an adjournment is an "interlocutory judgment or order" for the purposes of s 5F(3) of the Criminal Appeal Act. Such a decision is an exercise of discretion that, accordingly, will only be amenable to appellate intervention if the trial judge has overstepped the ambit of the discretion as identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 54-55. In R v Alexandroaia (1995) 81 A Crim R 286 the Court (Hunt CJ, Grove & Dunford JJ), at 290, expressed it thus: "Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made." (citations omitted)
2. In his written and oral submissions, the applicant has not expressly addressed the essential question for this Court, namely, whether in arriving at his decision to refuse his application for an adjournment, the trial judge failed to properly exercise his discretion in one or more of the ways in which that may occur or be concluded to have occurred.
3. Mindful that the applicant was unrepresented, it is appropriate to consider whether, in spite of the applicant's failure to specifically address the matter for consideration in this Court, the circumstances of the trial judge's decision nevertheless give rise to a concern that the exercise of discretion discloses House v The King error.
4. As noted, the notice of motion, filed four weeks before the (then) commencement date of 31 October 2022, sought a substantial adjournment to a date in July 2023, which was a period of nine months. The trial itself had an estimate of 10 months, so that if the adjournment was granted, the trial would not be expected to conclude before May 2024. There was already a considerable delay in the resolution of the criminal charges. The applicant's notice of motion was filed one year and nine months after he was first arraigned in the District Court, three and a half years after his arrest in New Zealand and about 14-19 years after the offences were allegedly committed.
5. One of the decisions of the trial judge that the applicant sought leave to challenge in Zhang v R [2022] NSWCCA 100 was a refusal of an adjournment to enable him to have more time to examine the disclosure material, which is one of the bases relied upon this time, as well. In that case, Macfarlan JA (Rothman and Dhanji JJ agreeing) made the following observations, at [3], which in my view have equal force to this application: "As is to be expected, considerable time and expense has been incurred over the intervening years in bringing the proceedings to a point where the commencement of the lengthy hearing is imminent. In these circumstances, Mr Zhang would have had to, but did not, mount a powerful case in order to obtain a grant of leave to appeal which would inevitably interrupt the progress of the proceedings towards their resolution at first instance. As the High Court said in Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23], '[t]he fragmentation of the criminal process is to be actively discouraged'. Similarly, in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [32], Leeming JA accepted the DPP's submission that 'there are ordinarily powerful discretionary factors against entertaining applications which fragment criminal proceedings'. The prima facie undesirability of granting leave to appeal in respect of pre-trial rulings, and therefore of fragmenting and delaying the resolution of criminal proceedings at first instance, is all the more acute when that leave is sought at a hearing less than two weeks before the commencement of a lengthy trial."
6. The trial judge was conscious of the need to commence the trial as soon as practicable, in all the circumstances. In exercising his discretion to refuse the application, in particular, whether retaining the trial commencement date would occasion unfairness to the applicant, the trial judge took into account that the applicant had possessed the disclosure material since March 2020, which I note was a period of about 30 months by the time the notice of motion seeking that the trial date be vacated was filed. The trial judge took into account that the applicant's counsel had informed the Court, before his instructions were withdrawn, that the defence was ready to proceed to trial on 31 October 2022. The applicant withdrew those instructions, cognisant that he did not immediately have the means to instruct counsel privately. The proposal to secure funds from the term deposit was speculative, since the ATO would not approve the bank releasing the funds to the applicant. The trial judge took into account that the applicant would not require expert evidence until later in the trial, which would allow him time to prepare that part of his case.
7. I am satisfied that the applicant has not demonstrated that the trial judge failed to properly exercise the discretion in the adjournment decision. I am also satisfied that the judgment, considered in the context of the reasons advanced by the applicant as to why an adjournment should have been granted, does not give rise to a concern that the discretion was not properly exercised.
8. For those reasons, I joined in refusing leave in respect of the adjournment decision.

The recusal decision

1. A threshold issue with the challenge to the recusal decision is the question of whether it is an "interlocutory judgment or order" for the purposes of s 5F(3) of the Criminal Appeal Act. In R v Rogerson (1990) 45 A Crim R 253 at 255, Gleeson CJ (Wood and Brownie JJ agreeing) held that such a decision was not an interlocutory judgment or order.
2. The issue arose in Gurung v R [2012] NSWCCA 201, McClellan CJ at CL (Garling J agreeing) at [41] observed: "Although there is some controversy in the authorities, it would seem that the prevailing view is that the decision of a trial judge not to recuse him or herself from a matter is not amenable to an appeal pursuant to section 5F of the Criminal Appeal Act."
3. His Honour noted, at [45] and [48], that the urgency of the case did not permit an exploration of the issue, but in any event, he was not persuaded that a reasonable bystander would apprehend bias from the judge's remarks and thus refused leave.
4. McCallum J (as her Honour then was), at [56]-[57], noted the breadth of the scope of s 5F and considered it was at least arguable that such a decision could come within that section, analogously deriving support from Barakat v Goritsas [2012] NSWCA 8, in which Basten JA considered that a refusal to recuse, although not in the context of s 5F, was open to challenge. In the circumstances of Gurung, McCallum J concluded that leave should be granted pursuant to s 5F(3).
5. In Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182, Gleeson JA (R A Hulme and Button JJ agreeing) noted the preponderance of authority to the effect that a recusal decision is not amenable to an appeal under s 5F: "10 The authorities which suggest that there is no jurisdiction under s 5F for the Court of Criminal Appeal to entertain an appeal against a judge's refusal to disqualify him or herself because such a refusal does not constitute an interlocutory order so as to come within the terms of s 5F, include: R v Rogerson (1990) 45 A Crim R 253 at 255 (Gleeson CJ, Wood and Brownie JJ agreeing); R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425 at [12]-[15] (Spigelman CJ, Wood CJ at CL and Howie J agreeing); Gurung v R [2012] NSWCCA 201 at [41] (McClellan CJ at CL, Garling J agreeing; contra McCallum J at [57]). 11 A similar view has been reached in the context of a right of appeal under s 127 of the District Court Act 1973 (NSW) in relation to 'a judge's … judgment or order in an action': s 127(1). In Lee v Cha [2008] NSWCA 13 at [13] Basten JA (Hodgson and Bell JJA agreeing) expressed the view that the overwhelming weight of authority suggests that a refusal by a judge of the District Court to disqualify himself or herself does not constitute a 'judgment or order'."
6. At the hearing in this Court, during the course of his submissions, the applicant was alerted to the significance of this issue as an impediment to his application. Understandably, since he was not legally represented, he was unable to respond to it.
7. In my view, the circumstances of the recusal decision do not constitute circumstances that warrant close consideration as to whether it might conceivably be an interlocutory judgment or order that comes within s 5F. In any event, if leave was granted, there is no basis upon which it could reasonably be concluded that the trial judge exhibited actual bias, or upon which a reasonable bystander might apprehend bias. I have come to that view considering the various submissions singly and in combination.
8. By reference to the summary of the applicant's concerns at [38] above, I note the following: 1. Concerns (1), (9) and (10) are complaints that the trial judge was incorrect in not adjourning the trial, and thus repeats his challenge to the adjournment decision; 2. Concerns (2) and (3) complain that the trial judge should have granted him bail in February 2022. More particularly, the applicant complained that the trial judge's explanation during the application and in his judgment that he lacked jurisdiction to hear a further bail application was "just a façade". However, as the trial judge stated in his judgment on 28 February 2022, pursuant to s 69(1)(c) of the Bail Act, an application for bail after it has been refused in the Supreme Court may only be entertained in the District Court if it is satisfied that "special facts or special circumstances justify the hearing of the bail application".
9. Some of the applicant's concerns as to the neutrality, independence and capacity of the trial judge are perhaps an innocent consequence of a combination of the applicant's unfamiliarity with court processes and the criminal justice system, his difficulties with the English language and the absence of legal representatives to explain matters to him. These are as follows: 1. Concern (4) was that the jury would be informed that the applicant was being held on remand, which the applicant believed would place him at a disadvantage. That concern is understandable, but is to be balanced against the alternative of saying nothing, in circumstances in which it would be obvious to the jury that he was in custody; 2. Concerns (5) and (11) involved pre-trial decisions as to the admissibility of evidence and other matters which went against the applicant. He believed the decisions to be contrary to the evidence but did not suggest anything untoward in the decisions; 3. Concern (7) suggested a misunderstanding about the capacity of acting judges and the resources available to them; 4. Concern (8) referred to a court officer approaching the trial judge while his Honour was sitting and informing him that a jury panel would not be available on the trial date that his Honour was contemplating, which the applicant interpreted as improper influence by an unknown person.
10. Concern (6), that the trial judge "held a grudge" against him, was based upon his Honour not providing the applicant with a transcript of the judgment that the applicant appealed to this Court from the February/March pre-trial hearing. However, a reading of the relevant passage of transcript suggests that the trial judge in fact went out of his way to assist the applicant: "[APPLICANT]: Yeah, thank you, your Honour's guidance last Thursday for the possible avenue to appeal to the decision by this Court. So, I did lodge the appeal to CCA for the bail jurisdiction or bail issues of judgment by this Court, and they would like your Honour to release the transcript regarding that bail refuse. If your Honour already-- HIS HONOUR: As I say, you should already have it. I'm not - I'm surprised you haven't got it. It was corrected the day after I got it myself, so it is around. It's been corrected. So, I'm not sure why you haven't got it, or have you got it and you just - it's not - have you actually seen a copy of it or not? [APPLICANT]: No. No, I haven't got it. HIS HONOUR: Okay. GINGES: We don't have it yet either, your Honour. HIS HONOUR: Okay. I'll get my associate to follow up with what's called RSB, the reporting services branch, and find out what's happened to it. [APPLICANT]: Yeah. Thank you, your Honour. …"
11. For all the above reasons, I joined in the order refusing leave to appeal the recusal decision.
12. R A HULME AJ: I agree with the refusal of leave to appeal in this matter for the reasons provided by Ierace J.

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