Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zhang v R [2023] NSWCCA 98 Hearing dates: 25 November 2022 Date of orders: 25 November 2022 Decision date: 28 April 2023 Before: Davies J at [1]; Ierace J at [2]; R A Hulme AJ at [75] Decision: Reasons for order made on 25 November 2022: (1) Leave to appeal refused. Catchwords: CRIME – Appeals – Interlocutory appeal – Application for leave to appeal two interlocutory decisions pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) – Where trial judge refused applications to adjourn trial and recuse himself for apprehended and actual bias – Whether refusal of adjournment application infected by House v The King error –Whether recusal decision amenable to s 5F appeal Legislation Cited: Bail Act 2013 (NSW), ss 69, 74 Criminal Appeal Act 1912 (NSW), s 5F Criminal Code 1995 (Cth), s 135.4(3) Cases Cited: Barakat v Goritsas [2012] NSWCA 8 Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182 Dietrich v The Queen (1999) 177 CLR 292; [1992] HCA 57 Gurung v R [2012] NSWCCA 201 House v The King (1936) 55 CLR 499; [1936] HCA 40 R v Alexandroaia (1995) 81 A Crim R 286 R v Rogerson (1990) 45 A Crim R 253 R v Zhang [2020] NSWSC 478 Zhang v R [2021] NSWCCA 266 Zhang v R [2022] NSWCCA 100 Category: Principal judgment Parties: Li Zhang (Applicant) Rex (Respondent) Representation: Counsel: In person (Applicant) K Ginges (Respondent) Solicitors: Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/34635; 2015/258606 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 October 2022 Before: Blackmore SC ADCJ File Number(s): 2014/34635; 2015/258606 Judgment 1. DAVIES J: My reasons for joining in the order of the Court on 25 November 2022 are the reasons set out in the judgment of Ierace J. 2. IERACE J: At the time this application was heard, the applicant was the subject of a trial by jury that commenced before Acting Judge Blackmore SC (the trial judge) on 21 November 2022. 3. The application was for leave to appeal against two pre-trial decisions made by the trial judge, refusing an application to adjourn the trial for a period of about nine months (on 26 October 2022) and for the trial judge to recuse himself for apprehended and actual bias (on 15 November 2022). The applicant appeared on the applications before his Honour and in this Court without legal representation and, at times, with the assistance of an interpreter in a Chinese language. 4. At the time the application to vacate the trial commencement date was filed in the District Court, it was set down to commence on 31 October 2022 with an estimate of 10 months. In the event, the trial date was adjourned to 21 November 2022, due to an issue with the applicant's health that required immediate attention and difficulties in arranging a jury panel of a suitable size. The basis of the application for recusal, as filed, was apprehended basis (the recusal application). 5. This Court heard the application for leave on Friday 25 November 2022. Leave was refused in respect of both decisions. These are my reasons for joining in that order. The relevant background 1. The applicant was first arraigned in the District Court in Sydney on 18 January 2021 on two counts contrary to s 135.4(3) of the Criminal Code 1995 (Cth) alleging that he conspired with Song Chang (Mr Chang) and Simon Chee-To Chan (Mr Chan) between 1 January 2004 and 30 June 2006 (Count 1) and between 1 January 2004 and 30 April 2008 (Count 2), with the intention of dishonestly causing a loss to the Commonwealth, in respect of two separate property developments. The Crown case on each count is summarised in Zhang v R [2021] NSWCCA 266: "9 The Crown case on each count is that the Applicant, Mr Chang and Mr Chan were involved in a conspiracy to prepare and lodge fraudulent Business Activity Statements (BAS) on behalf of two corporate developer entities, to defraud millions of dollars from the Australian Taxation Office (ATO). In each case, this was said to have been achieved by claiming inflated and false input tax credits (ITCs) and GST refunds from the ATO for the entities' alleged costs in constructing property developments. 10 In relation to Count 1, JKC Developments Pty Ltd (later renamed to Protons National Pty Ltd) (JKC) was the corporate developer of a residential/retail development in Chippendale, Sydney (the Chippendale development). JKC was a wholly owned subsidiary of High Trade Company Pty Ltd (Hightrade Company), and part of a group of entities known as the Hightrade Group. The Applicant was a director of JKC between 31 July 2002 and 26 August 2003. 11 In relation to Count 2, HT & LI 4 Pty Ltd (later renamed as Resort Hunter Valley Pty Ltd (RHV), and then Micland Holdings Pty Ltd before it was liquidated), was the corporate developer of a resort construction in the Hunter Valley in NSW (the Hunter Valley development). RHV was also a wholly owned subsidiary of Hightrade Company, and part of the Hightrade Group. The Applicant was a director of RHV between 20 November 2001 and 1 July 2004. 12 The Crown's case is that the Applicant was the person in effective control of the Hightrade Group, the Hightrade Company, and the developments. He was at times the Director, Secretary and/or shareholder of JKC, RHV and other companies in the Hightrade Group, or otherwise arranged for associates or family members to be appointed as Directors, Secretary or shareholders. Mr Chan was the group's internal accountant. Mr Chang was an employee of the Hightrade Group, performing administrative and accounting functions. 13 The Crown alleges that the losses to the ATO were caused as a result of the BAS lodged on behalf of JKC and RHV containing overstated expenditure, resulting in both JKC and RHV receiving ITCs in excess of what they were each entitled to receive, based on how much the developments had cost to build. This amount was either paid by the ATO to JKC and RHV, or was used by JKC and RHV to offset their respective GST liabilities to the ATO. 14 The Crown alleges that central to how the co-conspirators in both the conspiracies intended to and did cause the losses was the true relationship between the various entities, and how they each purported to determine their GST liability and ITC entitlement for each GST accounting period. The Crown alleges that the following amounts were received for inflated amounts or for non-existent goods or services: (1) JKC lodged GST claims with the ATO in respect of the Chippendale development, that overstated the actual cost of the development by tens of millions of dollars, causing the ATO to pay $3,151,580 in GST returns and illegitimate ITCs, the subject of Count 1; and (2) RHV lodged GST claims with the ATO in respect of the Hunter Valley development that overstated the actual cost of development by over $100,000,000, causing the ATO to pay $15,952,104 in GST returns and illegitimate ITCs, the subject of Count 2." 1. There is a protracted history of the matter which the applicant relied upon in his applications to the trial judge and in his application for leave in this Court, which I outline. 2. According to the Crown Case Statement, the applicant was the subject of an investigation by the Australian Tax Office (the ATO) that commenced on 19 November 2008. The applicant is an Australian citizen who at that time was residing in Australia with his wife and children. On 15 and 16 April 2009, search warrants were executed on the applicant's residence, business premises and other locations. On 24 April 2009, the applicant departed Australia for Hong Kong, stating on his departure card that he was leaving for a two-week holiday, but remained in Hong Kong until 2015. His wife and other members of his family remained in Australia. Court Attendance Notices (CANs) were filed on 29 January 2014 for Count 1 and on 6 May 2015 for Count 2. Corresponding arrest warrants were issued on 29 January 2014 and 3 September 2015. 3. On 9 November 2015, the applicant travelled from Hong Kong to New Zealand and remained there, sometimes taking return flights to Fiji. In January 2019, the Commonwealth Director of Public Prosecutions (CDPP) was informed of the applicant's whereabouts and extradition proceedings were commenced with New Zealand authorities. The applicant was arrested on 4 April 2019. On 30 August 2019, which was the date of his surrender hearing, the applicant consented to being surrendered to Australia. He was returned on 12 September 2019, in the custody of officers from the Australian Federal Police (the AFP). 4. The Crown proposes to rely upon the applicant's departure from Australia on 24 April 2009 and his failure to return as evidence of his consciousness of guilt. The applicant's alleged co-conspirator, Mr Chan, departed Australia on 5 March 2010, and appears not to have returned. Mr Chang was arrested in about February 2014 on board a flight bound for Shanghai. 5. On 13 September 2019, the applicant made an application for bail in the Local Court, which was refused. He made a fresh application in the Supreme Court which was refused by N Adams J on 1 May 2020: R v Zhang [2020] NSWSC 478. 6. On 9 March 2020, the Crown disclosed to the applicant material that had been seized in the execution of search warrants. The material was served on a 4TB hard drive (the disclosure material). It is not apparent how much of the hard drive contained the disclosure material, but for the purposes of this application I assume it was the entirety of the hard drive. An additional copy of the disclosure material was provided to a nephew of the applicant in February 2021. The applicant's partner, Ms Meng, had full access to that material and could print out what the applicant required in hardcopy. 7. On 29 September 2020, the applicant was committed for trial. 8. On 10 November 2020, the applicant filed an application in the District Court seeking declarations that his extradition was unlawful, that the charges constituted a malicious prosecution, that the committal proceedings had not been validly commenced and that the order for committal was invalid. He also sought a permanent stay of proceedings and, in the alternative, a grant of bail. 9. On 18 January 2021, the applicant was arraigned on indictment in the District Court on the two counts for which he is presently being tried, to which he entered pleas of not guilty. 10. The applications filed on 10 November 2020 were heard by Judge Wass SC, who on 23 April 2021 determined that the District Court lacked jurisdiction to grant the relief sought other than a stay of proceedings and, in certain circumstances, a further application for bail. Her Honour dismissed the application for a stay and refused the application for bail. Her Honour set a trial date of 14 February 2022 with an estimate of 10 months. 11. On 7 May 2021, the applicant filed a notice of appeal in the Registry of this Court seeking leave to appeal against Wass SC DCJ's judgment dismissing the application for a permanent stay. On 9 November 2021, the application for leave to appeal was refused: Zhang v R [2021] NSWCCA 266. 12. On 14 February 2022, the applicant was re-arraigned in the Sydney District Court and again entered pleas of not guilty in relation to each count. The trial was set down to commence on 26 April 2022 before the trial judge, with an estimated length of 10 months. The trial judge heard a further pre-trial application seeking various orders, including an order that the CDPP instructing solicitor not be permitted to instruct the Crown in the trial and another seeking a permanent stay or, in the alternative, an adjournment of the trial, in order to allow the applicant further time to review the material that the Crown had disclosed to him on 9 March 2020. That hearing occurred from 14 February to 16 March 2022 (the February/March pre-trial hearing). On 16 March 2022, the trial judge refused the applications. During the course of the pre-trial hearing, on 21 February 2022, the trial judge heard a further bail application by the applicant which he refused in a judgment dated 28 February 2022. 13. On 12 April 2022, the applicant was granted bail by Cavanagh J. His Honour found that s 74(1) of the Bail Act 2013 (NSW), which applied because N Adams J had earlier refused a release application in 2020, was satisfied by a combination of factors, being material information that was not presented to her Honour; the setting of a hearing date in the interim with a substantial trial estimate; the period that the applicant would be in custody by the anticipated end of his trial (more than three years); difficulties encountered by the applicant preparing for trial whilst on remand; and evidence of certain medical conditions that he was experiencing on remand. In determining that bail should be granted, his Honour concluded that two factors in particular were of considerable weight: the difficulties encountered by the applicant in preparing for trial; and the anticipated period he would otherwise be on remand. Bail was granted subject to stringent conditions including a substantial surety. 14. On 11 May 2022, an application to this Court seeking leave to appeal the 16 March 2022 pre-trial rulings by the trial judge was heard. On 18 May 2022, leave was refused: Zhang v R [2022] NSWCCA 100. 15. The applicant had been legally unrepresented for many of his Local Court and pre-trial hearings. On 19 May 2022, the applicant sought a stay of proceedings before the trial judge pending the availability of legal representation, relying upon Dietrich v The Queen (1999) 177 CLR 292; [1992] HCA 57. During the hearing, Legal Aid was granted to the applicant. The commencement date of the trial was refixed to a date in September 2022, and later to 17 October 2022, to allow the applicant's solicitor and counsel sufficient time to prepare the defence case. 16. On 19 August 2022, counsel for the applicant sought a further adjournment on the basis that he, that is, the applicant's counsel, required surgery. The trial commencement date was set back to commence on 31 October 2022. 17. On 26 September 2022, the applicant informed the trial judge that he had terminated the retainer of his solicitor and counsel, so that he was again unrepresented. On that date, the commencement date of 31 October 2022 was confirmed. The application to vacate the trial date 1. On 5 October 2022, the applicant filed a notice of motion in the District Court seeking orders that the trial date be vacated and that the matter be re-listed in July 2023. In an affidavit in support of the application, the applicant stated the following reasons, which I will regard as grounds: 1. Following his release on bail, he discovered he was entitled to a term deposit in the sum of $300,000 that had been deposited in 2008. He wished to engage with the ATO and secure that sum to finance private legal representation; 2. He wished to contest his current conditions of bail; 3. He required further time to examine the disclosure material, and with the assistance of experts. He anticipated that further examination would establish that the contents and the material relied upon by the Crown had been tampered with, by the Crown; 4. The trial estimate would require the jury to sit over the Christmas and New Year holidays, which would affect their concentration and recall of the evidence, thus rendering his trial unfair; and 5. The applicant had filed an application in the Registry of the Supreme Court on 4 October 2022 seeking a permanent stay, based upon "the fact of unlawful extradition against me". 1. The trial judge commenced hearing the application on 14 October 2022. The applicant was present via Audio Video Link (AVL) and was assisted by an interpreter, but complained that the interpretation was inadequate. Thereafter, he made submissions directly to the Court, some of which the court reporter was unable to transcribe. As best as his submissions can be discerned from the transcript, they were as follows: 1. In relation to the first and third ground, the applicant elaborated that he had no alternative but to withdraw instructions from his legally aided legal representatives, because their computer skills were insufficient to access and assess the disclosure material and 462 scanned emails which were to be relied upon by the Crown, some of which he believed had been tampered with by the changing of dates (the 462 emails). He needed time to discover the extent of changes in that material and with the assistance of experts who he was yet to identify and retain. 2. In relation to the second ground, the applicant explained that his conditions of bail prevented him from locating experts that he needed in order to advance his defence. He intended to seek to amend his bail conditions in an application in the Supreme Court. Legal Aid declined to fund the application for a variation. If the trial commenced before he had identified experts, when he did call them, it might be that a juror knew one or more of them. 3. In relation to the fourth ground, the applicant would be disadvantaged by the trial adjourning over the Christmas holiday period. 1. The trial judge said that he would not finally determine the application on that date, but identified obstacles for the applicant to overcome. The applicant's counsel, before he was dismissed, informed the Court that the trial was ready to proceed on 31 October and, logically, he had factored into that decision that the defence did not require a further adjournment. His Honour did not accept that the applicant's previous legal representatives did not have adequate computer skills, but if that was so, it had been open to them to have approached the prosecution for assistance in accessing the disclosure material. 2. The trial judge informed the applicant that in any event he had previously raised all of these matters, with the exception of his reference to the term investment as a means of privately funding his defence. The applicant explained that the amount was actually $360,000, being the sum of $300,000 he deposited in 2008 and $60,000 in interest that had accrued since then. His Honour recalled that the applicant had previously denied he had the means to fund his defence and that the bank would not release what funds he did have without the approval of the ATO, which was not forthcoming. The Crown observed that the material annexed to the Applicant's affidavit did not include any documentary evidence of the $300,000 term deposit or $360,000 including interest. 3. The trial judge adjourned the application to 26 October 2022, informing the applicant: "On the 26th I'll make a final decision on your vacation application. If you're represented on that day by a barrister and solicitor which you privately paid for, I will listen to any further application made by them. If you're represented by yourself you have said all you need to say, I think. At this stage I anticipate the trial will start on the 31st, but I will leave it until the 26th to make a final decision." 1. The trial judge separately noted an issue with securing a jury panel of sufficient size for a trial with a 10 month estimate to commence on 31 October 2022. 2. On the evening of 25 October 2022, the applicant emailed to the Crown and the Court a letter that had arrived that day from the Department of Health dated 20 October 2022. The letter noted that the applicant had taken part in the National Bowel Screening Program and informed him that he had a "positive" test result for the presence of blood. The letter contained strong advice to follow up the result with his doctor, who would likely recommend a colonoscopy. 3. On 26 October 2022, the applicant confirmed that he had not obtained legal representation. In view of the Department of Health correspondence, the trial judge adjourned the trial for a period of three weeks until 21 November 2022. In a judgment delivered ex tempore, the trial judge refused the applicant's application for a nine-month adjournment that was stood over part-heard from 14 October 2022 (the adjournment decision). His Honour stated: "[The applicant] has chosen to be unrepresented. He claims that he has not chosen that course but having rejected the barrister and solicitor who were briefed to appear for him there is no alternative now other than him appearing for himself. I invited him on a prior occasion to come today with lawyers fully briefed, prepared to commence a 10 month trial. If that had occurred I may have entertained a further adjournment. He has not done that so he is now appearing for himself. That is just the facts. Having considered the situation we are now in with [the applicant's] potential condition, I have decided that we should adjourn the trial for a period of three weeks until 21 November." 1. His Honour listed the matter for directions at 9:30am on 10 November 2022. The applicant was not required to attend. 2. On 10 November 2022, the applicant appeared via AVL and informed the Court that he was waiting on a date for a colonoscopy. The applicant consented to the Crown contacting the applicant's medical specialist to obtain his advice on a likely date for the colonoscopy. 3. Later that day, the applicant filed a notice of appeal of the adjournment decision in the Registry of this Court. He described the decision being appealed thus: "Oral judgment on 10 November 2022 rejecting the appellant's notice of motion to vacate the trial date". The order sought was to "vacate the trial date sought in the Notice of Motion". 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." 1. 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." 1. 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. 2. 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. 3. The Crown submitted that whether the applicant's concerns are considered separately or together, he had failed to establish a reasonable apprehension of bias. 4. 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. 5. 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. Consideration 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) 1. 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. 2. 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. 3. 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. 4. 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." 1. 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. 2. 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. 3. 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." 1. 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. 2. 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). 3. 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'." 1. 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. 2. 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. 3. 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". 1. 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. 1. 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. …" 1. For all the above reasons, I joined in the order refusing leave to appeal the recusal decision. 2. R A HULME AJ: I agree with the refusal of leave to appeal in this matter for the reasons provided by Ierace J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2024