R v Ye Zhang [2000] NSWSC 1099

New South Wales Supreme Court

CITATION : R v Ye Zhang [2000] NSWSC 1099 CURRENT JURISDICTION: Common Law - Criminal FILE NUMBER(S) : SC 70096/97 13/11/2000,14.11.2000,15.11.2000, HEARING DATE(S) : 16.11.2000,17.11/2000,21.11.2000, 22.11.2000 JUDGMENT DATE : 1 December 2000

PARTIES : Crown Ye Zhang JUDGMENT OF : Simpson J

LOWER COURT Local Court JURISDICTION : LOWER COURT 00108302/97/46 FILE NUMBER(S) : LOWER COURT Ms S Schreiner JUDICIAL OFFICER :

COUNSEL : Crown: Ms M Cunneen Accused: Mr D Dalton SOLICITORS : Director of Public Prosecutions Legal Aid CATCHWORDS : Voir dire - evidence of admissions said to have been made by the accused. Mental Health (Criminal Procedure) Act 1990 Evidence Act 1995 LEGISLATION CITED : Criminal Procedure Act 1986 Justices Act 1902 Crimes Act 1900 CASES CITED : R v Donnelly (1997) 96 A Crim R 432 at 438 per Hidden J DECISION : Evidence of admissions excluded.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SIMPSON J

Friday 1 December 2000

70096/97 REGINA v YE ZHANG Judgment

HER HONOUR : 1 On 22 July 1997 the accused was charged with two counts of murder. He was subsequently found, firstly pursuant to s 10, and secondly pursuant to s 29, of the Mental Health (Criminal Procedure) Act 1990 to be unfit to be tried. He having been detained in custody as a prisoner for a period of not less than twelve months, s 30(2) required the court to conduct a special hearing in respect of the offences with which he was charged. In May 2000 such a special hearing was conducted by Newman J and a jury. The jury was unable to agree on verdicts. A second special hearing was fixed to commence on 13 November 2000. 2 Shortly before that date, for reasons entirely outside the control of the accused, his legal representation changed. His new legal advisers took a view of the admission of the Crown evidence radically different from that taken by their predecessors. Accordingly, they requested that a voir dire be conducted into the question of the admission of evidence of admissions made by the accused and constituting virtually the entirety of the Crown evidence against him. It is not disputed that the accused made such admissions: they are largely preserved in electronically recorded interviews, and to the extent that they are not, the accused does not deny that he said substantially what was attributed to him. The challenge to the admission of the evidence concerns the circumstances in which the accused said what he said. The principal contention made on his behalf is that his decision to make the admissions lacked the necessary quality of voluntariness that would permit their acceptance into evidence. 3 That challenge concerns both admissibility in the strict sense, and the exercise of discretions permitting or requiring the exclusion of evidence otherwise admissible. The accused invokes ss 84, 85, 90, 138 and 189 of the Evidence Act 1995 and s 424A of the Crimes Act 1901 (now re-enacted as s 108 of the Criminal Procedure Act 1986). The various bases of challenge have a degree of complexity that calls for a rather detailed outline of the relevant facts and circumstances. The areas of contested fact, for the purposes of this voir dire, are relatively narrow, but where they exist, they are significant. The issues that arise relate to the application of the statutory provisions to the facts. 4 I propose to set out, in the first instance, an outline of the facts as alleged by the Crown.