In
Zhong v Attorney-General [2020] VSC 302 Croucher J comments
[8] Now, Mr Zhong is back in this Court again, still unrepresented, seeking judicial review of those most recent decisions. The amended originating motion, supporting affidavits and submissions in this Court were all drawn by Mr Zhong. Those documents contain a farrago of claims, some of which are hard to follow or are misconceived. Many are just scurrilous and should not have been made. Nevertheless, among his many complaints, Mr Zhong contends that his conviction makes about as much sense as the trial, conducted in Switzerland in 1474, at which a rooster was convicted of laying an egg. While nicely put, the difficulty with that complaint, and several others, is that they tend impermissibly to invite merits review. Mr Zhong also appears, at times, to think that merely to utter such a submission means that it must be accepted. That said, I have taken complaints like those, in substance, to be grounds alleging something akin to “Wednesbury unreasonableness”. Mr Zhong also claims that, despite his written and oral requests, the Attorney erroneously has declined to provide reasons for her decision.
[9] The Attorney makes three principal responses. First, she submits that neither decision is reviewable. Secondly, it is submitted that, even if the decisions — or the processes by which those decisions were reached — are reviewable, Mr Zhong’s claims, in substance, impermissibly invite merits review, have previously been adjudicated on appeal or are otherwise not made out. Thirdly, while it is conceded by the Attorney that no reasons were provided to Mr Zhong, it is submitted that he made no request for reasons under s 8 of the Administrative Law Act 1978 (Vic) (“the ALA”) and that neither the common law nor the Charter requires the giving of any such reasons.
[10] The state of the law binding on this Court appears to be that the Governor’s exercise of the prerogative of mercy in not reviewable at all. Some recent decisions, however, in other jurisdictions with analogues of s 327 of the CPA, have allowed that at least the process by which the Attorney’s decision to decline to refer a case to the Court of Appeal is reviewable. But those decisions are not binding on this Court. That said, it is unnecessary to determine those issues finally, because I am satisfied that none of Mr Zhong’s grounds can succeed in any event. In consequence, the answers to the important questions concerning reviewability should await a case in which they might be determinative of the outcome. Similarly, while the applications raise nice questions concerning whether the Attorney has an obligation to provide reasons under s 8 of the ALA, I am not satisfied that Mr Zhong made a request for reasons. Nor am I persuaded that the Attorney has a duty to provide reasons at common law or pursuant to the Charter.
[11] Accordingly, I would dismiss these applications.
[12] Whether Mr Zhong has persisted in seeking to overturn his conviction out of a genuine sense of outrage, or in pursuit of forgiveness, or to play Jesus to the lepers in his head, or perhaps just in the hope of rebuilding his relationship with his daughter, I cannot say. Nor, of course, is it mine to reason why. But, whatever his motive, no one could deny that he has been dogged in what has turned out to be a long and losing fight.
[13] That said, perhaps all is not lost for Mr Zhong. Despite the orders I must make, I am nevertheless concerned about aspects of his trial and the safety of his conviction. I am also troubled that neither the Attorney nor this Court had access to the complete trial transcript or trial exhibits. These matters have driven me to the unusual course of making an unsolicited recommendation to the Attorney that she might consider a fresh petition in any event. Indeed, I would go so far as to say that, even on the limited material before this Court, if, as a member of the Trial Division, I had been asked (along with other judges) to provide an opinion to the Attorney pursuant to ss 327(1)(b) and (3) of the CPA, I would have opined that she should refer the whole case to the Court of Appeal pursuant to s 327(1)(a).
[14] If a new petition is to be filed, this time, it must include the complete trial transcript and all trial exhibits. Also, it should be far more targeted than previous petitions, and should exclude the reams of drivel and bile with which Mr Zhong has burdened Attorneys past and present. I think he would need (and it would be preferable for all if he had) expert legal help to achieve that. Maybe a kindly barrister or two would pitch in.
The rooster case - alas the poor bird got toasted - appears in 'Nature on Trial: The Case of the Rooster That Laid an Egg' by E V Walter in (1985) 10(10)
Comparative Civilizations Review, drawing on the problematical 1906
The Criminal Prosecution and Capital Punishment of Animals by E P Evans.
