Zhang, R. v

Factual and Procedural Background

On 31 January 2023, following a trial at the Central Criminal Court before Judge Mayo and a jury, the Appellant was convicted of the attempted murder of his estranged wife and possession of a bladed article in a public place. On 11 April 2023, the Appellant was found to be a dangerous offender and sentenced to life imprisonment with a minimum term of 22 years less time served on remand. The Appellant renewed applications for an extension of time to seek leave to appeal against conviction and leave to adduce fresh evidence, following refusals by single judges. He also renewed an application for leave to appeal against sentence.

The Appellant and the victim met in 2004 as university lecturers and married in 2006. Their marriage was marked by domestic violence and controlling behaviour by the Appellant. The victim repeatedly withdrew support for prosecutions related to assaults. The final breakdown occurred after a series of violent incidents culminating in the Appellant stabbing the victim multiple times on 21 September 2021, following a school event. The victim survived after emergency surgery but suffered lasting physical and psychological injuries.

Following the attack, the Appellant was arrested and charged. He claimed little memory of the events due to brain injury sustained during the incident. Psychiatric assessments indicated moderate to severe depressive disorder with paranoid thoughts, but he was found fit to plead. The Appellant did not call certain expert psychiatric evidence at trial, which was a tactical decision by his legal team. The trial judge found the Appellant dangerous and imposed a life sentence with a minimum term. The Appellant challenges aspects of his conviction and sentence, including the refusal to admit fresh evidence and the starting point of the sentence.

Legal Issues Presented

1. Whether the application to adduce fresh psychiatric evidence should be allowed on appeal.
2. Whether the conviction is unsafe due to alleged failures by trial counsel and the non-admission of expert evidence.
3. Whether the directions given to the jury regarding adverse inferences from the Appellant's silence were appropriate.
4. Whether the sentencing judge erred in setting the starting point for the minimum term and the categorisation of the offence.
5. Whether leave to appeal against sentence should be granted on grounds including dangerousness and discretionary life sentence appropriateness.

Arguments of the Parties

Appellant's Arguments

• The conviction is arguably unsafe because the jury was not informed of relevant psychiatric evidence indicating diminished intent.
• Fresh medical evidence from a forensic psychiatry professor supports that the Appellant’s mental illness significantly reduced his intent to kill.
• The decision by trial counsel not to call certain expert witnesses was incorrect and led to an unfair trial.
• The judge erred in directing the jury to draw adverse inferences from the Appellant’s silence and cessation of evidence.
• The sentencing starting point was incorrectly set too high, and the sentence was manifestly excessive.

Respondent's Arguments

• The tactical decision not to adduce psychiatric evidence at trial was justified and taken in the Appellant’s best interests.
• Fresh evidence constitutes expert shopping and does not meet the statutory test for admission on appeal.
• The jury was properly directed on adverse inferences, and the directions were fair and balanced.
• The sentence was justified given the evidence, including the financial gain motive and the Appellant’s dangerousness.
• The error in the sentencing starting point favoured the Appellant and does not undermine the sentence’s overall appropriateness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AG's Reference (No. 27 of 2013) (R v Burinskas) [2014] 2 Cr App R (S) 45	Guidance on dangerous offender sentencing and appropriate custodial sentences.	The court confirmed the trial judge properly applied the guidance in assessing dangerousness and sentencing.
R v Foy [2020] EWCA Crim 278	Principle that an appeal is not a second chance to present expert evidence and expert shopping is impermissible.	The court relied on this precedent to refuse admission of fresh expert evidence, emphasizing finality of trial decisions.
R v Sesay [2024] EWCA Crim 483	Requirement to specify minimum term in years and days when imposing life sentences.	The court applied this precedent to set the minimum term precisely and alter the sentencing order accordingly.

Court's Reasoning and Analysis

The court carefully considered the Appellant’s renewed applications and the proposed fresh evidence from psychiatric experts. It emphasized that appeals are not opportunities to retry cases or introduce new evidence without strong justification. The decision not to call psychiatric evidence at trial was a tactical one, made in the Appellant’s best interests, particularly because the evidence did not negate intent to kill but rather explained impaired judgment. The court found that the psychiatric evidence would likely have been inadmissible on the key issue of intent and that the jury was capable of assessing intent based on behaviour and circumstances without expert assistance.

The court also found no basis to disturb the trial judge’s directions to the jury on adverse inferences from the Appellant’s silence and cessation of evidence, noting that the directions were balanced and fair. The court rejected the argument that the Appellant’s mental health should have led to a different approach during the trial, as the Appellant was deemed fit to plead and give evidence.

Regarding sentence, the court agreed that the trial judge erred in setting the starting point for the minimum term too high, but this error favoured the Appellant. The court re-assessed the aggravating and mitigating factors, concluding that the offence was appropriately categorised as Category A2 for culpability and Category 2 for harm. The court substituted a new minimum term of 18 years and 171 days, aligning with recent sentencing guidance requiring precise specification of minimum terms.

Holding and Implications

The court refused the renewed applications for extension of time and leave to appeal against conviction and refused the application to adduce fresh evidence, holding that the conviction is safe and the grounds advanced do not undermine it. The court granted leave to appeal against sentence on the amended ground relating to the sentencing starting point and substituted a reduced minimum term of 18 years and 171 days for the life sentence. The concurrent sentence for possession of a bladed article remains unchanged.

The direct effect of this decision is that the conviction and most aspects of the sentence stand, with only the minimum term adjusted downward. No new precedent was established beyond the application of existing legal principles concerning appeals, expert evidence, and sentencing guidelines.