The King v ZT

Case [2025] HCA 9

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

THE KING  APPELLANT

AND

ZT  RESPONDENT

The King v ZT

[2025] HCA 9

Date of Hearing: 15 November 2024

Date of Judgment: 2 April 2025

S38/2024

ORDER

1.Appeal allowed.

2.Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 29 September 2023.

3.Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination according to law.

On appeal from the Supreme Court of New South Wales

Representation

S C Dowling SC with E S Jones and J Styles for the appellant (instructed by Solicitor for Public Prosecutions (NSW))

D G Dalton SC with P R Coady SC for the respondent (instructed by Nyman Gibson Miralis)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The King v ZT

Criminal practice – Appeal – Recorded evidence – Where principal evidence implicating respondent was alleged admissions in intercepted telephone calls and police interviews – Where recordings of principal evidence played to jury and tendered as exhibits – Where respondent appealed conviction on ground that verdict unreasonable or could not be supported having regard to the evidence – Where majority of Court of Criminal Appeal of New South Wales ("CCA") held reasonable doubt as to respondent's guilt – Where majority of CCA did not view or listen to recordings of principal evidence – Whether CCA erred in concluding reasonable doubt not capable of being explained away by jury's natural advantages in having listened to principal evidence without listening to recordings – Whether in failing to listen to or view principal evidence CCA failed to discharge appellate function described in M v The Queen (1994) 181 CLR 487.

Words and phrases – "admissions", "advantage in seeing and hearing the evidence", "ascertaining the effect of the evidence visually or by sound", "beyond reasonable doubt", "circumstantial case", "consciousness of guilt reasoning", "credibility and reliability", "demeanour", "electronic exhibits", "extended joint criminal enterprise", "function of the appellate court", "generalised inference", "indispensable intermediate fact", "intercepted telephone calls", "joint criminal enterprise", "natural advantages of the jury", "procedural fairness", "real forensic purpose", "recorded evidence", "recorded witness testimony", "relevant or significant advantage", "tone of voice", "transcript", "unreasonable or could not be supported having regard to the evidence", "video recorded evidence".

Criminal Appeal Act 1912 (NSW), s 6.

  1. GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ.   After a trial in the Supreme Court of New South Wales, the respondent, ZT,[1] was convicted of the murder of the deceased, William Chaplin, and sentenced to a substantial term of imprisonment.[2] The respondent applied to the New South Wales Court of Criminal Appeal for leave to appeal against his conviction.[3] A majority of the Court of Criminal Appeal (Kirk JA and Sweeney J, Fagan J dissenting) upheld the respondent's contention that his conviction was unreasonable, or could…

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The King v ZT [2025] HCA 9
Case
[2025] HCA 9
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CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Crown against the majority decision of the Court of Criminal Appeal of New South Wales (CCA). The CCA had allowed an appeal against conviction by the respondent, ZT, on the ground that the verdict was unreasonable or could not be supported having regard to the evidence. The principal evidence against the respondent consisted of alleged admissions made in intercepted telephone calls and police interviews, which were played to the jury and tendered as exhibits.

The central legal issue before the High Court was whether the majority of the CCA erred in concluding that a reasonable doubt as to the respondent's guilt existed, without having viewed or listened to the recordings of the principal evidence. The High Court was required to determine whether the CCA, by failing to engage directly with the recorded evidence, had failed to discharge its appellate function as described in *M v The Queen* (1994) 181 CLR 487, particularly in assessing whether the jury's "natural advantages" in hearing the evidence could explain away any perceived doubt.

The High Court reasoned that an appellate court, when assessing whether a verdict is unreasonable or unsupported by evidence, must have regard to all the evidence. While acknowledging that intense scrutiny of recorded evidence by an appellate court has limited marginal utility due to the dangers of demeanour assessment, the Court emphasised that the CCA must still consider the evidence itself. The majority's failure to view or listen to the recordings meant they had not fully discharged their appellate function. The Court noted that while the prosecution was not required to prove the "reliability" of every admission, the CCA's assessment of the evidence was flawed by its omission.

The High Court allowed the appeal, set aside the orders of the CCA, and remitted the matter back to the CCA for determination according to law. This effectively restored the respondent's conviction and sentence, pending the CCA's redetermination.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 29 September 2023.

3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ (dissent) GORDON, EDELMAN AND STEWARD JJ
As has been explained, it is correct that the prosecution was not required to prove the "reliability" of any particular admission or that the respondent truthfully admitted the particulars of his involvement in the murder of the deceased. However, it is not necessary to parse the reasons of the majority to ascertain whether their Honours found or assumed to the contrary. These matters can be considered by the Court of Criminal Appeal (along with the balance of the respondent's submission noted above) after this matter is remitted.Conclusion on grounds of appeal Both grounds of appeal should be upheld.Relief The appeal should be allowed, the orders of the Court of Criminal Appeal should be set aside, and the matter should be remitted to the Court of Criminal Appeal to be redetermined in accordance with these reasons. The effect of setting aside the orders of the Court of Criminal Appeal is to restore the respondent's conviction and sentence. Neither of the parties contended that this Court should take any step in that regard. The following orders should be made:(1) Appeal allowed.(2)Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 29 September 2023.(3)Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination according to law. In conducting an assessment of whether a verdict at trial is "unreasonable, or cannot be supported, having regard to the evidence"[88] an appellate court must have regard to all of the evidence.[89] The same is true in relation to an appellate court's task in considering the common form proviso to criminal appeals, which requires consideration of "the whole of the record of the trial".[90] But that does not mean that every aspect of the evidence requires the same degree of scrutiny. For instance, it is not uncommon at trials for witnesses to give evidence that by the conclusion of the trial turns out to be peripheral or irrelevant to the facts that are in issue. Such evidence usually requires little or no scrutiny in an assessment of the record of the trial. [88]Criminal Appeal Act 1912 (NSW), s 6(1). See also Criminal Code (Qld), s 668E(1); Criminal Procedure Act 1921 (SA), s 158(1)(a); Criminal Code (Tas), s 402(1); Supreme Court Act 1933 (ACT), s 37O(2)(a)(i); Criminal Code (NT), s 411(1); Criminal Appeals Act 2004 (WA), s 30(3)(a); Criminal Procedure Act 2009 (Vic), s 276(1)(a). [89]M v The Queen (1994) 181 CLR 487 at 493.[90]Weiss v The Queen (2005) 224 CLR 300 at 317 [43] (emphasis in original). The same is true of video or audio recordings of oral evidence that is given at trial or video or audio recordings of evidence containing express or implied admissions that are tendered as exhibits at trial. An intense scrutiny of the evidence of witnesses, by viewing or listening to recordings, has limited marginal utility for an appellate court due to the danger of demeanour assessments. In Fennell v The Queen,[91] this Court referred to "the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability". In short, "an ounce of intrinsic merit or demerit in the ... comparison of evidence with known facts, is worth pounds of demeanour".[92] [91](2019) 93 ALJR 1219 at 1233 [81]; 373 ALR 433 at 452. [92]Fox v Percy (2003) 214 CLR 118 at 129 [30], quoting Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152.

Ratio Decidendi

Legal Principle Established

Established by: GORDON, EDELMAN AND STEWARD JJ

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