The King v ZT

[2024] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S38 of 2024

B e t w e e n -

THE KING

Appellant

and

ZT

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 NOVEMBER 2024, AT 9.59 AM

Copyright in the High Court of Australia

MS S.C. DOWLING, SC:   Your Honours, I appear with MS E.S. JONES and MR J. STYLES for the appellant.  (instructed by Solicitor for Public Prosecutions (NSW))

MR D.G. DALTON, SC:   If the Court pleases, I appear with MR P.R. COADY, SC for the respondent.  (instructed by Nyman Gibson Miralis)

GAGELER CJ:   Thank you, Mr Dalton.  Ms Dowling. 

MS DOWLING:   Thank you, your Honours.  Your Honours, the appellant’s argument in this case centres on the proposition that in circumstances where the majority of the Court of Criminal Appeal has failed to watch or listen to the exhibit that comprised the bulk of the Crown case, in finding that the jury had no relevant or no significant advantage over the appellate court, the majority failed to give full regard to the consideration: 

that the jury is the body entrusted with the primary responsibility of determining guilt –

as well as the consideration that the jury has had the benefit of having seen and heard the witnesses, as described by this Court in M v The Queen and Pell v The Queen.  As the joint judgment in SKA held at paragraph 13, the jury’s role and advantage is: 

The starting point in the application of s 6(1) –

of the Criminal Appeal Act 1912 (NSW). Whether that involves a staged approach to the task required by M – that is, that the appellate court conducts its independent assessment of the evidence – and only if it experiences a reasonable doubt does it then turn to consider the nature and quality of the jury’s advantage and whether that is capable of resolving that doubt, or whether a more integrated approach is correct, as is perhaps suggested in the judgment of the Court in Pell at 38 to 39 – the purpose of the appellate court’s independent assessment of the evidence to answering that ultimate question of whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.

GAGELER CJ:   Ms Dowling, do you say that Justice Kirk should have, himself, listened to the recordings before deciding whether he had a doubt?  Or do you say that he should have, having experienced a doubt, gone on to ask whether the jury listening to the transcripts might have made a difference?

MS DOWLING:   We say either approach would have been acceptable.  The staged approach, which is the approach adopted by Justice Kirk in this case, was to conduct that review on the transcripts and then to consider the question of whether the jury had an advantage and whether, if…