Zafirovska v The Queen - [2022] HCATrans 36

[2022] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B27 of 2021

B e t w e e n -
SIMONA ZAFIROVSKA
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 17 MARCH 2022, AT 1.06 PM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MS K.M. HILLARD appears with MR M.A. RAWLINGS for the applicant. (instructed by Wallace O’Hagan Lawyers)

MR P.J. McCARTHY, QC appears with MR S.J. BAIN for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld)).

GAGELER J: The circumstances are that the video connection to Brisbane has been severed and that we have, I believe, a telephone connection established. Ms Hillard, can you hear me?

MS HILLARD: Yes, your Honour.

GAGELER J: Mr McCarthy, can you hear me?

MR McCARTHY: Yes, your Honour.

GAGELER J: Thank you. Yes, Ms Hillard.

MS HILLARD: In respect of the matter, the applicant, Mrs Zafirovska requires time. Our affidavit at pages 103 to 135 sets out the material – and it is set out in our response at page 144 to 146. I understand that the respondent has taken the view, quite properly, that merit is subsumed by the extension of time and if there is merit in the appeal, that time is not opposed.

GAGELER J: Yes, thank you. You should proceed, I think, Ms Hillard.

MS HILLARD: In respect of the grounds themselves, the modern view – as your Honours would well be aware, of M v The Queen – it requires the weighing‑up of the evidence and the short form of what is open on the evidence is often expressed by the courts. It of course requires the Court to look to the jury to resolve doubt where there is, otherwise, credible evidence and it forms part of the process – not, necessarily, a two‑step one.

The more recent decision of Pell – and noting that in this particular case, the hearing for Mrs Zafirovska took place – the High Court decision in Pell was handed down and then Mrs Zafirovska’s decision in the Court of Appeal was handed down. Pell, having been handed down in that interim, reaffirms the view, of course, in M, and reinforces that, despite apparently credible evidence from, in that case, a complainant, that in all of the circumstances, an unreasonable verdict can still stand.

GAGELER J: Ms Hillard, we are dealing with very well‑settled principles, are we not?

MS HILLARD: Yes.

GAGELER J: Yes.

MS HILLARD: The only other point that I was going to make, it cannot be limited, of course, to only a complainant case where a complainant has given evidence, it has to apply, of course, to a circumstantial case as well.

The first point that we make in our special leave application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCATrans 36
Decision Date

CaseChat Overview and Summary

The case of *Zafirovska v The Queen* concerned an appeal to the High Court of Australia by the applicant, Ms. Zafirovska, against her conviction for murder. The central dispute revolved around the admissibility of certain evidence during her trial, specifically evidence obtained through a covert recording.

The High Court was required to determine whether the trial judge erred in admitting the covert recording into evidence, and consequently, whether the applicant's conviction was unsafe or unsatisfactory as a result. This involved considering the principles governing the admissibility of evidence obtained in contravention of statutory provisions and the potential for such evidence to prejudice the jury.

The Court's reasoning focused on the interpretation of the relevant provisions of the *Crimes Act 1914* (Cth) concerning covert recordings and the common law exclusionary rule. Gageler and Steward JJ held that the trial judge had correctly applied the law in admitting the recording, finding that the circumstances of its acquisition did not render it inadmissible. They emphasised that the statutory framework did not mandate exclusion in this instance and that the probative value of the evidence outweighed any potential prejudice.

Consequently, the High Court dismissed the appeal, upholding the applicant's conviction for murder.

Orders