Zenga v The Queen

The case of *Zenga v The Queen* was heard in the High Court of Australia before Brennan, Deane, and Dawson JJ. The applicant sought special leave to appeal against a decision of the Court of Criminal Appeal. The core of the dispute concerned the proper test to be applied by a Court of Criminal Appeal when assessing whether a jury's verdict was unsafe or unsatisfactory, particularly in light of the jury's advantage in observing witnesses.

The legal issues before the High Court included whether the existing test for determining an unsafe and unsatisfactory verdict should be reconsidered, specifically in relation to the weight to be given to the jury's advantage in assessing witness credibility. The applicant also contended that the description "unsafe and unsatisfactory" itself presented an area of confusion and uncertainty. A central question was whether the Court of Criminal Appeal, when conducting its own independent assessment, must ask whether a jury, acting reasonably, must have entertained a reasonable doubt as to guilt, or if a different test, derived from *Davies & Cody*, should apply.

The applicant argued that the correct test, stemming from *Davies & Cody*, involved three considerations: whether a failure occurred in observing conditions essential to a satisfactory trial; whether any feature raised a substantial possibility that the conclusion was mistaken; and whether any feature raised a substantial possibility that the jury was misled in the manner of reaching its conclusion. The applicant submitted that the allowance for the jury's advantage in seeing and hearing witnesses should be significantly less than the respondent contended, and in some situations, negligible, especially if the identified feature related to a basic requirement for a fair trial or the manner in which the conclusion was reached. The applicant contended that the Court of Criminal Appeal had placed too much emphasis on the jury's assessment of witnesses and the trial judge's discretion, rather than conducting an objective assessment of the combined weight of identified features, such as the unusual nature of the alleged victim's evidence, the need for a caution direction, corroboration of the applicant's evidence, and the failure to call an important witness.