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Court of Criminal Appeal 29 September 2023

ZT v R

[2023] NSWCCA 241

Homicide

Citation: ZT v R [2023] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 29 September 2023
Judge(s): Kirk JA (at [1]); Fagan J (at [133]); Sweeney J (at [266])

Background

The applicant was convicted of murder following a Supreme Court jury trial. The victim was killed in 2010 at a rural property near Albury. At the time, the applicant was 16 years old and living with the principal offender (referred to as PW) and PW's wife. The murder only came to light years later when PW made admissions to a fellow prison inmate. PW's wife had separately pleaded guilty to being an accessory after the fact by assisting in disposing of the body.

The Crown did not allege the applicant was the sole or primary killer. Instead, the Crown proceeded on the basis of joint criminal enterprise or extended joint criminal enterprise, asserting that the applicant and PW had at least agreed to assault the deceased. The applicant was not charged with the accessory offence, though evidence implicated him in the disposal of the body.

The Crown's case rested heavily on alleged admissions made by the applicant: intercepted phone calls in which he confessed to each of his parents that he had cut the victim's throat, and two police interviews described at trial as "a series of rambling falsehoods." The Crown itself accepted below that the throat-cutting confession was probably untrue, based on observations of the body. The jury returned a guilty verdict after only 50 minutes of deliberation. The applicant was sentenced to 12 years' imprisonment with a non-parole period of 8 years.

  • Whether the jury's guilty verdict was unreasonable, or could not be supported having regard to the evidence as a whole
  • Whether the applicant's admissions, which were numerous, internally inconsistent, and in some respects demonstrably false, were sufficiently reliable to found a conviction beyond reasonable doubt
  • Whether lies told by the applicant supported an inference of consciousness of guilt of murder, as distinct from consciousness of guilt of being an accessory after the fact
  • Whether the jury held a relevant forensic advantage over the appellate court in assessing the recorded phone calls and police interviews

Decision

By majority (Kirk JA, Sweeney J agreeing; Fagan J dissenting), the Court of Criminal Appeal upheld the appeal and quashed the conviction. The central difficulty was the reliability of the applicant's admissions. The witness and forensic evidence did not independently point to the applicant's participation in the murder itself, as opposed to his involvement as an accessory after the fact. The entire case against him for murder therefore depended on those admissions standing up as reliable proof of guilt.

Kirk JA found the admissions could not bear that weight. The intercepted phone calls revealed a pattern of the applicant saying things that were untrue even when he appeared to have no obvious reason to lie, suggesting his statements were unreliable even when apparently against his own interests. The police interviews were characterised as wholly unreliable in the absence of independent corroboration. His Honour concluded that the lies relied upon as showing consciousness of guilt were equally explicable as reflecting a concern about being implicated as an accessory after the fact, rather than as the perpetrator of murder.

Kirk JA also found that the Crown's approach to the admissions appeared to rely on a generalised inference from the evidence "taken as a whole," without properly applying the standard required for consciousness of guilt reasoning. The admissions were not reliable enough, in those extraordinary circumstances, to permit the jury to be satisfied beyond reasonable doubt. Sweeney J agreed with those reasons and similarly held a reasonable doubt that the jury should also have held.

Fagan J dissented. His Honour took the view that the jury was entitled to accept the applicant's basal admission of participation in the murder while setting aside the unreliable particulars. Under joint criminal enterprise liability, the Crown was not required to prove exactly what role the applicant played. Fagan J also placed significant weight on the jury's advantage of having heard many hours of the recordings themselves, finding that the jury was positioned to resolve doubts that might arise from a reading of transcripts alone.

Orders Made

  • Leave to appeal granted and appeal upheld
  • The appellant's conviction quashed
  • A judgment of acquittal entered in its place

Key Takeaways

  • A conviction founded almost entirely on admissions will not be sustained where those admissions are so internally inconsistent, and so demonstrably false in material respects, that they cannot reliably establish guilt beyond reasonable doubt.

  • Lies told by an accused function as evidence of consciousness of guilt of the charged offence only where the inference is that the accused lied to conceal involvement in that specific offence. Where the lies are equally consistent with concealing a lesser offence (here, being an accessory after the fact), the consciousness of guilt reasoning does not necessarily implicate the accused in the more serious charge.

  • The Court of Criminal Appeal confirmed that, on an unreasonable verdict ground, it must make its own independent assessment of the whole of the evidence, asking whether it was open to the jury to be satisfied beyond reasonable doubt. This follows the approach set out by the High Court in Dansie v The Queen (2022) and M v The Queen (1994).

  • The majority and dissent divided on the weight properly given to the jury's advantage in hearing recorded evidence. Fagan J considered the jury's extended exposure to the audio recordings a significant factor capable of resolving appellate doubts rooted in transcript reading alone. The majority did not accept that the jury held a sufficiently relevant advantage to displace the appellate court's assessment.

  • Where an accused's admissions go to participation in a joint criminal enterprise, inconsistencies in the particulars of the offence do not automatically undermine a basal admission of involvement. However, per the majority, that principle cannot rescue admissions that are unreliable at their foundation.

Legislation and Cases Referenced

Cases:
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Sinclair v The King (1946) 73 CLR 316

Legislation: No specific legislation was identified in the decision metadata or judgment extracts provided.