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Court of Criminal Appeal 8 August 2025

ZT v R

[2025] NSWCCA 116

Homicide
BAIL RELEASE APPLICATION MURDER UNREASONABLE VERDICT

Citation: ZT v R [2025] NSWCCA 116
Court: Court of Criminal Appeal, New South Wales
Date: 8 August 2025
Judges: Harrison CJ at CL; Wright J; Huggett J

Background

The applicant was convicted of murder in December 2021 following a trial in the Supreme Court at Wagga Wagga. He was a child aged 16 at the time the offence was committed, though several years elapsed before the murder was detected and he was charged. The conviction arose from a joint criminal enterprise with an adult co-accused, and the central issue at trial was the degree of the applicant's criminal involvement in the actual killing, given he was undisputedly present and later made inculpatory admissions in recorded phone calls and police interviews.

The applicant appealed to the Court of Criminal Appeal, which in September 2023 upheld his sole ground of appeal: that the verdict was unreasonable or could not be supported by the evidence. A verdict of acquittal was entered. The Crown appealed to the High Court, which in April 2025 allowed the appeal, set aside the Court of Criminal Appeal's orders, and remitted the conviction appeal for re-hearing. The re-hearing was listed for 20 August 2025.

Following his return to custody after the High Court's decision, the applicant filed a release application in the Court of Criminal Appeal. The Crown opposed bail, arguing the applicant had not met the statutory threshold under s 22 of the Bail Act 2013 (NSW).

  • Whether the applicant had established "special or exceptional circumstances" justifying a grant of bail under s 22 of the Bail Act 2013, given his appeal against conviction was pending in the Court of Criminal Appeal.
  • What weight, if any, should be given to the merits of an unreasonable verdict ground of appeal in the context of a bail application, where the full trial record and audio material were not before the court.
  • Whether, if special or exceptional circumstances were established, the Crown's bail concern about failure to appear could be ameliorated by the imposition of conditions.

Decision

The court confirmed the applicable framework: an applicant must first establish special or exceptional circumstances on the balance of probabilities before the general unacceptable risk test under s 18 of the Bail Act is engaged. That threshold is a "significant hurdle," reflecting that, following conviction, the presumption of innocence has been rebutted and the right to liberty has been abrogated by sentence. A reasonably arguable case on appeal alone does not, by itself, constitute special or exceptional circumstances.

The court acknowledged the particular difficulty in assessing an unreasonable verdict ground on a bail application. Such an assessment requires detailed analysis of the entire trial record, including audio material that was not before the court on this application. The court noted the observation in Fantakis v DPP that a finding on bail that a verdict was likely unreasonable would be rare. The court emphasised it was not deciding whether the verdict was unreasonable, but only whether such a conclusion was arguable.

The court identified a circumstance it regarded as apparently unique: no previous decision had been located in which an applicant for release pending a Court of Criminal Appeal hearing had previously succeeded in an appeal against an identical conviction on the same ground, only for that appeal to be set aside by the High Court and remitted for re-hearing. The court treated this procedural history, described as the "litigation history," as sufficient in itself to satisfy the special or exceptional circumstances test when combined with the court's assessment that the appeal was clearly arguable.

Having found special or exceptional circumstances, the court was satisfied that the Crown's identified concern about the applicant's failure to appear at proceedings could be adequately addressed through the imposition of conditions.

Orders Made

  • The applicant is to be of good behaviour.
  • The applicant is to attend court as required.
  • The applicant is to reside at a specified address in Murrumbateman, New South Wales.
  • The applicant is to report to Yass Police Station on each Monday, Wednesday, Friday, and Sunday between 6:00 am and 10:00 pm.
  • The applicant is not to apply for a new passport or travel document.
  • The applicant is not to enter within 100 metres of any international airport or other point of departure from Australia.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), an applicant seeking release while a conviction appeal is pending in the Court of Criminal Appeal must establish special or exceptional circumstances on the balance of probabilities before the unacceptable risk test is engaged. A reasonably arguable appeal ground alone is insufficient.

  • The Court of Criminal Appeal confirmed that assessing an unreasonable verdict ground in the context of a bail application is inherently difficult, and a finding on bail that a verdict was likely unreasonable will be rare, particularly where the full trial record and audio evidence are not before the court.

  • Circumstances need not be individually exceptional; a combination of factors may together satisfy the s 22 threshold. Here, the apparently unique litigation history (a prior successful appeal against the same conviction, on the same ground, subsequently set aside by the High Court and remitted) was treated as sufficient when combined with the arguability of the appeal.

  • The procedural posture of the matter was significant: the applicant was not refused bail but was a sentenced prisoner, and the Court of Criminal Appeal had not previously considered any release application from him.

  • Where special or exceptional circumstances are established, a identified bail concern about failure to appear may be capable of amelioration through the imposition of appropriate conditions, including residency, reporting, and travel restrictions.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 18, 22

Cases:
- The King v ZT (2025) 99 ALJR 676; [2025] HCA 9
- ZT v R [2023] NSWCCA 241
- DC v Director of Public Prosecutions (NSW) [2024] NSWCCA 235
- El Khouli v R [2019] NSWCCA 146
- El-Hilli and Melville v R [2015] NSWCCA 146
- Fantakis v DPP [2021] NSWCCA 271
- Gould v R (Cth) [2021] NSWCCA 27
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294
- Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Williams [2020] NSWCCA 348
- Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102