ZT v R

Hearing dates: 20 June 2025

Date of orders: 20 June 2025

Decision date: 08 August 2025

Before: Harrison CJ at CL;
Wright J;
Huggett J

Decision: Grant bail subject to conditions.

Catchwords: BAIL – release application – murder – where conviction quashed by Court of Criminal Appeal – unreasonable verdict – Director’s appeal to High Court allowed – matter remitted to Court of Criminal Appeal for determination according to law – offence for which an appeal is pending in Court of Criminal Appeal – whether special or exceptional circumstances exist that justify a decision to grant bail – consideration of the relative strength of the ground of appeal – whether the appeal has reasonable prospects of success – whether the appeal is reasonably arguable – whether bail concerns are capable of amelioration by imposition of conditions

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

Cases Cited: 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
The King v ZT (2025) 99 ALJR 676; [2025] HCA 9
ZT v R [2023] NSWCCA 241

Category: Principal judgment

Parties: ZT (Applicant)
Rex (Respondent)

Representation: Counsel:
P Coady SC (Applicant)
B Costello (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2025/220695

Publication restriction: Nil.

JUDGMENT

1. THE COURT: On 9 December 2021, following a 13-day trial, ZT, who was a child at the time of the murder, was convicted in the Supreme Court sitting at Wagga Wagga. He appealed against his conviction to this Court: ZT v R [2023] NSWCCA 241. In those proceedings, Kirk JA and Sweeney J upheld the sole ground of appeal, that ZT’s conviction of murder was unreasonable or could not be supported having regard to the evidence. Justice Fagan dissented and would have dismissed the appeal. As the majority upheld the single unreasonable verdict ground, a verdict of acquittal was entered by this Court on 29 September 2023. The Crown then appealed to the High Court, which on 2 April 2025, allowed the appeal, set aside the orders of this Court and remitted the matter for determination according to law: The King v ZT (2025) 99 ALJR 676; [2025] HCA 9. The conviction appeal re-hearing is listed for hearing in this Court on 20 August 2025.

2. On 30 May 2025, ZT filed a release application which we heard on 20 June 2025. The Crown accepts that ZT’s appeal to this Court remains “pending” in this Court. ZT filed his initial notice of appeal within the applicable time limits and this Court has jurisdiction to consider a release application.

3. ZT was first arrested for the offence of murder in Queensland on 5 September 2019 and remained in continuous custody from the date of his arrest until his appeal was upheld by this Court. He was initially bail refused up until the date of his sentence on 29 April 2022, after which he became a sentenced prisoner. No bail application was made to this Court pending the hearing of his original appeal. ZT was released when the verdict of acquittal was entered by this Court on 29 September 2023. Following the decision of the High Court on 2 April 2025, ZT was returned to custody on 8 April 2025, when he resumed serving his original sentence. At the time of the hearing of his current application to this Court, ZT has not been refused bail but remains a sentenced prisoner. This Court has not previously considered any application by ZT for release.

4. Section 22 of the Bail Act 2013 is in the following relevant terms:

22 General limitation on court's power to release

(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision--

(a) an offence for which an appeal is pending in the Court of Criminal Appeal against--

(i) a conviction on indictment, or

(ii) a sentence imposed on conviction on indictment,

(b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).

(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.

(3) Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section.

5. ZT relies on a combination of the following features to establish special or exceptional circumstances: the merits of his unreasonable verdict ground of appeal; the "litigation history"; the portion of the non-parole period served; the absence of any criminal antecedents before or after his murder conviction; volunteering himself to police when asked to do so following remitter by the High Court; and “his family support and community connection".

6. The Crown opposes the release application. The Crown maintains that ZT has failed to demonstrate special or exceptional circumstances justifying a grant of bail as required by s 22 of the Bail Act.

7. On 20 June 2025, we granted ZT’s application subject to the following conditions:

8. The applicant is to be of good behaviour.

9. He is to attend court as required.

10. He is to reside at XX XXXX Street, Murrumbateman in the State of New South Wales.

11. He is to report to the Yass Police Station on each of Monday, Wednesday, Friday and Sunday between the hours of 6.00am and 10.00pm.

12. He is not to apply for a new passport or travel document.

13. He is not to enter within 100 metres of any international airport or other point of departure from Australia.

14. Our reasons for doing so are as follows.

Background facts

9. Sometime between 30 March 2010 and 31 May 2010, William Chaplin was killed. There was no dispute at ZT’s trial that Mr Chaplin was murdered. Nor was there any dispute at trial that his body had been extensively burnt or that his remains were left in a shallow grave on a property where ZT was residing. Mr Chaplin was killed by Paul Watson. On the Crown case, ZT acted in a joint criminal enterprise or extended joint criminal enterprise with him. ZT disputed his involvement in the acts constituting the murder, but little else. It was not in dispute that he was present at the time Mr Chaplin was killed, or apparently that he at least assisted with the disposal of his body. The only issue at trial was whether ZT was criminally involved in the actual killing.

10. ZT was a juvenile, aged 16, when the murder was committed. His co-accused was an adult.

11. The murder went undetected for many years. However, in 2017, Mr Watson (who ultimately faced a separate trial) made an admission to a fellow prisoner when he was serving a sentence for unrelated offending in Victoria. His admission was reported to the authorities. By 2019, there was an active investigation underway. That investigation included a lawful interception of ZT’s telephone. In various recorded conversations, ZT made both explicit admissions to being involved in the murder and otherwise implied his involvement. Those admissions were made to close family members, as well as to Mr Watson’s ex-partner (who had also assisted in disposing of the body). During several of the calls, ZT explored scenarios that would exonerate him, including by way of an alibi, and by attributing sole responsibility to Mr Watson.

12. ZT was arrested in Queensland on 5 September 2019. He participated in two quite lengthy interviews. During the first interview, ZT initially lied and denied knowledge of the murder. However, when confronted with several of the intercepted phone calls, he made extensive admissions to being present when the murder occurred. Consistently with what he had said on several of the phone calls, ZT’s initial versions to the police sought to attribute sole responsibility for the actual murder to Mr Watson. After the first interview, ZT communicated with a lawyer. The second interview took place the following day, at ZT’s request. He indicated to the police that he now wanted to be truthful. During the second interview, ZT admitted to involvement in the murder. However, his version in the second interview conflicted with other evidence obtained by the police. The credibility of ZT’s various accounts, and his inculpatory admissions, were therefore the central issues at the trial.

This application

13. In the present application, ZT must first satisfy this Court that "special or exceptional circumstances" exist that justify a grant of bail. Unless we are satisfied of this, the application must be dismissed. If we are persuaded that "special or exceptional circumstances exist", we must then apply the unacceptable risk test in accordance with s 18 of the Bail Act: El-Hilli and Melville v R [2015] NSWCCA 146 at [13]; El Khouli v R [2019] NSWCCA 146 at [16].

14. The requirements of s 22 raise a "significant hurdle": HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 at [24]. The circumstances must be special or exceptional "so as to justify a grant of bail in circumstances where the applicant has been convicted after trial": DC v Director of Public Prosecutions (NSW) [2024] NSWCCA 235 at [10].

15. The requirement to show special or exceptional circumstances reflects a number of considerations of a "general character": R v Williams [2020] NSWCCA 348 at [8] - [9]. These include the fact that, following conviction, the presumption of innocence has been rebutted and the general right to liberty has been abrogated by the passing of a sentence: Williams at [9].

16. An applicant bears the onus of establishing special or exceptional circumstances justifying the grant of bail: Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102 at [16]. Such circumstances must be established on the balance of probabilities: Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172 at [45].

17. Demonstration of a reasonably arguable case on appeal alone will not constitute special or exceptional circumstances: Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294 at [14].

18. Special or exceptional circumstances may exist as a result of a combination of circumstances or features of a case. In considering whether such circumstances have been established, no single matter should be considered in a vacuum. Regard must be had to all relevant matters, including the conviction, the sentence imposed and any matters personal to the applicant: DC at [24].

19. Relevant considerations include the relative strength of the grounds of appeal advanced by an applicant (including the extent to which that strength is discernible on the application) and whether the applicant is likely to have served a substantial part of his or her sentence or non-parole period before the appeal is determined: Fantakis v Director of Public Prosecutions (NSW) [2021] NSWCCA 271 at [13]; El-Hilli at [29]; HT at [24]. Where an applicant for appeal bail will have served a substantial part of his or her sentence by the time the appeal is determined, it may nevertheless be relevant to consider whether any additional period he or she may remain in custody would be substantial: DC at [15]. The interaction between the assessment of the relative strength of the appeal and the utility of the appeal, where it may be rendered futile because the applicant will have served most or all of the sentence, will bear heavily upon whether or not special or exceptional circumstances exist: Fantakis at [12] - [13]. Where the period of time that is likely to elapse between the hearing of the release application and the determination of the appeal is relatively short, and a substantial amount of the non-parole period remains, "the level of persuasion of the relative strength of [the] grounds of appeal that the applicant must demonstrate is that much higher": Fantakis at [14].

20. Where the prospects of appeal are relied on, the Court is confined to reaching only a broad overview of an applicant's prospects: Obeid v R (No 2) [2016] NSWCCA 321 at [17]; Gould v R (Cth) [2021] NSWCCA 27 at [35]. The assessment of whether the appeal is reasonably arguable must be made in the same summary fashion as an assessment of the strength of the Crown case on a bail application made before trial, and must be a conclusion that is demonstrable without any detailed argument: Williams at [21] - [23].

Consideration

21. In allowing ZT’s original appeal, Kirk JA and Sweeney J arrived at their conclusion that the jury’s verdict was unreasonable and could not be supported by the evidence, which included recordings of the intercepted telephone calls and ZT’s interviews with the police, without listening to or viewing this evidence. Their Honours came to their conclusions based upon the transcripts accompanying the electronic evidence. By way of contrast, Fagan J in dissent, listened to the phone calls and watched the interviews. The reasons why their Honours differed in their respective approaches is not presently relevant.

22. However, it is realistically inevitable when ZT’s appeal is heard by this Court later in the year that the Court is likely to take the same approach to this electronic evidence as Fagan J took. Any consideration of whether the jury were “in a significantly better position … to evaluate” that material, in light of the decision in the High Court, almost impels a conclusion that any proper assessment of the putative advantage enjoyed by them at trial can only be made having regard to the whole of the evidence before the jury and the form in which it was presented.

23. In opposing the present application, the Crown referred to the following passage from the decision of the High Court:

"[54] Several critical aspects of the majority's reasoning in support of the conclusion that the respondent's admissions were unreliable were matters upon which it is apparent that the jury was in a significantly better position than the majority to evaluate. That is especially so with the telephone calls in which the respondent allegedly made more general admissions regarding his involvement in the deceased's killing, such as the conversation with his father described above. In particular, the jury was best placed to determine the contested contextual meaning of such words or phrases as ‘missing’, ‘[w]ell I did, kind of’, ‘making [a] person disappear’ and ‘I witnessed the lot’.

[55] The jury also had an apparent advantage in assessing whether, when discussing the death of the deceased with his parents, especially his father, the respondent was a general fantasist or prone to exaggeration, as Kirk JA found (or more ‘oblique and guarded’, as Fagan J concluded). Kirk JA noted the prosecution's submission to the Court of Criminal Appeal that the jury had the benefit of listening to the tone of the respondent's voice when he was talking (to his father) about ‘making somebody disappear’ in order to evaluate whether he was ‘being quite sort of restrained’ or, as his mother accused him of, being ‘dramatic’. In response, his Honour noted that the Crown Prosecutor did not suggest to the jury at the trial that the respondent was ‘bragging’ and noted that his mother's evidence in cross-examination that the respondent was prone to making up stories was not challenged in re-examination. However, that reasoning did not address the prosecution's point, which was that there was a contrast between the way the respondent generally spoke and how he spoke to his father when discussing the deceased's death." [Emphasis added]

24. Accordingly, the Crown submitted that whereas both Kirk JA and Sweeney J reached their decision without properly considering crucial evidence supporting the prosecution case, and how it informed the significance of the jury's advantage in hearing (and seeing) that evidence, their Honours' conclusions cannot be satisfactorily relied on to establish that ZT’s appeal has good prospects of success.

25. However, in our opinion, that submission either misstates ZT’s contention that his appeal is arguable or overstates the prospect that it is not because listening to the intercepted telephone recordings and/or watching and listening to the police interviews will only or necessarily serve to confirm the jury’s decision. Nor does ZT submit on the present application that his appeal is to be determined, or is inevitably assisted, by the decision of this Court in the first appeal. That is because the evidentiary matters to which the majority originally had regard will be expanded to include the recordings when his appeal is heard by a differently constituted court.

26. It may be accepted, as the Crown submitted, that the difficulty we face in respect of ZT’s bail application is that his sole ground involves an assessment of whether the verdict of the jury is unreasonable and requires detailed analysis of the entire record of trial, without all of that material being before us. As was made plain in the High Court, such an assessment also involves consideration of the audio material which is not tendered on this application. The difficulty in assessing an unreasonable verdict ground, in the course of a release application, that is heard independently of a conviction appeal, is well recognised. As observed by Beech-Jones CJ at CL in Fantakis at [58], "[a] finding on a bail application to the effect that it is likely that this Court will later determine the verdict was unreasonable and cannot be supported having regard to the evidence is likely to be rare."

27. We are of course not asked to, and do not, make any determination of whether the jury’s verdict was unreasonable. It is sufficient for present purposes that we are satisfied that such a conclusion is arguable. The outcome of ZT’s appeal is not foreclosed by the fact that Fagan J dismissed it with the benefit of seeing and listening to the electronic material or that the High Court found error on the part of the majority in this Court for allowing the appeal on the unreasonable verdict ground when they did not.

28. Neither party to this application was able to point to any previous decision of this Court in which an applicant for release on bail pending an appeal to the Court of Criminal Appeal had previously succeeded in an appeal in that court against an identical conviction asserting the very same ground as that which will again be relied upon. That fact alone seems to us to satisfy the test in s 22 of the Bail Act that ZT must show the existence of special or exceptional circumstances that justify the grant of bail. It was on the basis of that (apparently) unique fact, and our opinion that ZT’s appeal is clearly arguable, that we granted bail. Having found that ZT has established that special or exceptional circumstances exist that justify a decision to grant bail, it will be apparent that we were of the opinion that the Crown’s enumerated bail concern that ZT if released from custody will fail to appear at any proceedings for the offence was capable of amelioration by the imposition of the proposed conditions.

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