not what you say, but how you say it in a confession

The High Court’s decision in The King v ZT (2025) addresses a question that sits at the centre of modern criminal litigation – how appellate courts must approach cases in which the jury’s verdict rests heavily on recorded evidence.

As surveillance material, police interviews and telecommunication intercepts become more prevalent in serious criminal trials, the question of who must listen, who must watch and who may form an evaluative judgment becomes critical. This case places renewed emphasis on the responsibilities of intermediate appellate courts when concluding that a jury’s verdict is unreasonable.

What follows is a detailed examination of the factual setting, the procedural sequence, the determinative legal issues and the High Court’s clarifications. The aim is to outline, in the clearest operational terms, what this decision means for future appeals involving recorded evidence.

Background to the Case

ZT was tried for murder. (ZT, a pseudonym appointed by the court) The prosecution’s case did not rest on eyewitness testimony or forensic reconstruction but on a body of admissions made by ZT in intercepted telephone calls and in formal police interviews. These recordings were played to the jury and tendered as exhibits. They formed the central evidentiary foundation for the Crown case.

At trial, the jury convicted ZT. The admissions including their tone, cadence, spontaneity and character were treated by the prosecution as direct acknowledgments of criminal responsibility. Defence submissions focused on reliability, context and potential misinterpretation but ultimately the jury was satisfied beyond reasonable doubt.

ZT appealed to the New South Wales Court of Criminal Appeal. By majority, the Court quashed the conviction. The majority reasoned that the recorded admissions were “not sufficiently reliable” to sustain a safe conviction and that the verdict was unreasonable. Crucially, the majority reached this conclusion without listening to or viewing the recordings themselves. Instead, they relied upon transcript summaries and the broader record.

The Crown appealed to the High Court.

Issues for Determination

The case presented two core issues.

First – whether an appellate court may find a jury verdict unreasonable without reviewing recorded evidence that the jury viewed or heard. The majority of the NSWCCA treated the transcripts as adequate substitutes and concluded that the appellate court could evaluate reliability without engaging directly with the audiovisual material.

Second – whether the jury had an evaluative advantage that the appellate court was required to acknowledge before intervening. When verdicts hinge on tone, inflection or behavioural cues in an audiovisual record, the question becomes whether the jury, by virtue of watching and listening, occupies a privileged position that cannot be discounted.

These issues go beyond doctrinal boundaries. They speak to the architecture of the criminal justice system – which institution has primacy in interpreting evidence and when appellate intervention is justified.

High Court Reasoning

The High Court allowed the Crown’s appeal. The Court began by affirming a principle that is both straightforward and consequential: an appellate court is not precluded from viewing or listening to recorded evidence. Indeed, where the forensic significance of that material is substantial, an appellate court may be obliged to review it.

The Court stressed that intermediate appellate courts routinely watch or listen to recorded testimony, including police interviews, CCTV and body worn video. No procedural barrier exists.

The High Court then held that the NSWCCA majority erred by concluding the jury held no advantage over the appellate court. Without listening to or viewing the recordings, the NSWCCA could not reliably make that judgment.

The trial jury had listened to the tone and delivery of ZT’s statements. They had the opportunity to perceive nuance that cannot be fully captured in a transcript including pauses, emphasis, emotional state and contextual cues.

The High Court emphasised that in unreasonable verdict appeals, this advantage cannot be dismissed unless the appellate court meaningfully engages with the material itself. An appellate court may ultimately decide that the jury enjoyed no advantage, but it must reach that conclusion on a fully informed basis.

Accordingly, the matter was remitted for redetermination.

Nuances and Operational Significance

Several nuanced points emerge from the decision.

1. Transcripts are not complete records.

A transcript may capture words but not meaning. When reliability or intention turns on the way something was said, the transcript becomes a secondary and incomplete source. The High Court’s reasoning acknowledges that appellate review must sometimes mirror the trial experience.

2. There is no rigid hierarchy between trial courts and appellate courts on audiovisual material.

The Court rejected any suggestion that appellate courts should avoid reviewing recordings. Instead, the judgment places responsibility firmly on appellate courts to engage directly with exhibits that underpin a verdict.

3. The unreasonable verdict test is sensitive to the nature of the evidence.

Where the case is documentary or where factual findings rest largely on objective material, appellate courts have wide latitude. Where tone, affect and delivery matter, the appellate court must account for those perceptual elements before displacing the jury’s role.

4. The case anticipates modern evidentiary realities.

Police interviews, intercepted calls and covert recordings are now staples of serious criminal litigation. This case situates the appellate function firmly within those realities. The Court makes clear that contemporary appeals cannot be conducted on paper alone.

Professional Significance

The King v ZT (2025) reshapes how appellate courts approach the unreasonable verdict test in cases built on recorded material. It confirms that intermediate courts must review audiovisual evidence where its forensic weight is central and must avoid conclusions about jury advantage that are not grounded in firsthand assessment.

For practitioners, the decision heightens the strategic importance of recorded evidence on appeal and reinforces the need to treat transcripts as partial, not primary, sources. It also signals that future appeals involving surveillance, intercepts or recorded interviews will require rigorous and comprehensive appellate engagement with the recordings themselves.