Criminal law
Appeal – Recorded evidence
In The King v ZT [2025] HCA 9 (2 April 2025), the High Court allowed an appeal from the Court of Criminal Appeal of the Supreme Court of NSW.
The accused was charged with murder. The principal evidence was alleged admissions recorded via telephone intercepts and police interviews.
These recordings were played to the jury and tendered as exhibits. The accused was convicted and appealed to the Court of Criminal Appeal, on the grounds the conviction was unreasonable or could not be supported having regard to the evidence.
The majority of the Court of Criminal Appeal did not view or listen to the recorded principal evidence, but allowed the appeal, quashed the conviction and entered a judgment of acquittal. The matter was subsequently appealed to the High Court.
The High Court considered whether the Court of Criminal Appeal erred, in that the reasonable doubt could not be explained away by the jury’s natural advantages in having listened to the principal evidence without having listened to the principal evidence, and also whether the Court of Criminal Appeal failed to discharge its appellate function by failing to listen to the principal evidence.
The Court considered the appellate function and the High Court decisions in M v The Queen [1994] HCA 63, Pell v The Queen [2020] HCA 12 and the real forensic purpose test.
The Court of Criminal Appeal could not have assessed whether there was an advantage of the jury listening to the principal evidence if they had themselves not listened to it and formed a view.
The High Court held that:
“[I]t was not open to the majority of the Court of Criminal Appeal to both decline to listen to any part of the intercepted telephone calls or watch any part of the recorded police interviews and decide that the jury did not have any advantages capable of resolving its doubt. Given the nature of the doubt held, the majority did not have a rational basis to conclude that the jury had no advantages capable of resolving its doubt without having seen and heard sufficient of the evidence to identify the existence, nature and scope of the jury’s advantage(s), if any” (at [21]).
Restrictive trade practices
Nature of an “understanding” – Competition and Consumer Act 2010 (Cth)
In Australian Competition and Consumer Commission v J Hutchinson Pty Ltd; Australian Competition and Consumer Commission v Construction, Forestry and Maritime Employees Union [2025] HCA 10 (2 April 2025) (ACCC v Hutchinson; ACCC v CFMEU), the High Court dismissed appeals from the Full Court of the Federal Court of Australia.
At issue was whether there was the nature of an understanding in Part IV of the Competition and Consumer Act 2010 (Cth) (Act) specifically pursuant to ss45(3) and 45EA.
J Hutchinson Pty Ltd (Hutchinson) was the head contractor on Southport A, a building project in Queensland, and engaged a subcontractor to undertake waterproofing works on the project site. The subcontractor undertook some work on site but did not have an enterprise bargaining agreement (EBA) with the Construction, Forestry and Maritime Employees Union (CFMEU).
There was an existing EBA between Hutchinson and the CFMEU that required Hutchinson to consult the CFMEU on any subcontractor hiring.
The CFMEU threatened industrial action if the subcontractor was allowed back on site.
There was no verbal or written confirmation by Hutchinson to accede to the demands of the CFMEU. Hutchinson, however, excluded the subcontractor from the project site.
The Australian Competition and Consumer Commission (ACCC) brought civil penalty proceedings on the basis that there had been an arrangement or understanding based on the meetings between Hutchinson and the CFMEU and the threatened action by the CFMEU.
At first instance, Hutchinson was fined $600,000, and the CFMEU was fined $750,000. They appealed to the Full Court, and the ACCC appealed to the High Court.
The High Court cited Rural Press Ltd v ACCC [2003] HCA 75 as an example of a case where a party communicating by an act or words acceding to a threat could be construed as an understanding or arrangement (at [21]).
The High Court held that:
“A person who succumbs to a threat of industrial action by doing what is demanded under sanction of the threat, without express or tacit communication of a commitment to do so, does not arrive at an understanding with the person who makes the threat for the purposes of s 45E(3) (and s 45EA) of the Act” (at [4]).
Native title
Land abutting – Connection with land and waters
In Stuart v South Australia [2025] HCA 12 (9 April 2025), the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia, on behalf of First Nations Australians who identify as “Arabana”.
The Arabana people claimed native title over 150 square kilometres around the township of Oodnadatta, SA, known as the “Overlap Area”.
The proceedings related to s223(1) of the Native Title Act 1993 (Cth) (Act) and whether the appellants possess “rights and interests” under the traditional laws acknowledged and the traditional customs observed, as well as “a connection with land and waters” by those customs and laws.
The proceedings commenced in the Federal Court.
The High Court held that the trial judge erred in applying the test under s223(1) by focusing on physical acts of observance and acknowledgment of traditional laws and customs, rather than by asking the “broader question of whether the Arabana, by their traditional laws and customs, have a ‘connection’ with the Overlap Area” (at [3]).
The High Court remitted the proceedings to the Federal Court for a determination of native title claim under s223(1) of the Act.
