Zafirovska v The Queen [2022] HCATrans 36 (17 March 2022)

Last Updated: 23 March 2022

[2022] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B27 of 2021

B e t w e e n -

SIMONA ZAFIROVSKA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 17 MARCH 2022, AT 1.06 PM

Copyright in the High Court of Australia
GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MS K.M. HILLARD appears with MR M.A. RAWLINGS for the applicant. (instructed by Wallace O’Hagan Lawyers)

MR P.J. McCARTHY, QC appears with MR S.J. BAIN for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld)).

GAGELER J: The circumstances are that the video connection to Brisbane has been severed and that we have, I believe, a telephone connection established. Ms Hillard, can you hear me?

MS HILLARD: Yes, your Honour.

GAGELER J: Mr McCarthy, can you hear me?

MR McCARTHY: Yes, your Honour.

GAGELER J: Thank you. Yes, Ms Hillard.

MS HILLARD: In respect of the matter, the applicant, Mrs Zafirovska requires time. Our affidavit at pages 103 to 135 sets out the material – and it is set out in our response at page 144 to 146. I understand that the respondent has taken the view, quite properly, that merit is subsumed by the extension of time and if there is merit in the appeal, that time is not opposed.

GAGELER J: Yes, thank you. You should proceed, I think, Ms Hillard.

MS HILLARD: In respect of the grounds themselves, the modern view – as your Honours would well be aware, of M v The Queen – it requires the weighing‑up of the evidence and the short form of what is open on the evidence is often expressed by the courts. It of course requires the Court to look to the jury to resolve doubt where there is, otherwise, credible evidence and it forms part of the process – not, necessarily, a two‑step one.

The more recent decision of Pell – and noting that in this particular case, the hearing for Mrs Zafirovska took place – the High Court decision in Pell was handed down and then Mrs Zafirovska’s decision in the Court of Appeal was handed down. Pell, having been handed down in that interim, reaffirms the view, of course, in M, and reinforces that, despite apparently credible evidence from, in that case, a complainant, that in all of the circumstances, an unreasonable verdict can still stand.

GAGELER J: Ms Hillard, we are dealing with very well‑settled principles, are we not?

MS HILLARD: Yes.

GAGELER J: Yes.

MS HILLARD: The only other point that I was going to make, it cannot be limited, of course, to only a complainant case where a complainant has given evidence, it has to apply, of course, to a circumstantial case as well.

The first point that we make in our special leave application – and the issues that we raise in our first issue, appearing at paragraph 12 of our application – is the process that we say was flawed by the Court of Appeal, first of all identifying three facts and distilling the matters down into the three facts and by going though, then, this process that, we say, they identify and say that the jury could have inferred – the jury may have considered particular things. The jury may have considered that she was wearing gloves. She could have cleaned herself. It embarks on a process that, we say, has never been the law when it applies to M.

The test has never been what is possible for a jury and that was re‑affirmed in Pell. The test has never been a deferral that the jury is correct. That has been affirmed repeatedly. It has never been about identifying a pathway to guilt which is a matter that was criticised by the High Court in Coughlan. In respect of this case, we say it is not that far removed from what occurred in Pell, of looking there at possibilities that could lead towards guilt, rather than the proper test that should have been applied in this case.

The second issue that we raise, in our outline, concerns the application of the gloves and the way that the Court of Appeal went to the use of the gloves to explain absence of evidence. As noted, obviously, already, in respect of Pell, currently credible evidence can be overcome where there is other evidence otherwise. Looking at simply a possibility is not enough. Significantly, too, is, perhaps, the principles of Baden‑Clay where the Court of Appeal cannot look for evidence that is not there.

The point that we make in our special leave application is that there is positive evidence – and lack of evidence – that the gloves were ever counted; they were never tested; the box was never tested and there is nothing at all to indicate that they had been touched or used by her; there were no gloves found in a used form; no gloves found in a disposed form; nothing found at the property, in the bins or in any other items at all at the property. We express the concern of the process of the Court of the Appeal in looking to that somewhat speculative matter and the possibility of that matter as a source of concern.

In respect of our third and fourth issues, if I can deal with them together, the Court of Appeal expressed the significant possibility and, in their view, that there was no significant possibility that there had been an intruder who secreted the weapon – what was said to be the weapon – in her room. We make the point that that is, of course, not the test in the circumstantial case, although I observe that that is a part of the statement in M. The concern, as well, when the Court of Appeal expressed that there was no evident explanation for why it would be left by intruders in her room, overlooks the fact that she had no positive case to prove and she did not actually, in fact, have to establish any kind of explanation at all.

Of particular concern as well, was her record of interview and the reference that the Court makes at paragraph 130 and 131, where they talk about – I call it the “intruder theory” – but where they speak about the reference to her record of interview. The Court then goes immediately on to speak of M and Baden‑Clay. It is of particular concern that, in this case, it appears that they have limited the consideration to the record of interview. In circumstances where Baden‑Clay was quite different, where the defendant there gave positive evidence contrary to the hypothesis and there was, in fact, no evidence at all in support of the alternate hypothesis, the manslaughter, contrary to what we have here.

In respect of the circumstantial evidence in this case, we say that there is an overwhelming body of evidence consistent with innocence such that guilt is not the only rational inference and that the verdict is unreasonable. We set that out at paragraphs 11 and 18 in our outline. If I may speak to some of those matters and speak to the issues around the three facts. The Court of Appeal, in deciding to identify these three facts, does not specifically identify them as essential facts, or Shepherd facts, or intermediate facts. Regardless, they identify them, at paragraph [102], as facts that the jury should be satisfied of in order to convict.

They do not express the necessary requisite standard one would expect, if it was a Shepherd fact. They do not specifically address how the concealment of the weapon by her, for fact number 3, leads to a conclusion that she, in fact, committed the murder in circumstances where that was never left as post‑defence conduct – as your Honours can see from the summing‑up in the application book, from about page 47 onwards.

Concerning the weapon, itself, we make the points, in our outline, about the absence of evidence – the very small amount of the blood; the fact – and I trespass into the facts, of course ‑ ‑ ‑

GAGELER J: I am sorry ‑ ‑ ‑

MS HILLARD: ‑ ‑ ‑ bearing in mind your Honours do not have that.

GAGELER J: ‑ ‑ ‑ Ms Hillard, what do you mean by the absence of evidence? I do not understand that reference.

MS HILLARD: In respect of the weapon, itself – despite the fact that there is a drop of blood, or drip of blood on the weapon – or what is said to be the weapon – there is an absence of evidence, necessarily, connecting it to, what we say, the murder. There was not the volume of blood that would have ordinarily been expected. The expert who gave evidence about the wiping to, perhaps, explain why there was not blood on there, there was positive evidence that it had not, in fact, been wiped and there was no evidence to say that it had been wiped. It was pure speculation that it could have been.

GAGELER J: Ms Hillard, are the facts recorded in paragraph [104] correct?

MS HILLARD: Excuse me, your Honours, I will just double‑check that paragraph in front of me. In respect of paragraph [104], what the Court of Appeal says, is that the blood is fresh. That is not accurate. There is conflicting evidence about that. One person said that it is dry and bright, another said that it is wet, and in respect of being in the furrows on one side of the object, there appears to be conflicting evidence about whether it was within one or multiple furrows of the object.

STEWARD J: Ms Hillard, can I ask a question? At paragraph, I think, 11b. of your application, you refer to the victim’s body being warm, so that the crime had been committed in the morning. Do we have a finding about a time of death?

MS HILLARD: We do not have a finding about the time of death. The forensic evidence at the trial was unable to say and, to my recollection, I can say that there was no inquiry made about how long a body stays warm for. That warmth of the body came from the police officer who attended the scene and, in his experience, expressed the view that she was halfway between being rigor mortis and having died.

STEWARD J: Thank you.

MS HILLARD: If I can move to the second aspect, and one of the dismissal features about the alleged weapon itself? Concerning the placement of the weapon and the challenge about it not being placed in a photograph, rather in situ, there was cross‑examination of the relevant officers who located the item. The floor was, of course, not tested. There was no indication of whether there had been blood on the floor. The TMB positive test had been done on the surface of the weapon but other evidence revealed that, for example, TMB when they were talking about the bathroom could demonstrate cleaning products as opposed to blood. There is real concern, in our submission, about whether the Court properly informed itself about whether, in fact, it was the weapon involved.

In respect of the concealment and it being placed in situ, I have already addressed that. The fact that there was no challenge – as the Court of Appeal dismissed it – to the item being concealed, we make the observations, in our special leave application, that it was not entirely invisible because it was seen, it was found, it was located, and it was pulled out. There are some real illogicalities in having concealed it in such a manner in her room when she has been, on the findings of the Court of Appeal, so careful to have washed herself – so careful to have washed the house, and all of her clothing and disposed of the apparent gloves without trace. Yet, never have washed this item, and there is positive evidence that the weapon was not washed at all and there is just a presumption of it being wiped.

In respect of the third fact, we set out the many other features inconsistent with guilt and the many features that are consistent with someone else having been involved and having committed the offence. I do not intend to repeat those, but to simply emphasise some of the points, that the officers smelt no soap; she had not appeared as though she had bathed or washed her hair – it was completely dry. It was consistent with having had been to the hairdresser the day before. There was absolutely no damage to her immaculate and manicured nails. She was distressed when the police attended. Significantly, as we point out in our outline, there were unidentified prints located at the house which the Court of Appeal did not reference but is significant – and that is at paragraph 18l. on page 100 of our outline.

The complete absence of blood in the tracks in the house is significant. The reliance on the Court of Appeal in stating, essentially, that that did not prove that there was no washing, in our submission, is not adequate in a case such as this. We say that there are mounting implausibilities as to concealment by her and that the body of the evidence is so significant that it does not overcome the rational inference that that was the only conclusion that could have been reached about guilt.

In respect of the way that the Court of Appeal dealt with that third fact, of particular concern in the way that it has been conducted and distilled in that way, is that it, essentially, was dealt with as though it was post‑offence conduct and it was never left in that way, as I said, by the court
on the trial initially. That was something that the jury was never directed about, and the way that the Court of Appeal approached the matter by reference to Baden‑Clay it looks as though they appeared that they have limited the consideration of the case accordingly.

Unless your Honours had any specific questions and unless your Honours wanted me to go through more of the facts – we set them out in short form quite extensively in our special leave application – those would be my submissions.

GAGELER J: Ms Hillard, thank you. We will adjourn momentarily to consider the course we will take.

AT 1:21 PM SHORT ADJOURNMENT

UPON RESUMING AT 1:24 PM:

GAGELER J: We do not need to call on you, Mr McCarthy.

MR McCARTHY: Yes, your Honour.

GAGELER J: We are not persuaded that there is an arguable case that the Court of Appeal fell into error in the application of the well‑settled principles in M v The Queen [1994] HCA 63; (1994) 181 CLR 487. The proposed appeal would therefore have insufficient prospects of success to warrant the grant of special leave. In those circumstances, an order extending the time for the filing of the application is unwarranted. The application is refused.

The Court will now adjourn.

AT 1:25 PM THE MATTER WAS CONCLUDED