DB v Cassidy - [2022] NTSC 52

CITATION:DB & Anor v Cassidy & Anor
[2022] NTSC 52
PARTIES:DB

AND

RJ

v
CASSIDY, Craig

AND

SCOTT, Amelia

TITLE OF COURT:  SUPREME COURT OF THE NOTHERN TERRITORY
JURISDICTION:  Appeal from LOCAL COURT exercising Territory jurisdiction
FILE NOs:LCA 42 of 2021 (22121388)
LCA 43 of 2021 (22121387)

DELIVERED:  9 September 2022
HEARING DATE:  29 June 2022
JUDGMENT OF:  Burns J
REPRESENTATION:
Counsel:
First Appellant:  S Moody
Second Appellant:  S Arnab
Respondent:  S Lapinski
Solicitors:
Appellants:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number:  Bur2209
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
DB & Anor v Cassidy & Anor [2022] NTSC 52

No. LCA 42 of 2021 (22121388)
No. LCA 43 of 2021 (22121387)
BETWEEN:

DB

First Appellant

AND:

RJ

Second Appellant

AND:

CRAIG CASSIDY

First Respondent

AND:

AMELIA SCOTT

Second Respondent

CORAM: Burns J
REASONS FOR JUDGMENT
(Delivered 9 September 2022)

The appellants were jointly charged in the Alice Springs Youth Justice Court with three charges contrary to ss 213, 210 and 241(1) of the Criminal Code Act 1983 (NT). The first charge alleged that on 12 July 2021, at Alice Springs, the appellants did unlawfully enter a building, namely 4 Hearne Place, Braitling – Northside IGA (‘Northside IGA’) with intent to commit an offence therein, namely stealing. The second charge alleged that on 12 July 2021, the appellants stole various personal hygiene products, food stuffs including beverages, alcohol and cigarettes of an unknown value, being the property of Northside IGA. The third charge further alleged that on 12 July 2021, the appellants did, at Northside IGA, intentionally or recklessly cause damage to property, namely an internal door lock to the bottle shop, belonging to Northside IGA.
On 30 September 2021, each of the appellants pleaded not guilty to the first charge and guilty to each of charges two and three. On that date, the matter proceeded to a hearing before a Judge of the Local Court in relation to that first count. On 7 October 2021, the trial Judge found each of the appellants guilty of the offence charged on count one.
On 3 November 2021, each of the appellants lodged an appeal against conviction in relation to count one pursuant to s 163 of the Local Court (Criminal Procedure) Act 1928 (NT) and s 144 of the Youth Justice Act 2005 (NT). Each appellant pleaded a sole ground of appeal, namely that the finding of guilt in relation to count one was unsafe and unsatisfactory. There was no appeal against either of the sentences imposed on either appellant.
Evidence and findings of the trial Judge
The hearing before the trial Judge proceeded primarily on the basis of a set of agreed facts. Relevantly, for the purposes of this appeal, it was an agreed fact that, at 8.15pm on 12 July 2021, each of the appellants, along with a number of other persons, were recorded entering the front entrance of Northside IGA. At that time, the supermarket was open and the appellants entered the premises through a valid entrance available to the public. It was a further agreed fact that, after entering the premises, the appellants entered an internal storeroom, which was off limits to customers, at the rear of the supermarket where they remained hidden until the supermarket closed and the premises was locked by a supervising staff member.
Consistent with the pleas of guilty entered by each of the appellants in relation to charges two and three, there was a further agreed fact that offences of damage property and stealing occurred shortly after the appellants emerged from the storeroom at 9.20pm on 12 July 2021.
CCTV footage was also tendered by the prosecution at the hearing before the trial Judge. No issue was taken by either party, either at the hearing before the trial Judge or on the appeal, in relation to the veracity of the timestamps contained in the CCTV footage. Relevantly, the footage shows, at the timestamp of 8:15:53 PM, the second appellant entering the internal storeroom and moving directly to an unspecified location within the storeroom not captured on the footage. At the timestamp of 8:17:19 PM, a staff member enters the storeroom, moves to another area at the rear of supermarket not captured on the CCTV footage, before reappearing and exiting the storeroom at the timestamp of 8:19:02 PM. At the timestamp of 8:20:07 PM, the first appellant, along with a number of other young persons can be seen running into the storeroom together and following the same path taken by the second appellant, that is, toward an unspecified location within the storeroom not captured on the CCTV footage.
The primary issues at the hearing before the trial Judge were: firstly, whether the appellants entered the building unlawfully; and secondly, whether, at the time they entered the building, each of the appellants possessed the requisite intentions. There was no dispute in relation to the identities of each of the appellants. In resolving these issues it is necessary to note that the appellants were charged with unlawfully entering the building particularised on the charge sheet, being Northside IGA, and not the storeroom within Northside IGA.
In relation to the scope of the authority granted to each of the appellants to enter the supermarket, the trial Judge held:
…as a matter of common sense…when a person enters a shop during business hours, the scope of that person’s authority to enter is limited to entry as a customer to purchase or browse or to transact business of some nature related to the business of the shop.
The scope of the authority to enter for any such purpose is confined to business hours and further confined to the areas made available for public circulation.
After hearing submissions from both the prosecutor and the appellants’ then counsel, the trial Judge reviewed the evidence and made the following findings:
…the CCTV footage shows all five co-offenders…53 seconds after entry…make their way to the back of the store.
…common-sense concludes no other conclusion that [they have] gone directly to that part of the shop, given the timing and given the fact that that part was located at the rear of the premises.
In relation to each appellant, the trial Judge further found:
The evidence supports a finding beyond reasonable doubt that [the second appellant’s] sole purpose in entering the building was unrelated to the permission of authority that she had.
[The first appellant’s]…entry to the storeroom was timed slightly after [the second appellant’s], but it was certainly timed around the presence of a staff member shown in the CCTV footage and executed in the same fashion as [the second appellant] without any hesitation or uncertainty as to where she was going.
And the overwhelming inference in [the first appellant’s] case, also noting the timing of the movements of [the first appellant] and the purposeful identical nature of them, albeit at separate times, is that that purpose was premeditated.
The overwhelming inference to be drawn is that the [appellants] both entered solely to effect the criminal acts that resulted…
The learned trial Judge also observed:
…there is no evidence before this court that supports any alternative hypothesis of a legitimate purpose as a customer and there is no evidence that suggests any ambiguity in the purpose of either defendant that casts doubt on the finding that I’ve made with regard to the purpose of entry.
Accordingly, I am satisfied, beyond reasonable doubt, that both defendants entered the store with a purpose that was beyond the scope of their authority to enter and I am satisfied, beyond doubt, that the elements of…the offence of unlawful entry are made out in each case.
Ground of appeal: unsafe and unsatisfactory
The principles to be applied in appeals of this nature are well established and were set out by the Court of Criminal Appeal in PW v The Queen[1]:
In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
"… in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
The plurality explained the application of the test as follows:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although Brennan J said that the question as to whether it was "open to the jury" to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was "upon the whole of the evidence ... bound to have a reasonable doubt" or whether "the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused".
In Libke v The Queen, Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[2]
(citations omitted)
As the Court of Criminal Appeal subsequently observed in Lynch v The Queen[3]:
An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdicts reached by the jury.[4]
(citations omitted)
In written submissions in support of the present appeal, counsel for the appellants submitted that the trial Judge failed to consider or give sufficient weight to the following matters:
(a)     the scope of the implied authority granted to each appellant to enter the building was general in nature and not confined to a particular purpose;
(b)     in relation to the intention of each appellant at the time of entry, other hypotheses consistent with innocence, including the notion that each appellant may have entered the premises with a lawful purpose;
(c)     the paucity of evidence available to establish the act of unlawful entry itself, as opposed to the respective intentions of each appellant at the time of entry; and
(d)     in relation to inferences drawn from the circumstances established by the evidence, other reasonable explanations of those circumstances consistent with the innocence of each appellant.
The offence of unlawful entry
Section 213 of the Criminal Code Act 1983 (NT) provides:
213 Unlawful entry of buildings
(1)Any person who unlawfully enters a building with intent to commit any offence therein is guilty of an offence.
“Unlawfully” means without authorisation, justification or excuse.[5] An act of entry is authorised if it is done pursuant to authority, permission or licence.[6]
The definitions of “building” is found in s 1 of the Criminal Code:
building means any structure complete or otherwise, not being a flimsy or insubstantial structure by the standards of the community to which the owner or the occupier of it belongs, that, except in the 3 cases hereinafter mentioned, is not readily moveable and that is used or intended for the occupation of man or his animals or the storage or shelter of his goods; it includes a caravan, ship and an erected tent used or intended for any such purpose;”
The elements of the offence of unlawful entry were explicated by Southwood J in Doolan v Eaton[7]:
There are two distinct and substantive parts to the crime of unlawful entry. First, there is the unlawful entry. Second, there is the specified intent. In addition to the specified intent, the act of unlawful entry itself must be accompanied by the requisite mental state. The person must intend to unlawfully enter the building. The elements of an offence of unlawful entry are: (1) the person voluntarily and deliberately entered the building; (2) the person entered the building without authorisation, justification or excuse; (3) at the time he entered the building the person was aware that he did so without authorisation or justification or excuse in entering the building; and (4) at the time the person entered the building he intended or meant to commit an offence inside the building, in this case the crime of stealing.
The elements of the offence are governed by the text of s 213 and all other relevant provisions of the Criminal Code. However, common law principles which are applicable to the circumstances in which a person will be authorised or permitted to enter a building may be applicable when determining the existence, nature and extent of the authorisation to enter which a person has on a particular occasion.[8]
(citations omitted)
In Barker v The Queen (‘Barker’)[9], the High Court considered the meaning of entry as a trespasser, that is, entry which is unlawful, in the context of the criminal offence of burglary. Relevantly, for the purposes of the present appeal, in a joint judgement, Brennan and Deane JJ considered the scope of the typical implied invitation extended by a shopkeeper to enter a premises:
…a permission to enter land need not be confined by reference to the purpose of the entry and, except in the case where it is so confined, a purpose of subsequently doing an unlawful act will not, under the common law, convert entry which was otherwise within the permission into entry as a trespasser. In particular, to take the example on which most reliance was placed, the implied invitation to enter which a shopkeeper extends to the public may ordinarily be limited to public areas of the shop and to hours in which the shop is open for business: it is not, however, ordinarily limited or confined by reference to purpose. Indeed, in the context of the importance of “impulse buying”, the mere presence of the prospective customer upon the premises is itself likely to be an object of the invitation and a person will be within the invitation if he enters for no particular purpose at all. The fact that a person enters with the purpose or some thought of possibly stealing an item of merchandise or of otherwise behaving in a manner which is beyond what he is authorized to do while on the premises does not, in the ordinary case where the invitation to enter is not confined by reference to purpose, result in the actual entry being outside the scope of the invitation and being trespassory.[10]
In a separate judgement, Mason J emphasised the need to closely analyse any invitation, or implied invitation, to enter a premises:
In many instances, it will be difficult, if not impossible, to establish that the accused entered as a trespasser. His intention to steal may have arisen after entry or it may have been accompanied by another intention or purpose which brought the accused’s entry within the ambit of the shopkeeper’s implied invitation. There is a strong element of generality in the shopkeeper’s invitation to the public to enter his premises. It is not an invitation to enter only for the purpose of doing business or with a view to doing business. The invitation ranges more widely, though it certainly does not amount to an invitation to steal. It will always be necessary to make a close analysis of the implied invitation held out by the shopkeeper and of the belief of the offender as to this right to enter the premises.[11]
Where a person is found to have unlawfully entered a building, there remains a question of whether, at the time of entry, they possessed the requisite intentions, being: firstly, an intention to enter the building without authorisation, justification or excuse, and secondly, an intention to commit an offence inside the building.
With respect to the former intention, being an intention to enter a building as a trespasser, that is, unlawfully, Brennan and Deane JJ observed in Barker:
The fact that an entry was, in a particular case, as a “trespasser” within the common law meaning of that word will satisfy that element of the offence created by s 76(1). It will not, however, satisfy the requirement that the actus reus must be accompanied by mens rea before an offence under s 76(1) will be committed. A person who enters upon another’s property as a trespasser, though he has the specific intent mentioned in s 76(1), is not guilty of an offence under that provision unless he knows the facts which make him a trespasser or, at the least, he is reckless as to the existence of those facts.[12]
In Kural v The Queen[13], the High Court observed that the existence of a requisite intention is a question of fact and that in most cases, the existence or otherwise of that fact will rely on an inference drawn from primary facts found by the trier of fact.
Where the prosecution case depends upon circumstantial evidence, to find the accused guilty, the accused’s guilt must be the only reasonable inference which can be drawn from the circumstances established by the evidence,[14] and, if the trier of fact considers that there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, they must find the accused not guilty.[15] In other words, the prosecution must exclude all reasonable hypotheses consistent with innocence.[16] This is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.
For an inference to be reasonable it must rest upon something more than mere conjecture.[17] The bare possibility of innocence should not prevent a trier of fact from finding the accused guilty if the inference of guilt is the only inference reasonably open upon a consideration of all the facts.[18] It follows, therefore, that the mere existence of a conclusion consistent with innocence will not necessarily mean the prosecution has failed to establish its case.
On the other hand, it is not incumbent on the defence to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference, which simply reflects the fundamental principle that the prosecution must prove the charge beyond reasonable doubt.[19]

Where competing inferences arise in a case, it is for the trier of fact to determine whether the inference of guilt arises, and if so, whether it completely overcomes all other inferences so as to leave no reasonable doubt remaining.[20]
Relevantly, Section 214(3) of the Criminal Code also provides:
214 Uncertainty as to offender’s intent, &c.
…
(3)Proof of the fact that a person has unlawfully entered a building is evidence that he did so with intent to commit an offence therein.
This section would appear to suggest that, proof of the fact of an unlawful entry can be used by a trier of fact to support an inference that an accused person has entered a building with an intent to commit an offence therein. It perhaps worth noting however, that the mens rea attaching to the unlawful entry itself is a separate element of the offence that would need to be established on the evidence prior to any consideration of s 214(3).
Consideration
The agreed facts tendered at the hearing before the trial Judge prove that each of the appellants entered Northside IGA at 8.15pm on 12 July 2021.
Unlike Barker, this was not a case where there was a right of entry to premises which was expressly limited in its scope. This was a case, as the parties accepted, of an implied licence being granted to the world at large to enter retail premises. The learned trial Judge found “as a matter of common sense” that the scope of the appellants’ authority to enter Northside IGA was limited to entry as a customer to purchase or browse or to transact business of some nature related to the business of the shop. Her Honour went on to further confine that scope of authority to being both during business hours and within areas made available for public circulation.
That finding of fact, as to the existence, nature and extent of the implied invitation or authorisation granted to the appellants on this particular occasion appears not to have been based on an analysis of the implied invitation afforded to each of them. Rather, it appears to have been a finding based on an assessment of what constitutes common sense.
This may well have been because the evidence upon which the learned trial Judge was asked to determine the scope of the implied licence granted to entrants by the proprietors of Northside IGA to enter those premises was scant. There was no evidence, and certainly none was referred to by the trial Judge, that the proprietors of the premises had expressly limited the scope of the licence granted to entrants in the manner found by the learned trial Judge. It would appear that the willingness of the proprietors to allow the public to enter the premises was simply demonstrated by the proprietors making entry to the premises available to the public through a particular entrance to the store. Doubtless, the willingness of the proprietors to allow such entry and the fact that the proprietors carried on the business of a supermarket from the premises were matters of notoriety.
There is no evidence available to support a finding that the implied invitation granted to each of the appellants in this case was limited or confined by reference to purpose. It would appear that the implied invitation was general in nature, confined to public areas of the shop and to hours in which the shop was open for business, but not by reference to purpose.
It is possible to hypothesise many purposes for which a person may enter a retail store which, if known to the proprietor of the store, would result in the proprietor withdrawing any implied authority or licence to enter the store. For example, an entrant may be intent on disrupting the business of the store by protesting against the nature of the goods being sold. Alternatively, the entrant may be a business rival entering for the purpose of seeing how the business is being conducted so as to gain a competitive advantage. It would seem counterintuitive to suggest that an implied licence to enter the store would extend to entry for those purposes, but I have no doubt that such a person could not be said to have unlawfully entered the store.
In determining whether a particular entry to premises such as Northside IGA was beyond the scope of the authority to enter granted by the proprietors, the question is not what the proprietors would have done if they had been aware of the entrant’s purpose for entering the premises. Still less is it a question of what a third party, even a Judge, thinks the proprietors would have done had they been so aware. The question is: what did the proprietors do, either expressly or implicitly, to demarcate or otherwise define the scope of the authority to enter the premises granted to the entrants? In the present case, there is no evidence that the proprietors did anything, except open the supermarket to the public.
On that basis, each of the appellants entered Northside IGA lawfully, that is, they entered the building, as particularised on the charge sheet, using a public entrance during business hours. Whether the appellants did so with the sole purpose of committing offences therein does not undermine the otherwise lawfulness of the entry because the scope of the authority granted to the appellants to enter was not limited or confined by reference to purpose. Additionally, the fact the appellants subsequently entered an area not available to the public does not retroactively undermine the lawfulness of the appellants’ initial entry into the building.
In their written submissions, the respondents placed great weight on Mason J’s observation in Barker, set out in the extract at [20] above, that a shopkeeper’s invitation to enter their premises “does not amount to an invitation to steal”.[21] It is unclear from this observation whether Mason J was suggesting that an implied licence to enter retail premises will have implied into it a restriction as to purpose, but, if so, this would be contrary to the approach taken by the majority of the High Court in Barker. While Dawson J’s statement that “a person who enters another’s premises with intent to steal will ordinarily enter as a trespasser because permission to enter is not normally given for such a purpose”[22] is consistent with the approach taken by Mason J, it is inconsistent with that taken by the remainder of the Court. As is revealed in the extract from the joint judgment of Brennan and Deane JJ set out at [19] above, their Honours concluded that entry for a purpose remote from that contemplated by the person granting a licence to enter premises will not make the entry unlawful where the invitation to enter is not specifically confined by reference to purpose.
Murphy J’s preferred approach, contrary to that adopted by the other members of the Court, was to restrict the meaning of the term “trespasser” in the offence provision such that consideration of “fine points” of the terms of motive for granting permission to enter need not be critical. His Honour went on to say, however:
Even if the theory of limited purpose is applicable, entry as a trespasser is proved only if the act of entry itself was limited by purpose and the entry was not for that purpose; it would not be enough to show that the limitation of purpose was upon what was to be done when in the building.[23]
In the above passage, Murphy J draws a distinction between implying a restriction on the grant of a right of entry to premises based upon the purpose for which the entrant enters, and implying a restriction on what the entrant is entitled to do in the premises. This was, in effect, the approach endorsed by Brennan and Deane JJ where there is no express limitation upon the purpose for which a person may enter the premises. While Murphy J was in dissent as to the disposition of the appeal in Barker, his Honour’s reasoning on this issue is consistent with that of Brennan and Deane JJ.
It follows that it is not necessary to determine whether each of the appellants possessed the requisite mens rea in relation to the supposed unlawful entry itself. The state of mind of each of the appellants, at the time of entry, can only be inferred from the circumstances established by the evidence, and in this case, from the outset, the circumstances do not establish that either appellant entered the building unlawfully. I will nevertheless record my conclusion that it was not open to the learned trial Judge to be satisfied beyond reasonable doubt that each of the appellants entered Northside IGA with the intention of unlawfully entering that building. The appellants, DB and RJ, were 15 and 14 years of age respectively at the time of the alleged offending. There was no evidence before the learned trial Judge as to their level of education or understanding of the finer points of what may constitute authority or justification for entering the public entrance to the Northside IGA. In the circumstances, it was not open to the learned trial Judge to be satisfied that the appellants entered the Northside IGA building using a public entrance during business hours with an awareness that their entry was unlawful. In Barker, Dawson J said:
…a person accused of burglary may enter premises with intention to steal, but nevertheless in the belief that he is entitled to enter. A person who enters premises with apparent consent but with intent to steal, such as an ordinary shoplifter, is likely to believe at the time he enters the premises that he has the same right of entry as other persons, notwithstanding the criminal purpose for which he enters. If intercepted before attempting to steal anything, no doubt he would say that he had done nothing wrong and was entitled to be on the premises. And if he believed that to be so, as he very well might, the mental element required to prove entry as a trespasser would be lacking, notwithstanding evidence of that other aspect of intent required for burglary, an intent to steal at the time of entry. Before there can be a burglary there must be an entry as a trespasser with intent to enter as a trespasser as well as with intent to steal.[24]
Turning to the second form of intention required by the offence provision, being the intention to commit an offence inside the building, the learned trial Judge found that, at the time the appellants entered Northside IGA, they each possessed an intention to commit an offence inside the building, namely stealing. This inference appears to have been drawn from a number of primary facts established on the evidence, including:
(a)     Approximately 53 seconds after having entered the building, the second appellant entered the storeroom at the rear of the supermarket and proceeded to hide.
(b)     Approximately one minute and 26 seconds later, a staff member entered the storeroom, before exiting the storeroom a further one minute and 43 seconds after having entered it.
(c)     Approximately 48 seconds later, and some four minutes and 14 seconds after first entering Northside IGA, the first appellant, together with several other young persons, ran into the storeroom and proceeded to hide.
(d) Approximately one hour later, the appellants emerged from where they had remained hidden and proceeded to commit offences of stealing and damage property.
In relation to the second appellant, I am satisfied that it was open to the trial Judge to infer from these circumstances that, when the second appellant entered Northside IGA, they did so with an intention to commit an offence therein. I am equally satisfied that there is no other reasonable explanation of those circumstances which is consistent with the second appellant not having entered Northside IGA with the intention of committing an offence therein.
In relation to the first appellant, unlike the second appellant, who entered the storeroom some 53 seconds after having entered the building, the first appellant entered the storeroom some four minutes after having entered the building. This length of time supports the submission made by counsel for the first appellant, namely that there remains a reasonable doubt that the first appellant did not enter the building with an intention to steal, but rather formed such an intention after entering the building.
Upon the whole of the evidence, I am satisfied that the trial Judge must have entertained a reasonable doubt as to the guilt of each appellant. The appeal is allowed. The convictions on count 1 in relation to each appellant are to be set aside and verdicts of acquittal entered.

-------------------------------------

[1] [2020] NTCCA 1.

[2] PW v The Queen [2020] NTCCA 1 at [107]-[108].

[3] [2020] NTCCA 6.

[4] [2020] NTCCA 6 at [17].

[5] Criminal Code Act 1983 (NT), s 23.

[6] Criminal Code Act 1983 (NT), s 26(1)(d).

[7] [2011] NTSC 52.

[8] Doolan v Eaton [2011] NTSC 52 at [33]-[34].

[9] (1983) 153 CLR 338.

[10](1983) 153 CLR 338 at 362 per Brennan and Deane JJ.

[11]Barker v The Queen (1983) 153 CLR 338 at 348 per Mason J.

[12] (1983) 153 CLR 338 at 365 per Brennan and Deane JJ.

[13](1987) 162 CLR 502 at 505 per Mason CJ, Deane and Dawson JJ.

[14]Shepherd v The Queen (1990) 170 CLR 573; Chamberlain v R (No 2) (1984) 153 CLR 521.

[15]See generally: R v Hodge (1838) 2 Lewin 227; Mannella v R [2010] VSCA 357; Knight v R (1992) 175 CLR 495; Shepherd v The Queen (1990) 170 CLR 573; Chamberlain v R (No 2) (1984) 153 CLR 521; Barca v R (1975) 133 CLR 82; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584.

[16]The Queen v Baden-Clay (2016) 258 CLR 308 at [46], [50]; Barca v The Queen (1975) 133 CLR 82 at 104. See also Peacock v R (1911) 13 CLR 619; Barca v R (1975) 133 CLR 82; Chamberlain v R (No 2) (1984) 153 CLR 521; Doney v R (1990) 171 CLR 207; R v Allen [2007] VSCA 97.

[17]The Queen v Baden-Clay at [47] citing Peacock v The King (1911) 13 CLR 619 at 661.

[18] Peacock v R (1911) 13 CLR 619; Barca v R (1975) 133 CLR 82.

[19] R v Kotzmann [1999] 2 VR 123; R v Lancefield [1999] VSCA 176; Knight v R (1992) 175 CLR 495; Shepherd v The Queen (1990) 170 CLR 573; R v Sorby [1986] VR 753; Grant v R (1976) 11 ALR 503.

[20] R v Plomp (1963) 110 CLR 234; Peacock v R (1911) 13 CLR 619.

[21]Barker v The Queen (1983) 153 CLR 338 at 348 per Mason J.

[22] (1983) 153 CLR 338 at 373 per Dawson J.

[23] Barker v The Queen (1983) 153 CLR 338 at 354 per Murphy J.

[24] Barker v The Queen (1983) 153 CLR 338 at 371 per Dawson J.