Ebatarinja v Dunne - [2018] NTSC 66

CITATION:Ebatarinja v Dunne [2018] NTSC 66
PARTIES:EBATARINJA, Harvey

v
DUNNE, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 3 of 2018 (21738039)
DELIVERED:  19 September 2018
HEARING DATE:  14 May 2018
JUDGMENT OF:  Blokland J
CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST PERSON – JUDGMENT AND PUNISHMENT – OFFENCE OF ASSAULT POLICE IN THE EXECUTION OF THEIR DUTY – whether sentence was manifestly excessive having regard to the circumstances of the offending and of the appellant – the exercise of the sentencing discretion having regard to the protection of police – role of general deterrence – whether other subjective considerations specifically the age of the offender diminished – appeal allowed.
Criminal Code (NT), s 189A
Youth Justice Act (NT), s 136

Bara v The Queen [2016] NTCCA 5; Liddy v The Queen [2005] NTCCA 4; Morrow v The Queen [2013] NTCCA 7; Emitja v The Queen [2016] NTCCA 4; Bellis v Burgoyne [2003] NTSC 103; Kumantjara v Harris (1992) 109 FLR 400; Maynard v O’Brien [1991] 57 A Crim R 1; Bugmy v The Queen (1990) 169 CLR 525; Namarnyilk v The Queen [2013] NTCCA 17; JF v The Queen [2017] NTCCA 1; R v Evans [2013] NTCCA 9; Veen v The Queen (No 2) (1988) 164 CLR 465; Marshall v Llewellyn (1995) 79 A Crim R 49; Hogan v Hinch (2011) 243 CLR 506, referred to.

REPRESENTATION:
Counsel:
Appellant:R Anderson
Respondent:  C Ingles
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  BLO1809
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ebatarinja v Dunne [2018] NTSC 66

No. LCA 3 of 2018 (21738039)
BETWEEN:

HARVEY EBATARINJA

Appellant

AND:

ANDREW DUNNE

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 19 September 2018)
Introduction

On 16 March 2018, following pleas of guilty, the appellant was sentenced as follows in the Alice Springs Local Court:
·Engage in violent conduct (count 2 on information) contrary to s 47AA of the Summary Offences Act. Convicted and sentenced to four months imprisonment.
·Assault a police officer while in the execution of their duty (count 4 on information) contrary to s 189A of the Criminal Code. Convicted and sentenced to 30 months imprisonment.
·Possess carry and use offensive weapon at night namely rocks and tyre irons (Count 5 on complaint). Convicted and sentenced to 12 months imprisonment.
The sentences of four and 12 months imprisonment, imposed on counts 2 and 5 respectively, were ordered to be served concurrently with the sentence of 30 months imposed on the sentence for count 4, the charge of assault police. The total effective sentence of 30 months imprisonment was ordered to commence on 8 August 2017. A non-parole period of 17 months was set.
The single ground of appeal is that the sentence imposed was manifestly excessive in all the circumstances of the case. The principles governing appeals of this kind are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing judge acted on a wrong principle or misunderstanding or wrongly assessed some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest error. In relying upon this ground it is incumbent on the appellant to show that the sentence was not just excessive but manifestly so. The appellant must show that the sentence was clearly and obviously, and not just arguably, excessive.[1]
Counsel for the respondent argued the sentence could be considered stern, but not, in the circumstances of the case, manifestly excessive.[2] For the reasons that follow it is concluded the sentence is manifestly excessive in the sense recognised by the authorities. While the offending overall was very serious, when all of the factors pertaining to both the offending and the appellant’s subjective features are taken into account, the sentence of 30 months imprisonment meets the conclusion contended for on the appellant’s behalf. The learned sentencing judge determined the adjustment for the guilty pleas to be 20 percent, hence the starting point for the sentence was in the order of three years imprisonment. The appellant was 20 years old at the time of the offending and while he was an adult, he was still at an age that is relevant for sentencing purposes, permitting some mitigation that may not be available for a mature offender.
All assaults against police are serious for sentencing purposes and the assault in question was plainly serious. It was principally comprised of threatening behaviour with a weapon over the course of an incident at Larapinta Valley Camp. The assault did not involve significant physical contact. The extent of the physical contact was that the appellant hit the back of the bun of the police officer’s hair after chasing her with the weapon. Adding to the gravity of the offending is the fact that the assault was committed during a public disturbance when police officers were isolated and vulnerable. As indicated, there is no doubt this was a serious assault involving the pursuit of the victim with a tyre iron as a weapon, however the resulting sentence falls towards the highest level of sentences that are seen imposed for offences of this kind, well exceeding what is required to meet the objectives of general deterrence and protection of the community, particularly in this instance, police.
Relevant material before the Local Court
What is evident from the Statement of Facts[3] and the body-worn video played to the Local Court and on appeal is that the offending occurred in the context of the aftermath of a difficult attempted apprehension by police of a vulnerable woman, BE at Larapinta Valley Camp. Police Officers attended Larapinta Valley Camp in response to a report of a domestic disturbance. The complainant was identified as BE who was intoxicated. Another man, William Ebatarintja became agitated and aggressive towards police officers who were attending to BE and others in accordance with their duties. Police arrested William Ebatarintja for protective custody. While William Ebatarintja was being escorted to the police car by Officers Kent and Pascoe, he called out to other residents at Larapinta Valley Camp. The Statement of Facts indicates approximately 20 people appeared from their homes and were yelling and threatening towards attending police officers. As the police were in fear of their safety, they released William Ebatarintja.
The officers attempted to continue to engage with BE to identify places she could be taken to for her own safety. She became argumentative with police, to the point of hostility. She was apprehended for protective custody and was clearly agitated about being arrested. As BE was being escorted to the police vehicle she dropped to the ground and began yelling out to the appellant who is her brother ‘Can you come and help me. I don’t want to go to the watch house.’
Approximately 20 people reappeared and approached police. Another person smashed a front window of the police vehicle. The officers then released BE as they were in fear of their safety. They began calling for back-up and commenced retreating from the police vehicle as people at the Larapinta Valley Camp were throwing rocks at them.
The appellant and Harvey Ebatarinjta Senior (“Harvey Senior”) ran out of House 9, towards the officers, yelling abuse. Officer Kent told them to get back but they continued to advance aggressively. They stopped approaching when Officer Kent sprayed his OC spray towards their faces. The appellant picked up a metal tyre iron and ran directly at Officer Pascoe. Harvey Senior picked up a rock and ran at Officer Kent. The officers began retreating for safety reasons, however Officer Kent’s knee was hit by a rock, he was in pain and had to avoid being hit by another person who threw a tyre iron at him. Another man approached them with a star picket.
It was during the course of those events the appellant approached Officer Pascoe with a tyre iron. She began running towards the Larapinta Valley Community Centre, and yelled out to the appellant to “fuck off”. The appellant got within arm’s reach of Officer Pascoe and swung the tyre iron at her head which hit the bun of her hair at the back of her head as she ducked to use her OC spray to protect herself. The appellant continued to chase Officer Pascoe for a few more seconds before stopping. During this part of the episode, Officer Kent discharged his Taser at the man who was running with a star picket. The appellant, Harvey Senior and BE retreated to the area near the police car outside of House 9. The appellant was arrested on 8 August 2017. Although nothing turns on it in the final outcome, there is some confusion in the material before the Local Court as to the date the appellant was arrested. The Statement of Facts states police first attended the Larapinta Valley Camp at 9:00pm on Tuesday 8 August 2017. The offending took place some time after their arrival. The Statement of Facts further indicates the appellant was arrested at 11:40am on Wednesday 8 August 2017. Logically both cannot be correct. In the Local Court the sentencing judge corrected counsel for the appellant, who thought the appellant was arrested on 9 August 2017. It may be noted 9 August 2017 was a Wednesday. In any event it was 8 August 2017 that was accepted by the sentencing judge as the day of arrest.[4] If anything, that slight misunderstanding was a minor benefit to the appellant.
The victim impact statement clearly shows Constable Pascoe was very shaken and was in fear for her life. Constable Pascoe’s reaction is entirely understandable. It was a horrific incident. She suffered profound mental distress. These matters properly inform the assessment of the gravity of the offending, so too do the observations made by the sentencing judge of the body-worn footage. I agree with his Honour’s observations. As indicated above, there is no doubt the offending was very serious. Significant weight was to be given to the impact on the victim who was a female probationary officer. The offending was persistent. It also took place in circumstances where police were tasked with difficult duties and became vulnerable themselves given the reactions of residents of Larapinta Valley Camp.
The appellant’s previous convictions were principally confined to matters in the Youth Justice Court and primarily involved property offending. There were, however, two previous matters of relevance. In 2013 and 2014 the Youth Justice Court recorded findings of guilt for two aggravated assaults committed in 2012 and 2014 respectively. For the offending committed in 2012 and for which there was a court record in 2013, the matter had been initially adjourned without conviction on a no further trouble order. The no further trouble order was found breached in 2013 and the appellant was sentenced to two days detention. He was convicted and sentenced to 21 days detention for the aggravated assault in 2014.
In 2012, for an offence committed in 2011, without proceeding to conviction, the appellant was released on a good behaviour bond for an offence of assault a member of the police force. That matter, given the provisions of s 136 of the Youth Justice Act, was not permitted to be the subject of evidence or mention and was not to be taken into account by a Court other than the Youth Justice Court. Counsel for the appellant in the Local Court mentioned the record for assault police in 2012 at the same time as she addressed the aggravated assaults, without any real differentiation between them.[5] Counsel made the point that the relevant previous offending was committed as a youth and there had been no offences of violence since 2014. Counsel for the prosecution told the Local Court, “He certainly has some history of this, although not by way of a conviction necessarily as a youth”.[6] During the course of the argument on appeal, it was acknowledged the record of this offending came within the terms of s 136 of the Youth Justice Act, that provides that if the Youth Justice Court does not record a conviction, no evidence or mention of the offence may be made or taken into account if the youth was under 15 years at the time. The sentencing judge had regard to the appellant's limited history in the adult jurisdiction and mentioned there were no convictions for assault as an adult, however his Honour noted the appellant’s quite extensive history as a youth and made mention of “offences of violence”.[7] It cannot be known whether the matter in 2012, for offending in 2011, was included in the sentencing judge’s assessment. Neither counsel before the Local Court drew attention to the need to exclude the matter from consideration. As a matter of law, it could not be included in the relevant considerations. His Honour did refer to features generally considered to be matters of aggravation in cases of this kind including prior convictions for assaulting police or violence, when referring to the guidelines set out in Bellis v Burgoyne.[8] No specific error was alleged, however as a matter of law an assessment of the appellant’s prospects, including previous convictions must be made without regard to the matter excluded by s 136 of the Youth Justice Act.
The Court below was told and it was accepted the appellant was 20 years old. The sentencing judge made mention of the appellant’s age and remarked he considered the appellant was just out of being a teenager for sentencing purposes.[9] He also mentioned that having been on remand since 8 August 2017 would not have been an easy experience for him, having regard to his age. His Honour was told the appellant was from Alice Springs and resided at the Larapinta Valley Camp with his family. He completed year nine at school and since being in the Correctional Centre had completed a Certificate I in Numeracy and Literacy which was offered through the Batchelor Institute. He had never worked in paid work but aspired to work in the carpentry field and had requested assistance to find an appropriate course.
In terms of how the appellant came to be involved in the incident, consistent with the Statement of Facts, it was submitted that at the time the appellant became involved, police were arresting his sister and she called out for his assistance. He was intoxicated at the time which impaired his judgement.[10] Counsel for the prosecution emphasised the aggravating features of the offending, the use of a weapon, that the police officer was a female, she was chased, police were outnumbered and had to call for assistance and the victim was placed in fear for her life. The prosecutor submitted it would be appropriate to impose further imprisonment beyond the seven months the appellant had spent in custody on remand.[11]
It was submitted by reason of his pleas it could be shown he accepted responsibility for his actions. In terms of the time taken to finalise the case, counsel below said that from the time she was acting for the appellant, he was not contesting the charges he had pleaded guilty to. The Court was told the guilty pleas were indicated to the three charges on 23 November 2017. Given two charges were withdrawn on the day the pleas were entered, it was said the matter could have been dealt with earlier and it was submitted an early plea discount should be ordered.[12] His Honour determined that in all of the circumstances there should be an adjustment of 20 percent. He said when the matter was first before the Local Court in August 2017, the appellant indicated he intended to plead not guilty to counts 1, 2 and 5, then in September 2017 the indication was to plead not guilty to counts 1, 2, 3 and 5. In November 2017 there was an indication that the not guilty pleas would only be to counts 2 and 3, and the balance would be pleas of guilty. His Honour considered that as a result of the early indications, the matter went through the Local Court listing processes, a brief was served and directions hearings were undertaken. The sentencing judge confirmed that the indication given on 23 November 2017 was in accordance with how the matter had finally proceeded on 13 March 2018. It was not considered to be a plea at the earliest opportunity but still had significant utilitarian value and the reduction was fixed at 20 percent. There is no reason to question the assessment of the value given to the pleas of guilty by the sentencing judge.
Further consideration of the arguments on appeal
The maximum penalty for the offence of assaulting a police officer under s 189A(1) is imprisonment for five years. If the police officer suffers harm the maximum penalty is imprisonment for seven years.[13] If the police officer suffers serious harm, the maximum penalty is imprisonment for 16 years.
Within the context of the charge under s 189A(1), the sentencing judge found the offending fell within the general middle range to slightly above for sentencing purposes. There was no challenge to his Honour’s characterisation, nor could there be, in my view, for reasons already discussed. The argument on appeal was primarily concerned with whether the sentence as a whole, emphasising general deterrence, excluded other sentencing considerations to the extent that it resulted in a sentence that was manifestly excessive.
Reference was made by the sentencing judge to cases in this Court which emphasised general deterrence and the approach to be taken to sentencing in cases of this kind. In Bellis v Burgoyne[14] Mildren J set out the legislative history in regard to changes to the maximum penalty and guidelines distilled from a number of authorities:
Prior to 1994, the offence of assaulting a police officer in the execution of his duty was to be found in s 158 of the Police Administration Act, which fixed a maximum penalty of $1000 or imprisonment for 6 months. In Robertson v Flood (1992) 111 FLR 177 at 188, I observed:
“It is somewhat odd that s 188(1) of the Criminal Code imposes a maximum penalty of one year's imprisonment for common assault, and a maximum of five years' imprisonment if an assault is committed upon a person doing an act in the execution of his duty or if the person is a public servant acting in the execution of his duty; yet the maximum penalty fixed by s 158 of the Police Administration Act is only six months' imprisonment. Perhaps the reason for this attitude by the legislature is that assaulting a police officer is an occupational hazard for which they are trained to deal.”
In 1994, the legislature repealed so much of s 158 of the Police Administration Act as dealt with assaulting a police officer in the execution of his duty, and introduced a new provision, s 189A, into the Criminal Code. That section provides:
189A. Assaults on police
(1)Any person who unlawfully assaults a police officer in the execution of the officer's duty is guilty of a crime and is liable to imprisonment for 5 years or, upon being found guilty summarily, to imprisonment for 2 years.
(2)If the police officer assaulted –

(a) suffers bodily harm, the offender is liable to imprisonment for 7 years or, upon being found guilty summarily, to imprisonment for 3 years; or
(b) suffers grievous harm, the offender is liable to imprisonment for 16 years.
Clearly, s 189A raised the bar considerably. In particular, it is to be noted that the offence of assaulting a police officer in the execution of his duty, without the circumstance of aggravation of causing bodily harm, carries a maximum, now, of imprisonment for 5 years. In Clark v Trenerry (unreported, 17/1/96, BC9601976), B F Martin CJ said, after referring to s 189A:
“Given that the principle role of sentencing is the protection of the community, the Courts would be lacking in their responsibility in that regard if they failed to do as much as is in their legitimate power to protect the police, who have a more direct and vulnerable role in achieving that same objective. That protection can be given, in part, by consistently imposing condign punishment upon those who assault police in the execution of their duty. The Court of Summary Jurisdiction and this Court have indicated that assaulting a police officer in those circumstances invites a gaol sentence and the legislature has since these events also recognised that need as evidenced by the amendments to which reference has been made. It is to be expected, in the light of those amendments, that penalties imposed by way of prison sentences upon conviction for offences such as these will increase substantially, taking into account the much higher maximum penalties.”
There are a number of guidelines which can be distilled from previous authorities which are relevant when courts are required to sentence offenders on pleas of guilty for assaulting police:
Each case requires individual assessment and treatment: (Yardley v Betts (1979) 1 A Crim R 329 at 334: applied by Kearney J in Golder v Pryce (unreported, 24/12/97)).
There is no presumption that there must be a gaol term: (Robertson v Hood (1992) 111 FLR 177 at 188: Casey v Haywood per Kearney J 12/3/97, unreported).
However, an immediate gaol sentence can generally be expected where:
The offender deliberately assaults police in order to impede them from performing their work: Hayes v Trenerry (unreported, Kearney J 13/3/95, para 18).
There is some other aggravating feature about the case, for example: the appellant may have a prior conviction for assault police or for violence; or the appellant may have used or threatened to use a weapon: see Ferguson v Chute (unreported, Mildren J 3/6/92), applied in Casey v Hayward (unreported, Kearney J 12/3/9). I would add to this category cases where the police officer has suffered bodily or grievous harm, or has been put in fear of his safety, or has suffered psychological trauma as a result of the attack.
Where the offence took place in circumstances where the police were outnumbered, or in a remote location away from assistance: Kumantjara v Harris (1992) 109 FLR 400 at 409.
Obviously, there may be mitigating circumstances which may persuade the sentencer to suspend the sentence fully or to impose a home detention order or community service order or fine. Commonly, assaults at the lower end of the scale will not attract actual custodial sentences if the offender is a juvenile or youthful first offender who has pleaded guilty and is remorseful, for example.
It would also be relevant to consider whether or not the sentence fell within or without any tariff which may have been set. No material has been put before me of recent penalties to establish whether there is a tariff in the Court of Summary Jurisdiction. I was referred to my observations in Ferguson v Chute, supra, as to what the statistics revealed in 1992. However, that material is now very old and predates the enactment of s 189A of the Criminal Code. In Casey v Haywood, supra, Kearney J expressed the view that there is no sentencing tariff for assault police, a view followed by Thomas J in Lansen v Marshall (unreported, 25/2/03, BC200300436). In my opinion, having regard to the very wide range of circumstances of this offence and of the offender which may fall to be considered, the views of Kearney and Thomas JJ are plainly correct.

The sentencing judge referred extensively to Bellis v Burgoyne, agreeing with the view expressed that s 189A raised the bar considerably by providing the maximum penalty of five years imprisonment for the offence without circumstances of aggravation. His Honour went further and said an amendment in May 2016 removing a jurisdictional limit on summary jurisdiction further raised the bar. It may however be observed that a jurisdictional limit is not generally accepted to be the appropriate guide. It is always the maximum sentence imposed by the statute that the sentencing Court looks to, not the maximum limit of the jurisdiction.[15] In any event, this matter is far more serious than those cases that may invite a consideration of an alternative disposition to that of imprisonment. It is clear imprisonment was required to meet the objective of general deterrence and to fulfil the requirement to protect police in the terms explained in the relevant authorities.
As stated by Kearney J in Kumantjara v Harris[16] assaults on police are serious matters and the Courts have a protective role in relation to police:
When imposing punishment on those who commit aggravated assaults on police officers carrying out their duty, the courts are always conscious of the need for general deterrence. By the nature of their work, which is carried out in the public interest of maintaining peace and good order, police are always in a vulnerable position. The courts have always seen them as a particular category of persons who require the protection of the courts, as far as it can be given from physical violence. This aspect is particular to the fore, when the officers are in a particularly vulnerable situation, such as those posted in remote locations. The appropriate sentence in such cases will be one of immediate imprisonment of a fairly long term.
Clearly the sentencing judge gave substantial weight to general deterrence and the prevalence of assaults against police.[17] This latter factor was given particular emphasis and no complaint was made as to the appropriateness of emphasising prevalence. While general deterrence is the dominant sentencing principal in cases of this kind, other relevant factors are not so diminished as to have little or no bearing on the overall assessment of the appropriate sentence.
Although not raised as a separate ground of appeal, it was submitted on behalf of the appellant the setting of the non-parole period at 17 months was manifestly excessive. While it is the case the sentencing judge set a non-parole period beyond the minimum term of 50 percent as required by s 54(1) of the Sentencing Act, his Honour was not required to fix the minimum term, which in any event would have amounted to two months less. A disparity of that kind would not readily be illustrative of manifest excess.
Reliance was placed on Namarnyilk v The Queen[18] where the Court of Criminal Appeal stated, “Even when denunciation, general deterrence and punishment are properly taken into account, as they must be in fixing a non-parole period, they ought not be permitted to dominate the considerations to the exclusion of rehabilitation”.[19] The Court in Namarnyilk drew attention to the remarks of Crockett J, which were quoted with approval in Bugmy v The Queen:[20]
[I]t seems to me to be inappropriate, and possibly counter-productive, to a prisoner’s possible rehabilitation, and so to the community interest, if an inordinately long period, every day of which must be served, is fixed as a non-parole period. This, of course, is not to say that in fixing a minim term the elements of deterrence and retribution are to be disregarded.
While the non-parole period is higher than the statutory minimum, it is marginally so and by itself would not lead to a conclusion of manifest excess.
I am however persuaded the relevant subjective factors, especially the age of the appellant who had not offended in any relevant way since 2014 when dealt with by the Youth Justice Court in circumstances where he has lived all of his life in the Larapinta Valley Camp have been substantially diminished in the sentencing considerations. After a sentence is set which is proportionate to the offending, within that limit, subjective factors “will point to what is the appropriate sentence in all the circumstances of the particular case.”[21] The mitigating effect of youth may well persist beyond 18 years of age. For example in R v Evans,[22] the Court of Criminal Appeal found no error in treating a 26 year-old offender as youthful for sentencing purposes. In my view the age of the appellant permitted meaningful mitigation in this case.
In my view it was appropriate for the sentences to be ordered to be served concurrently given the almost complete overlapping of the sentencing facts relevant to each charge.
The Local Court was not assisted with significant material relevant to rehabilitation. In those circumstances and given the seriousness of the offending, it was on balance appropriate to order a non-parole period. In re-sentencing the appellant, a non-parole period will be set. Given the appellant’s age, I would have considered setting the period around the minimum, however that is no longer practical given the time for the determination of the appeal. I agree with the suggestion made in the respondent’s written submissions that a COMMIT form of parole may well be suitable in the circumstances of this appellant, but that will be a matter for the Parole Board.[23]
In re-sentencing the appellant the considerations are primarily the need to denounce and punish given the seriousness of the offending as already set out. The need to set a sentence that deters others and the appellant from committing offences against police is paramount, however the sentence must also recognise that at 20 years old the appellant is entitled to meaningful mitigation. He may also benefit from a programme to encourage his rehabilitation, if he satisfies the Parole Board he is suitable. I will apply the same adjustment for the plea as the learned sentencing judge. I bear in mind the protective function of sentencing, noticing also the observation of French CJ in Hogan v Hinch[24] that “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.”
Orders
The appeal is allowed with respect to the sentence on count 4.
On count 4 the appellant is convicted and sentenced to imprisonment for two years with a non-parole period of 14 months commencing on 8 August 2017.
-----------------------------

[1] Bara v The Queen [2016] NTCCA 5 at [75]-[76]; Liddy v The Queen [2005] NTCCA 4 at [12]; Morrow v The Queen [2013] NTCCA 7 at [30]; Emitja v The Queen [2016] NTCCA 4 at [39].

[2]Respondent’s written submissions at [12].

[3] Exhibit P1 in the Local Court; transcript of proceedings, Local Court, Alice Springs, p 3-6.

[4] Exhibit P1, Statement of Facts at [5], [22]; transcript, Local Court, Alice Springs, 13 March 2018, pp 3, 4, 5, 9; transcript, Local Court, Alice Springs, 16 March 2015, p 10.

[5]Transcript, Local Court, Alice Springs, 13 March 2018, p 9.

[6]Transcript, Local Court, Alice Springs, 13 March 2018, p 10.

[7] Transcript, Local Court, Alice Springs, 16 March 2018, p 10.

[8][2003] NTSC 103.

[9]Transcript, Local Court, Alice Springs, 16 March 2018, p 10.

[10] Transcript, Local Court, Alice Springs, 13 March 2018, p 7.

[11] Transcript, Local Court, Alice Springs, 13 March 2018, p 10.

[12] Transcript, Local Court, Alice Springs, 13 March 2018, p 8.

[13] Criminal Code, s 189A(2)(a).

[14][2003] NTSC 103.

[15]Maynard v O’Brien [1991] 57 A Crim R 1 at 6.

[16](1992) 109 FLR 400 at 409.

[17]Transcript, Local Court, Alice Springs, 16 March 2018, p 11.

[18] [2013] NTCCA 17.

[19] Namarnyilk v The Queen [2013] NTCCA 17 at [53]; JF v The Queen [2017] NTCCA 1 at [59]-[60].

[20] Bugmy v The Queen [1990] 169 CLR 525 at 538 per Dawson, Toohey and Gaudron JJ.

[21]Veen v The Queen (No 2) [1988] 164 CLR 465 at 491 per Deane J; Marshall v Llewellyn [1995] 79 A Crim R 49 at 53.

[22] [2013] NTCCA 9; see also JF v The Queen [2017] NTCCA 1.

[23]Respondent’s written submissions at [11].

[24](2011) 243 CLR 506 at 537.