Mahendra v Court
[2020] NTSC 16
•24 April 2020
CITATION:Mahendra v Court [2020] NTSC 16
PARTIES:MAHENDRA, Mahesh Rizvi
v
COURT, Michael
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 1/19 (21810718)
DELIVERED: 24 April 2020
HEARING DATES: 28 March 2019
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIMINAL LAW – Appeal from Local Court – whether finding of guilt was
unsafe and unsatisfactory – Failure to call witnesses – insufficient evidence – Reasonable doubt as to the guilt of the appellant – Appeal allowed and conviction quashed.
CRIMINAL LAW – Appeal from Local Court – elements of offence – criminal responsibility determined by PART IIAA Criminal Code (NT) prescribed conduct must be voluntary and intended.
CRIMINAL LAW – Appeal from Local Court – wilful blindness does not
equate to knowledge or intention.
CRIMINAL LAW – Appeal from Local Court – s 144 of the Evidence Act – Matters of common knowledge
Aboriginal Land Rights Act 1976 (Cth)
Criminal Code Act 1983 (NT)
Evidence (National Uniform Legislation) Act (NT)
Liquor Act 1978 (NT)
Local Court (Criminal Procedure) Act1928 (NT)
Northern Territory Emergency Response Act 2017 (Cth)
Police Administration Act (NT)Stronger Futures in the Northern Territory Act 2012 (Cth)
Blacker v The Queen [2011] NTCAA 10; 30 NTLR 65; Chidiac v The Queen [1991] HCA 4; 171 CLR 432; Gattello v Westpac Bank Corp [2004] HCA 6; 78 ALJR 394; He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523; Kural v The Queen [1987] HCA 16; 162 CLR 502; Libke v The Queen [2007] HCA 30; 230 CLR 559; M v The Queen [1994] HCA 63; 181 CLR 487; Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145; Pell v The Queen [2020] HCA 12; Pereira v Director of Public Prosecutions (Cth) [1988] HCA 57; 35 A Crim R 382.; RPS v The Queen [2000] HCA 3; 199 CLR 620; SKA v The Queen [2011] HCA 13; 243 CLR 400; Tyrell v The Queen [2019] VSCA 52; Whitehorn v The Queen [1983] HCA 43; 152 CLR 657 considered.
Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019)
REPRESENTATION:
Counsel:
Appellant:M Benn
Respondent: G Dooley
Solicitors:
Appellant:Povey Stirk Lawyers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: BLO2003
Number of pages: 37
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINMahendra v Court [2020] NTSC 16
No. LCA 1/19 (21810718)
BETWEEN:
MAHESH RIVZI MAHENDRA
Appellant
AND:
MICHAEL COURT
Respondent
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 24 April 2020)
Introduction
This is an appeal against conviction. On 30 November 2018, a Judge of the Local Court found the appellant guilty of the offence of bring liquor into an alcohol protected area, contrary to s 75B(1) of the Liquor Act 1978 (NT) (‘Liquor Act’), read together with s 8 of the Stronger Futures in the Northern Territory Act 2012 (Cth) (‘Stronger Futures Act’).
The appellant was a taxi driver. In short, on 3 March 2018 at approximately 12:30pm the appellant was observed by police driving his minibus taxi through a drive-through bottle shop. Police followed the minibus and at approximately 12:45pm the minibus was stopped by police within the boundaries of Amoonguna. Amoonguna is an alcohol protected area. There were a number of people inside the vehicle when it was stopped.
Police located the following items in the minibus:
(i)At the scene of the apprehension, a cardboard box containing eight bottles of Poker Face chardonnay wine, located on the floor of the rear passenger area; and
(ii)After a more thorough search at the police compound, a brown paper bag containing one 750ml bottle of rum and one 750ml bottle of bourbon, located in the console between the front passenger seat and the driver’s seat.
There were three central issues before the Local Court. The first was whether the appellant’s minibus was within the boundaries of the Amoonguna community when it was stopped by police. The second was whether the prosecution had established beyond reasonable doubt that the appellant knew of the presence of the alcohol in the vehicle. The third was whether the appellant had proved, on the balance of probabilities, the defence provided by s 75B(7) of the Liquor Act, namely, that the act of bringing alcohol into the protected area occurred in an emergency and was necessary to preserve life, prevent injury or protect property.
The Judge at first instance expressly found against the appellant on each point and found him guilty of the charge.
A further issue was the potential defence of duress. At the commencement of the hearing in the Local Court, the prosecutor drew the issue of duress to the Court’s attention.[1] The appellant gave evidence which clearly raised duress, however it would appear the defence of duress became conflated with the defence under s 75B(7) of the Liquor Act. The learned Local Court Judge did not expressly rule on the defence of duress, however the respondent argues that evidence which potentially supported a defence of duress was considered and rejected. The same or at least a similar body of evidence relevant to the statutory defence provided in s 75B(7) of the Liquor Act was also relevant to duress, however the onus of proof differs between the two defences. The defence under s 75B(7) of the Liquor Act requires a defendant to prove the defence of emergency on the balance of probabilities. Duress under s 43BB of the Criminal Code requires the defendant to discharge the evidential onus, a lesser burden. If sufficient evidence is raised to consider duress, the Crown bears the onus to exclude duress beyond reasonable doubt.
The single ground of appeal and particulars are as follows:[2]
1.The verdict was unsafe and unsatisfactory.
(i)The learned Local Court Judge erred in finding that the prosecution had established beyond reasonable doubt that the appellant knowingly brought alcohol into the protected area.
(ii)The learned Local Court Judge erred in failing to find that the defence of duress pursuant to s 43BB of the Criminal Code Act 1983 (NT) had not been negatived beyond reasonable doubt by the prosecution.
(iii)The learned Local Court Judge erred in determining that the defence contained in s 75B of the Liquor Act, read together with s 8 of the Stronger Futures Act, had not been proved by the defendant on the balance of probabilities.
The appellant has not sought to challenge the findings that the minibus was stopped within Amoonguna or that Amoonguna is an alcohol protected area. Those issues dominated the hearing in the Local Court.
It may be observed that the particulars of the single ground of appeal do not allege errors of law. The particulars claim the ultimate finding of guilt was unsafe and unsatisfactory because the requisite knowledge was not proven beyond reasonable doubt, duress was not negated beyond reasonable doubt and it was found that the defendant had not proven the defence under s 75B of the Liquor Act.
Each particular of the single ground is to be considered within the context of a review of the evidence by this Court in accordance with the principles set out in M v The Queen.[3] In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ stated:[4]
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’, or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But 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 approach to be taken in accordance with M v The Queen requires this Court to make its own independent assessment of the whole of the evidence to determine whether, having regard to any advantages of the Court below, it has a reasonable doubt about the guilt of the appellant, or whether it “would be dangerous in all the circumstances to allow the verdict of guilty to stand.”[5] In SKA v The Queen[6] this aspect of the reasoning process was described as the “central question”. The central question is not one of merely asking whether, as a question of law, there was evidence to support the verdict, but rather, an independent assessment of the whole of the evidence must be made.[7] In undertaking the task of conducting an independent assessment of the evidence, the appellate court is required to weigh any competing evidence that might tend against the verdicts reached by the jury.[8] When answering the central question an appellate court is to pay full regard to the jury’s, or in this instance the Local Court Judge’s, benefit of having seen and heard the witnesses. In relation to this aspect of the process, the majority in M v The Queen said:[9]
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.
Counsel for respondent emphasised Hayne J’s judgment in Libke v The Queen[10] where his Honour said:[11]
But the question for an appellate court is whether it is 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.
Counsel for the respondent submitted this passage clarified the approach set out in M v The Queen. While that may be so, the passage from Libke cannot be said to have made the test more stringent, or otherwise altered the test to be engaged with, in accordance with M v The Queen.
As the Victorian Court of Appeal said of the above extract from Libke in Tyrell v The Queen:[12]
It is important to bear in mind that, in that passage Hayne J did not restate the test in terms that were more stringent than that in which it was expressed in M. By emphasizing that the question is whether the jury ‘must’ have entertained a doubt about the appellant’s guilt, Hayne J gave emphasis to the essential test, to be applied by the appellate court, as to whether it was ‘open to the jury’, acting reasonably, to convict.
It was not intended to depart from the test, as stated, in M v The Queen. The High Court has recently confirmed that Libke did not depart from M v The Queen.[13]
The Local Court Judge was required to draw inferences in respect of proof of the relevant fault elements, relevantly intention or knowledge. An inference which is adverse to an accused should only be drawn if it is the only inference reasonably available. The ultimate inference is to be drawn from the whole of the evidence. In the context of an appeal against convictions for historic sexual offending which proceeded on the acceptance of direct “credible and reliable evidence”, the High Court examined the role of an appeal court and said:[14]
The Court examines the record to see whether, notwithstanding that assessment [of credible and reliable evidence] – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
Notwithstanding credible and reliable evidence, the question raised by the unsafe and unsatisfactory ground is whether the evidence as a whole is capable of excluding a reasonable doubt.[15]
Review of the evidence
As the question of whether Amoonguna is an alcohol protected area is not an issue on appeal, the review here will not include evidence relevant to that issue.
It may be noticed that three civilian witnesses who, according to the evidence may or may not have been summonsed, did not appear at the hearing to give evidence. Those witnesses were passengers in the minibus. Aside from possibly receiving a warning, the evidence was that none of the other occupants of the minibus were the subject of any proceedings for Liquor Act offences. It was unclear if they had in fact been served with summonses to attend the hearing. Senior Constable First Class Bravos told the Local Court he believed another police officer had summonsed all of the witnesses on 16 November 2018, for the hearing on 20 November 2018. The police witnesses who were called were unaware if attempts were made to locate the witnesses on the morning of the hearing, or to obtain statements from any of the civilian witnesses.[16] The significance of this issue will be discussed later in these reasons, but it is clear the prosecution elected to proceed without any of the civilian witnesses. No application was made for an adjournment in order to secure their attendance. After the appellant had given evidence in the proceedings, an application was made by the prosecution to re-open its case to call one of the passengers, Mr Dwanye Nandi. Mr Nandi, unbeknown to counsel for the prosecution at the time, had been brought to the Court in custody on an unrelated matter. In those circumstances it was unsurprising the Judge refused the application to re-open the prosecution case.[17]
The three police officers who apprehended the appellant’s minibus and gave evidence were Detective Acting Sergeant Wilson, Detective Senior Constable Hiley and Senior Constable First Class (‘Senior Constable’) Andrew Bravos. Detective Acting Sergeant Wilson told the Court, they were conducting patrols at 12:30pm on 3 March 2018. As they approached the Gap View Tavern they observed a minibus that was in the drive-through of the Tavern for a short time. They followed the minibus in their unmarked police car as it left the Tavern and continued onto Ross Highway, then turned onto White Gum Road. Once it was within the limits of the Amoonguna Community, the minibus was intercepted. Police held the suspicion that there was alcohol in the minibus and that the occupants of the minibus had brought it into an alcohol protected area.[18] Their suspicion was based on the observation that the minibus stopped at the Gap View drive-through. Detective Wilson said he saw people entering the vehicle, but did not see people putting liquor into it. He said it was normal for people to purchase alcohol at a drive-through.
Once the minibus was stopped, Detective Wilson opened the left sliding door. There were a number of occupants present as well as the driver (it is common ground the appellant was the driver; the appellant will at times be referred to as the ‘driver’ in these reasons). Detective Wilson observed a cardboard box which was on the floor at the entrance to the back of the vehicle. He said the box was visible from the driver’s position. As he opened the door the driver was looking at him and he appeared to be in his line of sight. When the box was searched, eight bottles of ‘Poker Face’ wine were found. The occupants left the minibus and Senior Constable Bravos engaged with the driver on the driver’s side of the minibus. Detective Wilson recalled that Senior Constable Bravos cautioned the driver and recorded the conversation. Asked why he brought alcohol into an alcohol protected area, the driver said words to the effect that he was not aware of the alcohol and that he thought the occupants were just checking prices when they were at the Gap View Tavern. Detective Wilson said he thought there were six persons in the minibus. He spoke to one of the occupants named Jennifer Andy. Ms Andy was one of the civilian witnesses who did not appear at the hearing.[19]
Once a number of procedural steps were taken, the minibus was seized and a more thorough search was conducted at the police compound. A bottle of Jim Beam and a bottle of Bundaberg Rum were found in the front centre console in a brown paper bag. Detective Wilson did not know whether the occupants, aside from the appellant faced any legal consequences for the alcohol being found.[20]
Counsel for the prosecution below also asked questions of the police witnesses which were relevant to negating potential defences raised in the appellant’s statement to police. For example, Detective Wilson was asked whether he observed any of the passengers in possession of a screwdriver. He did not. He said the passengers did not appear agitated but were calm and compliant. He described the appellant as quite anxious. He said the appellant did not make complaints to Senior Constable Bravos against the other passengers. Photos of the box, the seized liquor, the brown paper bag showing its contents and the position of the alcohol were tendered.[21] The exhibited photographs have been examined during the course of the appeal.
A substantial amount of the cross-examination of Detective Wilson concerned whether or not the appellant was apprehended in an alcohol protected area. In terms of finding the alcohol after the minibus was stopped, Detective Wilson said he approached the sliding door on the left hand side and opened the door. He was not sure where Detective Senior Constable Hiley was at that time, he thought he may have been behind him. He then saw the cardboard box which he thought looked like a box of liquor. He questioned some of the occupants in the car who he suspected may have purchased the alcohol. He received answers from some of them identifying whose alcohol it was. He could not say if any of them had been charged with Liquor Act offences. He agreed it was possible that the alcohol he saw which was just inside the door could have been moved to a position adjacent to the door shortly before he arrived. In re-examination he said it was 10 or 20 seconds at the most between pulling over the minibus and opening the sliding door.[22]
Counsel for the respondent pointed out[23] that Detective Hiley gave a much briefer account of the route to Amoonguna. It was submitted that his testimony was important as it conflicts with the appellant’s account of going via the Heavitree Gap chicken shop, which is not on the Ross Highway. The appellant had stated that it was around the area of the Heavitree Gap store that a child passenger was crying and that was when he was pressured to go to Amoonguna. It is not evident there is a clear conflict between the accounts and not a great deal turns on that point in any event.
Detective Hiley said he first observed the alcohol after the minibus had parked and he approached the sliding door on the passenger side. He could not remember the type of box but said it was an opened box with eight bottles of Poker Face wine, which was positioned to the driver’s left hand side, just behind the driver towards the sliding door.[24]
Detective Hiley said he did not believe the passengers faced any consequences for having the alcohol. They did not appear to be agitated and seemed fine. He did not see a screwdriver or any weapon. The driver appeared to be panicky about being pulled over.[25]
Senior Constable Bravos gave evidence of his conversations with the appellant. He informed the appellant that police would be conducting a search of the minibus, as he suspected there was alcohol in it. He opened the sliding passenger door and saw a box on the floor containing eight bottles of Poker Face. He observed the box to be within the clear view of the driver’s seat. Detectives Hiley and Wilson spoke with the passengers, who were residents of Amoonguna while he recorded a conversation with the appellant. The appellant told him that he did not know there was alcohol within the minibus and he did not know that the passengers had purchased any alcohol while at the drive through. Senior Constable Bravos informed the appellant that his minibus was being seized for bringing alcohol into a restricted area. When the other police officers took the minibus to the police compound, he drove the appellant to his home. He also saw Detective Wilson locate two bottles of spirits in the centre console of the minibus. He made inquiries with respect to obtaining CCTV footage of the Gap View Hotel.[26]
Senior Constable Bravos said he believed the passengers were cautioned about purchasing and bringing alcohol into the community. There was nothing out of the normal in relation to their demeanour. They were not aggressive or agitated. He did not recall any passenger having a screwdriver. He would have noted or remembered a screwdriver if he had seen one. During his conversation with the appellant, Senior Constable Bravos said the appellant was agitated, nervous and clearly shaking. The conversation took place when the appellant was either still sitting in the driver’s seat or standing outside the vehicle next to the driver’s seat. The passengers were not in view during that conversation. Whilst talking to police officers at the scene the appellant did not indicate that he felt threatened by passengers in the vehicle. However Senior Constable Bravos said he was aware of a later statement forwarded from the appellant to the DPP.[27]
Senior Constable Bravos said he did not follow up the issue of the screwdriver being raised in the appellant’s statement of 21 May 2018. He thought it was part of the follow up that he had referred to Detective Sergeant Hopwood, but the referral was not acted on. There were no further inquiries made about that matter. He agreed that if a screwdriver had been stuck to the driver’s ribs, it might explain why the driver was shaking.[28]
Senior Constable Bravos said he did not believe the appellant’s statement that he did not know about the alcohol because the box of alcohol was behind the passenger area in clear view of the driver’s seat. He agreed the alcohol may have been moved, however he thought the CCTV showed a box being put into the minibus. He agreed it was conjecture as to where the alcohol was positioned after the Gap View Hotel and before the apprehension.[29]
It may be noted the CCTV footage does not show any object or product going into the minibus. Counsel for the respondent identified that the CCTV footage remained part of the prosecution case.[30] After the CCTV footage was played in the Local Court, counsel for the prosecution announced it would not be relied on for the purpose of showing alcohol going into the minibus. As part of the review of the evidence in this Court the CCTV footage has been played, as it remains part of the respondent’s case. No goods or persons can be seen going into or out of the minibus on the footage.
The prosecution tendered the recorded s 140 Police Administration Act (NT).[31] The recording has also been listened to as part of the review of the evidence. Senior Constable Bravos cautioned the appellant a number of times. The appellant told him he did not understand. Senior Constable Bravos explained the right to silence in a number of different ways. My impression is that Senior Constable Bravos was cautious and professional in his dealings with the appellant. There was still some potential for mis-communication, however it is apparent Senior Constable Bravos took a cautious yet assertive approach when he questioned the appellant.
After telling the appellant of the liquor in his vehicle and after the first caution given by Senior Constable Bravos the appellant said ‘Can I say something?” On one interpretation, Senior Constable Bravos is heard to interrupt the appellant however, another interpretation was he was attempting to ensure the appellant understood that he did not need to say anything. He told the appellant he can remain silent and did not have to speak, or if he wanted to say ‘no comment’ he could do so, or he could also say ‘I don’t want to answer the question’. It cannot be ruled out that the appellant thought he was being interrupted and responded accordingly. That is unlikely to have been Senior Constable Bravos’ intention.
Senior Constable Bravos informed the appellant that police had located a box of chardonnay, which he considered was in the appellant’s plain view. The appellant said: “When I am driving here I do not know what other things inside there. So I do not know what they have brought because usually buying from the front and I asked: ‘Are you buying anything?’ and ‘No’.” Senior Constable Bravos asked “So you drove through the Gap View drive through and you didn’t see them buying anything?” The appellant answered “Yes. They are not buying – they would check the prices”. The appellant was asked “Did the door open while you were at the Gap View?” He answered “This door. I was here and they didn’t say anything about buying.”
Senior Constable Bravos asked “What’s your reason for bringing alcohol into this community, the Amoonguna alcohol protected area?” The appellant replied “Okay, thank you, I have not bought alcohol to the Amoonguna community. These people, so they wanted to pass the drive-through. They say they are not going to buy or anything. So they so in front there was a gentleman here. So that man came this side so I keep quiet and I didn’t see whether he was buying the product alcohol.”
Senior Constable Bravos asked again “Do you have any reason for bringing alcohol into this Amoonguna community?” The appellant answered “I don’t know sir. I didn’t bring anything”.
As above, the CCTV footage was played to the Local Court which showed the mini-bus in the Gap View Hotel drive-through but did not show a package or any alcohol product being taken or put into the minibus, although the side door of the minibus was open for a period of time.[32] It is not at all evident that alcohol was purchased at the Gap View Hotel from any of the evidence before the Local Court, including the CCTV. This was no doubt why counsel for the prosecution below indicated the CCTV would not be relied on by the prosecution, other than for the times displayed on the footage.
The prosecutor also tendered a statement made by the appellant on 21 May 2018.[33] The statement was supplemented by evidence given by him. The appellant told the Local Court he was born in Sri Lanka and generally spoke Sinhalese and Tamil. He completed studies in English and has been in Australia since May 2010. He gave details of his employment history including when he bought a minibus to start his taxi business three years before the incident at Amoonguna. He had never had problems previously with the law save for one time driving through a red light. He told the Local Court he was fully aware from his business that there are certain places around Alice Springs where he cannot take people carrying alcohol.[34]
The appellant adopted the statement he made and forwarded to police which was tendered in the prosecution case.[35] The most relevant parts for current purposes are as follows:
On 3 March 2018 at approximately 12.20pm I was asked by a group of people at the Coles taxi rank to transport them to 17 Willoby Court. Those persons who got into the bus were known to me as I had previously provided them with transport. They were carrying shopping bags. They told me that they wanted to go to KFC and then to Piggleys Supermarket before arriving at 17 Willoby Court. I told them the cost would be $51.00 to Willoby Court and that the fee would have to be paid at the starting point of the journey. There was no discussion of any transport to Amoonguna.
I was unaware that within the items being carried by the passengers was some alcohol. Given the trip was to Willoby Court, I did not consider whether alcohol was in the shopping as it was not a relevant issue. I did not arrange for the passengers to pay for any fuel as part of that trip.
The trip was subsequently varied such that I was asked to drive through the Gap View takeaway alcohol area. I did stop there and I had no concerns with the passengers purchasing alcohol in as far as they were travelling to Willoby Court. However, I do not recall seeing alcohol being purchased.
After I left the Gap View I was told to drive to the Heavitree Gap store to buy chicken as I had not stopped at KFC. I agreed.
Close to the Heavitree Gap store, the front seat passenger told me that I had to drop off the crying child at Amoonguna. I said to my passengers that I was not prepared to do so as the fare that they had paid for would not cover the extra expense that would be charged for a visit to Amoonguna and then back to Willoby Court. It was at that stage that the passenger opened the centre glovebox and took out two screwdrivers and stuck them in my ribs. I was particularly scared of this passenger as I was aware that he had spent three months in gaol for stabbing his wife. I have previously suffered an attack with a knife while I was driving in Sri Lanka. I have a long scar on my arm from that knife attack. I believed that unless I drove to Amoonguna I would be the victim of a stabbing. Fortunately I had no physical injury.
During that same week, I also had a previous incident with a male passenger who had been in my taxi with two female passengers and the male had tried to hit me. I made a complaint to police (Complaint No. 8444226). In that incident the male passenger had been pushed out of the door of the taxi while moving and the other female passengers demanded money from me claiming that they had given me $50.00 when in fact they had only given me $10.00. I was told that unless I handed $40.00 over I would be assaulted. This is what caused me to make that complaint. However, I was told by the police that as nobody was injured the matter would not proceed.
I believe that when I was stopped by the police I was not within the Amoonguna community area. I had locked the doors of the taxi when the police sounded the siren as I believed they were chasing someone who might enter the taxi. I heard one passenger say “Hide it, Hide it.”
At the time I was stopped by police, no alcohol was being removed by any passengers and to the best of my belief the intention was to still travel to Willoby Court.
I went to the Alice Springs Police Station on 9 March 2018 at about 7.00pm. I said I wanted to make a statement about the assault I had received from the front seat passenger on 3 March 2018. I spoke to a woman whose name I believe was Adeline Lieu (or sounded like that to me). , She told me to wait and that she would speak to the Officer in Charge. About five minutes later a male police officer came and spoke with me. He said to me that he would not accept any complaint from me and told me that if I had anything to say I had to go to court and tell the judge.
Attached is my cab fare payment record. The cab charge works on New South Wales time and daylight saving was in place in March 2018. As such, the transaction of 1.54 converts to 12.24 Territory time.
The Merchant Copy of the Cab Fare Payment for $51.00[36] was tendered with the appellant’s statement to the Local Court.
The appellant dealt with the following further matters in his evidence. He said the front seat passenger was a person he knew as Brendan. He had previously taken Brendan places. The passengers behind him told him to drive through the Gap bottle shop so they could check the price of “bottles”. He agreed to do this because his intention was to go to 17 Willoby Court. The initial call or arrangement at the taxi rank was to drive through KFC, then Piggley’s supermarket. Originally the route included a stop at KFC, then a stop at Piggley’s and then a drive through Larapinta Drive to 17 Willoby Court. He agreed to take the passengers but asked for money up front. After he received the money and he was driving, the passengers changed their minds and said there was no point going through KFC. Next they said there was no point going through Piggley’s supermarket. Then they said they wanted to check the price of bottles.
The appellant said that after the Gap View bottle shop they told him to drive to the Heavitree Gap chicken shop as he did not stop at KFC. He agreed to do this. While he drove on the airport road and turned into Heavitree Gap chicken shop, a child was crying in the back and one of the passengers said “just drive to the Amoonguna”. He told them he could not drive to Amoonguna as he had charged only $50 and to drive to Amoonguna would be a further $70. They said they wanted to go [to Amoonguna] and come back. The front passenger, Brendan said “you drive” and the appellant said “no”. He then saw that Brendan was very angry. He said Brendan first opened the cabbie hole, there was nothing there and then he opened the centre console. The appellant said that is where he keeps screwdrivers for an emergency. There was a flower screwdriver and a flat screwdriver. He said Brendan got those screwdrivers and held [them] under his ribs and told him to “drive to Amoonguna”. He said the passengers said they would pay him tomorrow. The appellant said he felt he had no option [but to drive to Amoonguna] as three days previously a passenger had tried to hit him and he made an official police complaint. He said he knew the passengers’ houses were numbers 84 and 85 and he thought he could just go near there and drop them. Then the police sirens came.[37]
The appellant said when he saw the police vehicle following him he was very happy because then he would be safe. He locked the bus immediately to allow the police to come and if there was anyone there, to arrest them. He said he knew Brendan had stabbed his wife a couple of months before and had gone to prison for three months. He had had a similar experience when he lived in Sri Lanka. Just three days before this incident he had a similar experience when some passengers demanded money and when he refused, he was threatened.[38]
He also said that when the police officers were coming, Brendan opened the centre console box and put his brown paper bag inside it. He did not know until later, from news reports that it contained rum and Jim Beam. He also heard people say “hide it, hide it.”[39] The appellant said that if he told police or if police took the alcohol and left, then the passengers would hit him.[40] When he got into the police vehicle he said “Is there a possibility to make my statement?” He was told “You go to the courts. Now it’s out of our hands”.[41] He said he was also told he could talk to the Court when police served a notice to appear in court and he asked if he could talk to them now.[42] He spoke to police about this at the police station on 9 March and was told that he could tell the Court about it.
In cross-examination he was asked about the box of wine found behind his seat. He said the passengers may have purchased it from the Coles or Woolworths bottle shop. All of the passengers got in at the Coles taxi rank. He said when the passengers got in he was unaware they had bottles of alcohol, including the front seat passenger, who had a brown paper bag ‘on’ (sic) his right hand. He said the passenger had his hand on it the whole time. It was not obvious to him that it was bottles as it was not carried straight, or vertically. It was held horizontally. He said he did not see anyone putting any alcohol in the minibus at the Gap View bottle shop, and he intended to go from there to Willoby Court. He said he did not “have a clue” about any alcohol in the bus and he would not risk his $80,000 bus. He agreed he did not actually ask about alcohol. He said usually if he is going to go to an Aboriginal camp he would check if there was any alcohol but at that time, he was going to Willoby Court.[43]
Asked why he did not mention the threat when police pulled him over, he said he had concerns for his safety and that was why he could not “tell that” in front of the passengers. It was suggested to him the passengers were on the other side of the vehicle. He said they could hear the conversation. He said he was not given a chance to talk about it. He said the man [in the front] put the screwdriver in his pocket or did something with it. He said the man took the screwdriver with him. He could not grab the screwdriver from him. Asked if when he was sitting in his seat he recalled looking back and seeing the box, he said when the passengers closed the door he was looking back to see whether the children and everyone had put their seat belts on. When he looked, he had not seen any box. He said the passengers must have moved the box. It was suggested to him that it was not true that he was unaware that he was bringing alcohol to Amoonguna and that it was not true when he said the same to police. He said when the police came and opened the door, he noticed this as “alcohol carrying business.” It was at that point he understood there may be alcohol in the minibus, including in the front console.[44]
There is no reason to doubt the evidence of the police officers, save that one of them may have had an impression that the alcohol was put into the car at the Gap View drive through. The evidence of the minibus at the drive through justified the suspicion police held that the minibus may have been carrying alcohol. As Detective Wilson said, it is normal for people to purchase at a drive-way. However, there was no evidence that the alcohol was purchased at the drive-through.
The Local Court was obliged to determine, on the basis of the whole of the evidence, including the inferences that could properly be drawn, whether the appellant intended to take alcohol into Amoonguna. In effect, in this particular case, if it could not be proven he knew the passengers had alcohol with them, the relevant intention could not be proven. As none of the passengers gave evidence, there was no additional direct evidence which could contribute to establishing the appellant’s state of knowledge, belief or his intention at the time the alcohol was put into the minibus. The case largely turns on whether an inference could properly be drawn beyond reasonable doubt as to his intention to take alcohol into Amoonguna.
Discussion of the reasons of the Local Court
The learned Judge dealt at some length with the statutory provisions under the Stronger Futures in the Northern Territory Act 2012 (Cth); the Liquor Act (NT); The Northern Territory Emergency Response Act 2017 (Cth) and the Aboriginal Land Rights Act 1976 (Cth). The matters arising under those various statutes are not issues in this appeal. The Judge did note however, that consistent with the appellant’s evidence, there is no signage at Amoonguna to clearly designate at which point the boundary operates, which in turn would notify the public that certain liquor offences will be committed within the designated area. As acknowledged by the Judge, the appellant gave evidence that he was not sure whether he had or had not entered Amoonguna. His Honour described that part of the appellant’s evidence as ‘not entirely surprising’ in the circumstances.[45]
The Local Court Judge succinctly summarised the evidence[46] and concluded “But the defendant cannot rely on his wilful blindness to enquire about the presence of alcohol in his vehicle, particularly as the cardboard box was clearly marked ‘Chardonnay Poker Face’, the same variety and make as the eight bottles located within it”.[47]
Following those remarks on wilful blindness, his Honour said he did not accept the appellant did not know about the existence of the cardboard box and that this was one of three facts that “should have given rise to his knowledge that there was alcohol in the car”.[48] The other two facts his Honour referred to were the visit to the drive-through bottle shop and the brown paper bag with the two bottles in it which were held by Brendan in the front passenger seat.
The reliance on wilful blindness was an error, although it is appreciated that notwithstanding any error in the context of an unsafe and unsatisfactory ground, this Court must review the whole of the evidence in any event. Even if a point is raised in an appeal which might be decided in favour of an appellant, the Court must dismiss the appeal if it considers no substantial miscarriage of justice has occurred.[49] In my view, after considering all of the evidence, there is a strong likelihood that a miscarriage of justice has occurred. Even if some parts of the appellant’s evidence were not accepted in full, the Court below was not relieved from assessing whether the prosecution had proven knowledge or intention beyond reasonable doubt. Similarly, this Court is not relieved from assessing whether there has been a substantial miscarriage of justice, if there remains a significant possibility that “an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof.”[50]
Under s 75A(2) of the Liquor Act as modified by s 8 of the Stronger Futures Act, criminal responsibility for the offence is governed by Part IIAA of the Criminal Code. To establish criminal responsibility, the relevant conduct, to “bring” the liquor must be shown to be voluntary under s 43AF of the Criminal Code. It cannot be doubted the appellant’s act of driving was a voluntary act, however if he did not have awareness of the presence of the alcohol which had been purchased and brought into the minibus by the passengers, the prohibited conduct of bringing the alcohol into an alcohol protected area, could not be considered voluntary conduct. It cannot be considered to be a willed act. This construction has some similarities with the analysis of the Court of Criminal Appeal in Blacker v The Queen,[51] which concerned a case of negligently cause serious harm. The conduct that caused serious harm was the appellant striking the victim whilst holding a glass in his hand. The conduct was not merely striking the victim. For the conduct to be both voluntary and intentional, the Court of Criminal Appeal held it had to be shown the appellant was aware he was holding the glass in his hand at the time of the striking the victim.
In any event, if it was not necessary to prove the appellant was aware of the alcohol to establish his conduct was voluntary, because there is no fault element prescribed for the relevant conduct, under s 43AM of the Criminal Code, intention is the deemed fault element. It must be shown that the appellant “meant” to bring the alcohol into Amoonguna.[52] On these facts, if the appellant did not know or was not aware of the alcohol in the box or the bag, the relevant intention is not proven. It is clear from the facts that some of the passengers knew they had alcohol in their possession. However, it is not clear, when all of the evidence is considered that the appellant himself meant to bring alcohol along with the passengers to their destination. Different considerations apply to the question of fault with respect to the physical element “alcohol protected area”. In my view, the “alcohol protected area” should properly be regarded as a circumstance for which recklessness is the fault element under s 43AM(2) of the Criminal Code. That element is not however a material matter in this appeal.
The Local Court has resorted to the discredited common law concept of “wilful blindness” which in the past was sometimes taken to be equivalent to knowledge. In my view this shows there was doubt as to the appellant’s knowledge or intention in respect of the presence of the alcohol in the minibus. There was no “duty to enquire” on the part of the appellant as referred to in the Local Court. While the appellant gave evidence of his usual cautionary practices if he drove people to alcohol protected areas around Alice Springs, there was no duty to enquire. Although wilful blindness in some circumstances may be an evidentiary aid to arriving at actual knowledge, where knowledge is to be inferred from the circumstances surrounding the commission of an alleged offence, knowledge must be the only rational inference available.[53] Rather than rely on wilful blindness, the Local Court should have held a reasonable doubt as to the appellant’s intention or knowledge. In my view, even when some of the seemingly unsatisfactory aspects of the appellant’s case are considered, the overall conclusion must be that the evidence did not establish guilt to the requisite standard of proof, because the appellant’s knowledge of and intention with respect to the alcohol remains doubtful.
There is no evidence which contradicts the appellant’s assertion that the passengers were picked up from the Coles taxi rank, or that they first asked to go to one destination and then changed their instructions in the manner he described. Although it can be accepted that if the appellant had turned around he may have seen the box of “Poker Face” wine where police found it, there is no evidence to suggest that he did turn around at a time when the wine was in that position. There is no evidence to indicate the appellant saw the brand “Poker Face” was on the box or that if he did, he would have been alerted to the box containing wine. The Local Court rejected a rather speculative explanation by the appellant to the effect that the wine could have been moved to that position when the appellant heard the words “hide it, hide it”. He said it must have been moved closer to the door so that the passengers could run off. His Honour said that explanation made no sense because the passengers did not run off. The problem with the conclusions drawn from this part of the evidence is that it is all based on speculation, including speculation on the part of the appellant. There was no evidence about whether the passengers did move the box and if they did, whether they moved it to different positions or whether it had been in the one position the whole time. Further, the bag found in the front of the minibus was not labelled. A brown paper bag might to some people signify that the contents include alcohol, but there is no evidence to contradict the appellant’s evidence that because of the way the bag was held he was not alive to the contents being alcohol. Nor can it simply be assumed that a brown paper bag would contain alcohol. There is no evidence to contradict the likelihood that the front seat passenger entered the minibus with the other civilians at the Coles taxi rank, who in turn had entered with their shopping bags. A failure on the part of the appellant to enquire as to the contents of shopping boxes or bags cannot equate to an intention to transport alcohol, especially since the initial instruction was to go to Willoby Court, and then via a number of other stops.
There was no evidence which contradicted the appellant’s case to the effect that the route he was directed to take initially did not involve going to an alcohol protected area. There was some exchange between the appellant’s counsel and the Judge when his Honour queried a $50 or $51 upfront fare to Willoby Court. His Honour directly disputed the fare based on his own “general knowledge” of taxi fares in Alice Springs.[54] Although the fact of the $51 fare was referred to in the Judge’s reasons, it is unclear whether his Honour relied on his own knowledge of fares to dispute the evidence of what the fare should have been. The trial Judge’s general knowledge should not have formed part of reasoning towards discrediting the appellant’s case by suggesting it was not a credible fare. The circumstances in which common knowledge may be relied on by a court is governed by s 144 of the Evidence (National Uniform Legislation) Act (NT) (‘UEA’) which provides:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a)Common knowledge in the locality in which the proceeding is being held or generally; or
(b)Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in a way the judge thinks fit.
(3) The Court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
The material introduced by the Judge, to the effect that $50/$51 is not an appropriate fare could not be taken into account as it is not ‘knowledge that it is not reasonably open to question’.[55] His Honour referred to the cost of a fare from a location in Alice Springs to the airport to illustrate his point.[56] However, there is nothing to indicate whether his Honour included in his calculation a minibus rather than a standard taxi or with six or more passengers, which planned to stop at various points. Aside from s 144 of the UEA, there is no other basis for his Honour’s personal knowledge of taxi fares to be considered. According to Odgers, Uniform Evidence Law,[57] the prevailing view is that s 144 covers the field in relation to judicial notice of facts. The learned author cites the following statement from Gattello v Westpac Bank Corp[58] in support of that proposition:
[T]here would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment.
This material should be rejected. It should not form part of the assessment of the appellant’s credibility.
There were legitimate questions about the appellant’s credibility with regard to some of his responses at the scene of the apprehension. For example, it was odd that he first locked the doors, or said that he locked the doors when he realised what was happening to stop the passengers from running away. The appellant’s evidence was that he felt safer when police arrived given the behaviour of the front passenger. There was however no evidence to contradict what the appellant said had happened with the front seat passenger. A further point tending to detract from the appellant’s credibility is he did not raise the screwdriver threat with police at the scene. He was not however challenged on his evidence that in the police car and at his home later that day he asked police if he could talk to them, and he was told he could tell the Court. The appellant does not suggest he specifically told the police about the behaviour of the front seat passenger, but rather asked to talk to them. The claimed attempts at further conversations with police does not appear to have been specifically put to police witnesses. The evidence on this topic remains unsatisfactory from all perspectives, however, there is not a sufficient basis to draw an inference against the appellant. He was not challenged on the point that he asked to tell police what had happened. A s 140 conversation is rarely a complete conversation. The purpose of such a conversation differs markedly from a record of interview. It is a procedure which is preliminary to questioning under s 137(2) of the Police Administration Act. The appellant’s evidence was that at the scene, he could still have been heard by the passengers. That is unlikely to be correct given the evidence of police, however it is difficult to rule out that that was his perception. Nothing of substance can be drawn from observations of the appellant’s demeanour at the scene. Observations of the appellant being agitated in the presence of police could be for multiple reasons. It would be dangerous to infer guilt on that basis, bearing mind also that from the transcript it would appear his English is his third language. In my view, his Honour correctly did not give weight to the evidence concerning the demeanour of the passengers. Demeanour is notoriously misleading. His Honour also declined to give weight to the fact that none of the passengers were seen to be holding a screw driver. As his Honour noted, the passengers had a significant interest in not drawing attention to themselves.[59]
His Honour found the evidence “in no way supports this defence [under s 75B(1) of the Liquor Act] as his own actions make it utterly nonsensical”.[60] Given the onus was on the appellant to prove an emergency and given the lack of independent evidence supportive of his case in that regard, I would not hold, after independently reviewing the evidence that the defence is made out on the balance of probabilities.
His Honour did not rule on the defence of duress which as above requires the prosecution to negative beyond reasonable doubt if it is to be rejected. Even with the imperfections in the appellant’s case, without hearing evidence from any of the other persons present, there is insufficient evidence to exclude duress. The failure to tell the police at the scene what had occurred does weaken the appellant’s case, although it cannot be ruled out that he attempted to talk to police shortly after and made a detailed statement on 21 May 2018 which was tendered. Even if his case is weakened, there remains a reasonable possibility that his version is correct. In any event, if I am wrong on whether the prosecution successfully negatived the defence of duress, it remains reasonably possible that he neither knew nor intended to bring alcohol into Amoonguna. This is not a case where there was a relevant advantage in the Local Court which would bear on the ultimate conclusion on appeal.
The failure of the prosecution to call any of the key witnesses, namely any of the civilians who were in the minibus at the relevant time is a matter that is relevant to the consideration of an unreasonable verdict.[61] This is not a case where it is appropriate to draw an adverse inference against the prosecution, but it is a matter of sufficiency of the evidence to reach the criminal standard.
The prosecution is not bound and cannot be compelled to call particular witnesses. However, as Dawson J said in Whitehorn v The Queen:[62]
All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete accounts of the events upon which the prosecution is based. In general, these witnesses will include the eyewitnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief.
It was unknown whether any of the witnesses would give accounts consistent (or not) with the prosecution case. It was unclear whether the potential witnesses had been served or even given statements. It was unclear when and in what circumstances the liquor was placed in the car, bearing in mind it would seem the Gap View could be ruled out as a result of the CCTV footage. As a result of none of the civilians giving evidence, there was no evidence to contradict the appellant about what the intended route was to be, whether the appellant was shown the alcohol and whether the front seat passenger behaved in the way described by the appellant. It is reasonably possible that some of the passengers brought alcohol along with their other shopping into the minibus without the appellant’s knowledge. It must also be remembered that some of the witnesses were likely to be criminally concerned. They may have had an interest in not attending Court. The finding of guilt is unsafe and unsatisfactory. A reasonable doubt exists as to the guilt of the appellant. The Local Court should have held there was a reasonable doubt.
Orders
The appeal is allowed. The finding of guilt and conviction by the Local Court is quashed.
[1] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 3.
[2] Amended Notice of Appeal filed 22 February 2019.
[3] [1994] HCA 63; 181 CLR 487.
[4] M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493.
[5] M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493.
[6] [2011] HCA 13; 243 CLR 400 at [20] (French CJ, Gummow and Kiefel JJ).
[7] SKA v The Queen [2011] HCA 13; 243 CLR 400; 243 CLR 400 at [20] (French CJ, Gummow and Kiefel JJ).
[8] SKA v The Queen [2011] HCA 13; 243 CLR 400; 243 CLR 400 at [24].
[9] M v The Queen [1994] HCA 63; 181 CLR 487 at 494.
[10] [2007] HCA 30; 230 CLR 559.
[11] Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113].
[12] [2019] VSCA 52 at [70].
[13] Pell v The Queen [2020] HCA 12 at [45].
[14] Pell v The Queen [2020] HCA 12 at [39].
[15] Pell v The Queen [2020] HCA 12 at [58].
[16] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 21.
[17] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 50-56.
[18] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 19.
[19] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 5.
[20] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 6.
[21] Exhibit P2 before the Local Court.
[22] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 12.
[23] Respondent’s Submissions filed 17 March 2019.
[24] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 14.
[25] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 15.
[26] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 19-20.
[27] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 20-22.
[28] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 27.
[29] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 28.
[30] Respondent’s Submissions 17 March 2019 at [8].
[31] Exhibit P7 before the Local Court.
[32] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 31-32.
[33] Exhibit P8 before the Local Court.
[34] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 37.
[35] Exhibit P8 before the Local Court.
[36] $53.55 was the total with extra fees.
[37] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 38-39.
[38] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 39.
[39] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 39.
[40] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 40.
[41] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 40.
[42] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 41.
[43] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 44-45.
[44] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 45-49.
[45] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 74.
[46] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 75-76.
[47] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 76.
[48] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 76.
[49] Local Court (Criminal Procedure) Act1928 (NT), s 177(f).
[50] Chidiac v The Queen [1991] HCA 4; 171 CLR 432 at 444 (Mason CJ); M v The Queen (1994) 181 CLR 487 at 494 (Mason CJ, Deane, Dawson and Toohey JJ.)
[51] [2011] NTCAA 10; 30 NTLR 65.
[52] Criminal Code 1983 (NT), s 43AI(1).
[53] He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523; Kural v The Queen [1987] HCA 16; 162 CLR 502; Pereira v Director of Public Prosecutions (Cth) [1988] HCA 57; 35 A Crim R 382.
[54] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 59-60.
[55]Evidence (National Uniform Legislation) Act2011 (NT) s144(1)
[56] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 59-60.
[57] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019) at [1352].
[58] [2004] HCA 6; 78 ALJR 394 at [17] (Gleeson CJ, McHugh, Hayne and Heydon JJ). Odgers also observes this approach was adopted by the NSW Court of Appeal in Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 at [103], [223].
[59] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 78.
[60] Transcript of proceedings, Police v Mahesh Mahendra (Northern Territory Local Court, 21810718, 20 November 2018) at 78.
[61] Whitehorn v The Queen [1983] HCA 43; 152 CLR 657 at 685, 690-691 (Dawson J); Gibbs CJ and Brennan J agreed at 660; RPS v The Queen [2000] HCA 3; 199 CLR 620 at [29] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
[62] [1983] HCA 43; 152 CLR 657 at 674.
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