CITATION:Neilsen-Titus v Beale [2023] NTSC 63
PARTIES:NEILSEN-TITUS, Alexander
v
BEALE, Naomi Gail
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 21/2021 (22003281)
DELIVERED: 14 July 2023
HEARING DATE: 25 March, 19 April, 17 June and 29 June 2022
JUDGMENT OF: Barr J
CATCHWORDS:
CRIMINAL LAW – SUMMARY HEARING – LOCAL COURT – Appellant found guilty of assault – Circumstance of aggravation – Indecent assault – Miscarriage of justice – Verdict of guilty quashed – Case remitted for retrial
Local Court (Criminal Procedure) Act 1928, s 163(1)(b), s 177(2)(c), (d), (f)
McMaster v The Queen (1994) 4 NTLR 92; De Silva v The Queen [2019] HCA 48, 268 CLR 57; Hofer v The Queen [2021] HCA 36, 95 ALJR 937; Dansie v The Queen [2022] HCA 25; FN v The Queen [2021] NTCCA 5
REPRESENTATION:
Counsel:
Appellant:M Thomas
Respondent: S Dayeian
Solicitors:
Appellant:John Toohey Chambers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bar2309
Number of pages: 35
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINNeilsen-Titus v Beale [2023] NTSC 63
No. LCA 21/2021 (22003281)
BETWEEN:
ALEXANDER NEILSEN-TITUS
Appellant
AND:
NAOMI GAIL BEALE
Respondent
CORAM: BARR J
REASONS FOR DECISION
(Delivered 14 July 2023)
This is an appeal against conviction (finding of guilt) brought pursuant to s 163(1)(b) Local Court (Criminal Procedure) Act 1928 which grants a right of appeal to this Court from a conviction which involves an error of fact, error of law or mixed fact and law.
On 9 June 2021, the appellant was found guilty of indecently assaulting a 17 year old female, JW, in October 2019.[1] The appellant was 20 years old at the time of the alleged offending.
The appellant did not dispute at trial that, lying very close to JW, he (1) had pulled his shorts down, (2) had an erection, (3) was masturbating, and that (4) when the complainant got up from the bed to leave, he pulled her back onto the bed and held her there. With one arm around the complainant’s body, the appellant fondled her breast while continuing to masturbate. The appellant admitted that he had taken down his pants under the sheets. He said that he initially believed that the complainant was consenting to being touched in a sexual way. He claimed that he only came to realize at a certain point that the complainant was not consenting, or that she may not be consenting, when she said ‘No, Z, stop’[2] in a firm or very stern voice. He admitted that she had said ‘no’ on more than one occasion at a slightly earlier time. In any event, the appellant claimed that when he heard JW saying ‘No’ and ‘Stop’ in a firm or very stern voice, he moved away from the complainant such that there was no longer any physical contact, but he still continued masturbating because, as…
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- Neilsen-Titus v Beale [2023] NTSC 63
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- [2023] NTSC 63
- Decision Date
CaseChat Overview and Summary
The court found that there had been a substantial miscarriage of justice because the trial judge had erred in admitting inadmissible evidence of the appellant's bad character, in the form of an allegation of prior rape. However, the court did not allow the appeal on this ground because no objection had been taken to the evidence at trial and the trial judge had not been asked to rule on its admissibility. The court did find that the appellant's conviction should be quashed and the case should be remitted for retrial because there was a substantial risk that the inadmissible evidence may have influenced the jury's verdict. The court noted that the evidence was not raised in the trial judge's reasons, and it appears that both counsel had overlooked it. The court also noted that the evidence had no apparent consequences or relevant effect on the trial. The court will hear the parties on the issue of costs.
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