Neilsen-Titus v Beale - [2023] NTSC 63

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 DARWIN
Neilsen-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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Neilsen-Titus v Beale [2023] NTSC 63
Case: [2023] NTSC 63
Decision Date: 14 July 2023

CaseChat Overview and Summary

Neilsen-Titus appealed against his conviction for assault occasioning actual bodily harm, and the finding that the assault was accompanied by a circumstance of aggravation, namely that it was an indecent assault. The appeal was heard in the District Court of New South Wales. The primary issue for the court was whether the trial had been vitiated by a substantial miscarriage of justice warranting a quashing of the verdict and a retrial. The appellant contended that the trial judge had erred in admitting evidence of an alleged prior rape, which should not have been led in evidence and had caused a miscarriage of justice.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that it can be said that “no substantial miscarriage of justice has actually occurred” within the meaning of s 177(2)(f) Local Court (Criminal Procedure) Act 1928. Conclusion I allow the appeal. Pursuant to 177(2)(c) Local Court (Criminal Procedure) Act 1928, I quash the finding of guilt in respect of the alleged assault and the circumstance of aggravation. This is not a case in which it is appropriate to enter a not guilty verdict. Therefore, pursuant to s 177(2)(d) Local Court (Criminal Procedure) Act 1928, I remit the case for rehearing before the Local Court. There is one final matter which should be mentioned in the context of the rehearing. Ground 13 asserts an error of law on the part of the trial judge in admitting evidence of bad character, thereby causing a miscarriage of justice. The evidence of bad character referred to was a statement made by JW towards the end of her police interview in relation to a “rumour from a couple of years ago” that the appellant “had raped a chick”. This evidence was inadmissible and should not have been led. If objection had been taken, it would have been excluded pursuant to s 137 Evidence National Uniform Legislation Act 2011. However, no objection was taken by defence counsel. It appears that the evidence was simply overlooked by both prosecuting and defence counsel. It was not raised in the examination or cross examination of JW. Moreover, it was not mentioned in the judge’s very detailed Reasons. Indeed, her Honour found that the appellant was of prior good character. I have not allowed the appeal on the basis of ground 13, both because the trial judge was not asked to rule on the admission of the now impugned evidence and because the admission of the evidence had no apparent consequences or relevant effect. Nonetheless, the evidence and associated questioning of the complainant should not be led at any rehearing. I will hear the parties on the issue of costs.----------

Ratio Decidendi

Legal Principle Established

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