RCA v The King

CITATION:RCA v The King [2023] NTCCA 4
PARTIES:RCA

v
THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 3 of 2022 (9801690)
DELIVERED:  23 March 2023
HEARING DATE:  18 November 2022
JUDGMENT OF:  Grant CJ, Kelly and Blokland JJ

CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Miscarriage of justice
Findings of guilt by jury not unreasonable having regard to the evidence – Not a matter in which the jury must have entertained a reasonable doubt – Miscellaneous complaints made in relation to loss of evidence, delay in proceedings, et cetera did not give rise to miscarriage of justice – Leave to appeal refused.
BD v The Queen [2017] NTCCA 2, FN v The Queen [2021] NTCCA 5, Foster v The Queen [2021] NTCCA 8 , GAX v The Queen (2017) 344 ALR 489, Libke v The Queen (2007) 230 CLR 559, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, PW v The Queen [2020] NTCCA 1, R v Baden-Clay (2016) 258 CLR 308, SKA v The Queen (2011) 243 CLR 400, Smith v The King [2022] NTCCA 14, Tyrell v The Queen [2019] VSCA 52, Willcocks v The Queen [2021] NTCCA 6, referred to.
CRIMINAL PROCEDURE – Stay of proceedings – Temporary
Whether error in refusing application for stay on basis that applicant did not have legal representation – Applicant must prove on balance of probabilities that indigent, that unable to obtain legal representation, and that inability not due to fault on his part – Applicant not indigent and failure to have legal representation attributable to decision not to fund own defence – Leave to appeal refused.
Craig v South Australia (1995) 184 CLR 163, Dietrich v The Queen (1992) 177 CLR 292, The Queen v Karounos (1995) 63 SASR 451, referred to.
SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive
Whether the sentence to imprisonment manifestly excessive – Mandatory sentencing provisions required sentence to actual imprisonment – Total effective period of imprisonment not arguably excessive – Leave to appeal refused.
Sentencing Act 1995 (NT) s 78F
REPRESENTATION:
Counsel:
Applicant:Self represented
Respondent:  M Chalmers SC with K Lee
Solicitors:
Applicant:Self represented
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  28

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
RCA v The King [2023] NTCCA 4

No. CA 3 of 2022 (9801690)

BETWEEN:

RCA

Applicant

AND:

THE KING

Respondent

CORAM: GRANT CJ, KELLY and BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 23 March 2023)
THE COURT:

This is an application for leave to appeal on a number of grounds, some of which are stated in appeal documents filed by the applicant and some of which were first raised during the course of submissions on the hearing of the appeal. On proper characterisation, the applications and grounds sought to be advanced by the applicant are:
(a)an application for leave to appeal against the two findings of guilt on the ground that the verdicts returned by the jury are unreasonable and cannot be supported having regard to the evidence;
(b)an application for leave to appeal against the two findings of guilt based on a number of miscellaneous complaints which the applicant says, either individually or collectively, gave rise to a substantial miscarriage of justice;
(c)an application for leave to appeal against the refusal of an application for a stay of prosecution made by the applicant in advance of the trial on the basis that he was unable to obtain legal representation; and
(d)an application for leave to appeal against sentence on the ground of manifest excess.
Background
The applicant was charged on an indictment dated 9 August 2019 with three counts of aggravated indecent dealing with a child under the age of 16 (Counts 1, 2 and 5) and two counts of aggravated gross indecency against a child under the age of 16 (counts 3 and 4). All of the offending was alleged to have occurred between 31 December 1996 and 1 January 1998. The complainant in counts 1 to 4 was GM, a child then aged 6 to 7 years, and the complainant in count 5 was GM’s younger sister, AM, a child then aged 5 to 6 years.
Following a trial by jury, the applicant was found guilty of counts 1 and 5 and not guilty of counts 3 and 4. The Crown was given leave to withdraw count 2 at the close of the Crown case due to the paucity of evidence.
The applicant was self-represented at the trial. A barrister from the New South Wales independent bar was appointed to cross-examine the complainants on his behalf in accordance with s 21QB of the Evidence Act 1939 (NT). He remains self-represented on this application.
The Crown allegations in relation to the counts on which the applicant was found guilty were as follows. In 1997 and 1998, GM and AM lived with their mother at a residence in the northern suburbs of Darwin. The applicant was a good friend of the children’s mother and a regular visitor to their home. He was about 31 years old at the material time. He undertook parental style duties from time to time including putting the children to bed at night, reading them stories and playing games with them. GM and AM shared a bedroom. GM slept in the top bunk and AM slept in the bottom bunk.
While putting the girls to bed one night, the applicant is alleged to have given GM a kiss goodnight. While doing so he asked her if he could use his tongue. Then he kissed her and inserted his tongue into her mouth. The mother was elsewhere in the house. That allegation constituted count 1.
On another occasion the applicant and AM were sitting on the lounge. The mother was in the kitchen. The applicant asked AM whether she wanted him to show her “how married people kiss”. He got her to sit on his stomach and then he kissed her by inserting his tongue into her mouth. AM went into the kitchen and told her mother that the applicant had shown her how to do married kissing but the mother dismissed this complaint, a fact that was particularly distressing for AM. That allegation constituted count 5.
Context evidence was led of uncharged acts on other occasions on which the applicant had kissed GM in a similar fashion and done other things which might be considered inappropriate.
Complaint evidence was led at the trial about a complaint made to the complainants’ paternal grandparents on Sunday, 23 November 1997. AM told them she had a secret and could not tell anyone. The grandmother asked her to whisper the secret to her in another room. Evidence of what AM said was not available, but, as the sentencing judge remarked:[1]
[I]t was sufficient to make the grandmother very upset and was sufficient to cause the grandmother and grandfather to confront the children's mother about it when they took the children back home that evening. It was also sufficiently serious to cause them to report what [AM] had said to the child protection authorities.
The grandfather tried to ring somebody on the Sunday evening, but was not able to speak to anyone about it. On 24 November 1997, the grandparents reported what AM had told them and the mother contacted the child protection authorities.
On 25 November 1997, caseworkers from the Children and Family Protective Services attended the home and spoke with the mother and with the two girls. The Police were then notified because the caseworker considered that there were, potentially, criminal offences involved.
On 2 January 1998, the applicant took part in an electronically recorded interview with investigating police. During that interview, he made a number of admissions, which included kissing the girls with his tongue when he put them to bed, but he denied the more serious allegations. He also gave what he purported to be an innocent explanation for the tongue kissing, saying it had been instigated by the girls.
No charges were laid at that stage. In about 2016, AM made contact with Police to ask why there had not been a prosecution and Police reopened the old investigation. They re‑interviewed both AM and GM in 2018 and the applicant was charged and subsequently tried.
Application for leave to appeal against conviction
The applicant has applied for leave to appeal against the findings of guilt on counts 1 and 5. As the proposed appeal against conviction involves questions of fact and questions of mixed fact and law, leave to appeal is required by s 410(b) of the Criminal Code (NT).
Pursuant to s 417(1) of the Criminal Code, an application for leave to appeal must be made within 28 days after the finding of guilt, subject to the power of the Court to extend time under s 417(2). The applicant was found guilty of counts 1 and 5 on 14 February 2022. He filed the application for leave to appeal out of time on 24 March 2022. No application for an extension of time has been filed.
Although the application for leave to appeal appears on its face to refer to an appeal against the jury’s findings of guilt, it states: “The applicant applies for leave to appeal from the judgment of Acting Justice Hiley given on 25 February 2022.” That was the date on which the applicant was sentenced.
The application for leave to appeal contains the following statement: “Leave to appeal is required by applicants (sic) right to appeal a finding of guilt due to failure of jury to consider relevant facts.”
In his affidavit in support of the application for leave to appeal, the applicant states: “We feel it is not reasonable that eleven (11) members of the jury reached a unanimous verdict regarding these charges, when anybody with experience in critical thinking would have seen these holes in the logic.” This appears to raise the ground that the verdicts are unreasonable and cannot be supported having regard to the evidence.
Verdicts unreasonable and unsupported by the evidence
The principles to be applied in appeals on this ground are well established and set out by this Court in PW v The Queen[2] in the following terms (citations omitted):
In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
… in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The plurality explained the application of the test as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks “credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although Brennan J said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence ... bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.
In Libke v The Queen, Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
In Pell v The Queen,[3] the High Court confirmed that the statement from Libke v The Queen[4] extracted above was consistent with what was said by the majority in M v The Queen,[5] and does not impose any stricter test.
The evidence at trial
In this case, it cannot be said that the jury’s advantage in having heard the evidence was slight.
Video statements taken from the two complainants in 1997 when they were children were lost. GM’s evidence consisted of two later video statements made after the investigation was reopened in 2016 and admitted as her evidence in chief pursuant to s 21B(2)(b) of the Evidence Act, and cross-examination by the barrister appointed for that purpose. AM’s evidence consisted of one later video statement made after the investigation was reopened and cross-examination by the appointed barrister.
The Crown also called evidence from:
(a)the children’s grandfather, as to the circumstances surrounding AM’s complaint as a child to her paternal grandparents (first-hand hearsay evidence of complaint from AM);
(b)an officer of the child protection authority, as to receipt of the complaint and resulting conversation with the children GM and AM (first hand hearsay evidence of complaints from both children);
(c)a doctor from the Sexual Assault Referral Centre who took a history from GM (first hand hearsay evidence of complaint from GM);
(d)a family friend who observed the applicant with the children over time (evidence of relationship and opportunity); and
(e)the children’s mother (evidence of relationship, opportunity and first hand hearsay evidence of complaint from AM).
The applicant’s case was that the conduct alleged did not happen, or at least did not happen in the manner described by the complainants.[6] In cross-examination of the complainants, counsel for the applicant challenged their reliability, and in particular their memory of the events. It was also suggested in cross-examination that they had wrongly accused the applicant because of the hostility that existed between the complainants’ grandparents and the applicant, and the influence exerted over them by their grandmother; and suggested that their evidence was tainted by speaking to each other about what had happened to them. Both complainants repeatedly and strongly denied that they had ever spoken to the other about the incidents, and gave what the respondent submitted were reasonable and understandable explanations for that.[7] They also denied being influenced by their grandmother.
It was also suggested in cross-examination that the complainants may have misidentified the applicant as the perpetrator, and that there was a reasonable possibility that other visitors to the house could have committed the offences. That possibility was also rejected by the complainants.
In statements made in 1997, the complainants had identified the applicant as the offender soon after the incidents, when they must have been fresh in their minds and unaffected by any later hostility shown towards the applicant by the complainants' grandparents. Further, AM made an immediate complaint to her mother following the incident the subject of Count 5 in which she identified the applicant.
The applicant did not give evidence at trial, but had voluntarily participated in a two part police interview in 1998. He made partial admissions to the conduct in counts 1 and 5 but, as already described above, he provided what was purported to be an innocent explanation for the conduct in each case by saying the children had instigated the tongue kissing. Even leaving aside the rather contentious proposition that on the applicant’s explanation the conduct was lawful, the Crown case was that the explanations he gave for the conduct were false.[8]
The applicant’s submissions that verdicts unsafe and unsatisfactory
In his affidavit in support of the application for leave to appeal, the applicant contended that the complainants’ evidence was unreliable because they gave inaccurate descriptions of his physical appearance at the time of the alleged offences. The applicant also made other complaints about the reliability of the complainants’ memory. However, the jury’s attention was drawn to this asserted inaccuracy and unreliability during the course of the trial, and the jury had the advantage of seeing the applicant’s physical appearance at the relevant time in the recording of his interview with police in 1998. AM conceded in her evidence that she had difficulty distinguishing her recollections of the applicant’s appearance when she was five years old from her recollection of his appearance in later years. It was a matter for the jury whether these matters adversely affected their assessment of the complainants’ reliability in relation to the essential elements of the offences for which the applicant was found guilty. The jury’s determination was that they did not. In our independent assessment of the evidence, the inaccuracy and unreliability asserted by the applicant are not matters which must have caused the jury to have a reasonable doubt about the applicant’s guilt on counts 1 and 5.
In any event, as counsel for the respondent submitted, the accuracy of the complainants’ recollection of the applicant’s physical appearance was largely irrelevant to the jury’s consideration of counts 1 and 5. In his interview with police in 1998, the applicant admitted the physical conduct involved on each occasion – namely “tongue kissing” GM on the top bunk and AM on the couch. In each case the applicant said it was the child who had put her tongue in his mouth – adding in the case of GM, who was a 6 or 7 year old child at the time, that she had done so with “raw passion”. Evidently, and understandably, the jury did not accept the applicant's evidence about this. It was open to the jury to reject the applicant’s claim of innocent explanations for the conduct as implausible, and to accept the applicant’s statements as admissions that he was present with each child on each of the occasions in counts 1 and 5.
None of the other matters raised by the applicant in his affidavit or written submissions warrant the conclusion that the jury must have entertained a reasonable doubt as to the applicant’s guilt. It was open to the jury, on the evidence presented at the trial, to be satisfied beyond reasonable doubt of the applicant’s guilt on counts 1 and 5.Further, having reviewed the evidence, we harbour no reasonable doubt about the guilt of the applicant on both counts.
Substantial miscarriage of justice
In addition to the primary contention that the jury’s verdicts were unreasonable and could not be supported by the evidence, the applicant has made a number of miscellaneous complaints concerning the conduct of the trial. The applicant’s contention would seem to be that the matters the subject of complaint, either individually or collectively, gave rise to a substantial miscarriage of justice. We deal with each of those matters in turn below.
Loss of video tapes

The applicant complains about the loss of the original video recordings of the complainants’ statements to police in 1997. The contents of those statements was made known to the defence by the provision of transcripts, but the transcripts were not put into evidence by either the Crown or the defence. In the 1997 video, GM disclosed events which were the subject of counts 3 and 4. She could not remember these events when she came to give evidence at the trial and the applicant was acquitted of those charges. The loss of the 1997 video recordings therefore has no significance for the applicant’s convictions on counts 1 and 5.
The direction on indecency
The applicant complains about the direction given to the jury on indecency. In his affidavit, the applicant said:
During the jury deliberations the judge directed them in such a way that said that if “they” considered it to have a sexual connotation, where applicant believes a correct statement would be that the accused would need to have such a belief.
The applicant’s argument in this respect would seem to be that he suffers from Asperger’s syndrome; that one of the incidents of that condition is that he is asexual in the sense that although he is capable of having romantic feelings they are not attended by any element of sexual attraction; and it was particularly important in those circumstances for the jury to be satisfied beyond reasonable doubt that he believed his conduct had a sexual connotation and to be directed accordingly. Even leaving aside the question whether there was evidence before the jury to substantiate that medical claim, there is no substance to this complaint.
The aide memoire correctly described the elements of the offence of indecent dealing in the following terms:[9]
Indecently deal with child under 16 years
The elements of this offence are that, on or about a particular date at a particular place in the Northern Territory:
(a)     the accused dealt with the complainant in the manner alleged;
(b)     the accused meant to deal with her as he did;
(c)     the dealing was indecent;
(d)     the accused meant to indecently deal with the complainant as he did;
(e)     the indecent dealing was unlawful; and
(f)   the complainant was under the age of 16 years at the time.
The aide memoire then went on to provide the definition of the word “indecent” and its other forms in the following terms:[10]
Indecent, indecency and gross indecency do not have any fixed or defined legal meetings. They have their ordinary English meanings. It must have a sexual connotation, and be conduct that is contrary to ordinary community standards of morality or decency. The surrounding circumstances may make the conduct indecent.
During the course of his summing up to the jury, the trial judge directed that in order to find element (b) of the offence was established the jury would need to be satisfied that the applicant intended or meant to place his tongue into the complainant’s mouth; that in order to find element (c) was established the jury would need to be satisfied that the conduct fell within the definition of “indecent”; and that in order to find element (d) was established the jury would need to be satisfied that the applicant intended or meant to deal with the complainant in an indecent manner.[11] Later in the summing up the trial judge drew attention to the applicant’s account in the interviews with police to the effect that he had not intended to “tongue kiss” the complainants,[12] and to the applicant’s submissions that he did not put his tongue inside the mouth of either child, and that he did not intend or mean to engage in indecent conduct.[13]
It is apparent from those directions that the trial judge apprised the jury not only that they needed to be satisfied that the act or conduct had a sexual connotation in order for the offence to be proved, but also that the applicant intended to deal with the complainant in an indecent manner. That did not require the jury to be satisfied beyond reasonable doubt that the applicant had a sexual motivation on either occasion or a sexual attraction to either complainant. It required only that the jury be satisfied that the applicant intended to deal with the complainant in a fashion that, on ordinary community standards of morality or decency, was indecent. That indecency may arise from the nature or quality of the act in itself, or from a sexual motive on the part of an accused.[14] It was quite open to the jury to be satisfied that kissing a child in that fashion was indecent in and of itself.
Evidence wrongly shown to the jury
The applicant asserts that video evidence which it was decided should not be shown to the jury was in fact shown to them during the hearing.
This contention refers to the fact that part of the video recorded statement of AM that was intended to be edited or redacted by the Crown was inadvertently played to the jury.[15] The material had not been ruled inadmissible,[16] but the Crown had agreed that it would not be played. The relevant part of the recorded statement involved AM recounting an incident in which the applicant had told the complainants’ mother that they had taken chocolate biscuits from the fridge. The trial judge assumed that the complainant had gone on in the recorded statement to describe the mother then exercising some disciplinary action, but that further part of the statement had been edited or redacted.[17]
When discussing what should be done about the mistake, the trial judge expressed the view that he could not see that the jury having heard that material in any way prejudiced the applicant’s fair trial.[18] This issue arose when the applicant was represented by the barrister appointed to cross-examine the complainants on the applicant’s behalf. This barrister gave advice to the applicant on his options,[19] including whether an application to discharge the jury should be made. After an adjournment for that purpose, that barrister advised the Court:[20]
If I could just indicate to your Honour I've spoken to RCA. He has made a decision that he wishes to proceed with the trial. Madam Crown has prepared a clarification that will be put to the jury, and perhaps if your Honour could affirm that clarification. She has read it to me, and I'm grateful for that, but I would just add as a courtesy to RCA that he confirm that that's his preferred course.
The trial judge and both counsel then discussed the content of the clarification and the applicant expressly agreed to the proposed course of action.[21] Thereafter, both the Crown prosecutor and the trial judge told the jury that this particular part of the recording should have been removed and was irrelevant to their consideration. The trial judge referred to it as “the Tim Tam incident” and directed the jury as follows:[22]
As … Ms Chalmers said, you should disregard [that] part of the evidence. Don't draw any inferences from it. Those bits that you heard about the so-called second incident, they should form no part of your deliberations, and you shouldn't think any worse of the accused in relation to what involvement he might have had following the Tim Tam incident.
At the hearing of the appeal, the applicant conceded that he was happy to proceed with the trial on the agreed basis at the time the matter arose, but that he was now unhappy because of the result in the trial. The ultimate result in the trial does not change the facts that the applicant took the benefit of legal advice in relation to the matter at the time the issue first arose; that after receiving advice on the options available he indicated both through counsel and directly to the Court that he was content for the trial to proceed; that the Crown prosecutor provided a clarification to the jury in agreed terms about the probative value of the evidence; and that the trial judge directed the jury appropriately on the matter. Moreover, the material inadvertently played was not of a nature which reflected adversely on the applicant’s character or would have caused revulsion in the jury.
For these reasons, the inadvertent playing of the relevant part of the recorded statement during the course of the trial did not give rise to any miscarriage of justice and this contention cannot form an appropriate basis for the grant of leave to appeal.
The composition and capacity of the jury
In his written outline of submissions, the applicant complained about the fact that the jury “was made of 11 people before the end of the case was presented”. That is not a ground for setting aside the jury’s verdict. Fourteen jurors were empaneled – 12 jurors and 2 reserve jurors. Three jurors had to be discharged during the course of the trial, leaving 11. That is not a defect in the trial.
Section 37A of the Juries Act 1962 (NT) provides expressly for the empanelment of reserve jurors at the commencement of the trial. The purpose of impaneling reserve jurors is to allow the replacement of any juror who subsequently becomes disqualified or is discharged during the course of a trial. Subsection 37A(3) of the Juries Act provides in that respect:
A juror at a criminal trial who, prior to the time the jury retires to consider its verdict, dies or becomes disqualified from or is discharged from performing his duties as a juror shall be replaced by a reserve juror, if any, who, if there is more than one reserve juror available at that trial, shall then be determined by lot in such manner as the Court determines.
The Criminal Code makes express provision for the discharge of jurors during the course of the trial for illness, incapacity or other good reason, and the trial may proceed in that event so long as there are no fewer than 10 jurors. Section 373 of the Criminal Code relevantly provides:
373 Incapacity of juror
(1) If at any time during the trial:
(a) …
(b) the court is of the opinion that:
(i) …
(ii) by reason of any matter of urgency or importance a juror should be discharged from further attendance,
the court may, in its discretion:
(c) …
(d) discharge the juror and direct that the trial shall proceed with the remaining jurors.
(2) In any such case the presence of the remaining jurors, not being fewer than 10, shall have the same effect as if all the jurors had continued present.
The provision for a trial to continue with 10 or 11 jurors is reflected in the majority verdict provisions which contemplate that a jury of 10 or 11 jurors may deliver a majority verdict. Section 368 of the Criminal Code provides in that respect:
Majority verdict
Where upon a trial a period of not less than 6 hours has elapsed since the jury retired and the jurors are not unanimously agreed upon their verdict the court shall:
(a) if the jury consists of 11 or 12 jurors and 10 of those jurors are agreed upon a verdict to be given, take and enter that verdict as the verdict of the jury; or
(b) if the jury consists of 10 jurors and 9 of those jurors are agreed upon a verdict to be given, take and enter that verdict as the verdict of the jury.
Having regard to those provisions, the unanimous verdicts of 11 jurors which were returned following the trial in this matter were plainly not improper or unlawful.
The applicant also makes the following complaints about the capacity and impartiality of the jury:
(a)the jury were not qualified in the skills of critical thought, and appear to have fallen victim to confirmation bias during their deliberation;
(b)the jury suffered from “misandry” as evidenced by the fact that the foreperson of the jury was a woman; and
(c)approximately 50% of the initial 14 jury members swore an oath, rather than an affirmation, which the applicant contends is indicative of a preconceived religious conditioning that may have had an effect on their deliberations, and could have also have affected what the applicant contends was their lack of understanding of some “personal symbology” that he was wearing.
There is no evidence and nothing in the transcript of the proceedings at trial to support these speculations, and they do not constitute valid grounds of appeal.
Delay in prosecution
In his written outline of submissions the applicant complains about the extended delay between the original complaints and any further action being taken. Delay in prosecution, by itself, does not constitute a ground of appeal. In summing up, the trial judge gave a detailed and lengthy warning to the jury of the possible consequences of the delay in prosecuting the applicant and the potential forensic disadvantages to the applicant as a result of that delay.[23] The jury may be presumed to have taken heed of the warning.
No definition of “married kissing”
The applicant complains that at no time was the term “married kissing” ever defined by the prosecution in any way. It was not necessary to do so. The evidence was that is what the applicant said to AM and that he then kissed her inserting his tongue into her mouth. That is the conduct constituting the offence.[24]
Conduct of the investigation
The applicant complains about the conduct of those conducting the investigation stating that the initial investigation carried out by the relevant departments was tainted by observational bias. Even if made out (and it is unclear what is meant by “observational bias”), that would not constitute a ground of appeal.
Conclusion
None of the complaints made by the applicant, either individually or collectively, gave rise to a miscarriage of justice. Leave to appeal on this proposed ground must necessarily be refused.

Refusal of the application for a stay

Before this matter came on for trial, the applicant sought an order that the proceedings against him be stayed “for an indeterminate or indefinite period due to lack of ability to secure legal representation”. The application was made in reliance on the principle expressed in Dietrich v The Queen.[25] That application was refused,[26] and the applicant claims that that refusal was wrong and led to a miscarriage of justice. The decision to refuse the application was made on 29 July 2021. The applicant is well out of time for filing a notice of appeal or application for leave to appeal, and in any case no such documents have been filed. However, the applicant raised this issue during the course of oral submissions on the hearing of the appeal against conviction.
In determining to refuse the Dietrich application, Barr J concluded that, without competent legal representation, the applicant would suffer considerable disadvantage in conducting his own defence and that his trial was likely to be unfair if he were to remain without representation through no fault of his own.[27] His Honour then set out the test in Dietrich as applied in The Queen v Karounos.[28] An applicant for a Dietrich stay, charged with a serious offence, “must prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation, and that that inability is not due to fault on his part”.
Justice Barr then considered whether the applicant was “indigent” and whether he had been unable to obtain legal representation “through no fault on his part”. In doing so, Barr J stated:[29]
The assessment of whether an accused person is, relevantly, ‘indigent’ requires a consideration of that person’s means and ability to fund his defence vis-à-vis the likely cost of competent legal representation for the trial proper and pre-trial proceedings.
His Honour went on to quote the following passage from Craig v South Australia[30], in which the High Court explained what was meant by the expression “through no fault on his or her part” in Dietrich:
The reference … was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that:
“… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.”
His Honour applied this test considering the evidence of the likely cost of obtaining legal representation ($45,000 to $75,000) against the applicant’s net annual income of $62,797 from his employment as a System Engineer with an IT company ($51,464) and a part time job with Uber Eats (estimated at $11,323). After deducting the applicant’s reasonable expenses, Barr J concluded the applicant had a net annual surplus of $21,388.[31] On that basis, his Honour found that the applicant was not “indigent”.[32]
Justice Barr then examined the applicant’s efforts to obtain legal representation and concluded:[33]
It is clear that the accused has a philosophical objection to having to fund his own defence. His general attitude is demonstrated in the transcript extract in [24] above, and elsewhere in the transcripts of the stay hearing. He is a working man, working two jobs, and considers that it is unfair that, through his taxes, he is funding the prosecution, while at the same time he is expected to use his own funds to pay for his defence. Unfortunately for the accused, those matters are policy considerations which are not relevant considerations on the stay application.
…
I am also not satisfied that the accused has been unable to obtain legal representation through no fault on his part. Apparently discouraged by the response(s) of the Legal Aid Commission, and being of the view explained in [90], he had made very little or no real effort to secure legal representation, and had failed to save and allocate money to pay for legal representation, including for trial counsel.
The application for a stay should be refused.
The applicant has not identified any flaw or error in the reasoning process of the judge determining the Dietrich application, and none is apparent. The applicant’s contention was simply that it was not fair that he should have to pay for his own defence lawyer. Whatever the merits or otherwise of that contention might be in a policy sense, it does not raise a valid ground of appeal.
Leave to appeal against the decision on the Dietrich application should be refused.
Application for leave to appeal against sentence
Apart from referring to “the judgment of Hiley AJ given on 25 February 2022”, the application for leave to appeal does not purport to seek leave to appeal against the sentence imposed. However, the applicant’s written submissions contain the following complaint:
Example cases provided to the trial judge by the prosecution as sentencing examples were no-where near the allegations made in this case, every single example provided described actual penetration of a child (or children), this case did not. It is not beyond reason to believe that the judge was potentially swayed by this extreme information just prior to his sentencing, resulting in a manifestly excessive, unreasonable or plainly unjust sentence, when other options may have been available to him.
The applicant was sentenced to six months' imprisonment on count 1 and nine months imprisonment on count 5. Three months of the sentence for count 1 was ordered to be served cumulatively on the sentence for count 5, bringing the total effective sentence to 12 months. The sentencing judge directed that the sentence be suspended from the rising of the court and fixed an operational period of two years with no further conditions.
The applicant complains that “other options may have been available” – presumably meaning options other than a sentence of imprisonment. That is incorrect. Section 78F of the Sentencing Act 1995 (NT) provides:
Imprisonment for sexual offences
(1) Where a court finds an offender guilty of a sexual offence, the court must record a conviction and must order that the offender serve:
(a) a term of actual imprisonment; or
(b)a term of imprisonment that is suspended by it partly but not wholly.
(2) Nothing in subsection (1) is to be taken to affect the power of a court to make any other order authorised by or under this or any other Act in addition to an order under subsection (1).

A “sexual offence” is defined to include an offence against s 132 of the Criminal Code.[34]The offences charged in Counts 1 and 5 were both offences against s 132. In other words, a sentence of imprisonment suspended from the rising of the court was the most lenient sentence available to the sentencing judge. Further, the head sentence of 12 months for those two offences was not manifestly (or even arguably) excessive.
Leave to appeal against the sentence imposed should be refused.
Orders
On each ground of appeal which the applicant seeks to advance he requires not only leave to appeal, but also an extension of time within which to bring an application for leave to appeal. The applicant has not demonstrated any reasonable explanation or excuse for the failure to make an application for leave to appeal within time. On that basis, any application for an extension of time for that purpose would properly be refused.
However, an unrepresented litigant who has been subjected to criminal conviction should not be denied recourse on appeal in circumstances where there is any arguable case for error in the recording of those convictions. In this matter, the proposed grounds of appeal advanced by the applicant were fully ventilated during the hearing of the appeal. None of those proposed grounds have merit and the application for leave is formally refused.

___________________________

[1] Appeal Book ("AB") 607.

[2] PW v The Queen [2020] NTCCA 1 at [107]-[108] per Kelly J and Riley AJ. See also SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; GAX v The Queen [2017] HCA 25; 344 ALR 489 at [25]; Lynch v The Queen [2020] NTCCA 6; FN v The Queen [2021] NTCCA 5; Willcocks v The Queen [2021] NTCCA 6; Foster v The Queen [2021] NTCCA 8 at [2]-[3]; and Smith v The King [2022] NTCCA 14 at [48]-[49].

[3] Pell v The Queen (2020) 268 CLR 123 at [44]-[45]. See also Tyrell v The Queen [2019] VSCA 52 at [70].

[4] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at 596-597 [113]; see also R v Baden-Clay (2016) 258 CLR 308 at 329 [65].

[5] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

[6] AB 54.

[7]AB 111; 163; 216; 252.

[8] AB 51, 53.

[9]AB 619.

[10]AB 622.

[11]AB 549.

[12]See, for example, AB 560-561.

[13]AB 565.

[14]BD v The Queen [2017] NTCCA 2 at [22]-[26], [33]-[37].

[15] AB 85.

[16] AB 87.

[17] AB 85, 124.

[18] AB 90.

[19] AB 88.

[20] AB 90.

[21] AB 92-95.

[22] AB 124-125.

[23]AB 539-540.

[24] Counsel for the respondent in any event provided Appeal Book references to a description of “married kissing” by AM (AB 100-101) and a demonstration by GM (AB 306).

[25] Dietrich v The Queen (1992) 177 CLR 292 at 353.

[26] The Queen v RCA [2021] NTSC 54.

[27] The Queen v RCA [2021] NTSC 54 at [49].

[28] The Queen v Karounos (1995) 63 SASR 451 at 457 per King CJ; Mohr J agreeing at 475.

[29] The Queen v RCA [2021] NTSC 54 at [51].

[30]Craig v South Australia (1995) 184 CLR 163 at 186.

[31] The Queen v RCA [2021] NTSC 54 at [78].

[32] The Queen v RCA [2021] NTSC 54 at [78].

[33] The Queen v RCA [2021] NTSC 54 at [90]-[93]. In drawing these conclusions, Barr J referred to evidence by the applicant including his expressed view that, having been refused legal aid, he believed that he should not have to pay for his own legal representation. Further, when asked whether he would “start shopping around” to find legal representation given that the cost of representation appeared to be considerably less than the amount of $100,000 he had previously assumed, he replied, “I may do so, your Honour, but I do find it somewhat abhorrent that I have to spend money in this process. That is my major point of contention here, is that there is a whole raft of government departments on one side of the table there that are spending the public purse and I’m the only one in this procedure who has to dig into my personal funds.”

[34]Sentencing Act, s 3 and Schedule 3.

[2023] NTCCA 4

23 March 2023

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Stay of Proceedings

Jurisdiction

Procedural Fairness