Twentyman v The Queen

CITATION:Twentyman v The Queen [2022] NTCCA 11
PARTIES:TWENTYMAN, Travers

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 13 of 2021 (22022514)
DELIVERED:  17 June 2022
HEARING DATE:  30 March 2022
JUDGMENT OF:  Kelly, Barr and Burns JJ

CATCHWORDS:
Appeal against conviction – whether the trial judge erred in law in directions given to the jury by failing to direct the jury that direct or indirect physical contact between the appellant and the complainant was an essential element of committing an act of gross indecency upon a child under the age of 16 years contrary to s 127 (1)(b) of the Criminal Code 1983 (NT) – held that direct or indirect physical contact is an essential element of an offence under s 127 (1)(b) - the verdict of guilty on count 3 was not supported by the evidence in that the evidence did not establish an essential element of the offence, namely direct or indirect physical contact between the appellant and the complainant – appeal allowed – verdict of guilty on count 3 set aside and verdict of acquittal entered
Appeal against conviction - where Crown submitted that statement made by accused in pretext telephone call was untrue - where Crown did not allege that this was a lie by the accused evidencing a consciousness of guilt - whether Zoneff direction required - no application by defence counsel for direction or redirection at trial - no direction required - appeal on that ground dismissed
Appeal against conviction - whether trial miscarried on account of Crown leading tendency evidence and/or failure of trial judge to adequately direct the jury in relation to that evidence - evidence was not tendency evidence - no objection at trial - no miscarriage of justice - appeal on that ground dismissed
Appeal against conviction – prosecutor cross-examined the appellant about the failure of his lawyer to put certain matters to Crown witnesses and impermissibly impugned the appellant’s credit on the basis of those questions and impermissibly asked the appellant about confidential communications between himself and his lawyer - questioning implied that the appellant bore an onus to prove certain matters - in relation to the questions directed to confidential communications between the appellant and his lawyer, the trial judge failed to reach required satisfaction under s 132 of the Evidence (National Uniform Legislation) Act 2011 that the appellant was aware of the effect of s 118 and his capacity to object to answering the questions - irregularity in the conduct of the trial – miscarriage of justice – appeal allowed – proviso not applied - verdicts of guilty set aside – retrial ordered on charges other than count 3
Court Procedures Rules 2006 (ACT), Rule 5531
Criminal Code 1983 (NT), s 127, s 127(1), s 127(1)(b), s 127(2)(b), s 131, s 131(1)(b), s 132, s 132(2)(a), s 132(2)(b), s 132(2)(d), s 158, s 158(5), s 174C, s 174D, s 174G, s 174G(b), s 174G(c), s 174G(d), s 325(1), s 441(3), s 413, Div 2 of Part X
Evidence Act 1995 (NSW), s 116
Evidence (National Uniform Legislation) Act 2011 (NT), s 81(1), s 97(1)(a), s 104, s 118, s 122(2), s 126, s 132
Supreme Court Rules 1987 (NT) Rule 86.08
Banjo (NT) Pty Ltd v Ward Keller Pty Ltd [2006] NTCA 1; Benecke v National Australia Bank (1993) 35 NSWLR 110; Birks v The Queen (1990) 19 NSWLR 677; Dhanhoa v The Queen (2003) 217 CLR 1; DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; Glencore International AG v Federal Commissioner of Taxation (2019) 265 CLR 646; Hofer v The Queen (2021) 95 ALJR 937; Kalbasi v Western Australia (2018) 264 CLR 62; Mann v Carnell [1999] HCA 66; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; Orreal v The Queen [2021] HCA 44; SY v The Queen [2018] NSWCCA 6, applied
BD v The Queen [2017] NTCCA 2; 40 NTLR 1; Browne v Dunn (1893) 6 R 67 (HL); Edwards v The Queen (1993) 178 CLR 193; Hofer v The Queen [2019] NSWCCA 244; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Libke v The Queen (2007) 230 CLR 559; Llewellyn v The Queen [2011] NSWCCA 66; MLW v The Queen [2018] NTCCA 19; Munro v The Queen [2014] ACTCA 11; Papakosmos v The Queen [1999] HCA 37; 196 CLR 297; Pell v The Queen (2020) 268 CLR 123; R v A2 [2019] HCA 35; 269 CLR 507; R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130; Zoneff v The Queen (2000) 2000 CLR 324, referred to
Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; Hampton v The Queen [2022] NTCCA 7; Marsh v The Queen [2018] ACTCA 55, followed
REPRESENTATION:
Counsel:
Appellant:A Abayasekara
Respondent:  V Engel
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  65

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Twentyman v The Queen [2022] NTCCA 11

No. CA 13 of 2021 (22022514)
BETWEEN:

TRAVERS TWENTYMAN

Appellant

AND:

THE QUEEN

Respondent

CORAM: KELLY, BARR and BURNS JJ
REASONS FOR JUDGMENT
(Delivered 17 June 2022)
Introduction

On 20 May 2021, following a trial by jury, the appellant was found guilty of four counts on an indictment dated 16 May 2021.
Count 1 on the indictment charged that contrary to s 132(2)(a) of the Criminal Code between 1 February 2007 and 4 April 2008 at Berry Springs the respondent indecently dealt with SC, a child under the age of 16 years. At the time of this offence, the complainant was nine or 10 years old. As the Crown failed to prove the date on which the offence occurred, the maximum penalty for this offence is imprisonment for 10 years.
Count 2 on the indictment charged that contrary to s 127(1) of the Criminal Code between 1 February 2007 and 4 April 2008 at Berry Springs the respondent committed an act of gross indecency upon SC, a child who was under the age of 16 years. As the Crown failed to prove the date on which the offence occurred, the maximum penalty for this offence is imprisonment for 16 years.
Count 3 on the indictment charged that contrary to s 127(1) of the Criminal Code on 19 January 2008 at Darwin the respondent committed an act of gross indecency upon SC, a child who was under the age of 16 years. The maximum penalty for this offence is imprisonment for 16 years.
Count 4 on the indictment charged that contrary to s 127(1) of the Criminal Code between 7 July 2008 and 4 February 2009 the respondent committed an act of gross indecency upon SC, a child who was under the age of 16 years. The maximum penalty for this offence is imprisonment for 16 years.
On 7 June 2021, the respondent was convicted of each count, and sentenced as follows:
(1)for count 1, four months imprisonment,
(2)for count 2, 13 months imprisonment with two months to be served concurrently with the sentence imposed on count 1,
(3)for count 3, 15 months imprisonment, with six months of the sentence to be served concurrently with the sentence imposed for count 2,
(4)for count 4, two years and six months imprisonment with six months of the sentence to be served concurrently with the sentence imposed for count 3.
That gave a total sentence of four years imprisonment. The sentence of imprisonment was backdated to 19 May 2021 to reflect the time that the respondent had been on remand for these offences. The sentence was suspended after the respondent had served 18 months in prison on supervised conditions. An operational period of two years and six months from the date of the respondent’s release from prison was fixed. A Crown appeal against sentence was unsuccessful.
The Crown case
For the purpose of sentencing, the learned sentencing Judge found the facts as follows, in line with the Crown case.
The victim’s father was the appellant’s close friend. He had separated from his wife who was the mother of the victim. The victim and her younger sister would spend weekends with their father. When they did, the three of them would stay at the appellant’s home in Berry Springs, and subsequently at his home in Karama. The appellant lived with his de facto partner and his sons. The adults would usually consume alcohol and it was common for the complainant’s father to fall asleep after doing so.
The allegations in relation to count 1 are that the appellant was sitting on a chair in the lounge room while the complainant’s father was asleep. The appellant asked the complainant to give him a hug. The appellant embraced her and then told her he would show her how to kiss. He kissed her three times, putting his tongue in her mouth. The complainant said, “It was not a kiss you would give a kid.” The complainant pulled away and tried to wake her father, and the appellant desisted.
The allegations in relation to count 2, are that while the complainant was asleep on the edge of a mattress, on the floor in the appellant’s bedroom with her sister and her father, the appellant lay down beside her. He pressed his body against hers and then put his hands under her t-shirt, skin to skin, cupped her breasts and nipples and rubbed them for five to 10 minutes. The complainant pretended to be asleep, hoping he would stop. He did not, so she rolled over her sister and lay in between her father and her sister. The appellant then desisted.
The allegations in relation to count 3, are that while the appellant’s partner remained in hospital for about two weeks after giving birth to their third son, the appellant drove the complainant and the baby back to his home. The complainant was sitting in the front passenger seat. The appellant pulled the car over, took his erect penis out of his pants and asked the complainant to touch it. She refused. The appellant then said that she should at least put it away. She again refused. The appellant then put his penis away and continued driving.
The allegations in relation to count 4, are that while the complainant was asleep on the lounge, the appellant came up behind her. He put his hands down her t-shirt, skin to skin, cupped her breasts and nipples and then slid his hand down the front of her underpants, skin to skin, and placed his hand on her vulva and clitoris area. She stayed still, pretending to be asleep and hoping the appellant would stop. After some time, he stopped.
The appeal
The appellant has appealed against his conviction on the following grounds:
·     Ground 1: The learned trial judge erred in law in directions given to the jury as regards counts 2, 3 and 4, namely by failing to direct the jury that direct or indirect physical contact between the appellant and the complainant was an essential element of committing an act of gross indecency upon a child under the age of 16 years contrary to s 127 (1)(b) of the Criminal Code 1983 (NT).
·     Ground 2:        The verdict of guilty on count 3 was not supported by the evidence in that the evidence did not establish an essential element of the offence, namely direct or indirect physical contact between the appellant and the complainant.
·     Ground 3:        The learned judge erred in law in failing to adequately direct the jury as to the use that could be made of and the dangers associated with the appellant’s statements in the pretext telephone call and the evidence from the complainant’s father and the appellant that the complainant had not been left at the appellant’s home in his care without her father being present.
·     Ground 4:        The appellant’s trial miscarried on account of the admission of tendency evidence from RC and/or the failure to adequately direct the jury in relation to that evidence.
·     Ground 5:        The appellant’s trial miscarried as a result of the prosecutor asking impermissible questions and making improper comments when cross-examining the appellant.
An extension of time within which to appeal, and leave to appeal were granted by a single judge of this Court on 25 November 2021.
Grounds 1 and 2:
· The learned trial judge erred in law by failing to direct the jury that direct or indirect physical contact between the appellant and the complainant was an essential element of committing an act of gross indecency upon a child under the age of 16 years contrary to s 127 (1)(b) of the Criminal Code 1983 (NT).
· The verdict of guilty on count 3 was not supported by the evidence in that the evidence did not establish an essential element of the offence, namely direct or indirect physical contact between the appellant and the complainant.
Appeal Grounds 1 and 2 are pressed only in relation to the appellant’s conviction on count 3 in the indictment.
Count 3 charged the appellant with having committed an act of gross indecency upon the complainant, a child who was under the age of 16 years, on 19 January 2008. The complainant was 10 years old at the time. The Crown case was that the appellant and the complainant were returning in the appellant’s vehicle from the hospital where the appellant’s partner had been admitted following the birth of their son. The appellant was driving and the complainant was sitting in the front passenger seat holding the appellant’s 15-day-old child. The appellant pulled the vehicle over to the side of the road, near Knuckey Lagoon. Then, while sitting in the car, he took his erect penis out of his pants and asked the complainant to touch it. She refused. The appellant then asked her to put it away for him. She again refused. He put his penis away and continued driving to the appellant’s home.[1] There was no physical contact between the appellant and the complainant.
Set out below is an extract from s 127 of the Criminal Code:
127 Sexual intercourse or gross indecency involving child under 16 years
(1) Any person who:
(a)has sexual intercourse with; or
(b)commits any act of gross indecency upon,
a child who is under the age of 16 years is guilty of an offence and is liable to imprisonment for 16 years.
The issue for determination by this Court is whether a charge contrary to s 127(1)(b) is made out in circumstances where there is no physical contact (direct or indirect) between the alleged offender and victim. In the present case, there is little doubt that the conduct allegedly engaged in by the appellant was indecent, even though there was no physical contact. The specific question to be answered is whether physical contact between the appellant and the complainant was an essential element of the offence.
In our opinion, physical contact is an essential element of an offence of committing an act of gross indecency upon a child who is under the age of 16 years contrary to s 127(1)(b).
The key word in our interpretation is the word “upon”, which we consider denotes a relationship between two persons which involves physical contact.
The word “upon” is a somewhat old-fashioned word, and is generally replaced in everyday English conversation and writing by the preposition “on”. The respondent contends that the word “upon”, in the context of s 127(1)(b), means ‘against’, ‘towards’, or ‘directed at’.[2] Those meanings represent a broad meaning of the word “upon”, whereas the appellant contends that “upon” means ‘on’ in a straightforward physical sense.
It may be accepted that the word “upon”, like the word “on”, can be used in a broader or more abstract sense to describe a relationship between two things that does not involve physical contact. One example is an encounter between two persons or groups of persons: “He came upon a large force of enemy soldiers.” Another example is the use of the word to mean ‘towards’ or ‘directed at’: “He practised a significant level of deception upon the elderly victims of his fraudulent scheme.” Further example: “The property developer conferred a corrupt benefit on (upon) the delegate of the Minister.” These examples of a broader or more abstract meaning are not determinative; they simply suggest that a broader meaning for the word “upon” cannot be excluded at the threshold as ungrammatical or otherwise not applicable. We observe, however, that there is no positive indication that the broader meaning is the correct meaning for the purpose of s 127(1)(b).
The offence under consideration is in the same sub-section as the offence of having sexual intercourse with a child, contrary to s 127(1)(a). Our conclusion as to the correct interpretation of the word “upon” in s 127(1)(b) is based on the structure of s 127 and, in substantial part, on the immediate context in which the word “upon” appears: “Any person who … commits any act of gross indecency upon a child ...”. In the context of an indecent act being committed upon a person, we consider that it is inconceivable on a proper construction that the offence could be committed without physical contact.
Section 127(1)(b) appears in Part V, Division 2, Subdivision 2 of the Criminal Code, under the subdivision heading “Other offences against morality”. Within the same subdivision are two or more offences which are relevant to the alleged conduct of the within appellant. We consider those offences as context in a wider sense, taking into account the surrounding statutory provisions.
Section 131 of the Criminal Code creates the offence of attempting to procure a child under the age of 16 years:
131 Attempts to procure child under 16 years
(1)Any person who attempts to procure a child who is under the age of 16 years to:
(a)have sexual intercourse either in the Territory or elsewhere; or
(b)commit, perform or engage in any act of gross indecency,
is guilty of an offence and is liable to imprisonment for 3 years.
(2)If the offender is an adult he is liable to imprisonment for 5 years.
It is not necessary for this Court to determine whether the appellant’s alleged acts and words in the presence of the 10 year old complainant (that is, asking her to touch his exposed erect penis) constituted an attempt to procure her to engage in an act of gross indecency, or to an act of indecency which did not amount to gross indecency. It is arguably the former. If the attempt were properly characterised as an attempt to procure the child to commit, perform or engage in an act of gross indecency, then the relevant offence would be one contrary to s 131(1)(b).
Section 132 of the Criminal Code creates the offence of indecent dealing with a child under the age of 16 years:
132 Indecent dealing with child under 16 years
(1)In this section, deals with includes the doing of any act which, if done without consent, would constitute an assault within the meaning of sections 187 and 188.
(2)Any person who:
(a)indecently deals with a child under the age of 16 years;
(b)exposes a child under the age of 16 years to an indecent act by the offender or any other person;
(c)permits himself to be indecently dealt with by a child under the age of 16 years;
(d)procures a child under the age of 16 years to perform an indecent act;
(e)without legitimate reason, intentionally exposes a child under the age of 16 years to an indecent object or indecent film, video tape, audio tape, photograph or book; or
(f)without legitimate reason, intentionally takes or records, by means of any device, an indecent visual image of a child under the age of 16 years,
is guilty of an offence and is liable to imprisonment for 10 years.
The meaning of the term “deals with” is defined inclusively (rather than exhaustively) by reference to an act which would constitute an assault within the meaning of s 187 and s 188 of the Criminal Code.[3] Actual physical contact is not an essential element of ‘dealing’ in the relevant sense. Arguably, the appellant’s alleged acts and words in the presence of the 10 year old complainant constituted an indecent dealing simpliciter, contrary to s 132(2)(a). Alternatively, they constituted an offence contrary to s 132(2)(b), that is, exposing the child to an indecent act by the offender; or, in the further alternative, an attempt to commit an offence contrary to s 132(2)(d), that is, an attempt to procure a child under the age of 16 years to perform an indecent act.[4]

It is not determinative that the appellant’s alleged conduct may have given rise to charges for another offence or other offences. However, the existence of apparently obvious offences specific to the alleged conduct is a contextual matter to be taken into account by this Court in determining whether a broad or narrow interpretation of “upon” in s 127(1)(b) is to be preferred. We acknowledge that a broad construction of an offence provision may be warranted in a particular case, for example, when the provision is a protective provision.[5] There is no doubt that s 127(2)(b) is a protective provision. However, its purpose is to protect children under the age of 16 years from the commission of any act of gross indecency upon them. It is the purpose of other sections within Subdivision 2 to protect children against specific conduct described in [17] above.
Counsel for the respondent referred the Court to the joint judgment of Kiefel CJ and Keane J in R v A2,[6] at [52]:
A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any “loose” construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.
(citations omitted)
We consider that any ambiguity in the present case, in having to decide whether a broad or narrow construction of s 127(1)(b) should be adopted, is resolved by application of the ordinary rules of construction, without resort to the “old rule”.
There are some other matters which support our interpretation.
With respect to the synonyms suggested by counsel for the respondent, referred to in [7] above, we note that the legislature could have enacted offences in the terms set out hereunder:
·‘commits any act of gross indecency against a child who is under the age of 16 years’
·‘commits any act of gross indecency towards a child who is under the age of 16 years’
·‘commits any act of gross indecency directed at a child who is under the age of 16 years’
In fact, the words “against” and “towards” are used in various sections of the Criminal Code. They are not foreign to the legislature.
Section 174G of the Code states circumstances of aggravation for offences committed against s 174C (recklessly endangering life) and s 174D (recklessly endangering serious harm). Neither of the primary offences require that there be physical contact between the offender and victim. The specified circumstances of aggravation in s 174G include where the offence was committed against a public officer, or against a person involved in any capacity in legal proceedings, or against a child under the age of 10 years.[7]
The legislature has thus seen fit to use the word ‘against’ with reference to offences committed against particular classes of victims (including children) in circumstances where the offending may or may not involve physical contact. The word ‘against’ includes all contact and non-contact offences. The fact that the legislature did not use the word ‘against’ in s 127(1)(b) lends support to a construction whereby the word “upon” in s 127(1)(b) does not carry the broader meaning contended for by the respondent.
The position is very similar in relation to conduct ‘towards’ a person. For example, the partial defence of provocation to a charge of murder is explained in s 158 of the Criminal Code. Section 158(5) provides that conduct of a deceased consisting of a non-violent sexual advance towards an offender is not by itself a sufficient basis for a defence of provocation but may be taken into account with other conduct. It may be noted that the legislature used the words “sexual advance or advances towards the defendant” to indicate various kinds of sexual advances, and clearly not only those where there may be physical contact.[8]
The Criminal Code does not use the expression ‘directed at’ in any context, but we consider that it means the same as the word ‘towards’ which the legislature has used.
When regard is had to the wider statutory context, and noting the provisions referred to where the words ‘against’ and ‘towards’ have been used, we are reinforced in our view that the use of the word “upon” in s 127(1)(b) is intended to have a narrow meaning rather than the broad meaning contended for by the Crown.
In our judgment it is clear that it is an element of an offence charging an accused person with committing an act of gross indecency upon a child under the age of 16 years that there be physical contact (whether direct or indirect).
Ground 3: The learned trial judge erred in law in failing to adequately direct the jury as to the use that could be made of and the dangers associated with the appellant’s statements in the pretext telephone call and the evidence from the complainant’s father (sic) and the appellant that the complainant had not been left at the appellant’s home in his care without her father being present.
Ground 3 alleges that a miscarriage of justice was occasioned by the failure of the trial judge to give an appropriate direction to the jury in the terms of either Zoneff v The Queen[9] or Edwards v The Queen[10] regarding statements made by the appellant in a pretext telephone call with the complainant’s father, KD. These are directions to the jury informing jurors how they may approach any finding which they make that an accused person has told lies, either in court or out of court, in relation to a matter of relevance in the trial. An Edwards direction would be given where the telling of the alleged lie is said to demonstrate a consciousness of guilt on the part of the accused. A Zoneff direction may be appropriate where it is not alleged the telling of a lie by an accused evidences a consciousness of guilt but may be relevant to the jury’s assessment of the credibility of the accused.
As we have already observed, KD and the appellant were longstanding friends. KD first became aware of the allegations against the appellant when he was informed of them by the complainant on 25 May 2020. On the same day, KD participated in a telephone conversation with the appellant which was recorded by police (the pretext call). In that conversation, KD told the appellant that the complainant had alleged that he, the appellant, had abused the complainant when she was a child. The appellant denied that allegation and, as part of that denial, said that the abuse could not have occurred because the appellant had never been left alone with the complainant. In particular, the appellant said “The kids were never left alone. My kids were never left alone with you and yours were never left alone with me.”
In his evidence at the appellant’s trial, KD testified that this statement made by the appellant was “not accurate”. KD went on to describe instances where he would leave his children, including the complainant, at the appellant’s house while he went to his house to feed and water his animals. It was not suggested by the Crown that any of the alleged offences occurred on those occasions. KD also stated that there were occasions when he would be inside the appellant’s house and the appellant would be outside with the children, and vice versa.
In cross-examination it was put to KD that he had never left his children in the care of the appellant. KD denied that suggestion.
In his evidence, the appellant testified that the complainant had never been left at his property by KD. He stated that the complainant had always left the property with KD. The appellant was cross-examined at length about his statement that he had never been left alone with the complainant, but he maintained his position.
In the Crown’s closing address, the appellant’s statement that he had never been left alone with the complainant or her siblings was described as “an exaggeration – a broad brush stroke generalisation”. The Crown urged that the appellant’s statement was unrealistic.
Prior to her summing up, the trial judge raised with the Crown in the absence of the jury whether the Crown alleged that the statement made by the appellant in the pretext telephone call that he had never been left alone with the complainant was a lie evidencing a consciousness of guilt. At that time, the Crown stated that it was its position that this statement was a lie evidencing a consciousness of guilt, and it was agreed that the trial judge would give the jury an Edwards direction (that is to say, a direction about the circumstances in which the jury may use the fact that an accused told lies as evidence that he is guilty)
Later that evening, and before the trial judge had concluded her summing up to the jury, the Crown sent an email to the judge’s associate advising that the Crown had reviewed the transcript of her closing address and noted that the Crown had not submitted that the alleged lies told by the appellant in the pretext telephone call evidenced a consciousness of guilt. The Crown withdrew its submission that these statements by the appellant evidenced a consciousness of guilt.
In her summing up to the jury the next day, the trial judge reminded the jury of the apparent conflict between the evidence of the appellant and that of KD about whether the appellant could have committed the alleged offences because he had never been left alone with the complainant. The trial judge did not give an Edwards direction.
In the course of his submissions before this Court, counsel for the appellant (who was not trial counsel) accepted that it would not have been appropriate for the trial judge to give the jury an Edwards direction as the Crown had eschewed any suggestion that the appellant’s statements in the pretext call evidenced a consciousness of guilt. Counsel for the appellant nevertheless maintained that the primary judge should have given a Zoneff direction. (That is to say, the appellant contended that the trial judge should have directed the jury that, if they were satisfied that the appellant had lied in the pretext call, they could not use that fact to support a conclusion that the appellant was guilty: the only use they could make of the fact that the appellant told a lie was in assessing his credibility. If they were satisfied that the appellant did lie, then they could take that into account in deciding whether to believe the other things the appellant said.)
Before proceeding further it is appropriate to consider how the evidence of the pretext telephone call came to be led by the Crown in the first place. The recording of the pretext call contains no admissions by the appellant to any of the charged conduct and as such did not fall within the exception to the hearsay rule found in s 81(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”). During the course of the appeal, it was accepted by the appellant’s counsel (who was not trial counsel) that the Crown had intended not to lead evidence of the pretext call at the appellant’s trial, and ultimately did so only at the request of the appellant’s trial counsel. There was a perfectly reasonable explanation for trial counsel taking that approach. It was evidence that when first confronted, without warning, with the allegations made by the complainant, the appellant vehemently denied the allegations and put forward by way of defence that he never had the opportunity to engage in the alleged conduct. If the appellant’s assertion that he did not have the opportunity to engage in the alleged conduct was true, that was a powerful circumstance militating against guilt. It was understandable that trial counsel would want evidence of such an assertion and the circumstances in which it was made put before the jury.
The difficulty for the appellant arose because the Crown was able to lead evidence that contradicted the appellant’s broad statement that he had never been left alone with the complainant. None of the occasions on which KD testified that the appellant was left alone with the complainant were alleged to be occasions when the offending conduct occurred, but the relevance of KD’s evidence on this issue was to attack the reliability of the appellant’s broad assertion that he had never been left alone with the complainant.
The statement made by the appellant that he had never been left alone with the complainant could not have been a lie (assuming the jury were satisfied it was a lie) evidencing a consciousness of guilt with regard to Counts 1, 2 and 4 because the Crown case was that the appellant was not alone with the complainant when those offences occurred. Indeed, the appellant was not strictly speaking alone with the complainant when the offence in Count 3 occurred, but the age of the baby who was also in the car meant that for all practical purposes he was alone with the complainant in the car. It was therefore a wise decision by the prosecutor to eschew any reliance on the statement as a lie evidencing a consciousness of guilt.
Counsel for the appellant on this appeal ultimately accepted that it was appropriate for the trial judge not to give an Edwards direction, but he nevertheless maintained that a Zoneff direction should have been given.
There can be no doubt that the Crown initially intended to submit to the jury that the appellant’s statement that he was never left alone with the complainant was a lie, and in particular a lie evidencing a consciousness of guilt. In discussions with the trial judge in the absence of the jury, and before the trial judge gave her directions to the jury on this issue, the prosecutor submitted that she had told the jury in her opening address that the appellant’s statement in the pretext call was a lie. It was later that evening that the Crown sent the email disavowing any reliance on the appellant’s statement as a lie evidencing a consciousness of guilt. In the context of the present ground of appeal, it is important to understand how the Crown actually suggested to the jury that the jury could approach the appellant’s statement.
Despite the prosecutor’s statement that she had opened to the jury on the basis that the appellant’s statement was a lie, the prosecutor did not in fact refer to it as such in her opening address. The prosecutor only briefly touched upon the topic of the pretext call in her opening, and did not, in terms, suggest that the appellant’s statement was a lie. What the prosecutor did say was:
Police then made arrangements for (the complainant’s) dad to call the accused. And they recorded that telephone call. By the time of that telephone call, (the complainant’s) dad had to cancel plans to meet with the accused, because you’ll hear they were very good friends still by this stage and he instead made that telephone call that was recorded.
In that call the accused denied abusing (the complainant) and what he also said was that he was never, ever left alone with (the complainant). And during the course of the trial I expect you will hear evidence from a number of witnesses who say that is just not true.[11]
The appellant gave evidence at his trial in which he denied engaging in the conduct alleged by the complainant. He denied ever being alone with the complainant in a car while his partner was in hospital (Count 3). He denied that the complainant had ever been at his premises when her father was not present. In cross-examination it was suggested by the prosecutor that the appellant’s evidence that he had never been left alone with the complainant was “just not true”. The appellant denied that suggestion.
In her closing address to the jury, the prosecutor made scant reference to the statement made by the appellant in the pretext call. The prosecutor’s submissions relating to the pretext call were made as part of her submissions on the credibility and reliability of the appellant’s evidence generally. What the prosecutor said was:
…What we say in that call from 26 May is that there is a sweeping generalisation. In an attempt to deny the offending, “We were never alone – we were brothers for life mate” – that kind of thing, and when you go back and listen to that call, think about whether it’s an exaggeration, think about whether he is banging it on – do the same with body-worn.
Now, of course, the accused says that – and I think where he ended up with his evidence was that there was never a time where when he was home – where (the complainant) was home and (KD) wasn’t around.
Now, for those of you who have got grownup children or have younger children, two families on one property, think about how realistic that is and think about whether the accused’s evidence about that is an exaggeration – a broadbrush stroke generalisation – or whether you think actually it’s pretty unlikely that there was never an occasion over this every weekend – every second weekend – where (KD) let – let his daughters out of his sight….[12]
It will be observed that the prosecutor never directly suggested that the appellant’s statement in the pretext call was a lie. The prosecutor suggested to the jury that the appellant’s statement was an exaggeration and that, by reference to the jury’s own experience and common sense, the jury should find the evidence unreliable.
Trial counsel for the appellant made no reference to the pretext call or the appellant’s statement made in that call in the course of his closing address to the jury.
It was against this background, and the receipt of the email from the prosecutor disavowing any reliance upon the appellant’s statement in the pretext call as evidence of consciousness of guilt, that the trial judge came to give directions to the jury on the issue of the pretext call. The trial judge dealt with the appellant’s statement in the context of the appellant’s credibility and reliability generally, as the Crown had done. The trial judge said:
When considering the accused’s evidence, you might, like any other piece of evidence, decide to accept it or reject it, in whole or in part. As you have heard, the accused denied all of the conduct alleged against him by (the complainant). The Crown says the accused is not a reliable witness and has pointed to various ways in which his evidence was inconsistent with the evidence of other witnesses…
The Crown relies on the recorded telephone conversation between (KD) and the accused and points, in particular, to the accused’s statements, that (the complainant’s) allegation that he abused her could not have happened because, firstly, (KD’s) kids were never alone with him; and, secondly, he and (KD) were always side by side.
You will recall the evidence of (KD), which was that what the accused had said about not being alone with his kids was not an accurate statement. (KD) said that sometimes, when he went to the accused’s place after work, the kids would want to play longer, so (KD) would leave the kids at the accused’s place, go home and feed the animals and so on, before returning.
…
If you decide to reject (the accused’s) evidence or to reject those parts of his evidence which go to the essential issues in this case, that is, by itself, not enough for you to convict him. The Crown still has to prove that he is guilty beyond reasonable doubt of each of the charges.
If you disbelieve the accused all that means is that do (sic) not accept his evidence. You must then put his evidence to one side and consider whether, on all of the other evidence, the Crown has proved that the accused is guilty beyond reasonable doubt. You cannot convert his denials into positive evidence that he did what he has been accused of.[13]
(Emphasis added)
It is apparent from the above that the trial judge made no reference to any suggestion that the appellant’s statement in the pretext call, and repeated in his oral evidence, that he had never been left alone with the complainant was a deliberate lie. After the jury retired to consider its verdicts, trial counsel on behalf of the appellant made no application for any further or different directions to be given by the trial judge to the jury. This fact raises the first hurdle which the appellant must surmount with regard to this ground of appeal. Rule 86.08 of the Supreme Court Rules 1987 (NT) is in the following terms:
86.08 Limitation on grounds of appeal
No direction, omission to direct or decision in relation to the admission or rejection of evidence of the Judge of the court of trial shall, without the leave of the Court of Criminal Appeal, be allowed as a ground for appeal, or for an application for leave to appeal, unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.

In Dhanhoa v The Queen[14] the High Court was asked to consider whether a direction to the jury pursuant to s 116 of the Evidence Act 1995 (NSW) concerning identification evidence was required to be given by a trial judge despite no request by trial counsel for such a direction. In a joint judgment dismissing the appeal, Gleeson CJ and Hayne J said, at [34]:
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.
(Footnotes omitted)
In a separate joint judgment dismissing the appeal, McHugh and Gummow JJ said, at [37] – [38]:
This is another appeal in which a convicted person seeks to quash a conviction on the ground that the trial judge failed to direct the jury concerning some part of the evidence in the trial even though his or her counsel did not apply for any such direction or indeed any re-direction.
When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict….
(Footnotes omitted)
Similar provisions to Rule 86.08 are found in other jurisdictions. In the Australian Capital Territory, Rule 5531 of the Court Procedures Rules 2006 has a similar effect to Rule 86.08 of the Supreme Court Rules of this Territory. In Marsh v The Queen,[15] Wigney J said at [169] – [172]:
As was noted earlier, the appellant’s counsel did not raise any complaint concerning the directions given by the trial judge concerning lies told by the appellant. Nor was the trial judge requested to give any additional or alternative directions concerning lies. Rule 5531 of the Court Procedures Rules 2006 (ACT) provides that, in those circumstances, the appellant’s ground of appeal concerning the trial judge’s direction must not be allowed unless the Court otherwise orders.
The purpose of r 5531 is to prevent what is sometimes referred to as an “armchair appeal”, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and [the] summing up looking for error, without reference to the manner in which the trial was conducted”: Munro v The Queen [2014] ACTCA 11 (Munro) at [128], referring to R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130 at [15].
In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, McHugh J made the following observations (at [72]) concerning the equivalent rule in New South Wales:
There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.
In Munro, Burns J (with whom Refshauge ACJ and Penfold J agreed) made essentially the same point in relation to r 5531 (at [130]):
In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.
In the present case, there was a legitimate forensic reason why trial counsel would not seek a Zoneff direction from the trial judge. As we have demonstrated, the Crown had not suggested to the accused in cross-examination that his statement in the pretext call that he had never been left alone with the complainant was a lie. Similarly, the prosecutor did not suggest to the jury in either her opening or closing addresses that this statement made by the appellant was a lie. The Crown’s submission to the jury never rose above a suggestion that the appellant’s statement was an exaggeration and unreliable. To have asked the trial judge to give a direction to the jury as to how the jury may approach lies told by the appellant would clearly have been unfavourable to the appellant. The jury may have perceived the trial judge’s direction as raising the possibility that the appellant had told deliberate lies, a matter which had not been suggested by the Crown.
The effect of Rule 86.08 is that the appellant should not now be allowed to raise the trial judge’s failure to give a Zoneff direction where no such direction was sought by trial counsel, unless the appellant establishes that the failure to give the direction resulted in a miscarriage of justice. As we have demonstrated, there was a legitimate forensic reason for trial counsel not to seek such a direction.
As Gleeson CJ and Hayne J said in Dhanhoa (see [64] above), it is not necessary for a trial judge to give a Zoneff direction in all cases where it is suggested that something said by an accused person, either in court or out of court, is untrue. The facts in Zoneff were unusual. The accused person was cross-examined by the prosecutor to the effect that a number of the statements which he had made in his evidence were lies. It was never suggested by the prosecutor, however, that these lies were told out of a consciousness of guilt. In directing the jury, the trial judge raised the issue of consciousness of guilt as a reason for the accused person lying. The issue in Zoneff was whether the trial judge should have given such a direction where the Crown had made no suggestion that any lies told by the accused person were told out of a consciousness of guilt. In their judgment, the majority of the court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) held that an Edwards-type direction should not have been given.
The majority in Zoneff suggested, at [23], a form of direction that could have been given and which would have been appropriate to the facts of the case. That suggested direction forms the kernel of what is now referred to as a Zoneff direction. The focus of such a direction is on ensuring that any finding by the jury that an accused person has told lies cannot be used as evidence of their guilt. This was, in effect, what the trial judge directed the jury in that part of her directions emphasised at [62] above. There could be no miscarriage of justice in these circumstances.
The appeal on Ground 3 should be dismissed. This was a case where it was inappropriate to give a Zoneff direction and where trial counsel was correct not to seek one.
Ground 4: The appellant’s trial miscarried on account of the admission of tendency evidence from RC and/or the failure to adequately direct the jury in relation to that evidence.
RC was a Crown witness at the appellant’s trial. She gave evidence by audio-visual link. RC was the partner of the appellant at the time of the offences. She gave evidence that was both favourable and unfavourable to the appellant. For example, on the favourable side of the ledger, she agreed that she was present on almost all occasions when KD and the complainant stayed overnight at the appellant’s residence and that she had never seen the appellant doing anything “inappropriate” with the complainant. Other aspects of her evidence were not favourable to the appellant, and he now complains that two aspects of her evidence were inadmissible. Neither part of RC’s evidence to which objection is now taken were objected to by the appellant’s trial counsel.
The first portion of RC’s evidence to which objection is now taken is the following, taken from RC’s evidence-in-chief:
Do you remember that there was an occasion when you and the accused went to see (KD) and the girls at their property in Litchfield?--- Yes.
Okay. And is there one particular occasion that you can recall where the accused sort of went off for a while?--- Yes, I do.
And what can you tell me about that?--- Well, (the appellant), myself and (inaudible) were all sitting around on the foundations that (KD) not long built (inaudible) building it (inaudible) for the (sic) him (sic) the girls to live in. And there was also the (inaudible) which was (inaudible) just off of the foundations. It was for the path so that you could walk straight (inaudible). All sitting down talking all of us. (The appellant) got a bit (inaudible)…
I’m just going to stop you for a second (RC), our audio is just very poor. So, I’m just not getting the words you’re saying very clearly. Is it – I might just get you to sit back little bit from the microphones and see if that makes any difference. And – so you said that you were sitting on the foundations?--- Yep.
And then sorry, what did you say after that?--- We were all sitting together and (the appellant) said that he needed to go to the toilet and that he’d be back soon, something along them lines. I knew he needed to go to the toilet. I sat there talking with (KD) for quite some time and I started feeling really anxious (?) because he wouldn’t leave me alone, talking to any man for that long. And then – but when he come back, (inaudible) to get his wallet, I got up to (inaudible) to go and check the children who were all in the bus asleep, and he said, “Well I’ve already checked them, and they’re fine. They’re all sleeping.” But I continued to go into the van.
And was (the complainant) inside there?---Yep.[16]
The appellant submitted that this evidence could not provide evidence of opportunity for the appellant to have committed any of the charged offences as it was not directly linked to any of the times or places where any of the offending occurred. In the context of the case, the appellant submitted that the only relevant purpose of this evidence was to show that he had a sexual interest in the complainant. This, he submitted, is tendency evidence: MLW v The Queen.[17] Tendency evidence is not admissible unless the party seeking to adduce it gives reasonable notice in writing of their intention to adduce that evidence: s 97(1)(a) of the UEA. In the present case, the Crown had not given the required notice and accordingly, the appellant submitted, the evidence was inadmissible even though it was not objected to by trial counsel.
The second portion of RC’s evidence to which objection is now taken relates to evidence given in RC’s evidence-in-chief that the complainant on one occasion asked if she could sleep with RC in RC’s bedroom. The evidence is as follows:
Okay. And, at any stage, did you ask (the complainant) why she wanted to come and sleep in the room with you?--- Yes, on one occasion, I did ask her because I thought it was quite strange that she wanted to sleep with me and---
Do you remember – sorry, I’ll let you keep going. Sorry, I cut you off. Keep going?--- Sorry. And I did ask her why she wanted to sleep with me and she turned to me and said that she just felt safer with me and she looked straight out the door, out of the doorway from the room, and she just stared out there very vacantly. So I just felt like something was off. And then, I just assumed it was from (the appellant) because I didn’t trust him around the children. I just thought that – I assumed that it was just because she might have seen or heard him physically abusing me, that she didn’t want to be worried about that.[18]
(Emphasis added)
We will interpolate to explain RC’s reference to physical abuse. In her written witness statement dated 18 June 2020, RC made numerous allegations that during their relationship the appellant had assaulted her, threatened to kill her and emotionally abused her. It was agreed between the appellant and the Crown that this material was largely not relevant to establishing the charges relating to the complainant. Some evidence of alleged violence by the appellant towards RC was, nevertheless, led by the Crown in order to explain, amongst other things, the complainant’s relationship with the appellant and her reluctance to complain about the charged events. It was accepted by the appellant that the evidence of the incident in which the complainant asked to sleep in RC’s bedroom was relevant and admissible as context evidence. The appellant’s objection is to what he describes as the “opinion” expressed by RC and contained within the highlighted portion of her evidence set out in the previous paragraph.
The appellant submitted that, in the context of the appellant’s trial, the only inference that the jury could have drawn from the material now complained of was that RC believed that the appellant had sexually abused, or was capable of sexually abusing, the children. The appellant submitted that this was inadmissible as both an inadmissible opinion expressed by RC, and as tendency evidence. The appellant submitted that this material was highly prejudicial and that the failure of trial counsel to object to its admission could not have been the subject of a rational forensic decision.
The appellant submitted that the admission of those portions of RC’s evidence to which objection is now taken, and the absence of any specific directions by the trial judge as to how the jury could, or could not, use that material meant that there was a real chance that the jury engaged in impermissible tendency reasoning.
The respondent submitted that neither of the portions of RC’s evidence to which objection is now taken were led as tendency evidence. The respondent submitted that the first portion of RC’s evidence now complained of was led for the confined purpose of rebutting the suggestion made by the appellant in the course of the pretext call that he had never had the opportunity to commit a sexual offence involving the complainant because he had never been left alone with her. Although the incident described by RC in the first portion of her evidence was not alleged to be an occasion on which the appellant had committed an offence, the respondent submitted that the evidence had the capacity to assist the jury in evaluating the appellant’s blanket assertion that he had never been left alone with the complainant.
The Crown further submitted that the trial judge gave appropriate directions to the jury about the use of allegations against the appellant which did not relate to any of the charges. In that regard, the trial judge directed the jury:
Secondly, you must not use the evidence of other acts done by the accused as establishing a tendency on his part to commit offences of the type charged. You cannot act on the basis that the accused is likely to have committed the offences charged because (the complainant) and/or (RC) have made these other allegations against him.
That is not the reason the Crown placed the evidence before you. The evidence has the very limited purposes that I have explained to you and it cannot be used for any other purpose, or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.
Thirdly, you must not substitute the evidence of other acts done by the accused for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct by the accused. Rather, the Crown has charged four very particular offences in relation to the complainant, … You are concerned with the particular and precise occasion alleged in each of those charges.
You must not reason that just because the accused may have done something wrong on another occasion, he must have done so on the occasion alleged in the indictment. You cannot punish the accused for other acts attributed to him by finding the accused guilty of the charges in the indictment. Such a line of reasoning would amount to a misuse of that evidence and would not be in accordance with the law.[19]
The portions of the evidence of RC to which objection is now taken were not the subject of objection by trial counsel. We reiterate what we said on that topic in determining Ground 4 of this appeal. This Court should only entertain an appeal on the basis of the admission of this material (if it was inadmissible), or on the basis of inadequacy of directions to the jury relating to this material, if the appellant demonstrates that there has been a miscarriage of justice.
The first issue to be addressed is whether the evidence was inadmissible. The first portion of RC’s evidence to which objection is now taken was clearly not led for a tendency purpose. In the context of the appellant’s trial, this evidence was clearly led to rebut the statement made by the appellant in the pretext call, and which was subsequently reiterated in the appellant’s evidence at trial, that he could not have committed the charged offences because he did not have the opportunity to do so because he was never left alone with the complainant. The fact that trial counsel for the appellant did not object to this material reflects his understanding of the basis on which this evidence was led by the Crown. The evidence was admissible, so that the appellant’s submission that it was inadmissible fails.
Turning to the appellant’s submission that the trial judge’s directions to the jury regarding this evidence were inadequate, it would, perhaps, have been better if the trial judge had specifically taken the jury to RC’s evidence about the appellant checking on the children, including the complainant, at the Litchfield property and explained the purpose for which that evidence was led, but that is a counsel of perfection. In the context of the appellant’s trial, the jury would have recognised that this evidence was led to rebut the appellant’s assertion that he had never been alone with the complainant. No further direction was required.
With regard to the second portion of RC’s evidence, it is accepted by the appellant that evidence of the complainant’s desire to sleep with RC because the complainant felt safer with RC was admissible. If the evidence had been confined to a statement of the complainant’s request and her expressed reason for the request, in the context of the charges against the appellant the jury would most probably have reasoned that the complainant made the request because she feared being sexually assaulted by the appellant. Evidence of a contemporaneous fear on the part of the complainant of being sexually assaulted by the appellant would have been powerful evidence in favour of the Crown. Much of the sting of that evidence could be removed if some basis for the complainant’s fear, other than a fear of sexual assault at the hands of the appellant, could be suggested. It was apparent from RC’s witness statement that she contemporaneously attributed the complainant’s fear to the complainant having seen or heard the appellant abusing RC. The evidence of RC’s assumption as to the reason for the complainant’s request was inadmissible, but the decision of trial counsel not to object to RC’s evidence of her assumption is forensically defensible. It was evidence suggesting a reason for the request unconnected to sexual offending by the appellant. It complemented RC’s evidence that she had never seen the appellant act inappropriately towards the complainant. No miscarriage of justice is demonstrated by reason of the admission of evidence of RC’s assumption.

[35] [2005] HCA 74; (2005) 80 ALJR 329 at [41]

[36] Transcript 19 May 2021 pp 110 and 111; AB113 and AB114

[37]Transcript 19 May 2021 p 118; AB121

[38]Transcript 19 May 2021 p 120; AB123

[39]Transcript 19 May 2021 pp 131 and 132; AB134 and AB135

[40] Transcript 19 May 2021 p 151; AB 154

[41] Transcript 19 May 2021 p 153; AB156

[42] Hofer at [34]

[43] SY v The Queen [2018] NSWCCA at [55]-[56]; Hofer at [42]

[44]Transcript 19 May 2021 p 133; AB136

[45] Transcript 19 May 2021 p 135; AB138

[46] See Libke v The Queen (2007) 230 CLR 559 at [71].

[47] [2022] NTCCA 7 at [100]

[48] Orreal v The Queen [2021] HCA 44 at [41] per Gordon, Steward and Gleeson JJ, and at [20] per Kiefel CJ and Keane J; Hampton at [108]

[49] Ibid at [41] per Gordon, Steward and Gleeson JJ, citing Pell v The Queen (2020) 268 CLR 123 at [37]-[38], and at [22] per Kiefel CJ and Keane J; Hampton at [108]-[112]

[50] Hofer at [60], citing Kalbasi v Western Australia (2018) 264 CLR 62 at [15].

[2022] NTCCA 11

17 June 2022

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing

Statutory Construction