Verma v Lea - [2023] NTCA 6

CITATION:Verma v Lea [2023] NTCA 6
PARTIES:VERMA, Nitin
v

LEA, Ian

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 4 of 2022 (22109834)
DELIVERED:  27 April 2023

HEARING DATE: 23 September 2022
JUDGMENT OF: Grant CJ, Barr & Brownhill JJ

CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Whether finding of guilt was unreasonable, unsafe and against the weight of the evidence – Crown conducted case on basis that alleged offending occurred at the times and in the circumstances depicted in CCTV footage – Crown required to prove that particular of the offence beyond reasonable doubt – Complainant’s evidence was offending conduct was not shown in the CCTV footage and did not occur at that time – Obligation on appeal court to make independent assessment of the evidence to determine whether tribunal of fact must have entertained a reasonable doubt – Appeal allowed and verdict of acquittal entered.
Local Court (Criminal Procedure) Act 1928 (NT) s 177
Supreme Court Act 1979 (NT) s 55

Bianamu v Rigby [2021] NTCA 4, Cawthray v The Queen [2013] NSWCCA 105, CB v Western Australia [2006] WASCA 227, Dansie v The Queen [2022] HCA 25, FN v The Queen [2021] NTCCA 5, Foster v The Queen [2021] NTCCA 8, Libke v The Queen (2007) 230 CLR 559, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, Madden v The Queen [2022] NSWCCA 196, Pell v The Queen (2020) 268 CLR 123, The King v Dean (1932) NZPLR 329, The King v RH [2023] NTSCFC 1, The Queen v Anderson (1991) 53 A Crim R 421, The Queen v Franco [2003] SASC 140, The Queen v Frederick [2004] SASC 404, The Queen v Kennedy (2000) 118 A Crim R 34, The Queen v Macdonald (1996) 84 A Crim R 508, The Queen v Martin (No 3) (1999) 72 SASR 534, The Queen v VHP (unreported, NSWCCA, 7 July 1997), The Queen v Westerman (1991) 55 A Crim R 353, Tyrell v The Queen [2019] VSCA 52, referred to.
REPRESENTATION:
Counsel:
Appellant:M Shaw KC with W Mickan
Respondent:  V Engel with C Ingles
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  40

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Verma v Lea [2023] NTCA 6

AP 4 of 2022 (22109834)
BETWEEN:
NITIN VERMA
Appellant

AND:
IAN LEA
Respondent

CORAM: GRANT CJ, BARR and BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 27 April 2023)
THE COURT:

The appellant was found guilty by the Local Court of assaulting a female on the dance floor at the Epilogue Bar (‘Epilogue’), a dance venue in Alice Springs. He appealed the finding of guilt to the Supreme Court. The appeal was dismissed by the Supreme Court.[1] The appellant brings this appeal against that dismissal on two grounds with numerous particulars. The grounds of appeal are essentially that:
(a) the appeal judge erred in failing to hold that the verdict was unreasonable, unsafe and against the weight of the evidence, including the particular grounds that:
(i) the appellant was denied procedural fairness in relation to the case he had to meet by virtue of the way it was conducted by the prosecution; and
(ii) the appeal judge did not properly apply the test for an unreasonable or unsafe verdict; and
(b) the appeal judge should have found the primary judge erred in:
(i) directing himself that the complainant had no reason to lie;
(ii) assessing the complainant’s credibility and reliability;
(iii) considering other evidence to be supportive of the complainant’s evidence;
(iv) denying the appellant procedural fairness in relation to the case he had to meet; and
(v) providing reasons which were inadequate.
The appellant sought orders that the verdict be set aside and a verdict of acquittal be entered.

Background

The appellant was charged on information and pleaded not guilty to two counts of aggravated assault. The appeal judge provided a brief factual summary, which we adopt in substance and set out below.
On count 1, the prosecution alleged that the complainant was on the dance floor at Epilogue with her niece (‘EF’) when the appellant put his hand up the back of her dress, touched the right side of her leg, and slid his hand up her leg until he touched the bottom of her underwear. She immediately slapped his hand away and said, ‘Do not ever do that to me again.’ He put his hands up and backed away, giving her a ‘cheeky’ grin. The circumstances of aggravation alleged were that the appellant was a male and the complainant was a female, and that he indecently assaulted her.
On count 2, the prosecution alleged that, about 10 minutes later, after the complainant had gone to the bar, the appellant followed the complainant back onto the dance floor, came up behind her and started rubbing and pushing his backside against her, apparently attempting to get her to dance with him. She said to him, ‘No, you need to stop. I asked you before to leave me alone,’ and the appellant again put his hands up, and made a ‘weird style face’ at her. The circumstance of aggravation was that the appellant was a male and the complainant was a female.
In relation to count 1, the complainant immediately told family members, including EF and her brother (‘C’), what had occurred. EF had a short video of family members dancing which showed the appellant in a distinctive jacket. Later that evening, the complainant made a formal complaint to police.
At the trial in the Local Court, the complainant gave evidence that she was certain the person who touched her was the appellant. She said she turned around straight away and saw him right behind her. She recognised him as the person who had known her name and address earlier in the evening. When she had asked him how he knew those things, he told her, ‘I’m a copper.’
One of the exhibits at the trial was CCTV footage of the dance floor. The prosecution also tendered a series of stills taken from the CCTV footage.
After the trial in the Local Court, the appellant was found guilty of count 1, but not guilty of the circumstance of indecency. He was found not guilty of count 2.
The appellant appealed to the Supreme Court on the single ground that ‘the verdict [on count 1] was contrary to the evidence, unsafe and unsatisfactory’.
Evidence at trial
Complainant’s evidence
The complainant’s evidence-in-chief from the point in time when she arrived at Epilogue was as follows:[2]
Now, when you arrived at the Lounge where did you go? What did you do?---When I arrived there we walked upstairs, went to the bar, grabbed myself a drink and then headed to the dance floor.
Now, after getting to the dance floor can you tell the court what happened next? ---I was dancing with [EF] and [R]. [R] had then left and went to the bathroom and it was just me and [EF]. Then I was approached by a male, we exchanged hugs, said hello. He kept saying I know you from somewhere. It wasn’t - at first I thought he thought I was my twin but I’d recognised his face and we were just talking and the conversation went back and forth saying - he kept saying, “I know you from somewhere” and I asked him where have you met me? At my house? Have I met you through a friend? Then he said to me, “What’s your name?” And I said, “[my first name].” He replied back with, “[my full name] from [my address]?” At that point I sort of stood back and was like, “How do you know my full name and my address?” Then he replied back with, “I’m a copper” and that’s when I sort of realised who he was, that he’d served me on a Thursday evening when I went to the Gap Youth Hotel.
Yes, and when you say he “served you” at the Gap Hotel, can you just provide a bit more detail about that?---We called in to give our ID to officers that are at the front when you pull into the bottle shops.
After that happened, where did you go next? What did you do next?---I went up on the dance floor. Then I went back to the bar and grabbed a drink. I went back to the dance floor and then that’s when I felt someone behind me and someone put their hand up my dress.
All right. When the - or can you just explain, first of all, the person who put the hand up the dress, which part or which leg are you referring to?---I felt a hand on the right side of my leg. It started down below like the knee area and it worked its way up to the side of my thigh. Then that’s when I realised that my dress was getting lifted. I had cousins - my cousins that were directly right across from me and my first thought was they’re all going to see everything, so I quickly slapped whoever’s hand it was and turned around and it was the same male that had known my name and my address.
All right. What - can you just first of all do two things. First of all, could you describe the length of the dress that you were wearing on this occasion?---The front was sort of like knee length but then it goes down to behind - so it was a bit longer past the knee.
All right. And you said that he - your dress started to lift up. Are you able to say how high the hand had got up?---It went pretty far up my leg, like all the way from the knee up to about to my hip.
All right. Now you were just - one thing that - we’re not going to get on a video or the recording of this. You’ve just indicated whilst in the witness box that you had the hand starting at the knee?---Yep.
And finishing at the hip. Could you just stand up and just demonstrate how high the hand got up, please?---So they - they’re - someone from around behind me and a hand down here and it went all up to there. The minute I felt it there and my dress was practically up and everyone could see my leg.
All right. And can you just clarify as well, in terms of the hand on your leg was that over the top of your dress or was it under your dress on your skin?---It was skin to skin.
All right. You said a moment ago - you can please take a seat. You said a moment ago that what you then did was you turned around and could you just - just tell us from that point on when you turned around - or first of all, what did you actually do in terms of the reaction to what was happening to you?---The original reaction was I thought it was one of my cousins playing - like being silly with me. But when I noticed that the dress was going a bit too far I slapped the hand and as I turned - with the hand, it was the same male that asked me my name.
Okay. After you did that and you turned around what conversations, if any, did you have with the accused?---I just said to him that he couldn’t do that. It wasn’t right that - what he did. And to back off and leave me alone.
What was his response to you when you said that to him?---His response was like his hands were in the air and he had this cocky look on his face, like you can’t do anything.
All right. Now, you’ve just indicated hands up in the air?---And he had a drink in the left hand and he was like this.
All right. So both hands up about the shoulder length, one with a drink and one with an open palm, is that correct?---Yes.
In cross-examination, the complainant’s evidence was that the appellant put his hand up her dress at some time between 12 am and 1 am.[3] She was ‘pretty sure’ that occurred after C had gotten ‘in the face’ of another man in a checked shirt who was dancing with EF.[4] She confirmed it happened before the bar closed at 1 am.[5]
During the course of cross-examination the complainant confirmed, a number of times, her evidence-in-chief as to what she had felt when the appellant’s hand went up her dress, and what she had done in response.[6] She confirmed she had no doubt it was the appellant whose hand had gone up her dress.[7] She said she was ‘pretty sure’ that it was after the appellant put his hand up her dress that he was dancing beside her and rubbing his bottom on her whilst ‘twerking’. She said she could have been confused about the order in which the two events occurred, but her memory was that the ‘twerking’ happened after the appellant had put his hand up her dress.[8]
One of the complainant's statements to Police put the order of events the other way around, which she said in cross-examination was ‘back the front’.[9] She also said the incident involving the appellant’s hand up her dress happened ‘a while’ before C confronted the appellant about what happened and they were both removed by security, which happened at about 1.30 am.[10] She also said that when C confronted the appellant saying ‘Did you put your hand up my sister’s dress?’, the appellant denied it.[11]
During cross-examination, various parts of the CCTV footage of the dance floor were shown to the complainant and she was questioned about it. She had not seen that footage before being shown it in court.[12] The CCTV footage played to the complainant started at 11.30.28 pm.[13] The CCTV footage showed the complainant and the appellant meeting at Epilogue and having a conversation at 11.36 pm.[14] The CCTV footage showed the appellant twerking his bottom towards the complainant, and then EF, who pushed him away, at 11.38 pm.[15] The CCTV footage showed the appellant twerking his bottom towards her at around 11.40 pm,[16] and the complainant and EF dancing near, and interacting with, the appellant. The CCTV footage showed the altercation between C and the man in the checked shirt at 11.45.50 pm.[17] At 11.47.43 pm, the CCTV footage showed a young man drop his drink on the dance floor, and the complainant spin around and then watch the appellant leave the dance floor.[18] It was put to the complainant, and she denied, that it was actually that young man who had touched her under her skirt because up to that point her interactions with the appellant had been happy, whereas immediately after that the CCTV footage showed her being upset with the appellant. She said that her location on the dance floor shown in that footage was not the location she was in when the appellant put his hand up her skirt. She said she had turned around because she felt the drink spill, and she was watching the appellant because she thought there might be a fight as a consequence of the spilled drink. She denied that she was glaring at the appellant.[19] She again denied that it was when the drink was dropped that she felt the hand up her skirt.[20] She said the appellant put his hand up her skirt when he was behind her and she had not been shown the part of the footage where he was dancing behind her.[21]
In re-examination, the complainant was shown the CCTV footage of the dance floor from 11.40 pm, for an unspecified period.[22] She said that footage did not show the occasion on which the assault charged as count 2 was committed, because that occurred when the appellant had come up on the side of her.[23] She was then shown CCTV footage from 11.36 pm (when she and the appellant first came into contact) to 11.43 pm,[24] although based on a comment made by the primary judge she was possibly shown the CCTV footage up to 11.45.45 pm.[25] The complainant made it clear that the touching charged as count 1 was not captured on any of the footage shown to her, saying she had not seen the time he put his hand up and backed off.[26] She confirmed that occurred before the bar closed at 1.00am,[27] and in a location closer to the door.[28]
EF’s evidence
EF gave evidence regarding the conversation between the complainant and the appellant, where he said he was ‘a copper’. That evidence was consistent with that of the complainant’s.[29] Asked to describe what happened next, she said:[30]
---I was facing the other direction towards the stage and I turned around and [the complainant], she asked if I saw what had happened. I said I didn’t and she then told me what had happened.
All right. What did she say had happened at that point?---She said that he put his hand up under her dress.
How did [the complainant] look at that point? I mean what observations did you make of her and her demeanour?---She was in shock, a little bit shaken, yeah.
What did you then do next at that point, after that had occurred?---Well, she pointed out who touched her and then we kind of pushed him away and we moved to the side a bit more.
Yes. Did he – were you – did you see any conversations that occurred at that point, just referring to that point, any conversations - - -?--- No.
- - -or overheard any conversations between [the complainant] and the accused?---No.
She said the complainant did not tell her anything else that occurred that night, but she and the complainant were on the dance floor when the accused and the complainant were dancing and she said that every time she turned around, he was behind her in some way, just standing there watching her.[31] She said he did not do or say anything else.[32]
In cross-examination, EF confirmed that she had heard the conversation between the appellant and the complainant where he said he was ‘a copper’.[33] She said that after the conversation, she pushed the appellant away, she and the complainant moved to the side and they distanced themselves from him for the rest of the night.[34] She said it was a short time after that conversation, but she was not sure how long, that the complainant told her about the appellant putting his hand up her dress.[35] She said it was possibly 5 to 10 minutes after the conversation.[36] She agreed it was after C had the altercation with the man in the checked shirt. She did not know how long after.[37] She said when the complainant told her the appellant put his hand up her skirt, the appellant was standing behind the complainant, facing them both.[38] She did not see the complainant say anything to the appellant.[39] She said that immediately after the complainant told her that, they left the dance floor.[40]
In re-examination, she said that there was ‘maybe’ an arm’s length between the complainant and the appellant when the complainant told her about the appellant putting his hand up her dress.[41]
AB’s evidence
AB was at Epilogue that night. Her evidence was that the complainant told her that a man touched her up the back of her dress.[42] The complainant did not know who the man was, but pointed him out to AB. The complainant was shaken up and stressed.
In cross-examination, AB said that the complainant told her that, when the appellant put his hand up her dress, she turned around and said ‘Excuse me, what are you doing?’[43] She said she did not know exactly what the appellant said in response but the complainant told AB that the appellant said her name and address, and that’s what shook her up. The complainant had not told her that the appellant was a police man.[44]
Investigating officer’s evidence
The investigating officer was called to give evidence. In evidence-in-chief, he said he had viewed the CCTV footage from the Epilogue dance floor and had compiled 13 stills from the footage.[45] The CCTV footage, which ran from approximately 11.00 pm to 11.59.45 pm,[46] and the 13 stills from the CCTV footage (which ran from 11.36.04 pm to 11.42.51 pm[47]), were tendered in evidence. The investigating officer said the stills ‘corroborated’ the complainant’s story about the appellant putting his hand up her dress.[48] He said he identified the time in the CCTV footage where something similar to, or a reaction to, a hand up a dress is shown, on the basis of the complainant’s statement to Police that she had her back to the appellant at the time, she turned around and hit his hand away, and he backed away with a drink in his hand.[49]
The CCTV footage was played from 11.41 pm. The trial judge observed that the footage did not depict the twerking alleged in count 2, which was said to have involved the appellant rubbing his buttocks up against the complainant’s left side.[50] The investigating officer’s evidence was that that footage and still image 9 taken at 11.41 pm were relied on in relation to count 2,[51] and the footage and still image 10 taken at 11.42 pm were relied on in relation to count 1.[52]

In cross-examination, the investigating officer confirmed that he had watched all of the CCTV footage of the dance floor on the night, and selected what is shown in still images 9 and 10 as when the alleged offending occurred, but had never shown the footage or the stills to the complainant.[53] He confirmed those still images were the only ones that came close to the complainant’s allegations about the twerking and the hand going up her dress.[54] He agreed that the CCTV footage of the dance floor did not show the complainant turning around and smacking the appellant’s hand away.[55] He agreed that the CCTV footage showed the young man dropping his drink, the complainant turning around and looking at the appellant, the appellant not looking at the complainant, but walking to the stage and tying his shoe lace, and the complainant and EF walking out past the appellant.[56] He agreed none of the CCTV footage that he had watched, including what he relied on, showed the complainant being annoyed or upset with, or protesting against, the appellant.[57]
In re-examination, the investigating officer confirmed that the CCTV footage showed that the complainant had her back to the appellant, he crouched down, came back up, she spun around, he was holding a glass in his hand, she raised her hand and then they disengaged, and that these things were consistent with what the complainant said in her statement.[58]
Other evidence
Evidence was called from an off-duty police officer at Epilogue that night. He knew the appellant and, at around 1.00 am, he saw the appellant having an argument with two other men, in which one of the men said to the appellant that he had put his hand up a woman’s dress, to which the appellant did not respond.[59] Later that night, one of the men involved told the witness that the appellant, who was a police officer, had put his hand up that man’s sister’s dress.[60]
Primary judge’s verdict, findings and reasons
The primary judge found the appellant guilty on count 1, in reliance on the evidence of the complainant. His Honour noted that the CCTV footage was not determinative of what took place.[61] His Honour found the appellant guilty of count 1 without reference to any particular point in the CCTV footage. The guilty finding on count 1 was thus made in the absence of any directly corroborating CCTV footage. His Honour did refer to a number of points in the CCTV footage, but that was directed towards his consideration of the alleged twerking charged as count 2.[62]
As to the aggravating circumstance of indecency, his Honour was not satisfied beyond reasonable doubt that it had been made out because there was no touching of the genitals or breasts or undressing. The transcript did not capture what his Honour said about the appellant’s motives, but given his Honour’s quotation from the decision in R v RL [2009] VSCA 95 at [9], it must be inferred that his Honour was not satisfied that the touching comprising count 1 was done by the appellant for his sexual gratification.[63] His Honour went on to say that the appellant’s behaviour was annoying, disturbing and offensive to the complainant, and that he made a spectacle of himself in order to ingratiate himself to her, not recognising the physical signs she was exhibiting which should have alerted him to the fact that she did not want him in her presence. Those observations appear to be relevant to the appellant’s intention to commit the offending in count 1.
As to count 2, his Honour was not satisfied as to the assault made out by the touching during the appellant’s twerking, which was repeatedly done as part of a dance routine.[64] His Honour did not accept that, on a crowded dance floor where many people are coming into contact with one another, moving around as they did, that the appellant intended to touch the complainant.
His Honour made the following assessment of the evidence of the complainant:[65]
I have no hesitation in accepting the evidence of [the complainant], regarding the touching of her leg. Her evidence is credible and reliable. She was able to remember the initial conversation with the defendant. She could easily identify the defendant because of his distinct jacket. ... The defendant stood close to her and [EF] ... She had no reason to tell an untruth. She reported the incident to the police immediately and made a sworn statement.
I accept that there are some discrepancies between her sworn evidence and her statement. (inaudible) sufficient significance to raise a doubt as to the substance of her evidence. She is supported in her allegations by the evidence of [EF] and [AB], at least in terms of a complaint that she made that she was touched.
Appeal from primary judge’s conviction
The appellant appealed to the Supreme Court on the sole ground that the verdict on count 1 was contrary to the evidence, unsafe and unsatisfactory.[66]
The appeal judge set out the principles applicable to such appeals,[67] and the appellant’s contentions on the appeal.[68] The appeal judge described the appellant’s argument as essentially that the Crown had alleged that the assault was captured on CCTV footage between 11.42.10 pm and 11.42.12 pm as shown in the stills from that footage; this was a material particular of the offence which the Crown was obliged to prove beyond reasonable doubt; the complainant’s evidence was that the CCTV footage did not show the assault, which was consistent with EF’s evidence that the assault occurred after the altercation between C and the man in the checked shirt; and the primary judge must have rejected the complainant’s evidence (that the alleged offending occurred at the moments depicted in the CCTV footage), while accepting the complainant’s evidence otherwise, because he could only have found the appellant guilty on the basis of the way the Crown put the case.
The appeal judge rejected the appellant’s argument. Her Honour relied on the informations charging the two counts, the statement of Crown facts, the CCTV footage and the stills of it and the exhibit list, and concluded that they did not demonstrate that the Crown’s case was that the offence was constituted by the conduct seen in the CCTV footage.[69] The appeal judge rejected the argument that it should be inferred from the fact that the prosecution failed to tender any CCTV footage from later in the night that the CCTV footage was a material particular of the offence charged.[70] Her Honour also rejected the appellant’s argument that, when the prosecutor told the primary judge that count 1 occurred at the moment shown in still image 10, that had the effect that, if the Crown did not establish beyond reasonable doubt that the offending conduct was shown in that image, the primary judge was required to find the appellant not guilty.[71] Her Honour held that the prosecutor was making a submission about the effect of the evidence at a late stage of the trial (during the evidence of the final Crown witness), and was not purporting to provide a particular of the charge.[72] Her Honour also rejected the appellant’s argument that, if the assault had occurred after midnight as the complainant said, then the assault occurred on the day after the day referred to in the charge, which was a material particular of the charge which the Crown was obliged to prove beyond reasonable doubt.[73]
Her Honour held that the appellant had shown no cogent or logical reason to disturb the primary judge’s findings that the complainant was a credible and reliable witness and that it was open to the primary judge, on the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty on count 1.[74] Her Honour held that this was not a case in which the trial judge must, as distinct from might, have entertained a doubt about the appellant’s guilt.[75]
Appellant’s burden in this appeal
An appeal to the Court of Appeal from the Supreme Court is from the judgment of the Supreme Court, not the judgment of the court at first instance, and, generally speaking, the Court of Appeal’s task is to determine whether the Supreme Court got it right or wrong.[76] However, the role of the Court of Appeal is not limited to correcting error in the decision below and can extend to addressing a miscarriage of justice.[77]
The respondent argued that the appellant had not put any ground of appeal alleging specific error on the part of the primary judge, and should not be permitted to raise new grounds or arguments on this appeal, there being no exceptional circumstances.[78] The appellant argued that this principle operates only in respect of the respondent, but not the appellant, because the principle is ‘tempered’ in respect of an appellant accused in a criminal context.[79] In Fingleton v The Queen, Kirby J observed (at [148]) as follows:
In criminal appeals, the rule is tempered, to some extent by the ordinary focus of the governing legislation upon issues of ‘miscarriage of justice’ and by the heightened concern of the law with questions of liberty, status and reputation typically involved. Nonetheless, the law’s proper anxiety about finality of litigation, and about the costs and other burdens that litigation occasions, focuses attention, in cases such as the present, upon the question of whether ‘special’ or ‘exceptional’ circumstances are shown that warrant a belated reliance on a new point. This obstacle cannot be brushed aside. …
It is unnecessary to resolve these arguments because we have concluded (as set out below) that the appeal should be allowed on a ground which was put to the appeal judge.
Unsafe, unsatisfactory or unreasonable verdicts – legal principles
The legal principles regarding appeals on the ground of unsafe, unsatisfactory or unreasonable verdicts are well settled and have been restated by the Court of Criminal Appeal a number of times.[80]
It is unnecessary to repeat those principles here save to state that the test is whether the appeal court considers, upon the whole of the evidence, that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty (which is to say whether the tribunal of fact must, as distinct from might have entertained a doubt), bearing in mind the advantages that the tribunal of fact had in having seen and heard the witnesses. In performing the appellate task, the appeal court must make its own independent assessment of the whole of the evidence and determine for itself whether, having regard to any advantages the tribunal of fact had, it holds a reasonable doubt about the guilt of the appellant.
Shifting of the prosecution case
The appellant argued in this Court that he was denied procedural fairness and a fair trial because the prosecution case on both counts was formulated by reference to the tendered CCTV footage and stills, which the defence met by an alternative factual hypothesis open on the CCTV footage (that it was the young man who spilled his drink who had touched the complainant under her skirt, and she mistakenly blamed the appellant), but the primary judge found the appellant guilty on count 1 without a finding that the conduct alleged on count 1 was shown in the CCTV footage, and without considering the complainant’s evidence that the CCTV footage did not show the offending. The appellant argued that the appeal judge had mischaracterised both the appellant’s argument on the appeal (understanding it as an argument that the CCTV footage was a material particular of the alleged offending in the sense that it was an element of the charged offence), and what the prosecution had done (understanding that as a submission about the evidence), and had permitted the Crown on the appeal to shift its case from that which it had put before the primary judge. The appellant argued that the prosecution had conducted a case alleging that the offending the subject of count 1 occurred during the period shown in the CCTV footage, and the defence had responded to that case by formulating the alternative factual hypothesis, such that the appellant was denied procedural fairness when the appeal judge accepted a different Crown case, namely that the offending the subject of count 1 occurred at some later time than was shown in the CCTV footage.
The authorities on this point are clear. Generally speaking, the time of the offence is not a material particular which must be proven beyond reasonable doubt, but if the prosecution conducts its case on a certain basis, which was met by the defence, making the time of the offence the essence of the offence, or vital to the offence, then a miscarriage of justice will occur if the prosecution then puts to the tribunal of fact, or the tribunal of fact accepts, a case departing from the time particularised; or it would not in those circumstances be open to the tribunal of fact, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.[81]
As the appeal judge observed, there was nothing specified in the informations charging the offending, or the statement of Crown facts which particularised the charged offending, or the stills and the CCTV footage included in the brief of evidence, or the exhibit list (which referred to the CCTV footage), which put the prosecution case as one making the time of the alleged offending of the essence or vital to the charge.
The Crown case at trial
In his opening address, the prosecutor particularised the charged offending by saying:[82] (a) the counts are alleged to have occurred on 20 March 2021; (b) the allegation as to count 1 was that the accused indecently touched the complainant on the leg and raised her skirt or put his hand under her skirt; and (c) the allegation as to count 2 was that the accused twerked or grinded his buttocks against the complainant.
The complainant then gave her evidence as already described above, stating (relevantly) that when she felt the hand touch her knee and run up her dress on the side of her thigh up to her hip she slapped the hand away, turned around and saw the appellant, and told the appellant that he could not do what he did and to back off and leave her alone. The appellant responded by putting his hands in the air up to his shoulders, with a drink in one hand, an open palm on the other hand, and a cocky look on his face. She said she continued to dance, then went to the bar, then back to the dance floor, and the appellant then approached her left side with his back to her and danced up against her, rubbing his bottom on the left side of her leg, and she told him again to leave her alone. The appellant responded with a similar hand gesture and look.
The complainant said she told AB what had happened, and then told another member of her family (not EF), which was overheard by C, who went over and approached the appellant and they had an altercation, which led to security removing both the appellant and C. The complainant said in cross-examination, that this all happened between 12.00 am and 1.00 am. She said the offending occurred after the interaction between C and the man in the checked shirt and ‘a while’ before C confronted the appellant at around 1.30 am.
In re-examination, the complainant was shown the parts of the CCTV footage from between 11.40 pm and 11.43 pm and her evidence was that the CCTV footage she had been shown did not depict the appellant dancing behind her or the appellant backing off while putting his hands up or the two of them dancing in the location of the dance floor where the offending had occurred. In re-examination, the prosecutor proposed to play the parts of the CCTV footage to the complainant ‘where she is on the dance floor and there is the alleged interaction that she has described in her evidence’.[83]
As already described above, the investigating officer gave evidence about the CCTV footage at 11.42 pm and the still images, saying in effect that still images 9 and 10 captured his attempt to marry up what the complainant said in her statement to Police with the moments in the CCTV footage when the alleged offending on counts 1 and 2 occurred.[84]
There were then the following exchanges between the primary judge, the prosecutor and the investigating officer:[85]
[PROSECUTOR]: [Referring to the hugging between the appellant and the complainant when they first conversed] We don’t rely on that.
HIS HONOUR: Right. So - - -
[PROSECUTOR]: If you take us to the first still that you have which relates to the twerking?---Yes.
If you could just tell his Honour which - - -?---So that’s – that’s image number 9 at 11.41.
HIS HONOUR: Image number 9, 11.41?---Sorry, 11.41.
[PROSECUTOR]: Perhaps we could play from there, your Honour, if that assists the court.
HIS HONOUR: Yes, okay.
…[CCTV footage played four times]
HIS HONOUR: All right. Stop it again.
The allegation is that the twerking took place towards her bottom. The [complainant] is facing her – is facing the [appellant]. So what has that got to do with the charge before this assault – this case – this court, sorry. I’m getting confused here. What has that got to do with the charge being count 2 before this court?
[PROSECUTOR]: Your Honour, this witness says that it’s at that point in time – and I’ll get him to confirm this – that the accused has gone with his buttocks towards [the complainant], not front on. He’s turned around at this point in time.
HIS HONOUR: I can see that but that’s not the allegation of the assault.
[PROSECUTOR]: The twerking is one of the allegations of the assault, your Honour, that is what he’s done is he’s rubbed his buttocks up against the left-hand side of [the complainant]. That’s one of the allegations.
HIS HONOUR: Yes. Well, fine, but he clearly doesn’t.
[PROSECUTOR]: Well, your Honour, that’s – they’re my submissions and I can make those submissions later on but perhaps for the sake of the witness.
Is that what – piece of CCTV your footage – CCTV footage you’re relying upon?---Yes.
Thank you. There is another piece of CCTV footage that you’re relying upon and can you just tell the court whereabouts or give a time – the timing of that so that we can find that?---Yep, so that’s – that’s image number 10 occurs at 11.42 pm.
All right. Perhaps if we – if we queue it there, please?---Which is where [the complainant] says he’s directly behind her with her back towards him.
[CCTV footage played]
HIS HONOUR: All right. Is that is?---Yes.
But he’s facing her. How do you twerk someone when you face them?---That’s not the twerking incident. That’s the incident where he’s behind her.
But it’s not. He’s – yes, okay. Yes, go on.
[CCTV footage played]
THE WITNESS: That’s the twerk we’re referring to. She turns her back.
[CCTV footage played]
THE WITNESS: Which puts him behind her now.
[CCTV footage played]
…
THE WITNESS: So she’s got her back to him now.
[CCTV footage played]
THE WITNESS: So the back there now towards [the appellant]. He squats down, she turns around.
[CCTV footage played]
HIS HONOUR: She’s got her back to him but he’s facing her.
[PROSECUTOR]: No, he’s – perhaps if we could play it again, your Honour.
HIS HONOUR: Play it again. I’ve watched it four times now. He faces her.
[CCTV footage played]
[PROSECUTOR]: The accused is – he comes at one point comes behind her, and ducks down.
HIS HONOUR: He never – he never comes behind her. She’s the one turning around. He’s in the same position as he negotiates the position to carry out his wonderful dance movements.
[CCTV footage played]
[PROSECUTOR]: You can stop there please. Sorry.
Your Honour, this is what we say that the accused is behind her and has bobbed down.
HIS HONOUR: But he’s facing her.
[PROSECUTOR]: No, he’s behind her. She’s turned around facing away from him.
HIS HONOUR: Yes, but – so he is facing her?---Yes.
Yes. So what’s twerking when you face someone?---This – this isn’t relating to the twerking. That’s - - -
HIS HONOUR: All right.
[PROSECUTOR]: This is – you put it – as what you’re saying is this is where he’s bobbed down and he’s put his hand up her leg. Is that what you’re saying?---Yes. So he’s facing her, she has her back to him and for whatever reason he squats down.
HIS HONOUR: Right. Now, let’s be clear about this. Image 10 where she has her back to him and he is facing her and bobs down, this is the moment that you say he put her hand – his hand up her right side of her leg?---It is, yes.
So to be very clear about this, this is – this is the point where you say count 1 occurred?---Yes.
…
[PROSECUTOR]: So, Detective, just so we – we confirm what you’re saying in terms of what you’ve seen, first of all can you identify which of the images or the number?---Yep.
That you rely upon with respect to the twerking?---It’s image number 9.
All right. And in relation to the allegation of the hand up the leg, or up the – up the leg, yes?---Yes.
What – which one do you rely upon there?---Image 10.
Consideration and conclusions on the Crown case

For the following reasons, we consider that, in eliciting the above evidence from the complainant and the investigating officer, the prosecutor put a case which made the particular that the alleged offending occurred at the moments depicted in the CCTV footage and the stills vital to the allegations such that the Crown was required to prove that fact beyond reasonable doubt.
First, the complainant’s evidence, in cross-examination, was that the offending the subject of count 1 occurred between 12.00 and 1.00 am, and that the CCTV footage she was shown did not depict the offending. The prosecutor’s response to that evidence was to show the CCTV footage to her again in re-examination, telling the primary judge he was showing her the parts where the alleged offending occurred, and to ask if it depicted the offending (which she denied).
Secondly, in the face of the complainant’s evidence about the CCTV footage, the prosecution called the investigating officer to elicit his evidence that the CCTV footage depicted things consistent with the complainant’s statement to Police. Not only was the footage played and tendered, but the prosecution tendered the stills from the footage at the points at which the investigating officer said the alleged offending occurred. His evidence was that there was no other CCTV footage which depicted anything close to the complainant’s complaints. This evidence would have had no purpose (or relevance) unless the prosecution case was that the alleged offending was depicted in the CCTV footage and the stills. The appeal judge held that there was scope for the CCTV footage to have evidentiary value without showing the moment of the alleged conduct, namely that it showed the appellant’s general behaviour towards the complainant, including twerking.[86] However, it is apparent from the exchanges between the primary judge, the prosecutor and the investigating officer extracted above, that that was not the purpose for which the CCTV footage was tendered. That there was nothing else in the CCTV footage which could have comprised the alleged offending was telling because it served only to emphasise the criticality of the CCTV footage and the stills in the Crown case.
Thirdly, consistently with the investigating officer’s evidence, and notwithstanding the complainant’s evidence, no other CCTV footage of the dance floor on that night was tendered or played by the Crown. Again, this emphasised the importance of the particular CCTV footage in the Crown case.
Fourthly, as italicised in the exchanges between the primary judge, the prosecutor and the investigating officer extracted above, the prosecutor said, referring to a part of the CCTV footage, ‘we don’t rely on that’, suggesting the opposite in relation to the other parts of the CCTV footage. He also said, in relation to part of the CCTV footage, ‘we say the accused is behind her and has bobbed down’, indicating that it was the Crown case that the offending the subject of count 1 is depicted in that particular footage. These comments support the proposition that the Crown case was that the offending occurred at the points, and was comprised of the conduct, depicted in the CCTV footage on which it relied.
Fifthly, the defence understood the Crown case to be founded on the appellant’s conduct as depicted in the CCTV footage and the stills. The defence case was clearly conducted on that basis, including raising an alternative hypothesis consistent with innocence depicted in the CCTV footage, namely that the man who dropped his drink was the person who touched the complainant under her dress.
Sixthly, when the defence made an application that the primary judge direct himself to dismiss the charges due to insufficient evidence, the prosecutor submitted that the CCTV footage ‘only tells part of the story’ and the complainant had only seen the footage for the first time that day in court.[87] The prosecutor repeated that submission in his closing address.[88] This indicates that the Crown case was that the alleged offending occurred during the periods depicted in the CCTV footage, and to the extent the complainant’s evidence was otherwise, that could be explained because she had only seen it for the first time that day. The effect of the submission was that the complainant’s evidence about the alleged conduct could be accepted, whilst her evidence that the CCTV footage did not depict the offending could be rejected.
Finally, although it is not entirely clear, the primary judge appeared to understand and deal with the Crown case on the basis that the alleged offending occurred at the times depicted in the CCTV footage. Before his decision, the primary judge said he intended to reconsider the CCTV footage in light of the submissions made by the parties.[89] In his Honour’s decision, he observed of the CCTV footage:[90]
The [appellant] relies heavily on the CCTV footage to cause doubt on [the complainant’s] evidence. The CCTV footage is not determinative of what took place. It assists – it adds to the evidence but it has its limitations. The sound is distorted to the effect that no words from anyone can be heard. The lighting distorts the clarity, as the lighting changes, possibly with the beat of the music. The dance floor is crowded with people moving to the music so that only those immediately in front of the stage can be seen with clarity.
His Honour then referred to the CCTV footage and what it depicted, including the initial conversation between the appellant and the complainant, other interactions between them, the appellant’s twerking at various times, and his actions during the parts of the CCTV footage the subject of still images 9 and 10.[91] It is not entirely clear from the primary judge’s reasons precisely when he considered that the offending conduct the subject of count 1 occurred, but it appears that his Honour was of the view it had occurred during the CCTV footage that he described, but simply could not be seen clearly. He made no mention of the complainant’s evidence that the footage did not show the offending, but observed that the CCTV footage was not determinative because it had its limitations.
Error by the appeal judge
On appeal to the Supreme Court, the respondent denied the Crown had conducted the case in a way to make the CCTV footage a material particular. The respondent submitted that the Crown case was that if the alleged offending occurred other than as depicted in the CCTV footage the evidence supported that finding, and if the alleged offending occurred as depicted in the CCTV footage the weight of the evidence entitled the primary judge to make that finding.[92] The appeal judge held that the Crown had not put, and was not bound by, a case that the alleged offending occurred at the times depicted in the CCTV footage. In our view, that conclusion was erroneous for the reasons just stated.
The Crown had put a case which made the time and circumstances of the offending as depicted in the CCTV footage vital or essential to the acceptance of the Crown case. The Crown’s case was that there was nothing in the other CCTV footage from the dance floor of that night which came close to the complainant’s description of the offending conduct. It was therefore necessary for the Crown to prove beyond reasonable doubt that the alleged offending occurred during the periods in the tendered CCTV footage and at the moments depicted in the stills from that footage. The defence sought to meet that case by focussing on what the CCTV footage showed.
The complainant’s evidence was that the offending conduct occurred between 12.00 and 1.00 am (after the times depicted in the CCTV footage), and the offending conduct was not shown in the CCTV footage because that footage showed her and the appellant in a different location on the dance floor to where she said the offending conduct occurred, and that footage did not show the appellant raising his hands to his shoulders after she slapped his hand away and told him not to do what he did. In our view, because of the complainant’s evidence about the CCTV footage, the primary judge must, as distinct from might, have entertained a doubt about the appellant’s guilt on count 1, which had the material particular that the offending conduct was depicted in the CCTV footage.[93]
That doubt is not capable of being resolved by the primary judge’s advantage in seeing and hearing the evidence.[94] In particular, it is not capable of being resolved by the facts that the CCTV footage is not particularly clear, or that the complainant was shown the CCTV footage for the first time in court. That is so because: (a) the complainant was shown the CCTV footage twice, once in cross-examination and again in re-examination; (b) the complainant was clear that the offending conduct occurred after the time period captured by the CCTV footage when she and the appellant were in a different location on the dance floor, and that the CCTV footage did not show the appellant’s reaction to her slapping his hand away; and (c) the investigating officer agreed that the complainant slapping the appellant’s hand away and turning around could not be seen on the CCTV footage.[95]
Given the conclusion that the primary judge must have entertained a doubt about the appellant’s guilt on count 1, the verdict is unsafe and unsupported by the evidence.
This ground of appeal is made out.
The appeal will be allowed.
Appropriate relief
This Court’s powers on an appeal from a decision of the Supreme Court are set out in s 55 of the Supreme Court Act 1979 (NT). Those powers include the power to confirm, vary or reverse the judgment appealed from in whole or in part (s 55(2)(a)), and to set aside the judgment appealed from, in whole or in part, and substitute this Court’s own judgment (s 55(2)(b)).
In our view, the judgment on the appeal to the Supreme Court made on 4 March 2022, that the appeal be dismissed, should be set aside and instead the appeal to the Supreme Court should be allowed.
By s 177(2)(c) of the Local Court (Criminal Procedure) Act 1928 (NT), the Supreme Court had the power to quash the conviction appealed from. The Supreme Court also had the power, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, to dismiss the appeal if it considered that no substantial miscarriage of justice has actually occurred (s 177(2)(f)). Given our conclusion the primary judge must have entertained a doubt about the appellant’s guilt, we do not consider that no substantial miscarriage of justice has occurred. Consequently, the power in s 177(2)(f) is not applicable.
Nor is it appropriate to remit the case for hearing before the Local Court pursuant to s 177(2)(e). The Crown would necessarily have to run a substantially new case which was not made before the primary judge, namely that the alleged offending on count 1 occurred at some time other than the moments captured in the CCTV footage. That would not be permissible[96] or in the interests of justice given that the alleged offending occurred over two years ago and is not of the highest order of gravity. The appropriate course is that a verdict of acquittal be entered.
Failure to independently assess the evidence
Another major contention on the appeal to this Court was that the appeal judge failed to carry out the task required by law, in accordance with the principles recently confirmed by the High Court in Dansie v The Queen:[97]
…. undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the Court of Criminal Appeal from the proper performance of the assessment required of it … when determining on an appeal against conviction whether the verdict ‘should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence’. That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
The High Court confirmed (at [8]-[9]) that, as established in M v The Queen (1994) 181 CLR 487 at 492, the question whether the appeal court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty is one of fact which the appeal court must decide by making its own independent assessment of the evidence, making full allowance for the advantages enjoyed by the tribunal of fact in seeing and hearing the evidence.
The appeal judge referred to the primary judge’s decision and added that an examination of the stills from the CCTV footage ‘supports the observations’ of the primary judge about the CCTV footage,[98] but made no other reference to the evidence at first instance (save to repeat some of the submissions made by the parties), and concluded that the appellant had shown no cogent or logical reason to disturb the primary judge’s finding that the complainant was a credible and reliable witness, and that it was open to the primary judge on the whole of the evidence to be satisfied as to guilt. Her Honour also concluded that this was not a case in which the trial judge must, as distinct from might, have entertained a doubt about the appellant’s guilt.
Save for those conclusory statements, the reasons of the appeal judge do not disclose any independent assessment of the evidence, save that her Honour viewed the stills of the CCTV footage. Her Honour’s reasons refer to the finding of the primary judge that the complainant was a credible and reliable witness, but without more, that appears only to be ‘mere satisfaction as to lack of error in … the findings of fact made by’ the primary judge in arriving at the finding of guilt. As the High Court observed in Dansie (at [37]), more is required to be satisfied that the finding of guilt could be supported having regard to the evidence.
The reasons do not disclose any consideration of the other aspects of the evidence which may have given rise to a reasonable doubt, such as any inconsistencies in the complainant’s evidence, or between her evidence in court and her statements to Police (such as the order in which the two counts occurred), or between her evidence and the evidence of EF (which included that EF did not see the complainant slap the appellant’s hand away or tell the appellant not to do what he did), or the evidence of AB (which arguably included that the complainant told AB that the conversation in which the appellant indicated he knew the complainant’s name and address occurred after he put his hand up her dress), or to the appellant’s denial when confronted by the complainant’s brother, or to the evidence relied on as the alternative factual hypothesis consistent with innocence put by the defence.
If not for our conclusion as to the first ground of appeal referred to above, we would have allowed the appeal on this ground.
Other grounds of appeal
There were a significant number of other errors alleged by the appellant. Given the above conclusions, it is unnecessary to address them.

Disposition

We make the following orders:
1.The appeal is allowed.
2.The judgment made on 4 March 2022, that the appeal to the Supreme Court be dismissed, is set aside and instead the appeal to the Supreme Court is allowed.
3.The conviction appealed from is quashed.
4.A verdict of acquittal is entered.

___________________________

[1] Verma v Lea [2022] NTSC 18 (‘Reasons’).

[2]Appeal Book ('AB') 9.8-11.4.

[3] AB 19.4.

[4]AB 21.5.

[5]AB 21.6.

[6]AB 21-23, 23-24, 25.6.

[7]AB 23.4, 22.3.

[8] AB 25.4, 26.6, 31.3.

[9] AB 30.6.

[10]AB 29.4.

[11]AB 28.6.

[12]AB 34.7.

[13]AB 34.6.

[14] AB 36.2.

[15]AB 37.6-38.2.

[16] AB 38.9, 39.5.

[17]AB 40.8, 41.4.

[18]AB 44.4-46.5.

[19] AB 46.8.

[20] AB 47.4.

[21]AB 47.5-47.9.

[22]AB 50.5.

[23]AB 51.3.

[24]AB 52.7-53.2.

[25] AB 53.5.

[26]AB 53.8.

[27] AB 53.4.

[28] AB 53.8.

[29] AB 57.6.

[30] AB 58.4.

[31]AB 59.4.

[32]AB 59.6.

[33]AB 62.7.

[34] AB 63.2

[35]AB 64.2.

[36]AB 66.6.

[37]AB 66.9.

[38]AB 67.7.

[39]AB 68.1.

[40] AB 70.3.

[41]AB 70.7.

[42] AB 73.4.

[43]AB 74.8.

[44]AB 75.4.

[45]AB 78.4.

[46] AB 163.1.

[47] AB 123-129.

[48]AB 79.7.

[49]AB 79.9-80.2.

[50]AB 83.6.

[51]AB 83.8.

[52]AB 83.9-85.9, 86.2.

[53]AB 86.7.

[54] AB 87.1.

[55]AB 87.6.

[56]AB 92.6-93.6.

[57]AB 93.8-94.4.

[58] AB 98.7-99.1.

[59]AB 104.4-101.1.

[60]AB 105.3.

[61]AB 135.1.

[62]AB 136.

[63]AB 137.5. The case is erroneously referred to in the trial judge's reasons as a 2019 decision.

[64]AB 137.3.

[65] AB 137.1

[66]Reasons at [11].

[67] Reasons at [12].

[68]Reasons at [13]-[18].

[69] Reasons at [19]-[20].

[70]Reasons at [21].

[71]Reasons at [23].

[72]Ibid.

[73] Reasons at [24]-[27].

[74]Reasons at [28].

[75]Reasons at [30].

[76]Bianamu v Rigby [2021] NTCA 4 at [28] per Southwood J, at [122] per Kelly and Hiley JJ.

[77]Ibid at [123]-[125] per Kelly and Hiley JJ.

[78] Citing University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 8.

[79] Citing Fingleton v The Queen (2005) 227 CLR 166 at [148] per Kirby J.

[80]See, for example, FN v The Queen [2021] NTCCA 5 at [15]-[21], Foster v The Queen [2021] NTCCA 8 at [2]-[3] and Lynch v The Queen [2020] NTCCA 6.

[81] See, for example, The Queen v VHP (unreported, NSWCCA, 7 July 1997); The Queen v Kennedy (2000) 118 A Crim R 34 at [33] per Studdert J; Cawthray v The Queen [2013] NSWCCA 105 at [90], The King v Dean (1932) NZPLR 329 at 337 per Myers CJ; The Queen v Macdonald (1996) 84 A Crim R 508 at 515 Per Mullighan J; The Queen v Westerman (1991) 55 A Crim R 353 at 359 per Lee CJ at CL; The Queen v Frederick [2004] SASC 404 at [39] per Duggan J; The Queen v Franco [2003] SASC 140 at [27] per Duggan J; The Queen v Martin (No 3) (1999) 72 SASR 534; The Queen v Anderson (1991) 53 A Crim R 421. See also CB v Western Australia [2006] WASCA 227 at [72]-[73], [105], [109] per Roberts-Smith JA; Madden v The Queen [2022] NSWCCA 196 at [301], [303], [312] per Ward P.

[82]AB 6.

[83]AB 51.9 – 52.9.

[84] AB 79.6 – 80.2.

[85]AB 82.7 – 86.5.

[86] Reasons at [20].

[87]AB 95.9 – 96.4.

[88]AB 114.3.

[89]AB 116.2.

[90]AB 135.1.

[91]AB 135-136.

[92]AB 165.6.

[93] See Libke v The Queen (2007) 230 CLR 559 at [113] per Hayne J; Pell v The Queen (2020) 268 CLR 123 at [44]-[45]; see also Tyrell v The Queen [2019] VSCA 52 at [70].

[94] M v The Queen (1994) 181 CLR 487 at 494.

[95] AB 87.5

[96] See The King v RH [2023] NTSCFC 1 at [33] per Blokland J, Brownhill J and Riley AJ.

[97] Dansie v The Queen [2022] HCA 25 at [7].

[98] Reasons at [8].