Wodidj v Rigby

[2023] NTSC 34

CITATION:Wodidj v Rigby [2023] NTSC 34

PARTIES:WODIDJ, John

v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 26 of 2022 (22226248)

DELIVERED:  19 April 2023

HEARING DATE:  12 April 2023

JUDGMENT OF:  Brownhill J

CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – Appeal and review – Appeal from Local Court to Supreme Court – By person convicted against conviction – Whether conviction unreasonable and not supported on the evidence – Whether inconsistencies in complainant’s evidence gave rise to reasonable doubt about guilt of appellant – Where inconsistencies explicable in a manner that did not provide a basis for them to reflect on complainant’s credit – Open to hearing judge to be satisfied beyond reasonable doubt about the guilt of the appellant – Appeal dismissed.  

BCM v The Queen (2013) 303 ALR 387; Cooper v The King [2022] NTCCA 16; FN v The Queen [2021] NTCCA 5; Foster v The Queen [2021] NTCCA 8; Lynch v The Queen [2020] NTCCA 6; Morluk v Firth [2017] NTSC 91; NS v Dunne [2021] NTSC 77; The Queen v M, WJ [2004] SASC 345; Wanambi v Whittington [2019] NTSC 49, referred to.

D Mildren, ‘Redressing the Imbalance Against Aboriginals in the Criminal Justice System’ (1997) 21 Crim Law Journal 7

REPRESENTATION:

Counsel:

Appellant:J Bourke

Respondent:  D Payne

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Bro2307

Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Wodidj v Rigby [2023] NTSC 34

No. LCA 26 of 2022 (22226248)

BETWEEN:

JOHN WODIDJ

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM:    BROWNHILL J

REASONS FOR DECISION

(Delivered 19 April 2023)

1. On 30 November 2022, in the Local Court, the appellant pleaded not guilty to five charges, as follows:

   (a)three counts of breaching a domestic violence order directed to protecting his domestic partner, the complainant, committed on 11, 12 and 25 August 2022 (Counts 1, 2 and 4);

   (b)one count of aggravated assault of the complainant, committed on 12 August 2022 (Count 3); and

   (c)one count of deprivation of liberty, committed on 12 August 2022 (Count 5).

2. On 16 December 2022, the hearing judge acquitted the appellant of Counts 1, 2, 4 and 5 and convicted him of Count 3.

3. The appellant has appealed against the conviction on the ground that it is unreasonable or not supported having regard to the evidence.

Legal principles

1. 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.[1] Those principles apply equally to an appeal from a summary trial by judge alone.[2]

2. 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. The question is 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.

3. Further, in most cases, a doubt experienced by an appeal court will be a doubt which a tribunal of fact ought also to have experienced and it is only where a tribunal of fact’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appeal court that the court may conclude that no miscarriage of justice occurred. So, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the appeal court is a doubt which a reasonable tribunal of fact ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the tribunal of fact, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.[3]

   Evidence at the hearing

   The complainant’s evidence

4. It is not in dispute that the complainant was an Aboriginal woman from Palumpa for whom English was not her first language.

5. The complainant’s evidence in chief included that she was in court to tell about domestic violence by her partner and she felt no problems would come out of answering questions in the court.[4] She did not know what day ‘the trouble’ happened.[5] Asked what month it was, or if it was a little bit ago or long ago, she said: ‘Little bit, but for long’.[6]

6. Asked to tell the court about domestic violence, she said her partner was drunk and told her to follow him to look for ‘another grog’.[7] She told him it was too cold to follow him, so she stayed at home, he went to look for grog by himself and ‘came back as really drunk’.[8] She said he was ‘full drunk’, and then he started to threaten her and he hit her on the head with his elbow (the hearing judge noting that she had touched her right elbow with her upper hand).[9] She said the appellant would not let her go to the clinic and ‘[i]t was healed up in itself’.[10] This happened at about 2 am.[11] She said she felt a lot of blood on her head.[12] They were inside the house with three bedrooms, in the front.[13] Asked how the appellant did not let her go to the clinic, she said:[14]

   If I go to the clinic, he know, she’ll calling to the police. But he was just keeping me in the room and I had on the head, it just healed up itself, no clinic or anything. And after that, I went to Wadeye.

7. Asked for how long she had been kept in the room, she first said: ‘I forgot’, but then said ‘[j]ust in two days’.[15] She said she got out of the room when she and her brother went to the shop to get her pay, and she told the appellant she was going to Wadeye with her daughter.[16] She went to Wadeye for a funeral and stayed there because ‘I know I had got a DVO with him’.[17] She said she was at her sister’s house and ‘I was get shock. My partner was really drunk and get off from the TDC bus, and he was really drunk’.[18] Asked why she was shocked, she said:[19]

   Because him do the same thing when I was living at Palumpa, by drunk – and I (inaudible) and I was feeling scared (inaudible). That’s so me and my daughter, (inaudible) childcare. We need to stay at – we need to go to the safehouse and stay there. And I can remember statement from there.

8. She said that the appellant was ‘like threatening at me, like I’m gonna kick you’.[20] She then got her daughter and they went to the safe house.[21]

9. Asked if anything happened back in the bedroom at the house at Palumpa, she said the appellant was ‘getting wild because I didn’t go along with him’ and ‘[h]e was pushing me on the wall’.[22] She started to run to the door to get out and ‘[s]he pulled my shirt and she dropped me on the bed’.[23] She said:[24]

   I was just like this. And was talking in the front. I was standing on the back and that’s elbow on the side, it was just banging on (inaudible).

10. The hearing judge described that: (a) the complainant motioned a 45-degree strike downwards with the elbow; (b) showing the appellant, she pushed with two palms outstretched, fully extended in a broad motion; (c) showing her body, she put her two arms outstretched above her head backwards against the wall; and (d) showing her body after the strike to the head, she had her head face down towards the floor.[25]

11. In cross-examination, the complainant said that her relationship with the appellant was finished and ended when the accused was ‘locked up’ in August 2022, around two weeks after the alleged offending, and this was ‘okay for me because he’s not good for me, to stay with him or hang around with him’.[26]

12. When it was suggested to her that her story about the appellant asking her to come look for alcohol was not true, she said ‘[t]hat’s true’.[27]

13. There was then the following exchange:[28]

    Right. And you were saying earlier that he hit you on your head with his right elbow?---Yeah – nah, left.

    It was his left elbow?---Yeah. I was sitting down back off of him. That’s the (inaudible). So, everyone’s just like – I was just – he wasn’t – he was in the front and I was just (inaudible) on the back. And he was using left elbow, because I was crying like head down and I was crying. And he was talking about like, needed to help him to look for or grog. And he told me, ‘If you don’t listen to me, I won’t let you go anywhere’.

    Because you said earlier that [the appellant] hit you with his right elbow?---No, left. That was mistake.

    …

    Okay. And you also said earlier that [the appellant] pushed you up against the wall?---Yep.

    And he used both hands to push you up against the wall?---Yep.

    Do you remember speaking to the police about this trouble?---I must have forgot.

14. Referred to her statement, and the fact that it does not mention the appellant pushing her up against the wall, the complainant confirmed that the appellant ‘pushed me on – on the wall’, and said she did tell the ‘police lady’ that he pushed her up against the wall.[29]

15. There was then the following exchange:[30]

    Right, okay. Ms [complainant], I’m obliged – I have to say to you that your story about [the appellant] coming back to the house … and him coming into the house and talking to you and hitting you with his elbow; all of that is not true?---No, that’s all true.

    And the truth is, Ms [complainant], that [the appellant] and you did not see each other at all - - -?---Yep.

    - - - those two nights, or the same night?---We was – I just went to my sister’s house.

    Are you saying that what I’m saying is correct?---Yep.

    So, you’re accepting that you and [the appellant] did not see each other at all on 11 August this year?---Yep.

    Okay. I just want to be fair to you, Ms [complainant]. Are you accepting that the story that you’ve told the court today about [the appellant] and what he did to you is false?---Yes.

    And additionally, Ms [complainant], the story that you told the court today about [the appellant] getting off the TDC bus and him threatening you; that is not a true story?---That’s true – true story.

16. In re-examination, the complainant confirmed that when she showed the appellant pushing her with two hands, there was a wall behind her and her body was against the wall.[31] There was then the following exchange:[32]

    Now, the next question I want to ask you is, my friend asked you about the story when you were … in that house. You remember that at Wadeye – sorry, at Palumpa, when [the appellant] came to that house drunk. You remember that? I’m talking about the trouble at Palumpa?---Nup, I can’t remember now.

    So, I’ll just go back to, when we started today, we talked about the first trouble, a long time ago in Palumpa with [the appellant]. You can remember telling the court about that trouble?---Nup.

    …

    So, Ms [complainant] … [c]an you remember telling the court and showing the court about the elbow on your head?---I was just head down, then it went back then and it was just like that.

    Okay, Ms [complainant], one more question. Is that a true story? Do you want me to ask that question again?---Because – because when we in that room, it was all night, just the darkness.

    I’ll ask that question one more time. So, the story you told the court about in the bedroom in Palumpa, is that a true story? Just say ‘yes’ or ‘no’?---No.

    Police officer’s evidence

17. The officer in charge of the investigation was called. She said she was called to the safe house in Wadeye on a report that there was a victim with a ‘non-intox’ domestic violence order whose partner had arrived in town intoxicated and approached her, she felt frightened and had gone to the safe house.[33] The investigating officer said she went to the safe house after confirming the existence of the domestic violence order and spoke to the complainant.[34] The officer observed the complainant to be scared of what was happening and the appellant following her to Wadeye.[35] The officer’s statement and the body worn footage of her interactions with the complainant were tendered, with the footage played to the court.[36] The officer said the complainant was unaware that the domestic violence order was a full non-contact order.[37] The officer took photographs of the top of the complainant’s head, which showed an ‘old injury that had healed, but you could sort of see that there was an injury that had occurred some weeks before.’[38] The officer said the complainant had told her that two weeks before she came to Wadeye, she was assaulted by the appellant in their bedroom at her son’s house, and that the injury in the photographs resulted from the appellant using his elbow to assault her.[39] The photographs were tendered.

18. In cross-examination, the officer agreed that she had taken the complainant to the Police station from the safe house to take her statement, had typed it up verbatim (observing that the complainant’s English was ‘very good’), and had read it back to the complainant before she signed it.[40] She confirmed the complainant had not told her the appellant pushed her up against a wall.[41]

Hearing judge’s determination and reasons

1. After reserving his decision, the hearing judge found the appellant not guilty on Counts 1, 2 and 4 because the domestic violence order was not put in evidence by the Crown.[42] The hearing judge also found the appellant not guilty on Count 5 because there was no evidence of words or conduct by the appellant which deprived the complainant of her liberty.[43]

2. The hearing judge referred in detail to the complainant’s evidence and the investigating officer’s evidence. The hearing judge found that the complainant was frank about the past relationship problems between herself and the appellant, did not find any animus or jealousy by the complainant towards the appellant and said the complainant had the strength of character to speak openly and honestly about the relationship.[44] His Honour said:[45]

   As I previously mentioned, [the complainant] is not a professional witness. She is an Aboriginal woman from a remote community, who used gender Aboriginal English in referring to the [appellant] as a ‘she’ in many of his actions.

   [The complainant] provided a consistent narrative of the events with her oral evidence, but was also visually descriptive of the [appellant’s] actions and her reactions with the assault to her person of both the push against the wall and the elbow strike, that was shown at 45 degrees, whilst she was sitting on the bed with her head down looking at the floor in a vulnerable position.

   [The complainant], her demeanour for the majority of her evidence was fully engaged and participatory, whether this was in cross-examination …and re-examination. She responded to the proposition of the story being false. As I said, she responded in single worded responses in the affirmative and the negative to each countervailing proposition. [His Honour also noted a long pause before the complainant answered ‘no’ to the last question in re-examination.[46]]

   Her change in demeanour was one of an Aboriginal woman before the court who was visually frustrated, tired and saddened. It was never put by the defence to the witness that her acceptance of a false story was due to any animus or any other reason to lie about her evidence.

   I am still able to accept that [the complainant] is a reliable and credible witness, beyond reasonable doubt, based on her testimony, given the descriptive narrative and the corroborative evidence of … the photograph of a healed head wound that is consistent with the location of that elbow strike to her head.

   I do accept that [the complainant’s] evidence that the [appellant] pushed her causing her body to impact against the wall, given its descriptive narrative of what occurred and its omission from her statutory declaration on the day when it was taken on the body-worn footage … [when] she was visibly saddened and frightened at the Wadeye safe house and it does not cause me any great concern.

3. His Honour found Count 3 proved beyond reasonable doubt, including the circumstances of aggravation.[47]

   Was the verdict open on the evidence?

4. The appellant argued that the answers given by the complainant in cross-examination and re-examination which are italicised in paragraphs [18] and [19] above showed that the complainant lied to the court under oath because those answers were diametrically opposed to her evidence-in-chief.

5. The respondent argued that the complainant’s answers were not lies, which require a deliberate intention to tell an untruth, but were inconsistencies in her evidence which were explicable in a manner that did not provide a basis for them to reflect on the complainant’s credit.[48]

6. In the context of allegations of assault in the domestic context, it has been held that it is a not uncommon occurrence for a victim to recant their complaint to police or evidence given in court which would inculpate the alleged offender, the question of whether a reasonable doubt exists will not be resolved by a mechanical comparison of the accounts and inconsistencies, and even when accounts are diametrically opposed, it will not necessarily yield a reasonable doubt.[49]

7. It was common ground that, in assessing the complainant’s evidence, the hearing judge took into account the matters the subject of what is often referred to as ‘the Mildren direction’, which is found and explained in the article by Mildren J called ‘Redressing the Imbalance Against Aboriginals in the Criminal Justice System’.[50]

8. The appellant argued that there was no cause to do so because that direction is directed to redressing deficits in language and communication of Aboriginal witnesses, and the complainant did not have any significant deficits in language, referring to the prosecutor’s statement that an interpreter was not required and to the investigating officer’s evidence that the complainant’s English was very good. The appellant emphasised that the complainant had lied, which was not something the Mildren direction could remedy.

9. I do not accept that the complainant lied in her evidence simply because some of her answers in cross-examination and re-examination were diametrically inconsistent. Lying under oath is a serious finding to make and it should not be made (or put) lightly.

10. The complainant’s capacity to speak and understand English is indicated by some of her answers referred to or set out above. She is clearly a speaker of Aboriginal English. She is therefore a person in respect of whom the Mildren direction is applicable and appropriate.

11. Of the italicised questions asked in cross-examination:

    (a)The question starting: ‘And the truth is, Ms [complainant], that [the appellant] and you did not see each other at all…’ was a leading question. Leading questions are ones to which many Aboriginal people will answer ‘yes’, even if they do not agree with the proposition being put to them, or they do not understand the question.[51] The complainant answered affirmatively to the first part of the question, then said she went to her sister’s house. The answer does not indicate when on ‘the same night’ that the complainant went to her sister’s house. The answer is not inconsistent with the complainant being assaulted by the appellant on that night.

    (b)The question: ‘Are you saying that what I’m saying is correct?’ was, by virtue of the repetition of ‘saying’ with the changing subject (you/I), a confusing question. Speakers of Aboriginal English often agree to a question even if they do not understand it.[52]

    (c)The question starting: ‘So, you’re accepting that you and [the appellant] did not see each other …’ is a confusing question, by virtue of the word ‘accepting’, and was asking about a specific date. Concepts such as time are understood by some speakers of Aboriginal English very differently from speakers of standard English.[53] Furthermore, the complainant gave evidence-in-chief that she did not know the date of the offending.

    (d)The question starting: ‘Are you accepting that the story that you’ve told…’ is a very general question and a confusing question by virtue of the words ‘accepting’ and ‘false’. When a detailed question was put to the complainant only four questions before this question, to the effect that her story about the appellant coming to the house and hitting her with his elbow was ‘not true’, the complainant answered that it was all true. Similarly, when a detailed question was put to the complainant immediately after the last italicised question, to the effect that her story about the appellant getting off the bus and threatening her was ‘not a true story’, the complainant answered that it was a true story. Earlier in cross-examination, she had been asked a question suggesting that the story about the appellant turning up to the house and asking her to go look for alcohol was ‘not true’, and she answered: ‘That’s true’.

1. The italicised question asked in re-examination is a relatively generalised question that does not refer to the conduct comprising the alleged assault (the hitting with the elbow). It is an ‘either … or … question’, that is, a question which asks the respondent to choose one of two alternatives, and speakers of Aboriginal English will often, but not always, refer to the last alternative.[54] That is what the complainant did.

2. Consequently, and in the context of the complainant’s evidence as a whole, I do not accept that the complainant’s answers to the italicised questions constitute her ‘recanting’ her evidence in chief or her other evidence about the appellant’s conduct. Her evidence about the appellant’s conduct was otherwise clear, descriptive and forthright. Further, for the reasons set out above, they are clearly answers explicable in a manner that did not provide a basis for them to reflect on her credit.

3. The appellant argued that the answers given by the complainant in re-examination which are underlined in paragraph [19] above were also important in the assessment of her credibility because she had forgotten what she had just told the court and the answer about the darkness was unresponsive. Of those questions:

   (a)The questions starting: ‘Now, the next question I want to ask you is…’ up to the question: ‘You can remember telling the court…’ were confusing and lengthy because there were a number of questions rolled up together, each referring to different aspects. The answers do not necessarily refer to the complainant’s memory and could be a response to the length of the question (or series of questions) or the difficulty which a number of Aboriginal people have in adjusting to the use of repeated questions,[55] noting that these questions were asked in re-examination.

   (b)The answer to the question starting: ‘Okay, Ms [complainant], one more question…’ about the ‘darkness’ is, at worst, an indication that the complainant did not understand the question and, at best, her attempt to explain why her story was true. Even resolving the ambiguity in the appellant’s favour (if that be necessary), the answer is of little moment.

4. The appellant argued that there were other matters that affected the reliability of the complainant’s evidence.

5. One was the 14 day delay in making the complaint to police. The complainant’s evidence was that she stayed in Palumpa for two days after the offending because the appellant would not let her out of the house, and she then travelled to Wadeye for a funeral without the appellant. She also said her injury healed by itself. She made the complaint when the appellant arrived in Wadeye drunk and started threatening her, and she went to the safe house. The clearly available inferences are: (a) the complainant felt unable to leave the house for two days; (b) she felt there was no medical need to report the matter; and (c) once in Wadeye, the complainant felt safe from the appellant until he arrived. Those inferences do explain the delay in making a complaint.

6. Another matter was the complainant’s failure to mention the push against the wall when she made her complaint to police, which meant her versions of the appellant’s conduct were inconsistent. The hearing judge noted that, on the body worn footage of the complainant’s initial complaint, she was visibly saddened and frightened. The investigating officer’s evidence was also that the complainant appeared scared. The complainant’s written statement was taken shortly after the initial complaint, with the investigating officer taking the complainant to the Police station from the safe house. The inference is clearly open that, due to her mental state, the complainant simply forgot to mention the push against the wall.

7. Another matter was the suggestion that the complainant’s evidence about which elbow the appellant hit her with changed because she had touched her right elbow when asked what the appellant hit her with, but corrected the cross-examiner when it was put to her that the appellant hit her with his right elbow. Even if the initial touching of her right elbow is taken to be evidence that the appellant hit her with his right elbow, the complainant herself explained the change as a ‘mistake’.

8. Another matter was that the complainant had no motive to protect the appellant (because her relationship with the appellant was over), which could have otherwise been an explanation for her ‘recanted’ or inconsistent evidence about the offending.[56] For the reasons already mentioned, I do not accept that the complainant recanted her evidence, and the inconsistencies are explicable on the basis referred to above that does not impact on her credit. The absence of a motive to protect the appellant is of no moment.

9. The last matter referred to was that there was no corroborative expert medical evidence of the complainant’s injury and the photographs of her injury were ‘circumstantial complaint evidence’. As to the latter point, the same can be said of most medical evidence detailing injuries sustained upon an assault. As to the former point, that is a matter of little weight.

10. None of the matters referred to by the appellant, either individually or taken together, cause me to entertain a reasonable doubt about the appellant’s guilt. On my assessment of the whole of the evidence before the Local Court, it was open to the hearing judge to be satisfied beyond reasonable doubt that the appellant was guilty of Count 3. I do not accept that the hearing judge must have entertained a reasonable doubt. The verdict is not unreasonable, unsafe or unsupported by the evidence.

11. It should be noted that the hearing judge took account of the demeanour of the complainant during her evidence, noting that it changed as she gave her evidence so that (apparently) during the latter part of the cross-examination and the re-examination (when the questions set out in paragraphs [18] and [19] above were asked), she appeared frustrated, tired and saddened. The hearing judge’s advantage in seeing and hearing the complainant give her evidence was important in his assessment of her evidence, particularly because of the matters referred to in paragraphs [32] to [35] above. If I had a doubt about the complainant’s credibility (which I do not for the above reasons), the advantages of the hearing judge would have carried considerable weight towards resolving the doubt.

Disposition

1. The appellant’s ground of appeal has not been made out.

2. The appeal is dismissed.

-----------------------------------

[1]See, for example, FN v The Queen [2021] NTCCA 5 at [15]-[21] per Grant CJ, Brownhill J and Hiley AJ; Foster v The Queen [2021] NTCCA 8 at [2]-[3] per Grant CJ, Kelly and Brownhill JJ; Lynch v The Queen [2020] NTCCA 6 at [16]-[21] per Grant CJ, Blokland and Hiley JJ.

[2]Morluk v Firth [2017] NTSC 91 at [34] per Grant CJ.

[3]See also, Cooper v The King [2022] NTCCA 16 at [75] per Grant CJ and Hiley J.

[4]Transcript of Proceedings, 30 November 2022, p 6.

[5]Ibid.

[6]Ibid.

[7]Ibid p 7.

[8]Ibid.

[9]Ibid pp 7-8.

[10]Ibid p 8.

[11]Ibid.

[12]Ibid.

[13]Ibid.

[14]Ibid.

[15]Ibid p 9.

[16]Ibid.

[17]Ibid p 10.

[18]Ibid.

[19]Ibid.

[20]Ibid.

[21]Ibid.

[22]Ibid p 11.

[23]Ibid.

[24]Ibid.

[25]Ibid pp 11-12.

[26]Ibid p 16.

[27]Ibid p 17.

[28]Ibid pp 18-19.

[29]Ibid p 19.

[30]Ibid. The italics are mine and their significance is explained below.

[31]Ibid p 20.

[32]Ibid pp 20-21. The italics and underlining are mine and their significance is explained below.

[33]Ibid p 24.

[34]Ibid.

[35]Ibid p 25.

[36]Ibid pp 26-28.

[37]Ibid p 27.

[38]Ibid p 28.

[39]Ibid.

[40]Ibid p 29.

[41]Ibid.

[42]Transcript of Proceedings, 16 December 2022, p 3.

[43]Ibid.

[44]Ibid, p 4.

[45]Ibid, pp 4-5.

[46]Ibid, p 4.

[47]Ibid, p 5.

[48]See Morluk v Firth [2017] NTSC 91 at [37] per Grant CJ, citing BCM v The Queen (2013) 303 ALR 387 and The Queen v M, WJ [2004] SASC 345.

[49]Ibid at [38] per Grant CJ. See also Wanambi v Whittington [2019] NTSC 49 at [10] per Hiley J.

[50]D Mildren, ‘Redressing the Imbalance Against Aboriginals in the Criminal Justice System’ (1997) 21 Crim Law Journal 7 (‘Mildren article’).

[51]Mildren direction, [10].

[52]Mildren article, p 14.

[53]Mildren direction, [13].

[54]Mildren article, pp 14-15.

[55]Mildren direction, [11].

[56]See, for example, Morluk v Firth [2017] NTSC 91; NS v Dunne [2021] NTSC 77.