Dalton v The King [2025] NTSC 29

Brawn v The King [2025] HCA 20; FN v The Queen [2021] NTCCA 5; Foster v The King [2023] NTCCA 5; GAX v The Queen [2017] HCA 25; 344 ALR 489; Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507; Libke v The Queen [2007] HCA 30; 230 CLR 559; Lynch v The Queen [2020] NTCCA 6; M v The Queen [1994] HCA 63; 181 CLR 487; Pell v The Queen [2020] HCA 12; 268 CLR 123; SKA v The Queen [2011] HCA 13; 243 CLR 400; Tyrell v The Queen [2019] VSCA 52, referred to

Respondent: Office of the Director for Public Prosecutions

Dalton v The King [2025] NTSC 29

• [1] On 23 October 2024, the appellant, John Dalton ("Mr Dalton") was found guilty in the Local Court at Katherine of one count of unlawful assault in circumstances of aggravation contrary to s 188(2) of the Criminal Code 1983 (NT) ("Criminal Code"). He has appealed against that finding of guilt on the following grounds.

(1) A substantial miscarriage of justice occurred because the Local Court impermissibly admitted evidence, in the evidence-in-chief of Mr Almeiaha, that bolstered the credibility of [the complainant] Mr Panapiti.

(2) A substantial miscarriage of justice occurred because the Local Court failed to direct themselves as per Liberato v The Queen.[1]

(3) A substantial miscarriage of justice occurred because the Local Court erred in concluding that the CCTV footage from within the taxi would not have assisted the Court in its deliberation.

(4) The verdict is unreasonable or cannot be supported having regard to the evidence.

• [2] At the hearing of the appeal, the appellant abandoned Ground 1.
• [3] It is common ground that if the appeal is allowed on Ground 2, the appropriate remedy would be to set aside the finding of guilt and to order a retrial; if the appeal succeeds on Ground 4, the guilty verdict should be set aside and an acquittal substituted.

• [4] The summary trial revolved around an allegation that Mr Dalton assaulted Anoura Panapiti ("Mr Panapiti"), a taxi driver, on the evening of 12 October 2023.
• [5] It was common ground between the parties that Mr Panapiti had attended at a residence in Katherine in response to a call for a taxi. Mr Dalton, Mr Geoffrey Henning ("Mr Henning") and Ms Vanessa Sofele ("Ms Sofele") were at that address. Initially they had wanted to go to a bottle shop to buy more beer but the taxi did not arrive by the time the bottle shop closed, so they decided to go to the Golf Club for dinner instead.
• [6] On the prosecution case, once the taxi arrived, there was significant delay on the part of the passengers that caused Mr Panapiti to ask 'the good way' for the other passengers to attend the vehicle in a timely manner. The complainant, Mr Panapiti, then told Mr Dalton that the delay was unacceptable as it was a busy period, the implication being that Mr Panapiti would need to leave. Mr Dalton began to argue, "coming closer to Mr Panapiti and touching him with his shoulder" and taking "selfies" of him. Mr Panapiti then called his boss on the phone.
• [7] Mr Panapiti felt uncomfortable in the taxi with Mr Dalton, and decided to get out of the taxi, whereupon Mr Dalton locked the doors from the inside. Mr Panapiti then sat on a driveway, and Mr Dalton left the vehicle. Mr Dalton approached Mr Panapiti while talking on his phone and held the phone out to Mr Panapiti in an invitation to talk. Mr Panapiti said that he did not want to speak on the phone to the person on the other end of the call and pushed Mr Dalton's hand that was holding the phone away from him as a result of which the phone fell to the ground.
• [8] Mr Dalton then grabbed Mr Panapiti by the shirt, tearing it, and then grabbed Mr Panapiti by the neck and punched him in the face with a fist. The grasp on the neck lasted for "maybe ten seconds". After a brief interlude during which the accused released Mr Panapiti, Mr Dalton grabbed him by the neck again and squeezed, causing breathing difficulties.
• [9] Mr Panapiti then fled in fear and called his boss again. He flagged down a passing police car and reported the assault. Police attended the premises shortly thereafter and Mr Panapiti also returned in a taxi mini-bus with his boss and some other drivers.

• [10] The Crown case relied in large part on the direct evidence of the complainant, Mr Panapiti, who gave evidence essentially as outlined above.
• [11] The prosecution also relied upon Mr Ali Almeiaha ("Mr Almeiaha"), the supervisor of Mr Panapiti, as a witness of contemporaneous complaint, and on attending police officers who gave evidence that when he flagged down the police car Mr Panapiti said he had been assaulted and gave a reasonably detailed account which the officer related; that he appeared shaken and distressed, and had a torn shirt; and that they noticed marks on his neck.
• [12] Photographs of Mr Panapiti with a torn shirt and a close up of his neck were tendered as well as hospital notes of Mr Panapiti's attendance at Katherine Hospital noting what he had told them about the assault and the doctor's observations of marks on Mr Panapiti's neck. The Crown also tendered body worn footage of police interactions with Mr Dalton and Ms Sofele.
• [13] The accused gave evidence for the defence, as did Ms Sofele. Defence also tendered a short video taken by Mr Dalton, in the front of the taxi, of Mr Panapiti showing Mr Dalton his taxi licence at Mr Dalton's request.

• [14] Mr Dalton gave evidence that he, Ms Sofele, and Mr Henning had had a couple of beers at the Lorre Street property, before calling a taxi to go to the Crossways Bottle Shop. The taxi had not arrived after half an hour, at which time the bottle shop was closed. The group then decided to go to the Golf Club as an alternative. When the passengers informed the driver that they would go instead to the Golf Club, the complainant became querulous, and ultimately refused to take the fare.
• [15] Mr Dalton then advised that he wished to make a complaint to the supervisor at the taxi company, and asked to see the driver's taxi licence, which was not displayed as it ordinarily would be on the dash of the vehicle. After a brief conversation with the driver's supervisor, Mr Panapiti hung up. Mr Henning got out of the taxi and, as Mr Dalton and Ms Sofele went to get out, the taxi driver then drove off in an aggressive manner and ran up onto the curb about 10 metres away. Ms Sofele then began to shout at the driver, and Mr Dalton told him that he would put in a complaint.
• [16] Mr Dalton and Ms Sofele then got out of the taxi and Mr Dalton began to call the taxi company. At this point, Mr Panapiti approached Mr Dalton 'in a pretty quick and fast manner' and slapped him while he was on the phone. The slap hit Mr Dalton 'in [his] right eye', causing Mr Dalton to drop his phone. Mr Panapiti continued to walk towards Mr Dalton and, feeling vulnerable, and with his vision momentarily impaired, Mr Dalton pushed Mr Panapiti away. At the moment he pushed him, Mr Dalton said he felt vulnerable and thought Mr Panapiti was continuing to assault him.
• [17] Mr Dalton then 'grabbed Mr Panapiti with both hands around the collar' and 'shook him', then 'walked him forward maybe two metres', before letting him go and telling him not to come near. Mr Panapiti then called the police and police attended.
• [18] Ms Sofele gave evidence that Mr Dalton had come to the home she shared with her partner Mr Henning; they had a few beers together and, at around 7.30, they called a taxi to go to the bottle shop to get some more beers. They received notification at about 7.45 that the taxi was on its way but it didn't arrive till about 8.20. By that time the bottle shop had closed so they decided to go to the Golf Club for dinner instead.
• [19] When the taxi arrived, Ms Sofele and Mr Dalton got in the taxi and Mr Henning went inside to get his wallet. She was in the back seat and Mr Dalton was in the front seat. The taxi driver seemed agitated that he had to wait. Then he said he didn't want to take them. Mr Dalton asked him to ring his employer so he could talk to him. The taxi driver rang his employer on speaker phone and the employer said he had to take them. The driver continued to get agitated. Mr Henning said he had had enough and got out of the taxi. As he did so, the driver drove forward aggressively for a couple of metres with Ms Sofele's door and Mr Dalton's door wide open. Then she and Mr Dalton got out of the taxi.
• [20] Mr Dalton had been videoing and asked the driver to show his licence which was not visible in the taxi. The driver didn't seem to like the fact that Mr Dalton was videoing and hopped out of the taxi, went around to the passenger's side and slapped the phone out of Mr Dalton's hand, at the same time making contact with Mr Dalton's face. Mr Dalton got agitated, put his hands on the driver's collar and shook him.
• [21] After that, other taxi drivers arrived quite quickly and the driver went towards them. Then police arrived and arrested Mr Dalton. Ms Sofele said no police officer tried to talk to her that evening or afterwards.

• [22] Two pieces of evidence which the appellant contends were notably missing, were the CCTV footage from the inside of the taxi, and the other civilian witness (Mr Henning) who had been present during part of the interaction between Mr Panapiti and Mr Dalton. There was some inconclusive evidence about whether the CCTV footage was unavailable because police failed to request it in a timely fashion or because the taxi company failed to co-operate fully in providing the police with access to the taxi.

• [23] The learned trial judge made findings of fact in conformity with the evidence given by Mr Panapiti. In assessing the evidence of the three lay witnesses, after summarizing that evidence, his Honour said, in relation to Ms Sofele:[2]

Affected by alcohol as she was, from drinking that night, I put little weight on her protestations and complaint of injustice in her friend being arrested. As I say, she was not helpful to the investigation nor did she offer, on the night in question or subsequently, any evidentiary assistance to the attending police.

I also find her limited recall in her evidence somewhat defensively selective.

• [24] Following that, his Honour said:[3]

This issue before me therefore rests on the conflict of the evidence from the complainant and the defendant and the reliability I can attribute to their evidence giving - as I do - the appropriate legal directions to myself.

Alternatively, with self-defence raised for the purpose of negativing the account, whether the accused did not believe his conduct was necessary to defend himself or what the accused did was not a reasonable response to the complainant's conduct.

In this regard I rule out defensive conduct as being either necessary or in reasonable response as the defendant perceived it at the time. I find his reaction and physical aggression following to the admitted slap of his phone out of his hand by the complainant was reactionary and not defensive conduct.

This is the part of the decision in which the appellant says the trial judge fell into error in relation to the failure to give a Liberato direction (Ground 2).

• [25] In relation to Mr Panapiti's evidence, his Honour said:[4]

I find the complainant to have been truthful and consistent in his account of the evening experiences on 11 October 2023, including being hit on the face by the defendant, grabbed on the neck and grabbed by the shirt, each and every action constituting an assault in combination.

• [26] Immediately following those remarks, in relation to Mr Dalton's evidence, his Honour said:[5]

I reject the defendant's account of behaving defensively or that he was injured by being hit or slapped to the cheek and eye, which he claims caused him to momentarily lose vision. I find such account to be a fabrication to justify his unlawful reaction to the phone being slapped out of his grasp while recording and/or speaking on his phone.

I find the offence proved and the circumstance of aggravation, namely harm, supported by the exhibited photos and discharge notes made out.

Ground 2: asserted failure by trial judge to direct in accordance with Liberato

• [27] As the High Court determined in Liberato:[7]

The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

• [28] This principle applies to all defence witnesses, not just to evidence by an accused and applies equally to a magistrate or judge of a summary court trying criminal cases.
• [29] In this case, the appellant contends that there was a clear conflict between the evidence of Mr Panapiti for the Crown and Mr Dalton and Ms Sofele for the defence and that the learned trial judge fell into the error identified in Liberato.
• [30] In Liberato, the trial judge had "carefully and correctly explained to [the jury] the requirements of the criminal onus and standard of proof but, nevertheless misdirected the jury in terms which indicated that the overall question for them essentially involved the making of a "choice" between prosecution and defence evidence saying, "in many ways this case boils down to who do you believe"; "You may well think that the attitudes are so far apart that you have to make a choice"; "The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence, (the complainant) or the accused?"[8] Deane J said:[9]

Overall, it appears to me that it is more probable than not that the learned trial judge's orthodox directions on the standard and effect of the onus of proof would have prevailed over the effect of the mis-directions. It is, however, impossible to do more than speculate in that regard. There must remain a significant possibility that the members of the jury were, at the very least, confused about the nature and the operation of the criminal onus to the extent that they saw their task as essentially one of making a "choice" between the Crown evidence and the evidence called and statements made on behalf of the accused and as involving no more than a decision about whether or not, to adapt the words of the learned trial judge at one stage of his summing up, they should "believe" the complainant "on the whole of the evidence".

There can be no room for the application of the proviso to s.353(1) of the Criminal Law Consolidation Act 1935 (S.A.) in an appeal where there is a significant possibility that, by reason of misdirection by the learned trial judge, a jury has convicted on the basis of a choice between the Crown and Defence witnesses as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against the accused. If some members of a jury in a criminal trial have, by reason of misdirection, failed to comprehend that a finding of guilty cannot be based merely on a failure to believe the accused or on a choice between the Crown and Defence witnesses, the accused has been denied a trial in accordance with law and, in the event of a conviction, there has been a fundamental miscarriage of justice. ...

• [31] This was recently reiterated, and clarified by the High Court in Brawn v The King:[10]

A common circumstance relied on as giving rise to a miscarriage of justice is that there was an error or irregularity in the trial at which the appellant was convicted; that is, some defect in the trial such as a departure from the rules of evidence or procedure, improper cross-examination by a crown prosecutor or a misstatement of fact by the trial judge in the summing up. If such an error or irregularity was "fundamental" in the sense discussed in the authorities then there will be a miscarriage of justice and no occasion to address the proviso separately will arise. The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.

For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, "could" is to be understood as meaning "having the capacity to", and "realistically" distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.

In each instance where the materiality threshold is met, the error or irregularity will be one that could realistically have affected the jury's reasoning to a verdict of guilty. The inquiry required by this materiality threshold or test does not collapse into the inquiry undertaken in applying the proviso. The question posed by the materiality test looks to the possible effect of the error or irregularity on the trial that was had. In contrast, the task required of an appellate court in applying so much of the proviso that requires it to address the "negative proposition" stated in Weiss, namely by asking whether "the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty", is qualitatively different from asking whether an error or irregularity could realistically have affected the jury's reasoning to the verdict of guilty that was returned by the jury in the trial that occurred. ...

• [32] In this case, the learned judge did not explicitly spell out the onus and standard of proof or give himself a direction in accordance with Liberato. His Honour's statement of the legal principles to be applied in determining whether the Crown had proved the guilt of the accused to the requisite standard was limited to the words "giving - as I do - the appropriate legal directions to myself" in that passage of the judgment set out at [24] above.
• [33] That, of course, is not determinative of whether the trial judge fell into the error contended for by the appellant. Simply reciting the relevant legal principles to be applied is not always necessary or necessarily sufficient. As the respondent correctly submitted, the trial judge's decision must be read fairly, as a whole, to determine whether there has in fact been an error in the reasoning process of the type contended by the appellant, and due regard must be had to the exigencies of a busy Local Court list.
• [34] The respondent contends that the trial judge in this instance provided a detailed summary of both the complainant's evidence and that of the defence witnesses, was alive to the fact that there was a clear conflict in the two versions, and had reference to objective evidence corroborating the evidence of Mr Panapiti. The trial judge gave reasons for not accepting the evidence of the defence witnesses; it is clear from his Honour's reasons that that evidence did not create any reasonable doubt in his mind as to the guilt of Mr Dalton; and, reading the decision fairly as a whole, one cannot infer that his Honour erred in the manner contended by the appellant.
• [35] I do not agree. In saying, "This issue before me therefore rests on the conflict of the evidence from the complainant and the defendant and the reliability I can attribute to their evidence," it seems to me that there is a significant possibility that the trial judge approached this case as essentially involving a choice between prosecution and defence evidence, and this is not saved by the addition of the catch all words, "giving - as I do - the appropriate legal directions to myself."
• [36] There is no indication, anywhere in the reasons, that the trial judge asked himself whether (even if he did not positively accept the defence evidence) that evidence raised any reasonable doubt in his mind as to the guilt of Mr Dalton.
• [37] That being so, it must be the case that such error could realistically have affected his Honour's reasoning to a verdict of guilty. There has been a substantial miscarriage of justice and this ground of appeal must be allowed.

Ground 4: the verdict is unreasonable or cannot be supported having regard to the evidence

• [38] The principles applying to an appeal on the ground that a verdict is unreasonable or cannot be supported having regard to the evidence were summarized by the Court of Criminal Appeal in Foster v The King:[11]

The principles governing appeals on this ground of appeal were recently reviewed by this Court in Lynch v The Queen[12] and FN v The Queen[13], and we largely repeat those reviews for ease of reference. In M v The Queen, the High Court stated:[14]

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe" or "dangerous or unsafe". In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

The test in M v The Queen has been affirmed in subsequent decisions of the High Court.[15] An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdict reached by the jury.[16]

In considering convictions for sexual offences, where it may be assumed that the jury assessed the complainant's evidence as credible and reliable, there may be countervailing evidence which nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to guilt. The High Court has explained the process in the following terms:[17]

The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

In terms of resolving any doubt held by an appellate court, the majority in M v The Queen said:[18]

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

In Libke v The Queen, Hayne J expressed the process of reasoning as follows (footnotes omitted):[19]

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.

This formulation does not impose a stricter test than was laid down in M v The Queen. In Pell v The Queen, the High Court confirmed that the statement from Libke extracted above was consistent with what was said by the majority in M v The Queen.[20]

• [39] The appellant contends that in this case there are a number of factors that ought to cause a doubt in the mind of this Court on review:[21]
  • The absence of the CCTV footage in circumstances detailed above, along with the unexplained absence of the other partial eye-witness, Mr Henning.
  • Despite an initial denial that the complainant attempted to conceal his name when showing his licence, and then a subsequent denial that the action was deliberate, Exhibit D1 demonstrates a deliberate concealment of the details of the driver's licence proffered by Mr Panapiti, which corroborates the version given by the appellant.

The sworn evidence of two defence witnesses should on its own leave at least a reasonable doubt in the mind of this Court as to the version given by the complainant, and also as to whether defensive conduct had been negatived beyond reasonable doubt by the Crown. In particular, this Court applying the principles in Liberato would not so quickly reject the evidence of Ms Sofele on the basis of her intoxication and a perception of selective answering that is not borne out by a reading of her evidence.

• Applying the principles in Murray, this Court on review would carefully scrutinise the evidence of the complainant with great care before arriving at a conclusion that Mr Dalton is guilty of assault.
• In that careful scrutiny, the Court would have concerns about the credibility of the complainant, particularly in respect of the failure by the complainant to disclose that he had struck Mr Dalton's phone when providing a narrative to police.

• [40] The respondent properly conceded that the Crown should have called both eye witnesses, Ms Sofele and Mr Henning but contended that the failure to do so does not make the guilty verdict unsafe or unreasonable. Counsel contended, correctly, that it was not for this Court to speculate on what the missing witness might have said or what might have been shown in the CCTV footage from inside the taxi. The trial judge had to decide the case on the evidence that was before him.
• [41] The respondent submitted that there was ample evidence on which it was open for the trial judge to be satisfied beyond reasonable doubt of Mr Dalton's guilt on the assault charge.

(a) There was the immediate complaint to the manager of the taxi company and to the police when Mr Panapiti flagged down the police car after running away from the location.

(b) There was corroborating evidence from the police about the ripped shirt (which was consistent with both versions), the marks on Mr Panapiti's neck and their observations that he appeared shaken and distressed.

(c) There were photographs of Mr Panapiti with a torn shirt and a close up of his neck showing marks.

(d) There were the hospital notes setting out the doctor's observations of the marks on Mr Panapiti's neck.

(e) There was the fact, remarked on by the trial judge as "telling" that Mr Panapiti abandoned his taxi at the location when he had attended to collect a fare.

• [42] The respondent also emphasised the advantage of the trial judge in seeing the witnesses give evidence and in comparing the demeanour of the witnesses in giving evidence with their appearance and demeanour in the body worn footage taken on the evening in question.
• [43] In addition to the matters raised by the respondent, I do not agree with the appellant's submission that Exhibit D1 clearly shows Mr Panapiti obscuring details on his taxi licence. I obtained no assistance from that short video.
• [44] Counsel for the respondent reviewed the evidence in great detail pointing out discrepancies in the evidence of the defence witnesses and what he contended were improbabilities in the defence account. It is not necessary to go into these matters in detail. I agree that, given the corroborating evidence in particular, it cannot be said that this is a case in which the trial judge must (as distinct from might) have entertained a reasonable doubt as to the guilt of the appellant.
• [45] Ground 4 is dismissed.

Ground 3: asserted error in finding as a fact that the CCTV footage from inside the taxi would not have assisted

• [46] After delivering the verdict, in response to a question from defence counsel, the trial judge said:[22]

... On the question of the CCTV footage, the CCTV footage within the taxi was partly shown - well, sorry - the telephone footage of the selfie being taken in the taxi was shown for a moment - for a short few moments, depicting the presentation of the identification card. The CCTV footage in the taxi would not be helpful to the determination of the assault that I found occurred outside the taxi, on the roadway or adjacent to the taxi on the roadway outside Lorre Court. There would be no available CCTV footage from within the taxi of that event, which constitutes the charge defending.

• [47] The appellant complains that it was most unfair for the trial judge to say that the CCTV footage from inside the taxi would not have assisted and yet to have found Mr Dalton guilty partly on the basis that:[23]

The defendant, through the combination of all his actions inside the taxi and later outside as described which he placed on the taxi driver, was unnecessary, intimidating and would have been frightening and unsettling for the driver.

• [48] The appellant characterizes this as a finding of fact (ie that the CCTV footage would not have been of assistance) on the basis of no evidence amounting to an error of law, given that that footage might well have shown details such as the taxi moving forward as described by the defence witnesses - or contradicted their account.
• [49] Given that I have allowed the appeal on ground 2, it is not necessary for me to decide this ground.
• [50] ORDERS:

(1) The appeal is allowed on Ground 2.

(2) Ground 4 of the appeal is dismissed.

(3) The verdict of guilty is set aside and the matter remitted to a differently constituted Local Court for rehearing.

[1] [1985] HCA 66; (1985) 159 CLR 507 ("Liberato")

[8] Liberato (Deane J) at [4] to [6]

[10] [2025] HCA 20 at [9] - [11]

[11] [2023] NTCCA 5 at [9] - [14]

[12] Lynch v The Queen [2020] NTCCA 6

[13] FN v The Queen [2021] NTCCA 5

[14] M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.

[15] SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]- [14]; GAX v The Queen [2017] HCA 25; 344 ALR 489 at [25]; Pell v The Queen [2020] HCA 12; 268 CLR 123.

[16] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ.

[17] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 at [39]

[18] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494

[19] Libke v The Queen [2007] HCA 30; 230 CLR 559 at 596-597 [113]

[20] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 at [44]- [45]; see also Tyrell v The Queen [2019] VSCA 52 at [70]

[21] Appellant's written submissions dated 12.02.25 at [67]