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[2026] NTSC 15
General information, not legal advice.
Supreme Court of the NT
2026-03-02
Burns J
Original judgment source is linked above.
CRIME - Appeals - Appeal against convictions - Whether presiding judge erred on issue of fact or law - Leave to appeal granted - Appeal dismissed
CRIME - Appeals - Appeal against conviction - Circumstances of aggravation not made out - Leave to appeal granted - Finding of guilt quashed - Not guilty verdict substituted
EVIDENCE - Appeals - Application to lead fresh evidence - Judicial discretion to admit or exclude fresh evidence - Whether there is a reasonable explanation for failure to adduce evidence - No reasonable explanation substantiated - Fresh evidence not admitted
Criminal Code 1983 (NT), ss 15, 189, 189(1), 189(2)
Evidence Act 1939 (NT), s 21QB
Lorenzetti v Brennan [2021] NTSCFC 3; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Lynch v The Queen [2020] NTCCA 6, referred to
Respondent: Office of the Director of Public Prosecutions
Doyle v Northern Territory Police [2026] NTSC 15
[1] The appellant was charged in the Local Court with two charges on information and one charge on complaint. The two charges on information were:
[3] The appellant entered pleas of not guilty to each charge. The charges proceeded to a joint hearing in the Local Court before Ledek LCJ (the presiding judge) on 27 May 2025 and 30 May 2025. On 11 August 2025 the presiding judge found the appellant guilty of each of the charges and gave reasons. The one exception was that his Honour did not find that the pleaded circumstance of aggravation to the charge of stalking had been made out.
[4] In the present proceedings, the appellant appeals against the findings of guilt made by the presiding judge. The appellant filed a single notice of appeal seeking to appeal each of the three findings of guilt. In Lorenzetti v Brennan[1] it was determined that a separate notice of appeal is required for each conviction, order or adjudication appealed from. It was accepted by the respondent that pursuant to s 165 of the Local Court (Criminal Procedure) Act 1928 (NT) (LCCP Act), this Court may dispense with compliance with any condition precedent to a right of appeal. In circumstances where the appellant is not represented by a lawyer in the present proceedings, the respondent submitted that the Court ought to dispense with the requirement that there be three separate notices of appeal. I make that order.
[5] The notice of appeal drafted by the appellant is prolix, argumentative and repetitious. This may be forgiven in someone not legally trained, but it nevertheless requires more time to determine the basis of the appeals. Doing the best that I can, I summarise the issues raised by the appellant in the notice of appeal as follows:
a) A submission that the charge of breaching a Domestic Violence Order could not have been found proven at the hearing because it was statute barred.
b) A submission that the entirety of the stalking charge should have been dismissed because the pleaded circumstance of aggravation could not, as a matter of law, be established because proceedings alleging a breach of the Domestic Violence Order were statute barred.
c) The Local Court of the Northern Territory had no jurisdiction to hear the proceedings alleging offences under the Criminal Code as there was no geographical nexus between the alleged offences and the Territory.
d) A miscarriage of justice was occasioned by reason of incompetence of counsel, an inadequate police investigation and the failure of the prosecution to comply with its duty of disclosure.
e) The verdicts are unreasonable or unable to be supported on the evidence.
[6] In addition, the appellant sought to tender further evidence on the appeal.
[7] The respondent accepted that the appeal should be upheld regarding the charge of breaching the Domestic Violence Order. The respondent accepted that the proceedings in the Local Court on this charge were commenced outside the time limitation for such charges found in s 52 of the Local Court (Criminal Procedure) Act 1928 (NT). The respondent submitted, however, that this concession did not require the appeal against the charge of stalking to be upheld.
[8] A party to proceedings before the Local Court may appeal to this Court from any conviction, order or adjudication of the Local Court on the ground which involves sentence, or an error or mistake on the part of the Local Court on a matter or question of fact alone, or a matter or question of law alone or a matter or question of both fact and law: s 163(1) of the LCCP Act.
[9] All appeals are creatures of statute. The general taxonomy of appeals was considered by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors[2] where Gleeson CJ, Gaudron and Hayne JJ said at [12] to [14] (footnotes omitted):
It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense.... In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.
[10] Where an appeal is lodged, the Local Court is required to cause a copy of the notice of appeal and a certified copy of a transcript of the record, or the record itself, together with all exhibits in the relevant proceedings to be transmitted to this Court: s 175 of the LCCP Act.
[11] The powers of this Court on the hearing of such an appeal are found in
(2) Upon the hearing of the appeal the Supreme Court may do any or all of the following:
a) adjourn the hearing from time to time;
b) mitigate or increase any penalty, forfeiture, or sum;
c) affirm, quash, or vary the conviction, order, or adjudication appealed from, or substitute or make any conviction, order, or adjudication which ought to have been made in the first instance;
d) remit the case for hearing or for further hearing before the Local Court;
e) subject to subsections (2A) and (2B), make such further or other order as to costs or otherwise as it thinks fit;
f) notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[12] Usually, the evidence on such an appeal is the record of the Local Court together with any other material the parties agree to include: s 176 of the LCCP Act. This Court is obliged, however, by s 176A to receive further or fresh evidence on appeal, unless satisfied that the evidence would not afford a ground for allowing the appeal, if:
a) it appears to the Court that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
b) the Court is satisfied that the evidence was not adduced in those proceedings and there is a reasonable explanation for the failure to adduce it; and
c) the Court is satisfied that the required notice has been given to the other party to the appeal.
[13] It is, in my opinion, reasonably clear from the provisions of the LCCP Act that an appeal from the Local Court to this Court pursuant to s 163 is by way of rehearing. In such an appeal the appellate Court proceeds on the basis of the record of the Court from which the appeal lies together with such further evidence as the Court may be required to receive pursuant to ss 176 and 176A of the LCCP Act.
[14] In hearing such an appeal, this Court must recognise any advantages which the presiding judge had compared to this Court. The presiding judge had the advantage of seeing and hearing each of the witnesses as they gave their evidence. This is an advantage that should not be discounted, particularly regarding the evidence of the complainant. This Court is, nevertheless, obliged to conduct a real review of the proceedings before the Local Court and in doing so, I am entitled to draw my own inferences and conclusions from the evidence but bearing in mind that I have not seen or heard the witnesses: Fox v Percy.[3] The appeal is one in which error on the part of the primary judge must be demonstrated.
[15] The appellant was represented by a lawyer from the Northern Territory Legal Aid Commission in the proceedings before the Local Court. The hearing commenced on 27 May 2025. Prior to that date, the appellant had been represented by a different lawyer from the Northern Territory Legal Aid Commission, however on 30 January 2025, that lawyer was permitted by Austin LCJ to withdraw as the appellant's lawyer on the record. As I understand it, the hearing of the charges was scheduled for 30 January 2025, but the prosecution sought an adjournment of the proceedings on that date because they had only recently received material from Victorian police.
[16] The basis for the appellant's then lawyer withdrawing on 30 January 2025 is unclear from the transcript. The appellant was prepared to proceed with the hearing unrepresented on that date, but this was impossible leaving aside the application for an adjournment by the prosecution as there is a statutory prohibition on accused persons personally cross-examining complainants in proceedings of the type then before the Court without the leave of the Court. No formal application for leave was made by the appellant, but in any event, Austin LCJ made it clear that leave would not be granted. If the appellant remained unrepresented, a lawyer could be appointed by the Court to undertake that cross-examination: Evidence Act 1939 (NT), s 21QB. That could not be done in time to allow the hearing to proceed on 30 January 2025. The proceedings were therefore adjourned for hearing at a later date. The appellant requested "a mental health diversion" and threatened to kill himself if the matter was not "resolved today". No referral was ultimately made.
[17] The proceedings returned to Court for hearing before the presiding judge on 27 May 2025. At the outset, the presiding judge returned to the appellant's lawyer a bundle of material that had been filed in the Court, presumably by the appellant himself. No further description of the material was provided.
[18] The first prosecution witness was LB (the complainant). The complainant gave evidence that she and the appellant were in a relationship from July 2021 to sometime in late January or early February 2022. They initially lived in Darwin but subsequently moved to live at an address in Parkville, Melbourne, Victoria, to allow her to undertake a master's degree in teaching at the University of Melbourne. As at the date of the hearing in the Local Court, the complainant continued to reside at the Parkville address.
[19] The complainant gave evidence that their relationship commenced breaking down in early 2022 and there were a number of breakups until the appellant finally left the premises in February 2022. The complainant described the breakup of their relationship as amicable. The complainant gave evidence that this did not remain the case and that the appellant began harassing her. The complainant testified that the appellant would call her, on average, 50 times a day and would send her letters, parcels, and a large number of emails often using aliases. The appellant would use social media platforms to contact the complainant. Some of these communications were abusive. This led to the complainant applying for a Family Violence Intervention Order in July 2022.
[20] The complainant took action to block the appellant contacting her on social media. It was the complainant's evidence that the appellant then changed his tactic by sending her messages via the Airbnb platform. The complainant had previously used the Airbnb platform to rent out a room in the premises in which she was residing. In effect, this was a business conducted by the complainant. The complainant testified that she was what was referred to as a "Superhost" on Airbnb. To achieve and maintain that status, the complainant was required to view and reply to all messages received on her Airbnb listings within 10 hours.
[21] The complainant testified that she received many thousands of messages from the appellant on Airbnb for a period of at least 18 months. Many of these messages, but not all, were sent by the appellant using aliases. The complainant testified that the appellant had also emailed her and contacted her via telephone, and left abusive comments on a YouTube video the complainant had posted for her mother. This conduct ultimately had a detrimental effect on the complainant's health. She suffered from insomnia, anxiety and depression. She commenced taking medication to help her sleep and engaged "a lot of psychological support". She had to get special consideration for most of her university assignments because of these problems.
[22] As the complainant was residing in Victoria, she reported these matters to the Victorian police. She provided the Victorian police, over a period of time, with copies of all of the material she had regarding the communications from the appellant. There appears to have been little initial enthusiasm to investigate these matters demonstrated by the Victorian police, but ultimately the matter was referred to Northern Territory police.
[23] The complainant was questioned regarding the basis upon which she had concluded that the appellant was the author of the various messages that she had received, particularly those sent under a name different to that of the appellant. The complainant testified that the messages contained content that related to her former relationship with the appellant to which only she and the appellant were privy. The complainant also said that the content of the messages frequently contained an allegation of "cheating", something about which the appellant had been obsessed. The complainant said that she had not told anyone else about the matters concerning her relationship with the appellant which were referred to in the communications.
[24] Amongst the matters the complainant considered to be harassing and which she attributed to the appellant were frequent deposits of 1 cent into her bank account with the transaction details often containing derogatory names for her or referencing cheating. When asked why she applied for the Intervention Order against the appellant, the complainant said:
Because he harassed me daily as soon as I broke up with him...And he was calling me on average 50 times a day. He sent me letters, he sent me parcels, he wrote to me emails - like very many emails using aliases or other things. And he - via Facebook, via Instagram, via YouTube, via WhatsApp. So many voice messages, hundreds of voice messages. And he sent me then also one saying always abusing me. So you know, he sent me like one cent, saying like, "Jerk. Cunt. Slut." So every day I got one cent.
[25] The complainant identified a 68-page bundle of documents as screenshots of some of the messages which she received. While she was only taken to 19 of those pages, she said that she had provided the whole bundle to the police. This included an electronic receipt for a direct credit to her account of 1 cent with a description of "Josh Cheater". Many of the messages also contained a theme that the complainant owed money to the author of the message. The complainant was able to link statements made in those messages to events that occurred in her relationship with the appellant or otherwise evidenced a knowledge of her life.
[26] Because of the way in which the hearing was conducted in the Local Court, it is unnecessary to refer in detail to the contents of these messages.
[27] In cross-examination, the complainant stated that she had attempted to block the appellant's messages on Airbnb, but she ultimately gave up reporting the messages because there were so many of them. To maintain her status as a Superhost, the complainant was required to respond to these messages. The complainant stated that in addition to the Airbnb messages, she was also having to cope with abusive text messages and up to 50 phone calls a day.
[28] It was suggested to the complainant that she could not be "100% sure" that the appellant was the author of these messages. The complainant disagreed, referring to the information about her and her relationship with the appellant in the messages. She also said that no one other than the appellant had a motive to send the messages.
[29] It was put to the complainant that she was the author of these messages, which she denied. It was also suggested to her that her break up with the appellant had not initially been amicable, which she also denied. The complainant gave evidence that in the month after the move to Melbourne, there was an incident where the appellant punched a wall and another where he pinned her against a wall but there was no other physical violence.
[30] The next, and final, prosecution witness was Constable Rachel Bull. Constable Bull provided two statements in the matter, the first dated 30 May 2024 and the second dated 23 January 2025. These statements were tendered by the prosecution without objection and became Exhibits P2 and P3 respectively.
[31] In Exhibit P3, Constable Bull refers to a statement made by the complainant to Victoria police on 20 December 2023. In that statement the complainant refers to receiving a phone call on 15 September 2023 from a mobile phone number not known to her at that time. The complainant stated she answered the call and had a brief conversation with the caller whom she identified to be the appellant. Constable Bull obtained a screenshot of the call from the complainant before utilising the Northern Territory police request processing system and submitted an integrated public number database request to identify the customer details attached to the mobile phone number. Constable Bull later received a report stating that the appellant was the registered customer linked to the phone number. The report also advised that Telstra was the telecommunications service provider.
[32] Constable Bull then submitted a further request for call charge records. She later received call charge records and conducted a review of the information provided. This revealed that between 9 July 2023 and 28 September 2023, call charge records indicated that the appellant's mobile service device was in the Northern Territory throughout that period. On occasion, the records showed the location of the mobile service device to be "Windsor Exchange, NSW", but Constable Bull was able to ascertain that this was an anomaly likely caused by SMS calls being made through Wi-Fi.
[33] On 21 June 2024, Constable Bull telephoned the appellant on the mobile phone number referred to. The appellant answered the phone, but as soon as she advised him of the allegations, he ended the phone call. The appellant called her back later that day and spoke to her for about four minutes.
[34] Constable Bull checked Northern Territory police systems which revealed that the appellant had previously attended Casuarina Police Station to seek advice on how to obtain a Domestic Violence Order.
[35] Constable Bull requested information from Airbnb Australia Pty Ltd in relation to any user information associated with the accounts utilised to send messages to the complainant through the Airbnb platform. The only information Constable Bull received was that, as of 12 February 2024, there were 30 accounts associated with the name "Matthew Doyle". Airbnb provided no further information.
[36] Constable Bull produced a Certificate of Service under the Family Violence Protection Act 2008 (Vic), which certified that the appellant was personally served on 26 September 2023 with a copy of the Intervention Order made on 6 February 2023. This was received without objection as Exhibit P4. The Order was served on the appellant at Casuarina Police Station.
[37] An "occurrence enquiry log report" from Northern Territory police records was admitted as Exhibit P6. This was a record of an attendance by the appellant at Casuarina Police Station on 27 July 2022 during which the appellant sought advice about obtaining a "DVO". The appellant stated that during a trip to Tasmania in December 2021, his partner became abusive and aggressive towards him. The appellant stated that he did not report this to police. A few weeks before 27 July 2022 she became abusive towards him again while living in Victoria, so he packed his car and drove back to the Northern Territory to live with family. The record states that the appellant said that since returning to the Northern Territory, the appellant had received numerous text messages from his partner requesting money, which texts he has deleted. He stated that he was served with an intervention order last week and has since found out that the complainant has been spreading lies to his family and friends about him assaulting her. Police provided the appellant with information regarding obtaining a Domestic Violence Order.
[38] After the close of the prosecution case, the appellant elected not to call any evidence. This election was communicated to the Local Court by his lawyer. It was not suggested in the present proceeding that the appellant was not present in the courtroom when this election was conveyed to the presiding judge.
[39] In her closing address, the lawyer for the appellant made pertinent submissions to the presiding judge regarding the charge of contravening a Domestic Violence Order. As the respondent has conceded that the appeal against that finding of guilt should be upheld, it is unnecessary to refer further to those submissions. Relevantly for present purposes, the appellant's lawyer submitted that the provenance of the emails and other written communications relied upon by the prosecution had not been established and therefore it could not be proven that the appellant authored or sent those communications. The appellant's lawyer stressed that no devices belonging to the appellant had been seized and interrogated, so there was no evidence that any of these communications had originated from any device belonging to the appellant. In addition, it was submitted that there was no evidence supporting the complainant's testimony that she had received a high volume of telephone calls from the appellant.
[40] These submissions were well made. In giving his reasons for finding the offences proved, the presiding judge acknowledged that it was a weakness in the prosecution case that there was no evidence linking the communications to any device owned or operated by the appellant. There can be no doubt that the presiding judge found the complainant to be a credible, and in some respects, a compelling witness. As part of his reasons, the primary judge stated:
However, one of the critical features of [the complainant's] evidence was the genuineness and the earnestness with which she provided her accounts. It is an easy thing for a person to look back on a relationship and see it through a prism that is tainted by the worst part of it in their view, and the experiences that they had.
There were things that [the complainant] said about Mr Doyle that run true in terms of the person who recognised that there were good parts of the relationship when it started and while it was going well, and things that she liked about Mr Doyle that ultimately changed when he changed because of her decision that they weren't going to work out for various different reasons.
And in particular, I am reminded of her account of the final visit where she said she made noodles for one another and had a conversation, and she said that it was over and that she'd given him four days to pack up and this had to come to an end.
And she said she was going to bed and she turned the lights off and 15 minutes later, she went outside and she found him standing in the hall or in the room, in the darkened room, and she said that he broke her heart.
[41] The presiding judge observed that the complainant's evidence regarding frequent phone contact by the appellant, the sending of letters, parcels, emails and other social media contact had not been challenged by the appellant. Accepting that the Airbnb communications had been received by the complainant, the presiding judge reasoned that if they had not been sent by the appellant, they must have been sent by the complainant or someone who was well-informed about their relationship. The presiding judge accepted that the conduct of the complainant in making and pursuing a complaint to the police in Victoria regarding the conduct of the appellant demonstrated a desire on her part to have the appellant removed from her life. Clearly the presiding judge dismissed as a reasonable possibility the proposition that the complainant was the author of the messages. The presiding judge also accepted that it was not a reasonable possibility that the messages had been authored by a third party, independent of the appellant, who had knowledge of the relationship between the appellant and the complainant.
[42] The presiding judge was satisfied beyond reasonable doubt that based upon the content of the messages, the only reasonable inference was that the messages were authored and sent by the appellant. The presiding judge, accepting the evidence of the complainant, was also satisfied that the appellant had engaged in the conduct complained of by the complainant and set out at [24] above. The presiding judge accepted the evidence that the appellant's conduct had "a disastrous effect" on the complainant's mental health.
[43] Unsurprisingly, given the findings made by the presiding judge, his Honour found the charges of unlawful stalking and using a carriage service in a way that reasonable persons would consider to be harassing, to be proven. As I earlier indicated, the exception was that the presiding judge was not satisfied that the circumstance of aggravation pleaded in the stalking charge had been proven. His Honour also found the offence of contravening a Domestic Violence Order proven. As I understand it, the proceedings were then adjourned for sentencing. This has not occurred because in the interim, the appellant lodged the present appeals against the findings of guilt.
[44] As the respondent's written submissions observe, in deciding whether to permit an appellant to lead evidence on an appeal that was not before the body appealed from, the law has traditionally drawn a distinction between evidence that was reasonably available to be put before the first instance decision maker, and evidence that was not. This distinction is largely reflected in the terms of s 176A of the LCCP Act.
[45] The appellant filed affidavits dated 2 October 2025, 6 October 2025, 9 October 2025 and 10 October 2025 in these appeals containing, or annexing, the evidence which he now seeks to lead on this appeal. In addition, other documents not annexed to affidavits were forwarded to the Court. The first such affidavit is dated 2 October 2025. In it the appellant states that he was "told tenderable evidence was not admissible, evidence given to lawyers not used and I requested to be called as a witness, and I wanted my witness called and neither happened". The appellant stated that he "tendered" a business document prior to his hearing relating to a gym membership in Gawler, South Australia. As I understand it, this was with the intention of proving that he was living in Adelaide from mid November 2023. In the affidavit the appellant states that the charges of stalking and breaching a domestic violence order were filed on or about 14 July 2024. He submitted that this document was important because: "As myself, and the victim were both residing outside of the Northern Territory, in the seven months preceding the complaints, there was no geological (sic) nexus."
[46] In this affidavit the appellant states that on 30 January 2025 he attended "the criminal hearing". He states that he had a printout of around 100 pages containing exculpatory information. The appellant stated that the presiding judge refused to accept the material, and he was prevented from admitting it into evidence. The appellant complained that he had not been provided with the Airbnb information that he had requested from the prosecution.
[47] Of course, the hearing did not commence on 30 January 2025, so it is not correct to say that Austin LCJ prevented him from entering the material into evidence. The occasion for determining whether it should be admitted as evidence, should the appellant wish to persist in that application, was postponed to the date for hearing. This is standard practice.
[48] This affidavit is lengthy and much of the contents can be described as submissions rather than factual statements. Numerous annexures to the affidavit are all said to be documents that were in existence prior to the Local Court hearing or related to events that occurred prior to that hearing. One of the annexures purports to be an undated written statement by an unnamed individual claiming that the appellant had confided in this individual on multiple occasions about abuse of the appellant by the complainant. The statement says that on multiple occasions during the appellant's relationship with the complainant, the appellant described the complainant as being "crazy" and "abusive". The statement says that on one occasion the appellant disclosed that the complainant had brandished a kitchen knife at him during an argument and on another occasion, the appellant claimed that he had been "sexually assaulted" by the complainant. In the body of the affidavit itself, the appellant stated that when he refused sex with the complainant, she raped him. It is unnecessary to refer to the contents of either the affidavit or the annexures in any greater detail.
[49] The next affidavit is one dated 6 October 2025. This affidavit purports to have been created for use in the proceedings relating to the present charges in the Local Court. This is curious as the proceedings in the Local Court had already determined that the appellant was guilty of these charges on 11 August 2025. It may be, as is suggested in the affidavit, that it was prepared for the purpose of seeking a stay of the Local Court proceedings pending the outcome of the present appeal.
[50] In any event, annexed to the affidavit is a statutory declaration said to have been made by a person named Lachlan Jacka on 17 August 2025. In that statutory declaration Mr Jacka states that he was with the appellant on 4 January 2023 between 1 PM and 8 PM and could testify that between those hours the appellant had no opportunity to use his mobile phone to contact the complainant. Mr Jacka also stated that the appellant resided with him in South Australia from mid November 2023 until approximately May 2024. Mr Jacka stated that the appellant complained to him of the complainant's behaviour towards the appellant in March 2022. Mr Jacka says that the appellant resided with him in South Australia in April 2022. He further states that on one occasion in March 2022, he heard the complainant say to the appellant that the complainant would file false police reports against the appellant if he left her. She is also alleged to have said that she would kill herself if the appellant left her. Mr Jacka stated that during the appellant's trial, the complainant emailed the appellant gloating or coaxing "further breaches".
[51] Also annexed to the affidavit of 6 October 2025 are further documents which predate the hearing in the Local Court.
[52] The third affidavit is dated 9 October 2025. That document also purports to be an affidavit prepared for the proceedings relating to the charges in the Local Court. In the body of the affidavit the appellant provides a different version to that of the complainant regarding the events that occurred during his relationship with the complainant and the period after the breakdown of that relationship. The appellant complains that on multiple occasions he was assaulted by the complainant and threatened with a knife. On one occasion he alleges that he was cut by the complainant with a knife as he was trying to leave the relationship. The appellant stated that the complainant held him against his will in the Parkeville residence, that at all times she held a knife, "paced the apartment" to keep him there, blocked the exit, hid his belongings, stole his keys and did other things to prevent him from leaving.
[53] The final affidavit dated 10 October 2025 also largely consists of argument by the appellant.
[54] The documents annexed to these affidavits, or otherwise sent to the Court by the appellant, are voluminous. I will not set them out here. They consist largely of messages purportedly sent to the appellant by the complainant in her own name, others which the appellant says were sent by her using pseudonyms, and messages said to have been sent by third parties to the appellant, presumably with the knowledge of the complainant.
[55] While the messages themselves are too voluminous to be reproduced in full, there are themes running through the messages. These include:
a) Protestations of love for the appellant by the complainant.
b) Threats of legal consequences for the appellant if he does not return to the complainant.
c) Threats of violence towards the appellant based on allegations that he had bashed the complainant and is a paedophile.
d) General abuse directed at the appellant.
e) Allegations that the appellant had cheated on the complainant during their relationship.
f) Threats directed to the appellant's mother.
g) Allegations that the appellant owes the complainant money.
[56] It is a curious feature of the messages said to have been sent to the appellant by the complainant using pseudonyms, that they contain information which makes it apparent that they were sent by the complainant.
[57] While the affidavits filed by the appellant are, themselves, documents that came into being after the hearing in the Local Court, the information within those affidavits and the documents annexed thereto, together with the other document sent to the Court registry by the appellant, are all material that was reasonably available to be adduced by the appellant at that hearing. To be received by this Court on appeal, the appellant must establish that there is a reasonable explanation for his failure to adduce this evidence at the hearing in the Local Court: s 176A(1)(b) of the LCCP Act.
[58] The reason proffered by the appellant for his failure to adduce this material, or to call the witness Lachlan Jacka in the proceedings before the Local Court is that his then lawyer failed to follow the instructions which he had given to her. I consider that to be highly unlikely. My assessment of the appellant, having seen him representing himself during this appeal and based on material to which I will refer, is that he is not a man who would fail to protest if his lawyer did not follow his instructions during the hearing in the Local Court. There is evidence at page 58 of the transcript of the proceedings on 30 May 2025 that the appellant made it known during legal argument between his lawyer and the presiding judge that he wanted to give further instructions to his lawyer. Indeed, while anything that the appellant may have said at that time has not been captured on the transcript, the presiding judge commented that the appellant "can't be giving evidence from the gallery".
[59] In addition, while the presiding judge gave his reasons for decision at the end of the hearing, the appellant interrupted to dispute the truth of some of the evidence to which the judge was referring.
[60] After the hearing of this appeal, the appellant emailed my Associate on 2 February 2026 asking when he would know the outcome of the appeal. He went on to state "I never broke any law and this case has been wasting my time for over 2 years now." At my request, and in the absence of my Associate, the Chambers Manager responded to the appellant that his appeal remained under consideration by me and that I was currently away and would be returning to Darwin on 9 March 2026. The appellant replied in the following terms: "That's a cunt of a thing to do to go on holiday before resolving it...".
[61] I mention this not because I am offended by the language used by the appellant, or his erroneous assumption that I am currently on holiday. It is important, in my opinion, to understand that the appellant is not a person who is likely to stand by and make no complaint if he is not getting what he wants. He is not the sort of person whose will would be overborne by advice from his lawyer. In my opinion, he is someone who aggressively pursues his own interests. It is simply unbelievable that he would not have said something at the time that his lawyer told the presiding judge that the defence was not calling any evidence if his instructions were that he wanted to give evidence and to adduce other evidence in the proceeding.
[62] It is far more likely that the appellant either chose not to give evidence, or accepted advice from his lawyer not to do so. I note that in the material filed in this appeal by the appellant he said he was advised by his lawyer that the documents he wanted to use were not probative. The appellant now disputes that suggestion and submits that the documents are probative of threats by the complainant to make false complaints about him if he did not do what she demanded.
[63] There are many good reasons why it may have been inadvisable for the appellant to give evidence. The appellant has made claims in the documents he now seeks to rely upon that he was assaulted by the complainant on multiple occasions, including by use of a knife. He has claimed that the complainant held him captive in the Parkeville residence, that she raped him and wounded him with a knife. None of this was recorded in the occurrence enquiry entry log which recorded the appellant's attendance at the Casuarina Police Station on 27 July 2022. All that is recorded is a complaint that in December 2021, his partner (presumably the complainant) became abusive and aggressive towards him during a trip to Tasmania and that a few weeks before 27 July 2022 she had been abusive towards him.
[64] It is unbelievable that if the complainant had engaged in the conduct towards the appellant now alleged by him that he would have said nothing about those serious allegations to police when seeking advice about obtaining a Domestic Violence Order. It is similarly unbelievable that if the appellant had made those allegations to police at the Casuarina Police Station, they would have failed to note those allegations and, instead, simply noted lesser and amorphous allegations.
[65] In addition, if the appellant gave evidence of these allegations in the hearing in the Local Court, it would have been open to the presiding judge to conclude, based upon his assessment of the complainant, that the serious allegations made by the appellant were untrue. These serious allegations could not reasonably have been the subject of an honest mistake on the appellant's part. Any finding that the complainant had not engaged in the conduct alleged by the appellant would almost inevitably have resulted in a determination that the appellant had lied on oath. This, of course, would have been devastating to his credibility.
[66] It was a forensic decision reasonably open to the appellant's lawyer to determine that the appellant's best prospect of defending the charges was to focus on the weakness in the prosecution case identified by his lawyer and by the presiding judge. Similarly, it was reasonably open to the appellant's lawyer to determine that much of the material which the appellant now wishes to place before this Court was either irrelevant or carried with it the risk that adverse credit findings may be made against the appellant based upon his failure to bring allegations contained in those documents to the attention of authorities at an earlier time.
[67] Some of the material which the appellant wishes to lead as fresh evidence is irrelevant. For example, material designed to establish that the appellant was residing in South Australia from mid November 2023 until May 2024 was not particularly relevant to the charges which alleged offending between July 2022 and September 2023. The appellant's desire to lead evidence that he was residing in South Australia during this period appears to be related to a misunderstanding on his part of the concept of geographical nexus for the purpose of criminal offences. I will say more about that later.
[68] If Mr Jacka was, in truth, able to testify to hearing the complainant threaten to bring false charges against the appellant, it is simply not credible that the appellant would have allowed the hearing before the presiding judge to have concluded without some attempt being made to take evidence from Mr Jacka.
[69] Many of the Facebook messages the appellant has annexed to his affidavits are of dubious provenance. Many are undated and are from unnamed users. Some are from named users, but those names are not the names of people who were mentioned during the Local Court hearing. Presumably, it is alleged that they are either pseudonyms used by the complainant or are friends of the complainant.
[70] The appellant's case that the complainant is the author of the messages relied upon by the prosecution in the charges against him necessarily implies that the complainant engaged in a lengthy, sophisticated and subtle enterprise of creating false messages under pseudonyms which included snippets of information from their relationship to enable the complainant to testify that the appellant was the author of the messages. The material the appellant wanted to put before the Local Court and now wishes to admit on appeal, however, would suggest that while the complainant was engaged in that enterprise, she was also sending messages to him which undermines her allegations, and which also includes snippets of information about their relationship which enable him to identify her as the author. In that context, there was no reason for the complainant to believe, if she was the author of the messages, that the appellant would not keep a copy of the messages. Indeed, that is what she says that she did with his messages.
[71] There are very real questions regarding the provenance of these messages. It is improbable that they were authored by the complainant. While the evidence may be admissible, assuming that the appellant testified as to the provenance of the messages, I am not satisfied that the evidence is likely to be credible regarding the issues in the proceedings.
[72] Additionally, no credible explanation has been put before me for the appellant's failure to adduce the proposed evidence in the hearing in the Local Court. To the extent that the appellant's decision not to give or call evidence in the Local Court was based on advice from his lawyer, I am not satisfied that this advice was incompetent. To the contrary, there are good forensic reasons why such advice may have been given.
[73] The fresh evidence will not be admitted. I will now address the substantive matters raised by the appellant in his notice of appeal.
[74] As the respondent has accepted that the appeal regarding the charges of breaching a Domestic Violence Order must be allowed, the question of geographical nexus can only be relevant to the Northern Territory charge of stalking. As there is no dispute that both the appellant and complainant were in Australia at the time of the events alleged in the Commonwealth charge, the issue of geographical nexus does not arise regarding that charge.
[75] The charge of stalking is a charge contrary to s 189(2) of the Criminal Code. This section is not one listed in Schedule 1 to the Criminal Code, meaning that the provisions of Part IIAA of the Code do not apply. As such, the issue of geographical nexus is addressed by s 15 of the Criminal Code, which states:
If a person is guilty of the conduct proscribed by any offence it is immaterial that the conduct or some part of it did not occur in the Territory if that conduct affected or was intended to affect the peace, order or good government of the Territory.
[76] The formula "peace, order or good government" is well known in the field of constitutional law as an indicator of a grant of plenary power to a body to legislate for a particular territory. Its use in s 15 of the Criminal Code is different and expresses a limitation on the power of the Northern Territory legislature to create criminal offences with extra-territorial effect. In determining whether a particular offence, part of the conduct constituting which took place outside the Northern Territory, is one which may be prosecuted in a Northern Territory court under Northern Territory law, it is necessary to recognise the limitation found in s 15.
[77] Difficult questions may arise in deciding this issue, but in the present case, I think that the answer is clear. It is convenient at this point to set out s 189:
(1) A person (the offender) stalks another person ("the victim") if the offender engages in conduct that includes repeated instances of or a combination of any of the following:
a) following the victim or any other person;
b) telephoning, sending electronic messages to, or otherwise contacting, the victim or another person;
c) entering or loitering outside or near the victim's or another person's place of residence or business or any other place frequented by the victim or the other person;
d) interfering with property in the victim's or another person's possession (whether or not the offender has an interest in the property);
e) giving offensive material to the victim or another person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
f) keeping the victim or another person under surveillance;
g) acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of another person,
with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of another person and the course of conduct engaged in actually did have that result.
(1A) For the purposes of this section, an offender has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of another person if the offender knows, or in the particular circumstances a reasonable person would have been aware, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear.
(2) A person who stalks another person is guilty of an offence and is liable:
(i) the person's conduct contravened a condition of bail or an injunction or order imposed by a court (either under a law of the Commonwealth, the Territory, a State or another Territory of the Commonwealth); or
(ii) the person was, on any occasion to which the charge relates, in the possession of an offensive weapon,
[78] Under s 189 of the Criminal Code, the offence of stalking is defined as engaging in conduct that includes repeated instances of or a combination of, inter alia:
[79] This is the conduct proscribed by s 189. To the extent that the appellant intended to commit that conduct with the intention required by the section, his conduct was intended to affect the peace, order or good government of this Territory by engaging in conduct proscribed by s 189. In the present case, there was unchallenged evidence before the presiding judge that the appellant was present in this Territory throughout the period during which it was alleged that the offence of stalking was committed. No submission was made to the presiding judge that this was not the case. The appellant's presence in the Northern Territory during the period that he was found to have sent the relevant messages to the complainant provides a sufficient geographical nexus to this Territory for the appellant to be convicted of the offence.
Should the stalking charge have been dismissed in the absence of proof of the alleged circumstance of aggravation?
[80] The offence of stalking is created by the provisions of s 189(1) of the Criminal Code. The elements of the offence are found in that provision. The provisions of s 189(2) do not create a separate offence of aggravated stalking. All that s 189(2) does is prescribe the penalty for the offence of stalking. It provides for one penalty where the offence is made out and another where it is made out in particular circumstances.
[81] The inclusion of an allegation in the information that the offence committed by the appellant was committed in circumstances which would expose him on conviction to the higher maximum penalty, did not change the elements of the offence. It always remained an allegation of an offence under
s 189(1) of the Criminal Code. Pleading the alleged circumstance of aggravation in the information simply put the appellant on notice that the prosecution intended to lead evidence that the offence occurred in circumstances which would expose him to the higher maximum penalty.
[82] The presiding judge was entitled to find the offence of stalking proven in circumstances where the pleaded circumstance of aggravation was not proven.
[83] The Court of Criminal Appeal in Lynch v The Queen[4] addressed the principles to be applied in proceedings where this ground of appeal is advanced:
[16] The principles governing this ground of appeal have been authoritatively stated in M v The Queen:
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 regards to those considerations.
[17] The test in M v The Queen has been affirmed in subsequent decisions of the High Court. 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 verdicts reached by the jury. Evidence which has been assessed by the jury as credible and reliable is still to be examined critically to determine whether the jury ought to have entertained a reasonable doubt. The High Court has explained the process in the following terms:
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.
[18] In terms of resolving any doubt held by an appellate court, the majority in M v The Queen said:
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.
[19] In Libke v The Queen, Hayne J expressed the process of reasoning as follows (footnotes omitted):
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.
[20] This passage 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.
[84] Having reviewed the evidence before the presiding judge in the Local Court, I am left in no doubt that the verdicts of guilty on the charges of stalking and using a carriage service in a way that reasonable people would regard as being, in all the circumstances, menacing, harassing or offensive were well open to the presiding judge. The verdicts were supported by the evidence and were not unreasonable.
[85] I will briefly address some matters raised by the appellant in his notice of appeal which have not been addressed above.
[86] The appellant complained that he had not been provided with "forensic evidence" before the hearing in the Local Court and that this had disadvantaged him resulting in a miscarriage of justice. I understand the evidence to which the appellant refers is evidence that may have been obtained by police seizing and interrogating his devices or those of the complainant and evidence from Airbnb.
[87] I observe at the outset that the appellant's lawyer at the hearing before the presiding judge did not seek an adjournment because of an alleged failure by the prosecution to comply with its duty of disclosure. In any event, there is no suggestion that the prosecution was in possession of these devices and what may have emerged from such investigations, had they been undertaken, is entirely speculative. This last fact would have provided the appellant's lawyer with a forensically legitimate reason not to pursue that avenue of investigation.
[88] Regarding the Airbnb material, there was evidence of an unsuccessful attempt by police to obtain that information. It is true that police may have taken the investigation further by seeking to obtain a search warrant, but police must always make decisions about such matters on a "cost versus benefit" basis. It was always open to the appellant to seek to issue a subpoena for production of the material when it became clear that the prosecution was not going to take any further steps to obtain it. In any event, what may have been produced and any forensic benefit to the appellant is speculative.
[89] The appellant's appeal against the finding of guilt on the charge of breaching a Domestic Violence Order is allowed, the finding is quashed and a verdict of not guilty is substituted. Otherwise, the appeal is dismissed.
[4] [2020] NTCCA 6 at [16]- [20].
Doyle
Northern Territory Police [2026] NTSC 15
(2000) 203 CLR 194
(2003) 214 CLR 118