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[2026] NTSC 4
General information, not legal advice.
Supreme Court of the NT
2026-01-23
Huntingford J
Original judgment source is linked above.
CRIME - Appeal against conviction - whether conviction is unreasonable or not supported having regard to the evidence - Incompetence of trial Counsel - Whether trial Judge erred in failing or refusing to request a certificate from the Chief Health Officer - Whether matter should have been referred to the Mental Health Diversion List - Appeal against sentence - Sentence manifestly excessive - No grounds made out - Appeal dismissed
Criminal Code Act 1983 (NT) ss 1, 29, 188(1), 188(2), 411
Mental Health and Related Services Act 1998 (NT) , , , , , ,
Sentencing Act 1995 (NT) ss 8, 9, 78DD(2)
O'Neill v Lockyer [2012] NTSC 10, Firth v Alwis unreported 27 January 2017_, House v The King_ (1936) 55 CLR 499, Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, AE v Rigby [2024] NTSC 21, Libke v The Queen [2007] HCA 30, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Cooper v The King [2022] NTCCA 16, Taylor v the Queen (2009) NSWLR 198, PW v The Queen [2020] NTCCA 1, Bianamu v Rigby [2020] NTSC 43, Bianamu v Rigby (2021) 43 NTLR 136, House v The King (1936) 55 CLR 499, Foster v The King (2023) 377 FLR 375, Putti v Simpson [1899] ArgusLawRp 144; (1975) 6 ALR 47, JK v Waldron (1988) 93 FLR 451, Kalidonis NT Pty Ltd v Work Health Authority [2025] NTSC 28, Pikos v O'Neill [2024] NTSC 6 referred to.
Respondent: Office of the Director of Public Prosecutions
Hoffman v Firth [2026] NTSC 4
[1] On 24 November 2021 at the Darwin Correctional Centre where the appellant and the complainant were both prisoners, the complainant was sitting at a table tennis table in the common room of sector 5 when the appellant approached him. There was a verbal altercation relating to a grievance which had arisen the previous day. The appellant leaned over the complainant in a threatening manner and then pushed a cup of coffee towards him, causing the cup to fly up and spill hot coffee on the complainant's upper body.
[2] On 8 September 2023, the appellant was found guilty in the Local Court of aggravated assault, contrary to section 188(1) and (2) of the Criminal Code Act 1983 (NT) (Criminal Code). The circumstances of aggravation were that the complainant was unable to defend himself, and that he was threatened by an offensive weapon, namely the cup of coffee.[1]
[3] On 3 October 2023 the appellant appealed to this Court against his conviction on the grounds that:[2]
[4] At the hearing of the appeal, the appellant, who was self-represented, relied upon the following further grounds:
The appeal is brought pursuant to Part IV, Division 2 of the Local Court (Criminal Procedure) Act 1928 (NT) (LC (CP) Act). The appeal was argued on all grounds, and it is appropriate to amend the notice of appeal to include the additional grounds of appeal.[5]
[5] On 9 June 2023, the first day of the trial in the Local Court, the appellant's counsel sought an adjournment. There were two bases for the adjournment application, to refer the matter to the Mental Health Diversion List (MHDL), and to call two witnesses who had not been summonsed.[6] In relation to the application for referral to the MHDL the appellant's counsel told the court that his instructions were that the appellant was suffering from several mental health issues including post-traumatic stress syndrome (PTSD) as a result of matters unrelated to this case, but related to his earlier offending, together with paranoid personality disorder.[7] The appellant's counsel said that the appellant had been hearing voices telling him to kill himself, had suicidal ideation, and feared for his safety.
[6] Some documents were tendered by defence counsel in support of the application. They included handwritten documents said to have been given to the appellant by Dr Dorrington, a forensic psychiatrist, relating to the appellant's medications, and three victim impact statements which the appellant had prepared in relation to assaults upon the appellant in jail in 2016, 2018 and 2019. The documents do not appear to have been given an exhibit number but were considered by the trial Judge without objection by the prosecution and are referred to in his Honour's decision.[8]
[7] Defence counsel said that he was seeking either an assessment pursuant to
s 74 of the MHRS Act or a certificate from the CHO pursuant to s 77(2) of the MHRS Act.[9] In response to a question from the Judge, defence counsel said that he was not instructed that the appellant was unfit to plead and said "this is ultimately about a s 74 report in relation to ultimately whether the offending was related to any underlying mental illness".[10]
[8] The prosecutor opposed the adjournment application. During her submissions, she handed up to the trial Judge the sentencing remarks of Burns J in R v Hoffman of 13 October 2022. No objection was taken by counsel for the defence. The prosecutor sought to use Burns J's findings to show that the appellant was unlikely to have been suffering from mental impairment at the time of the conduct the subject of this charge.
[9] The prosecutor further submitted that the document tendered by the appellant said to have been authored by Dr Dorrington, forensic psychiatrist, dated 23 March 2023 showed that Forensic Mental Health[11] were not of the view that the appellant required ongoing mental health treatment because it included the statement "FMH will have to close case but you can come at risk at any time if acutely suicidal/distressed".[12] Defence counsel argued that notwithstanding any previous diagnoses or assessment, the appellant's mental health had deteriorated since he was in prison and there were matters not raised by the earlier assessments which were relevant.[13]
[10] The Judge did not grant the adjournment.[14] His Honour also deferred his decision as to whether he should refer the matter to the CHO for a certificate pursuant to s 77(2) of the MHRS Act until after the facts of what occurred had been determined at the hearing.[15] The trial commenced and was adjourned part-heard at the end of that day.
[11] When the trial resumed on 3 August 2023 the Judge further addressed the application to have the matter adjourned to the MHDL. His Honour referred to s 73A(5) of the MHRS Act and said:
Now parties, I want to just address some procedural issues before we kick off the hearing proper today. There was an application made on the last occasion by defence to have this matter referred to the Mental Health Court. I did receive various materials on the last occasion, both from the prosecution and from defence. I had indicated at that time that I would be making a decision in relation to that in due course. The issue in relation to that is as follows. Pursuant to the Mental Health and Related Services Act, s 73A(5), "The court may have regard to the following forming its opinion", and that's the opinion as to whether the matter should be referred to the Mental Health Court, "A, the appearance and behaviour of the person when brought before the court; and B, information given to the court during the proceedings".
Now it also goes - the Mental Health and Related Services Act also goes on to say that any stage during the proceedings the court may refer the matter to the Mental Health Court. At this point we're still going through the proceedings, and I am yet to make a determination as to whether that referral will be made. At the conclusion of this case, depending on what falls during the case, I will make that determination one way or the other.
But as I said from the outset, the issue pursuant to the authority of the decision in Alris (?)[Alwis], which I'd already provided to the parties previously, until such time as the conduct constituting the alleged offence is determined, the Chief Health Officer is not in a position to be able to make an opinion either way. So, I just wanted to make sure that we're all on the same page there, so there was no misunderstanding.
[12] There are some obvious errors in his Honour's comments. There is no such jurisdiction as the "Mental Health Court", however I assume that was a slip and was intended to refer to the MHDL. The MHDL is not established by the MHRS Act, which refers only to "a court", meaning an existing court. Nor does the MHRS Act speak about referral to a "Mental Health Court" (or the MHDL). The only place where such a reference is made is in Local Court Practice Direction 5D (PD5D) at paragraph (7), which reads "An offender may be referred to the MHDL at any stage of proceedings in the Local Court."[16]
[13] A more substantive error is revealed by the reference to s 73A(5). Paragraph (b) of that sub-section empowers the court to "have regard to", inter alia, "information given to the court during the proceedings" in forming its opinion. However, contrary to what appears from the Judge's reasons, the relevant opinion is not an opinion as to whether to refer a proceeding to the MHDL. It is either the opinion required by either s 73A(1)(b) of the MHRS Act, namely that a person may require treatment or care under the MHRS Act, which the court must form in order to exercise either of the powers in
s 73A(2); or that in s 73A(3)(b) which is an opinion as to whether a person lacks capacity to consent to a charge being heard summarily, in which case their lawyer may consent on their behalf pursuant to s 73A(4).
[14] In referring to s 73A(5) of the MHRS Act, the Judge appears to have conflated the provisions of that Act with PD5D. There also appears to have been some confusion both on the part of counsel and the Judge as to what exactly was being sought on behalf of the appellant. However, as discussed further below, in the end the issue for decision was whether the Judge should request a s 77(2) certificate, not whether the appellant needed care and treatment under the MHRS Act at the time of the trial in 2023.
[15] Before considering the grounds of appeal it is convenient to set out the relevant legislative background. Part 10 of the MHRS Act is headed "Powers of the Court"; it contains three Divisions. Divisions 1 and 2 are relevant to this appeal.[17]
[16] Division 1 applies where a person is charged with an offence in proceedings before a court and in the opinion of the court may require treatment or care under the MHRS Act.[18] The court is empowered in s 73A(2)(a) to make orders for the person to receive treatment under the MHRS Act. Alternatively, if it is satisfied as to the matters in s 73A(2)(b), the court may dismiss the charge at any time.[19]
[17] The enquiry in Division 1 is directed to whether a person requires treatment or care at the time that the person is before a court charged with an offence. The court's opinion can be formed at any stage of a proceeding. The primary purposes of the Division are to ensure that a person before the court can participate in proceedings and that, where necessary, they receive such treatment and care as is appropriate. It is not the same as the provisions relating to a person "unfit to stand trial" in the Criminal Code,[20] although it might apply to persons who could also come within those provisions.
[18] The phrase "treatment or care" is not defined in the MHRS Act but, in context, treatment or care means treatment or care related to a mental illness, mental disturbance or complex cognitive impairment.[21] Further, the concept of treatment or care under the MHRS Act must be understood against the principles, including the conditions for involuntary treatment, set out in the legislation.[22]
[19] Pursuant to s 74 of the MHRS Act a court may request advice from the CHO as to the availability of resources to assess a person to determine whether they need treatment and care under the Act. That advice includes whether it is practicable to conduct an outpatient assessment of the person, the time and place of such an assessment and, if assessment at a treatment facility is required, the place for such an assessment and the time required. Treatment may include voluntary treatment.
[20] Section 74A provides that upon receipt of advice from the CHO that an outpatient assessment is practicable, the court may adjourn the proceedings and order that the person be assessed and that a report of an assessment be prepared for the court. If outpatient assessment is not practicable, the court may adjourn the proceedings and order the person be conveyed to a treatment facility for assessment. In either case, a report of the assessment must state whether the practitioner who assessed the person is satisfied that the person fulfils the criteria for involuntary admission on the grounds of mental illness or mental disturbance. If that is the case, the report must contain details as to their condition, where they will be treated, and how they will be conveyed there.
[21] If the person does not satisfy the criteria for involuntary admission the report must state whether involuntary treatment in the community, or other treatment under the MHRS Act is required and, if so, the form it should take. The balance of Division 1 contains provisions enabling relevant orders to be made, including an arrest warrant, to facilitate the person's treatment, and return to the court.
Dismissal of a charge in accordance with s 73A(2)(b)
[22] The power to dismiss a proceeding at any time in Division 1 of Part 10,
s 73A(2)(b), is entirely separate from the mandatory requirement in Division 2 to dismiss a charge if satisfied of the matters in s 77(4). In contrast to
s 77(4), a decision pursuant to the power in s 73A(2)(b) is discretionary. The jurisdiction arises where the court is satisfied as to the matters set out in
s 73A(1), namely, that the person is charged with an offence in proceedings before the court and that they may require treatment or care under the MHRS Act and in s 73A(2), namely, that the charge is being dealt with summarily; the proceedings are not a preliminary hearing or committal; and the court is of the opinion that if the person were found guilty under the Sentencing Act 1995 (NT) (Sentencing Act), the court would dismiss the charge unconditionally or otherwise decline to record a conviction.
[23] The power to dismiss the charge in s 73A(2)(b) does not depend upon the defendant satisfying the court as to any of the matters in s 77 (Division 2). In other words, it does not depend upon a finding that the person was at the time of the conduct suffering from a mental illness or mental disturbance or that they fulfil any of the criteria in s 77(4)(b).
[24] The power in s 73A(2)(b) to dismiss a charge does not depend upon establishing that the defendant is "unfit to plead" in the sense required by Division 3 of Part IIA of the Criminal Code Act 1983 (NT). That is so notwithstanding that in some cases similar considerations may apply. The court in exercising the broad discretion to dismiss a summary charge must form the opinion required by s 73A(2)(b)(iii) by reference to ordinary sentencing principles. For example, the question of whether a without conviction disposition is appropriate would, assuming the defendant is an adult, include consideration of the criteria in s 8 of the Sentencing Act, together with any other relevant matters.[23] Similarly, in considering whether to dismiss a charge unconditionally, the court would consider those parts of s 9 of the Sentencing Act which were relevant in the particular case.
Part 10, Division 2
[25] Division 2 of Part 10 is headed "Dismissal of charge following certificate from Chief Health Officer" and contains only s 77. That section states that, if a person is being dealt with for a summary offence, the court may request from the CHO a certificate stating whether, at the time of carrying out the subject conduct, they were suffering from a mental illness or mental disturbance and, if so, whether that mental illness or mental disturbance was likely to have materially contributed to the conduct. The CHO is required to receive advice from an authorised psychiatric practitioner or designated mental health practitioner before producing the certificate.
[26] After receiving the certificate the court must dismiss the charge if satisfied that at the time of carrying out the conduct constituting the alleged offence the person was suffering from a mental illness or mental disturbance and as a consequence of that circumstance the person: did not know the nature and quality of the conduct; or did not know the conduct was wrong; or was not able to control their actions.[24]
[27] Receipt of a certificate pursuant to s 77(2) is a prerequisite to the making of an order under s 77(4).[25] However, while the certificate is a necessary first step, it is no more than a preliminary indication.[26] The onus is upon a defendant to establish the matters in s 77(4) on the balance of probabilities, irrespective of the content of the s 77(2) certificate. The court must reach its own decision on the matters in s 77(4) based on its assessment of the admissible evidence.[27] The matters which the court is required to determine pursuant to s 77(4)(b) are entirely different to the matters upon which the CHO must provide advice at s 77(2).[28] It follows that the court, when considering the questions in s 77(4), may reach a different conclusion to that of the CHO in the s 77(2) certificate.[29]
[28] A person may require treatment or care under the MHRS Act, so as to warrant consideration under s 73A, but at the same time not fulfil the criteria requiring mandatory dismission of the charge pursuant to
s 77(4), or vice versa. Some cases may require consideration of both provisions.
[29] Where the conduct the subject of the charge is disputed, and a certificate is sought from the CHO pursuant to s 77(2), the court must first conduct a hearing to determine the relevant facts constituting the alleged offence.[30] It is not necessary to conduct a hearing to determine the facts of a charge before requesting advice from the CHO pursuant to s 74 regarding availability of resources to assess whether the defendant requires treatment or care under the MHRS Act. That is because the focus in Division 1 is on the possible need for treatment, not the contribution of mental illness or mental disturbance to the conduct comprising the alleged offending.
[30] The Mental Health Diversion List (MHDL) has operated at the Darwin Registry of the Local Court for approximately 10 years. It is one way in which the Local Court at Darwin manages proceedings in which the mental health of a defendant may be relevant. There is no special legislation establishing the MHDL and it is not a separate division of the Court. Rather, the court exercises jurisdiction derived from a variety of statutes.[31] One source of power is Part 10 of the MHRS Act.
[31] The operation of the MHDL is set out in PD5D. Unfortunately, PD5D does not clearly reflect the operation of the distinct divisions of Part 10 of the MHRS Act. Aspects of PD5D which may have contributed to the apparent confusion in this case include that:
(a) There is no reference to the separate operation or functions of the three separate divisions of Part 10;
(b) There is no reference to the operation of s 73A of the MHRS Act (in Division 1), despite the fact that s 73A(2) may be a significant source of power in a summary matter, including the power to dismiss a charge if the matters in s 73A(1) and (2)(b) are made out;
(c) There is a reference to s 73(c),[32] however there is no such section in the MHRS Act;
(d) Overall, PD5D gives the misleading impression that an assessment pursuant to s 74 as to whether a defendant needs treatment under the MHRS Act is a prerequisite for, or at least related to, an application to dismiss a charge pursuant to s 77 (Division 2), which is not the case. The most obvious example is at paragraph (32) which refers to removal from the MHDL if the person "does not require care or treatment under the Act", something which is not necessarily required for a person to come within s 77(4);
(e) The role of the court clinicians, including their role in facilitating any request to be made by the court to the CHO pursuant to s 77(2) of the MHRS Act, should be made explicit. The reference to "preliminary report" in paragraph (10)(c) is apt to be confused with a request pursuant to s 74, and/or s 77(2);
(f) Paragraph (6) refers to eligibility to be referred to the MHDL as including persons appearing to have, inter alia, "a cognitive impairment, acquired brain injury or an autism spectrum disorder". While there is no reason why people with those conditions could not be referred to the MHDL, care needs to be taken in wording PD5D to ensure that there is no assumption that persons with those conditions automatically come within Part 10 of the MHRS Act;
(g) It is unclear what the phrase "hearing under s 77" at paragraph (21) refers to; and
(h) There is no statement as to the standard of proof or the evidence required for any of the decisions which could be made in accordance with Part 10.
Ground 3 - Did the Judge err in refusing to request a s 77(2) certificate?
[32] The Judge gave his decision on 18 September 2023, dealing first with the question of whether to request a certificate from the CHO pursuant to
On the first day of the hearing, counsel for defence made an application that the matter should be referred to the Mental Health Court List (sic). The purpose of doing so was to make an application under s 77 of the Mental Health and Related Services Act that the charge be dismissed by the court. This was s 77(4) of that Act. That application was opposed by the prosecution.
Prior to taking any action under Part 10 of that Act, the court must, pursuant to s 73A, be of the opinion the defendant may require treatment or care under the Act. I then allowed the parties to tender evidence to determine whether I could arrive that that opinion. That is, whether the defendant may require treatment or care under the Act.[33]
It is clear that the Judge made an error of law in that part of the reasons. As I have explained, while both processes may be available depending upon the circumstances, the court is not required to form the opinion that a person may require treatment or care under Division 1 of Part 10 of the MHRS Act as a pre-requisite to the exercise of the power to request a certificate from the CHO pursuant to s 77(2).
The defence tendered handwritten documents penned by the defendant. Documents included a one-page handwritten note from the defendant which states - and I am not going to read the entire note out. But just to make it clear the basis for my decision in relation to that application.
It says, "Your Honour, I am seeking an adjournment for the following reasons. I've been very unwell, and for the last 47 years have been medicated with anti-psychotic medication, as I've been diagnosed with severe post-traumatic stress disorder. I have been suffering this condition for the last 40 years of my life. I have a diagnosis from the head of Forensics, psychiatrist Dr Dorrington at Darwin Correctional Centre."
"And I also have the medication schedule for PTSD. I'm suffering and I'm on the highest dose of medication for this condition. Step 4 on the Schedule, 510 milligrams of anti-psychotic medication per day. And I'm requesting for this alleged assault matter to be heard under the Mental Health Act please."
The defence have also tendered three victim impact statements. All of them in the handwriting of the defendant. Those victim impact statements were dated 18 April 2019, 13 March 2018 and 4 October 2016. All of which asserted the defendant suffers from PTSD, shock, anxiety, paranoid personality disorder and that he's taking anti-psychotic medication.
Further handwritten documents purportedly penned by Dr Dorrington, dated 16 March 2023, were also tendered. Those handwritten documents are not on letterhead, nor are they signed. Nor has the defendant called Dr Dorrington to give evidence as to those pages of handwritten notes. The prosecution tendered the sentencing remarks of Burns J dated 13 October 2022, in a previous trial that the defendant was a defendant in.
His Honour summarises the evidence of various medical professionals that provided expert medical evidence as to the defendant's mental health status at the time. At page 35 of those remarks, his Honour states:
"On the psychiatric evidence adduced, I am not satisfied that you suffer from chronic psychotic illness. You have convinced yourself that you suffer from schizophrenia." "The only psychiatrist who raised the possibility that you suffer from such an illness was Dr Eagle. Her view was not expressed as a diagnosis but simply as a possibility. To the extent that Dr Eagle relied on records of your presentation and admission to the psychiatric ward on 6 November 2009 as potentially supporting her hypothesis, I prefer the opinion of Professor Parker who actually saw you and treated you at the time and observed that there were no signs of psychotic disorder." "In addition to the extent that Dr Eagle expressed an opinion that your psychotic condition extended beyond the 4th of June 2019, I prefer the opinions of those psychiatrists and other medical professionals who saw you in the weeks following the commission of these offences, and who gave the opinions that there were no signs of any psychotic disorder."
In this case, there was no agreement between the prosecution and defence as to the facts relating to the conduct constituting the alleged offence. That being the case, we had to have a hearing to determine what the facts would be should the matter proceed under the Mental Health and Related Services Act.
Having referred the parties to that decision and the requirement of the agreed set of facts to be referred to the chief health officer, the defendant confirmed that the facts were still contested. Consequently, the hearing commenced to determine the facts in this case prior to making any determination as to whether the matter would be referred to the Mental Health Court.
Throughout the course of the hearing, I remained cognisant of the defendant's application to deal with this matter under the Mental Health and Related Services Act. I did so because evidence pertaining to whether the defendant required treatment or care under that Act may have been produced during the course of the proceedings, pursuant to
No such evidence arose. Indeed, the evidence during the course of the hearing confirmed that the defendant's conduct at the time of the offence was not indicative of any underlying mental health condition. All the more so when counsel for the defendant confirmed during his closing address, that the basis of the defence case was consent.
That is, that the interactions between the defendant and Mr Doyle, the victim, was consensual. As opposed to the defendant acting in a self-defenced manner, due to a heightened state of awareness or threat brought about by post-traumatic stress disorder, or some other mental health issue.
I find that the defendant - or his conduct was not affected to the requisite standard required to have this matter dealt with pursuant to the provisions of the Mental Health and Related Services Act. There were ten witnesses called, including the defendant, who gave testimony during the course of this hearing.
[35] As is plain from the (erroneous) reference to s 77(5) of the MHRS Act, which should be read as a reference to s 73A(5) in context, the Judge was still under the belief that he was required to find that the accused required care or treatment under the MHRS Act before ordering a certificate under
s 77(2) and, by extension, that he was entitled to take into account "information given to the court" in coming to a decision as to whether to request a s 77(2) certificate. Both propositions are wrong.
[36] A court required to form an opinion pursuant to s 73A(1)(b) or (3)(b) of the MHRS Act may take into account "information given to the court during the proceedings". The wording of s 73A(5), when read in context, allows the court to consider both the appearance and behaviour of the person before the court and "information given to the court" during the proceedings. In my view, that provision is inconsistent with strict application of the rules of evidence and therefore, by necessary implication, those rules do not apply to the limited extent expressly provided in the section.
[37] However, that has nothing to say about what evidence a court may rely upon in deciding whether to order a s 77(2) certificate. There is no guidance in the MHRS Act as to the evidentiary requirements for that decision. The starting point therefore is that the rules of evidence apply. However, assuming it is an interlocutory decision, which I think it is as it is procedural in nature and does not finally dispose of a proceeding, the hearsay rule does not apply, providing that evidence of the source of the hearsay evidence relied upon is given.[36]
[38] In making his decision about whether to order a s 77(2) certificate, the Judge appears to have taken into account the passage quoted from Burns J's sentencing remarks in the matter of R v Hoffman. Section 91(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) provides that evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. The first fact in issue in the sentencing proceeding in the Supreme Court was whether at the time that he committed the offences for which he was sentenced, the appellant was suffering from an abnormality of mind which reduced his moral culpability.[37] The date of the offending in question was 4 June 2019. The second fact in issue was the appellant's mental state at the time of sentencing, namely 13 October 2022. That fact was relevant both to the likely effect of prison upon the appellant, and the setting of a non-parole period. However, the findings of Burns J in the sentencing remarks on those issues do not relate to the mental state of the appellant at the date of the offending the subject of this appeal, that is on 24 November 2021, because his mental state at that time was not in issue in the Supreme Court sentencing hearing.
[39] Leaving aside any restrictions imposed by s 91 of the ENULA, the facts set out in the passage quoted from the sentencing remarks of Burns J on 13 October 2022 were only of very slight relevance to the decision the Local Court Judge was required to make. To the extent that the sentencing remarks include the general statement that the appellant was not "suffering from a chronic psychiatric illness", in context, given the passages appearing immediately before and after the excerpt quoted by the Judge in this matter, Burns J's findings were clearly referable to 4 June 2019 and not any other date. Therefore, the evidence had nothing to say about the appellant's mental health on 24 November 2021.
[40] The question for the Local Court Judge pursuant to s 77(2) of the MHRS Act was whether to request a certificate from the CHO. That discretionary decision required the Judge to be satisfied, taking into account all of the circumstances, that there was a possibility that on 24 November 2021 the appellant was suffering from a mental illness or mental disturbance which may have materially contributed to the conduct. It is a relatively low bar, but the Judge was only required to consider a reasonable possibility, not one which was fanciful or far-fetched.
[41] In the absence of specific error, an appeal court will not intervene in relation to a discretionary decision unless it is shown that the decision was well outside the range of decisions to which a Judge could reasonably have arrived at having regard to the facts of the case and the applicable principles.[38]
[42] The appellant said that he had requested the matter be referred to the MHDL around six months before the trial date.[39] He argued that the Judge failed to recognise that he was suffering from mental illness including reactions to threatening situations,[40] and submitted that he had a diagnoses of post-traumatic stress disorder (PTSD).[41] He relied upon the notes of Dr Dorrington, previously described,[42] and said he experienced symptoms including hot and cold flushes, delusion, sensitivities to noise and sudden movement, visions of being punched, and fight or flight responses. The appellant also relied upon two videos showing him being assaulted while in custody, together with his victim impact statements concerning those assaults. I have viewed those videos. They show assaults which took place on 4 October 2016 and 18 April 2019. There was no evidence connecting those incidents with any mental health condition of the appellant around 24 November 2021.
[43] The trial Judge made some significant errors. He misunderstood the operation of the MHRS Act by conflating the requirements of s 73A and
s 77, and therefore the nature of the decision he had to make. It also appears that he misapprehended the probative value of the material which he could have had regard to contained in the sentencing remarks of Burns J of 13 October 2022. The Judge also likely failed to appreciate the need to consider the effect of s 91 of the ENULA in assessing what use he could make of the sentencing remarks from the earlier proceeding.
[44] However, notwithstanding those specific errors, I am not of the view that the decision to refuse to request a certificate pursuant to s 77(2) was wrong. The evidence at the hearing, which I summarise below, and which the Judge also took into account, did not reveal that there was a reasonable basis to form the view that it was more likely than not that it was possible that the appellant was suffering from a mental illness or mental disturbance at the date of the incident that could have materially contributed to his conduct. The defence case was primarily that the fight was consensual, which was contrary to the appellant's position that he was suffering from a mental illness which contributed to his conduct.[43] Although the appellant gave evidence that he was "in fear for my life" and "had hot and cold flushes" because he was threatened, in cross-examination he agreed that he was not in fear of being attacked on the day of the incident.[44] In addition, the appellant's demeanour when interviewed by correctional officer Quinn gave no indication of distress and, when asked, he said that he had no concerns. On the contrary, the statements to correctional officer Quinn were to the effect that the appellant was sorry and at least implied that it was an accident.
[45] The trial Judge had the advantage of seeing the appellant give evidence and was able to make assessments as to the reliability of the appellant's claims. The Judge found him to be an unreliable witness, and that conclusion was reasonable for the reasons discussed below.
[46] There was evidence that the appellant was taking medication prescribed by a doctor, but that is not evidence that the appellant was suffering from a mental illness or mental disturbance at the relevant time. In any event, the fact that a person is medicated does not necessarily indicate that they are mentally unwell. It is a neutral factor. Similarly, the fact that the appellant had previously experienced traumatic incidents did not of itself show that he was likely to be suffering from a mental illness or disturbance on 24 November 2021. Finally, the evidence received at the trial does not raise any concern as to his mental health at the relevant time.
[47] Although errors were made, in my view no substantial miscarriage of justice has occurred. The appellant has not been deprived of a chance that the charge would be dismissed pursuant to s 77 of the MHRS Act. Ground 3 is dismissed.
Ground 1 - Was the verdict unsafe or unsatisfactory?
[48] The appellant's first ground of appeal contended that his conviction was unsafe or unsatisfactory. The relevant question on this ground of appeal is whether the appeal court considers, in the context of the whole of the evidence, that it was open to the trial Judge to be satisfied beyond reasonable doubt that the accused was guilty. The test is whether the tribunal of fact must, rather than might, have entertained a doubt as to the accused's guilt.[45] The appeal court must bear in mind the advantages that the primary Judge had in seeing and hearing witnesses, but must make its own independent assessment of the whole of the evidence and determine for itself, having regard to the advantages of the trial Judge, whether it holds a reasonable doubt about the guilt of the appellant.[46]
[49] A reasonable doubt experienced by an appeal court is a doubt which a reasonable tribunal of fact ought to have experienced. An appeal court may only find that there has been no miscarriage of justice when the doubt in question could be resolved by the advantage a trial court has in seeing and hearing the evidence.[47] If the evidence shows inconsistencies, deficiencies, is flawed, or lacks sufficient probative value to the extent that the appeal court concludes that there is a significant possibility that an innocent person has been convicted, despite the advantages held by the fact-finding tribunal, the court must overturn the verdict based on that evidence.[48]
[51] The CCTV footage is from two different angles. There is no sound. Each clip shows the common room of sector 5 on the morning of 24 November 2021. The appellant is using the telephone in the middle of the room. The complainant is seated at a table tennis table at the far end of the common room. There is a cup in front of him on the table. After the appellant finishes using the phone, he walks to the table tennis table and engages in a conversation with the complainant. The appellant is gesturing, as is the complainant at some points. After a few minutes' discussion the appellant appears to lean in and feign a punch at the complainant. He then, using the back of his left hand in a flicking or sweeping motion, strikes the coffee cup which flies up and spills liquid onto the complainant. The complainant then stands and removes his shirt. Another prisoner in an orange t-shirt, who the complainant said was Jay Gavranich,[51] approaches and appears to remonstrate with the complainant while the appellant stands by. The appellant then walks away. Prior to striking the coffee cup with his hand, the appellant is standing over the complainant, who remains seated until after the coffee is spilled on him.
[52] Correctional officer Quinn's body worn footage captures an interview with the complainant and then two discussions with the appellant after the incident. The complainant's account is brief, but broadly consistent with what is seen in the CCTV footage. The appellant, when questioned, is focused upon what happened the day before. When asked about whether he pushed the coffee cup onto the complainant, the appellant said he might have done. In the second interview the appellant said he was sorry if he had done that, implying that it was an accident. During the interactions with the correctional officer shown on the body worn video, the appellant appears calm and cooperative. When directly asked by the correctional officer if he is alright, he says that he is.
[53] The complainant gave evidence that on the day of the incident he was doing his morning routine and his coffee was still quite hot as it was freshly made.[52] While sipping his coffee, he was approached by the appellant who was angry and saying that he wanted to bash the complainant and wanted him to follow the appellant into his cell.
[54] The complainant said he did not want to provoke the appellant and tried to use a de-escalating tone.[53] He said he tried to reassure the appellant that he was not a threat. The complainant said the appellant's posture was aggressive and he was trying to get the complainant back to his cell so he could "sort him out", and he said he would punch the complainant if he didn't stand up. The complainant said that the appellant leant in with his fist cocked within a foot of his face.[54]
[55] The complainant said that when he refused to stand up or follow the appellant to his cell, the appellant spilt the cup of coffee all over him by flicking it with a sweeping motion of his hand. The complainant said that he immediately felt the sensation of heat, hot enough to make him want to remove his shirt.[55] In cross examination, the complainant denied making any threats to the appellant the day prior to the assault.[56] He also said that he was scared of the appellant, and maintained his evidence including that the appellant was threatening him.[57] The complainant denied that he consented to have a fight with the appellant.[58]
[56] When the hearing resumed on 3 August 2023 the prosecution called evidence from Mr A Quinn, the correctional officer whose body worn video had been tendered, as well as Messrs J Kostanjevic, M Baccaris, J Irwin, J Gavranich, D Barber, M Love and A Richards, all of whom were prisoners present in the common room at the time of the incident.
[57] Correctional officer Quinn said that he came into the common room area of Sector 5 when he heard yelling and swearing from prisoners after the incident. He saw the complainant and Mr Gavranich engaged in an argument. The complainant had his shirt off. The complainant told officer Quinn that the appellant was involved. Officer Quinn then had two conversations with the appellant, both of which were recorded on body worn video and relevant parts were tendered as P2 and P3 in the Local Court proceeding.
[58] Janez Kostanjevic was a prisoner present in the common room that day. He was sitting at the table tennis table with the complainant. He said he saw the appellant's hand hit the cup. He said the appellant was animated and gesticulating. He could not say whether the strike was deliberate or not. He said the complainant and the appellant were arguing and yelling at each other. In cross-examination Mr Kostanjevic said that he started paying attention after the coffee was spilt. He said that it was after the complainant got up and took off his shirt that the complainant said to the appellant "you'd be surprised if you keep going with me. You'll be surprised at what I can do". He also said that in response the appellant laughed, shook his head and walked off.[59] Mr Kostanjevic said that the complainant appeared not to be scared and appeared prepared to escalate the situation after the coffee was spilt on him. In re-examination the witness said that before the coffee was spilt the complainant was minimising or trivialising the situation, not wanting to be there.[60]
[59] Martin Baccarris was another prisoner present in the common room. He heard the complainant and the appellant arguing and the complainant say to the appellant that he was going to kill him. Mr Baccarris said that everyone there at the time was standing up when the complainant made that statement. Mr Baccarris did not see what had happened before that.[61]
[60] John Irwin said that they became aware of the incident when they were in their cell, which is upstairs above the common room area. John Irwin heard the complainant say to the appellant "I could fuck - I complain Hoffman, I'll kill you, you bloody dog".[62] However, under cross-examination by the prosecutor, they admitted that they could not remember events clearly, and that the CCTV footage and the photographs showed that the complainant and appellant were downstairs in the common room when the incident happened. John Irwin agreed that at the time that the complainant was yelling, the complainant was standing up and had taken his shirt off.[63]
[61] Jay Gavranich was in the line at the officer's station the previous day, 23 November 2021, when he heard the complainant making comments, which were rude and threatening in tone, to the appellant.[64] At the time of the incident on 24 November 2021, Mr Gavranich was upstairs. He heard raised voices and went to the front of his cell. He said that the appellant was referring to what had happened the day before and the complainant was threatening him. He could not remember exactly what was said. He said the complainant took his shirt off and was really agitated and was swearing.[65] Mr Gavranich said that the complainant then directed some words towards him, so he went downstairs and confronted him. In cross-examination by the prosecutor, the witness agreed that he had not told the police that in his initial statement. He also said that in the incident the day before, the complainant was the aggressor and the appellant was trying not to get involved and did not escalate the situation.[66] In re-examination, the witness agreed that the aggression he referred to was evident by the tone of the complainant's voice.
[62] Darren Barber was present during the altercation on 23 November 2021 at the officer's window and heard the complainant swearing at the appellant. Mr Barber was also in the common room on the day of the incident. He did not see what happened but he heard yelling and swearing. After having his memory refreshed, he said that he heard the complainant swearing, saying "Fuck you, Ben, I'll smash you". He said that when he heard this threat the complainant had his shirt off. Mr Barber said he looked and saw the appellant standing up with a cup in his hand.[67] He then looked away because he didn't want to be involved.
[63] Miguel Love recalled the argument on 23 November 2021 between the complainant and the appellant, but with little detail. He said that on the day of the incident he was inside his cell, which was downstairs near the common room. He could hear and see the complainant and the appellant arguing about something that happened the day before. He came out of his cell and saw that the complainant had his shirt off and a cup of coffee had been spilt on the complainant. He said that the coffee was spilt when the appellant went to say something and accidentally knocked the cup over, but agreed in cross-examination that he could not recollect seeing that.
[64] Mr Love also agreed in cross-examination that he had previously given a statement about the incident to police in which he said that he was sitting at the table tennis table next to the complainant while the incident unfolded. Mr Love agreed that this previous account was not true. The CCTV footage did not show Mr Love sitting at the table at any point.[68] He further agreed under cross-examination by the prosecutor that he did not have any memory of seeing the altercation from his cell, and that although he remembered hearing things, he could not remember what was said.
[65] Aiden Richards was sitting in the common room playing cards at the time of the incident. He heard the complainant yelling. He could not recall the exact words, but said that there were threats.[69] He said that he saw the appellant walk over to the complainant who was seated at the table tennis table after he had heard the complainant make threats.[70] In cross-examination, Mr Richards agreed that he had previously told police that he saw the appellant splash water from the cup on the complainant, and confirmed that was his evidence. He also said that the complainant was yelling the whole time.
[66] In cross examination by the prosecutor, it was put to Mr Richards that his evidence as to the yelling by the complainant, which referred to the appellant speaking to the officers, had occurred the day before. He did not agree. He also said that he did not recall seeing the appellant use the telephone, although the CCTV clearly shows that was the case before the appellant approached the complainant on the day of the incident. Mr Richards agreed that he only recalled "bits and pieces" and was not really sure what happened.[71]
[67] In cross-examination by defence Mr Richards said that the complainant was making threats to the appellant before the appellant approached the table tennis table. He did not know what the threats were. He said that the complainant was the aggressor.[72]
[68] The appellant gave evidence at the trial. He said that on the day before the incident, the complainant was yelling at him and threatening him. This occurred after the distribution of weekly "buys" had been stopped so that the appellant could speak to a prison support officer. While speaking with the officer, the appellant had to kneel down and place his arm in a gap. It was in this position that the appellant heard the complainant yell "Oh Hoffie, you fuckhead. What a fuckhead. Now we can't get our buys. You fuckhead. I'll smash you, you fuckhead". The appellant said that he felt vulnerable, he was kneeling down and thought he was going to be 'king hit'. He was in fear for his life.[73]
[69] The appellant's evidence was that on 24 November 2021, he was still expecting to be attacked by either the complainant or a group. He stated that he went over to the complainant, "in shock if not in fear", and asked him about what had happened the day before. The appellant said that in the moments before the alleged assault, the complainant said "I can fight Hoffie. I'll kill you". The appellant said that the complainant started rolling his shoulders while sitting down.[74] The appellant thought the complainant may "jump" him because he was rolling his shoulders and threatening him.[75] He said that he had gone to hold his hands above his shoulders with an open palm and in the course of doing this, he hit the coffee with the back of his hand.[76] The appellant said that he had no intention to fight the complainant and that he got away from him as soon as he could so the situation would not escalate.[77]
[70] In cross-examination, the appellant said that on the day prior to the incident, he was in fear of being attacked. However, he agreed that on 24 November 2021, he was not in fear of being attacked and thought he would talk to the complainant about what had happened the day before.[78] He also agreed, after some reluctance, that he had deliberately gone to speak to the complainant seated at the table tennis table.[79] However, the appellant maintained that after he approached the table where the complainant was sitting, the complainant was threatening and said "I'll fucking smash you",[80] pointing and rolling his shoulders in a threatening manner. The appellant agreed that he leaned over and clenched his right hand into a fist and moved his shoulder forward and pushed his hand towards the complainant as a "warning", in the context of the complainant's threats.[81]
[71] It was conceded by defence counsel in closing submissions that there was an application of force by the appellant towards the complainant when he spilled the coffee on the complainant.[82] Although it is not as clear, it also appears that in response to questions from the Judge, the appellant's counsel conceded that there had been a threatened application of force when the appellant leaned in towards the complainant with a clenched hand.[83] The appellant's counsel submitted that the issue in the case was consent.[84] He argued that there was at least a reasonable possibility that the complainant had, by his threats and aggressive behaviour, consented to a fight with the appellant, and that therefore the Crown had failed to prove all elements of the offence to the criminal standard.
[72] The trial Judge completely rejected the appellant's evidence except where it was consistent with the CCTV footage. His Honour found that the evidence of the appellant was entirely unreliable because:
[73] The trial Judge did not err in rejecting the evidence of the appellant. That evidence was clearly inconsistent with the CCTV evidence. A clear example on a key matter is that the appellant gave evidence that he hit the cup with the back of his hand in a backward sweeping motion, in panic after he was threatened, whereas the CCTV footage shows the appellant pushing his hand forward into the cup. In cross-examination the appellant refused to concede that he intentionally pushed the cup with his hand.[85]
[74] The trial Judge had the advantage of hearing the evidence in person. However, it is clear from the transcript that the appellant did not give his evidence in a forthright manner, significantly undermining his credibility. In cross-examination he refused to agree that he had deliberately walked up to the complainant, a matter not really ever in contention, maintaining that he spoke to him as he was walking to his cell, and then stating that he did not really remember.[86] He was also evasive at times. For example, when he was asked questions about the movements of his left hand as seen on the CCTV footage, he gave responses which did not answer the question, despite the fact that the question was clearly put several times.[87] Those answers appear to have been deliberately unresponsive, rather than a product of misunderstanding. Overall, the appellant appeared to be focused upon giving a narrative about what happened the day before and how scared he was and keen to avoid answering questions about any other topic.
[75] The evidence of the other prisoners did not support the appellant's evidence. The appellant argued in this appeal that the complainant lied when he said he had not threatened the appellant on the day of the offence and the day prior and that the Judge did not properly consider this evidence.[88] The appellant said that Mr Kostanjevic gave evidence that prior to the assault, the complainant and the appellant were discussing the argument that took place at the officer's post the previous day, and that the complainant did not seem scared of the appellant.[89] However, Mr Kostanjevic's evidence was that the complainant threatened the appellant after the coffee was spilt on the complainant. To the extent that Mr Kostanjevic said that he saw the appellant's hand make the coffee spill, he agreed that he could not say whether the appellant deliberately pushed the coffee cup or not. Mr Kostanjevic's evidence in cross-examination that the complainant was the instigator of the incident, was completely retracted in re-examination.
[76] Mr Baccarris did not see anything before the coffee was spilt, nor did Mr Gavranich. Neither witness gave evidence about the feigned punch or the pushing of the coffee cup. John Irwin's evidence was unreliable as they were clearly mistaken about being upstairs in their cell at the time. To the extent that John Irwin could remember anything, it was only events which occurred after the complainant had removed his shirt. Mr Barber was also unreliable. He said that he saw the appellant with a cup in his hand, however the CCTV footage shows that did not happen. His evidence also refers to the point in time when the complainant was shirtless, and therefore after the coffee was spilled.
[77] The appellant also drew attention to the evidence of Mr Love, a witness who saw an interaction between the complainant and the appellant the day prior to the offence.[90] The evidence was that Mr Love observed the complainant tell the appellant he was a "fucking idiot" in relation to the appellant blocking people from getting their "buys".[91] The appellant submitted this was clear evidence that he had been abused by the complainant.[92]
[78] As with most of the other witnesses, Mr Love did not arrive at the scene of the incident on 24 November 2021 until after the coffee was spilled. He was also shown to be unreliable as he had previously told police that he was seated at the table at the time, which the CCTV footage shows was not the case. Finally, Mr Richards appears to have mixed up the incident the subject of the charge with the incident from the day before. His evidence was therefore also unreliable.
[79] The appellant argued that the Judge had not properly considered the evidence of the witnesses who had given evidence about the interaction on 23 November 2021. The import of these submissions is that this evidence must have raised a reasonable doubt about the appellant's guilt.[93] I do not accept that submission.
[80] Having rejected the appellant's evidence, there was ample evidence upon which the Judge could find that the elements of the offence were proven to the criminal standard of proof, including the lack of consent. The best evidence was the CCTV footage.
[81] The Judge was also entitled to rely upon the complainant's evidence, which was generally consistent with the CCTV footage.[94] The complainant remained seated during the interaction. He did not get up or indicate that he wanted to fight. The complainant could be said to have acted with aggression after the coffee was spilled. Neither the CCTV footage, the evidence of the complainant, or any of the other witnesses indicates that the complainant agreed to fight the appellant. The CCTV footage does not depict the complainant rolling his shoulders, as was suggested by the appellant. Rather, it shows him in a seated position whilst the appellant, standing, remonstrates with him. There was ample evidence from the complainant, and to be inferred from the CCTV footage, that the complainant did not consent to fight the appellant.
[83] These submissions can be easily disposed of. Harm is defined in the Criminal Code as including physical harm, which in turn includes any physical contact with a person that they might reasonably object to in the circumstances.[98] Striking a cup so that it deposits hot, but not boiling, coffee on a person clearly falls within the definition. In addition, there was evidence from the complainant that he suffered pain due to the heat of the coffee. Medical evidence was not necessary for the trial Judge to be satisfied of that circumstance of aggravation to the requisite standard.
[84] An offensive weapon is defined for the purposes of the Criminal Code as an article made or adapted to cause injury or fear of injury to a person, or by which the person possessing it intends to cause injury or fear of injury to a person.[99] A plastic cup containing coffee can, in the circumstance where it was pushed or flicked onto a person as in this case, readily be seen as coming within that description.
[85] The Judge was not bound to entertain a reasonable doubt as to the appellant's guilt as to the offence or the circumstances of aggravation. Appeal ground 1 is dismissed.
[86] Ground two alleges a miscarriage of justice because of the incompetence of trial counsel. The substance of that complaint is twofold: first, that there was a failure to call Dr Dorrington, forensic psychiatrist, who had treated the appellant in gaol, and secondly that counsel was underprepared.
[87] The appellant argued that Dr Dorrington's evidence was essential because the assault committed by him was a response consistent with post-traumatic stress disorder[100] and that it was extremely important for defence counsel to call Dr Dorrington "with mental health as a defence".[101] He stated that he had asked his lawyer to speak to Dr Dorrington regarding his symptoms and behaviour before the trial. He said that he was experiencing delusions at the time of the assault, which included experiencing hot and cold flushes and feeling punches landing on his head when people yelled or screamed around him.[102] With reference to the handwritten document dated 16 March 2023 headed "Dr Dorrington", the appellant submitted that he was taking medication, 450 milligrams Quetiapine and 60 milligrams of Mirtazapine, which he said was for a mental health condition. Although the appellant did not state when he commenced this prescription of medication, he said that since that time his medication dose had been increased by 50 milligrams.[103]
[88] Secondly, the appellant submitted that his counsel failed to adequately prepare for the case, including by adequately preparing closing submissions. The appellant relied in particular upon counsel's statement to the trial Judge that "I only had half an hour to write submissions".[104] The appellant argued that his lawyer did not research or discuss the case with him thoroughly.[105]
[89] The general principles relevant to an appeal on the ground of miscarriage of justice due to incompetence of counsel, were described by the Court of Criminal Appeal in Foster v The King:[106]
The inquiry required under this ground of appeal is an objective one. The relevant question is whether the act or omission resulted in a miscarriage of justice, not whether the act or omission itself was the result of significant fault, flagrant incompetence or egregious error. The inquiry is also not an examination of what counsel did not know or did not think about; but of what did or did not happen during the course of the proceedings and whether a miscarriage of justice was thereby occasioned. Whether the assertion is that the incompetence of counsel has caused a criminal trial to miscarry, the appellant carries a heavy burden of establishing that matter. It is necessary to show that there was a fundamental failure in the trial process leading to an unjust conviction.
[90] Foster was an appeal to the Court of Criminal Appeal based upon s 411 of the Criminal Code. Under that provision grounds upon which an appeal may be allowed include "that on any ground there was a miscarriage of justice".[107]
[91] Appeals from the Local Court are brought in accordance with s 163 of the LC (CP) Act which provides that an appeal may be brought on a ground which involves either a 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". There is no general "miscarriage of justice" ground, as in
[92] In Bianamu v Rigby,[109] Grant CJ found that a ground of appeal alleging miscarriage of justice due to incompetence of counsel fell within the scope of a sentence appeal pursuant to s 163(1)(a) of the LC (CP) Act, but did not decide whether that ground was available in an appeal asserting error or mistake on the part of the Local Court pursuant to s 163(1)(b).
[93] In my view, on an appeal pursuant to s 1653(1)(b) of the LC (CP) Act, the appellant must be able to point to an error of fact, an error of law, or an error of mixed fact and law made by the Local Court. Incompetence of counsel may contribute to an error. That appears to have been the case in Putti v Simpson,[110] an appeal against sentence in which Muirhead J said that the "basic ground" for allowing the appeals was that defence counsel was not only unprepared but failed to take steps to ensure that the accused's case was properly put before the court, and went on to identify the error made by the Magistrate as proceeding to sentence the offender when he did not have all of the information to hand and therefore failing to take all relevant matters into account.
[94] In JK v Waldron,[111] an appeal against conviction pursuant to s 163(1)(b),[112] the respondent raised the same objection as in this appeal, namely that unlike s 411 of the Criminal Code, s 163(1)(b) did not permit an appeal on the ground that a verdict was "unsafe or unsatisfactory". Kearney J held that such an appeal was comprehended by the section, identifying the relevant error as a finding that the evidence was insufficient or of such a nature that it would be dangerous to convict.[113] The error which that ground of appeal addresses is clear from the relevant test, namely, that based on the evidence presented, the Local Court must have had a doubt as to the accused's guilt, and was therefore in error in finding the charge proved to the requisite standard.[114]
[95] Although there is no general ground of "miscarriage of justice" in
s 163(1)(b) it is difficult to conceive of a situation where an alleged miscarriage of justice resulting from incompetence of counsel would not also involve an error or mistake on the part of the Local Court of the kind described in that section. That view is consistent with the statement in Foster that a miscarriage of justice due to incompetence of counsel must involve a "fundamental failure" in the trial process.
[96] The appellant referred to the documents which are referred to above in the discussion of appeal ground 3. However, those documents did not constitute admissible evidence which established that the appellant suffered from a mental health condition on or around 24 November 2021. During closing submissions, the trial Judge directly raised this point with defence counsel, who conceded that he did not lead any evidence as to the appellant's mental health issues.[115] The Judge was not required to take the matter further and no error on his part has been established.
[97] Nor was the Local Court led into error by any failure of defence counsel to adequately prepare. Defence counsel's final submission was that the prosecution had not proved that the complainant did not consent to the application of force. That submission was consistent with the evidence which the appellant gave, namely that the threatened application of force, and the indirect application by pushing the coffee cup towards the complainant, occurred in the context of a heated argument during which the appellant was first threatened by the complainant and the complainant wanted to fight him.
[98] I am not persuaded that counsel was incompetent but, in any event, no error on the part of the Local Court can be said to have arisen as a result. Ground 2 is dismissed.
[99] In oral submissions, the appellant argued that the sentence imposed was "very excessive".[116] From this submission, I will proceed on the basis that the appellant appeals against the sentence imposed pursuant to section 163(1)(a) of the LC (CP) Act.
[100] In submissions as to sentence, prosecution and defence agreed that this was an assault which was of low objective seriousness, due to the low level of violence and the absence of any significant injury. I agree with that assessment, while taking into account that the assault occurred in a custodial facility in which maintenance of discipline is essential to the safety of both prisoners and staff. The sentence imposed was three months' imprisonment which was, at that time, the applicable mandatory minimum sentence pursuant to the Sentencing Act. The sentence was concurrent with the appellant's life sentences without parole. No submission as to exceptional circumstances was made. That is not surprising. There was nothing exceptional about the case. The appellant was not entitled to leniency.
[101] The sentence was not manifestly excessive.[117] Ground four is dismissed.
[1] Criminal Code, ss 188 (2)(a), (d) & (m).
[3] Transcript 13 August 2024 pp 4-5.
[6] There was a significant delay between the commencement of the hearing on 9 June 2023 and its resumption on 3 August 2023. In the interim the prosecution had located and agreed to call one of the witnesses identified by defence on the first day of the trial, Aiden Richards. The other witness was unable to be located by the police. Defence did not reagitate this basis for an adjournment.
[8] Ibid [7], and Transcript 18 September 2023, pp 2-3. These were, in the main, the same documents which were sought to be relied upon by the appellant in this court on appeal.
[11] A unit within the Northern Territory Department of Health.
[12] Transcript 9 June 2022, pp 12-15.
[13] Transcript 9 June 2022, pp 16-17.
[14] There was no express statement to that effect, but the matter proceeded.
[15] The Judge relied upon a decision of Lowndes CLCJ in Firth v Alwis, unreported 27 January 2017, which applied the decision of Barr J in O'Neill v Lockyer [2012] NTSC 10, 9 ('Lockyer').
[16] Notwithstanding the use of the term "offender" throughout, in context the process in PD5D is intended to apply to defendants in accordance with the LC (CP) Act, either before or after they have been found guilty of an offence.
[17] Division 3 concerns Voluntary Treatment Plans and applies where a person has entered a plea of guilty or been found guilty after hearing. This decision does not consider Division 3.
[18] MHRS Act, s 73A(1). Divisions 10 and 11 of the MHRS Act were inserted by Mental Health and Related Services Amendment Act 2007 and commenced on 2 March 2009.
[20] Criminal Code Act 1983 (NT), Part IIA, Division 3.
[21] MHRS Act, s 4, definition of "treatment". As to the definitions of "mental illness", "mental disturbance" or "complex cognitive impairment" see MHRS Act, s 6, 6A.
[23] See discussion in Rigby v Benfell [2020] NTCA 9, in particular at [12] - [18].
[26] Mununggurr v Gordon [2011] NTSC 82 at [19] - [20] ('Mununggurr').
[31] Including the Local Court Act 2015 (NT); Bail Act 1982 (NT); Sentencing Act 1995 (NT); Local Court (Criminal Procedure) Act 1928 (NT); Mental Health and Related Services Act 1998 (NT).
[33] Transcript 18 September 2023, p 2.
[37] R v Hoffman, Sentencing Remarks, 13 October 2022, p 28.
[38] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan J); Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 341 (Priest JA).
[39] Transcript 13 August 2024, p 27.
[45] AE v Rigby [2024] NTSC 21, [4] (Grant CJ) ('Rigby'); Libke v The Queen [2007] HCA 30, [113] (Gleeson CJ, Kirby, Hayne, Callinan, Heydon JJ)
[46] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at [493].
[48] Cooper v The King [2022] NTCCA 16 at [75] per Grant CJ and Hiley J.
[59] Transcript 13 August 2023 p 14.
[61] Transcript 3 August 2023 pp 18-19.
[88] Transcript 13 August 2024 p 16.
[91] Transcript 3 August 2023 p 43.
[92] Transcript 13 August 2024 p 22.
[94] Transcript 8 September 2023 [T5-T6].
[99] Criminal Code, s 1, "offensive weapon".
[100] Transcript 13 August 2024 p 2.
[104] Transcript 3 August 2023 p 108.
[105] Transcript 13 August 2024 p 34.
[106] (2023) 377 FLR 375 at [34]. Note also the exception to the general principle that the inquiry is objective, in circumstances where incorrect advice from counsel was material to a forensic choice reserved for the accused to make personally, described at footnote 29 in that case.
[108] See also s 164 of the Local Court (Criminal Procedure) Act.
[109] [2020] NTSC 43 [47].
[110] [1899] ArgusLawRp 144; (1975) 6 ALR 47, pp 49-51.
[112] Which was in the same terms as the current provision in what was then called the Justices Act (NT)
[114] Kalidonis NT Pty Ltd v Work Health Authority [2025] NTSC 28, [8] and Pikos v O'Neill [2024] NTSC 6, [14] and the cases cited there.
[115] Transcript 3 August 2023 p 104.
[116] Transcript 13 August 2024 pp 10, 45.
[117] Sentencing Act 1995 (NT) s 78DD(2) as in force at 30 April 2023.
Hoffman
Firth [2026] NTSC 4
(1936) 55 CLR 499
(1994) 181 CLR 487
(2021) 43 NTLR 136
(2023) 377 FLR 375
(1975) 6 ALR 47
(1988) 93 FLR 451
(2015) 44 VR 335