Mardinga v Williams [2025] NTSC 61

D Mildren, "Redressing the Imbalance Against Aboriginals in the Criminal Justice System" (1997) 21 Criminal Law Journal 7.

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

Mardinga v Williams [2025] NTSC 61

• [1] On 18 February 2025 the appellant was found guilty and convicted in the Local Court of the offence of aggravated assault committed upon his female partner, VC.
• [2] This is an appeal against that conviction upon the sole ground that the verdict was unreasonable and/or unsupported by the evidence in all of the circumstances. The appellant submits that the finding of guilt was "unsafe and unsatisfactory".
• [3] The function to be undertaken by this Court in relation to such an appeal was described by the High Court in M v The Queen[1] in the following terms:

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

• [4] Those observations have equal application to the determination of an appeal on this ground from a summary trial by judge alone. The process involves the appeal court making its own independent assessment of whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand. The court will consider whether the tribunal of fact "must, as distinct from might, have entertained a doubt about the appellant's guilt".[2]

• [5] The case against the appellant relied heavily upon the evidence of his partner, the complainant, VC. The Crown case was that on 29 August 2024 Constable Robert Kerr was conducting community patrols in Wadeye when he observed a female, later identified as VC, who waved down the marked police vehicle and complained that she had been threatened by her partner, the appellant. The Constable conveyed VC to the local police station where she entered into a video recorded statement. In that statement, which was taken on oath, she said she had been walking to her office to make a cup of tea and that she wanted to listen to her boss. However, her partner, the appellant, was talking to her and threatening her and making her scared. He showed her some scissors and said "I can stab you and kill you". She said she was scared and flagged down the police car and immediately complained of the offending. She described the scissors as being silver and blue.
• [6] At the trial, in her evidence in chief, the complainant partially retracted what she had said in her recorded statement provided on the day of the alleged offending and said that she did not tell the Police Officer the truth. In the circumstances the Judge gave the prosecutor leave to cross-examine the witness pursuant to s 38 of the Evidence (National Uniform Legislation) Act 2011 (NT). In the course of further questioning the complainant said that the "police forced me to tell the story", she agreed she did not want the charges to go to court, or the appellant to be in trouble and she agreed that she was "scared" to tell her story in court.
• [7] Under cross-examination on behalf of the appellant the complainant agreed that she had smoked "ganga" and that she was still feeling the effects of doing so when she spoke with police. She agreed that the appellant had a pair of scissors which he used to cut ganga but he did not have the scissors with him when they argued and he did not threaten her with the scissors. She agreed with the propositions that she felt pressured by police to tell the story and that what she told the police was a lie.
• [8] Constable Kerr gave evidence that when his vehicle was waved down the complainant looked as if she "needed urgent help or assistance". She did not appear to be affected by any substance. She said she was threatened with scissors and police thereafter took her to the police station to complete a statement in accordance with her wishes. Police did not use an interpreter in conducting the interview. Constable Kerr said the complainant did not appear uncomfortable when she made her statement and did not appear intoxicated when he was dealing with her. Police later dropped the complainant off at the local resource centre. Constable Kerr subsequently arrested the appellant who was found to be in possession of a pair of scissors as described by the complainant. Constable Kerr agreed that he did not interview any potential witnesses.
• [9] There was no further evidence called by the prosecution and no evidence was called in the defence case.
• [10] In its submissions in the Local Court the prosecution relied upon the evidence provided by the complainant through the recorded interview. Defence counsel, unsurprisingly, argued that the competing versions of events should give rise to a reasonable doubt. His Honour in exchanges with defence counsel indicated that he was struggling to believe that the complainant was telling the truth in court. Defence counsel submitted that even though his Honour "may have an overwhelming suspicion - a grave suspicion", nevertheless it was not possible to exclude the possibility that the complainant's evidence in court was a true version of events.

• [11] His Honour proceeded to deliver ex tempore reasons for decision. In considering those reasons I have borne in mind the oft repeated observation that the Local Court is a very busy court and allowances must be made when considering what has fallen from a local court judge especially when reasons are provided shortly after the completion of the evidence. Those are the circumstances that were present on this day. An appellate court will generally assume that the hearing judge has considered all matters which are necessarily implicit in any conclusions which she or he has reached.[3]
• [12] Relevant for present purposes the reasons for decision (which by agreement between the parties I have taken from the appellant's submissions) contained the following:

To (inaudible) the evidence of (inaudible) in her recorded statement came across as someone endeavouring to tell the truth. She understood the questions put to her. The conduct of Robert Kerr, viewed with (inaudible) what I saw, that there wasn't any pressure put on complainant. He gave a quite articulate story about what she said occurred that she flagged down the police.

She made the statement at the police station. She was asked if she wanted to consent to the interview. She said, "yes". As I said, she was articulate. She also was asked about whether she had smoked any ganga. She talked about the night before, at the night-time. If there was any lingering effects of cannabis, it certainly didn't appear to have any influence.

.... She was cross-examined and retracted her story and said that she'd been pressured by police to give the story that she had stated. I have to say, I am obliged by law to assess her evidence very carefully, firstly, in the recorded statement, but also her evidence in court. And I analyse very carefully. I am best placed to do that, having heard and observed her give evidence today retracting parts of her statement, I reject that as not being truthful.

Why she retracted is unknown ultimately. But I am reminded of the case of the authority of Morluk v Firth, particularly paragraphs 39, 40 and 43 talk about the pressures of Aboriginal women giving evidence in domestic violence situations. And certainly, with regard to analysing her evidence today, I have found that it didn't have any ring of truth to it at all. There is absolutely no evidence that there was any pressure by the police whatsoever.

She was the person, it seems an agreed fact, that she flagged the police down. There seems to be no issue about that. There can be some criticism of the police and the fact that they didn't follow up other potential witnesses. But in the recorded statement of the complainant, it didn't appear that she was aware who these four ladies were. And there doesn't seem to be any other evidence that there was an avert (sic) witness to the actual alleged event...

The accused was found 40 minutes later with a pair of scissors on his possession. Again, there is a period of time between that where he may have come into possession. But he (inaudible), although it seemed to be (inaudible) something that he had access to or carried. There is only so much weight that I can give that given the period of time where he could have come into possession of the scissors after. After carefully examining the evidence of the complainant in the EIC statement to police. Satisfied beyond reasonable doubt that the accused assaulted her by threatening her with a pair of scissors, saying "one day I will stab and kill you".

It is not a matter of preferring now the evidence she gave in recorded statement. Upon analysing her evidence today I find that evidence was truthful, I reject the evidence that she says she was pressured by police to make a statement. She gave evidence that she said that she felt a bit dizzy and she's had lots of ganga. Again, a critical examination, of her recorded statement she is really coherent, any lingering effect of the ganga was exceptionally minor. ... In my view, she wasn't under the influence of ganga.

Kerr rejected that he put any pressure on her. She may have felt under pressure, given that she is in a police station with two officers. But she is the one that flagged the police down. She made it clear that she was happy to engage in the interview. And again, there is no evidence that there was any pressure from police whatsoever.

I am satisfied beyond reasonable doubt that there was an assault with a weapon.

• [13] The reference by the Local Court Judge to the decision in Morluk v Firth[4] was to the observations of the Chief Justice in a case involving some similarities with the present case. In that case the Chief Justice noted that, in a general sense, experience shows that it is not unusual for victims of domestic violence to seek to withdraw complaints. Reference was made to the observations of Southwood J in Warford v Firth[5] where his Honour said:

The complainant was an honest witness who gave truthful evidence. The inconsistencies in her evidence and the number of statements that she made is perfectly consistent with the conflicting emotions a person who is subject to domestic violence experiences. Those emotions include the attachment to the domestic partner which still persists, the desire not to harm the domestic partner, fear of the domestic partner and a feeling of blame or fault for what has occurred.

• [14] Further, as the Chief Justice noted, it is not uncommon for a victim in proceedings involving an assault in a domestic violence context to recant her or his complaint to police or evidence given in court which would inculpate an alleged offender. It does not follow that in those circumstances a reasonable doubt will necessarily arise although that may be the finding. In determining whether such a doubt arises it is not resolved by a mechanical comparison of the competing accounts given by the victim and concluding that a reasonable doubt must arise because of the inconsistency. The trial judge need not necessarily accept all the evidence given by the complainant and it is open to the trial judge to reject those parts of her evidence in which she disavowed her earlier evidence given, in this case, to Constable Kerr. It is necessary to consider the reliability of the witness in relation to the differing accounts and whether there is a logical reason for rejecting certain evidence and accepting other evidence of the witness.

The submissions of the appellant and discussion

• [15] In written submissions it was put on behalf of the appellant that this Court should, itself, view the recorded statement of the complainant. Reference was made to the observations of the High Court in Pell v The Queen[6] where it was said that it may be appropriate to view such evidence "in the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitating a viewing of the recording". However the Court referred to such cases as being "exceptional" and "where there is something particular in the videorecording that is apt to affect the appellate court's assessment of the evidence which can only be discerned visually or by sound". In my opinion, in the present case, no such exceptional circumstances arise. At the commencement of the hearing Mr Boulten SC, on behalf of the appellant, withdrew the application.
• [16] In the present case the appellant asserted that the complainant was either lying in court or lying in her recorded statement. It was suggested that in this matter there was no corroborative evidence of the complainant as was found in Morluk.[7] However, there was supporting evidence of the original version of events by virtue of the complainant waving down the police vehicle, the demeanour of the complainant at that time and the clear and forthright description of the assault made to police shortly after it was alleged to have occurred.
• [17] In support of the suggestion that a reasonable doubt must exist the appellant relied upon the fact that there was no interpreter available at the time of the recorded statement whilst there was an interpreter present at the time of the complainant giving her evidence in court. The trial Judge dealt with that issue firstly by observing, correctly, that he had to assess her evidence very carefully and noting that he did in fact do so and, further, that he was "best placed" to do so as he observed her giving evidence before him. His Honour found that her recorded statement came across "as someone endeavouring to tell the truth", that she was "coherent" and noted that "she understood the questions put to her" and, further, that she was "articulate".
• [18] It was submitted that the recorded statement had all the hallmarks of a witness who required an interpreter. With respect, that submission is not supported by the transcript of the conversation. Whilst the complainant was not familiar with an expression such as "solemnly" in my opinion it could not be said that she did not understand the questions asked of her or that her answers were unable to be understood. As the respondent submitted some of her expressions and syntax were unusual but that simply resulted from English being her second language. In her recorded interview she was asked nonleading questions and provided a reasonably clear version of events. The appellant pointed to the use of the personal pronoun "she" when she was referring to her partner but it was plain to whom she was referring, being the appellant. As is well known, it is commonplace in the Northern Territory for many Aboriginal witnesses to use the personal pronouns "she" and "he" interchangeably.[8] This does not generally impact upon their understanding of the questions asked and the clarity of the responses given. In my opinion the trial Judge had a sound basis for his conclusions. The absence of an interpreter at the time of the police interview did not, and does not, raise any doubt as to her evidence recorded at that time. Her evidence was clear.
• [19] The appellant also pointed to the evidence of the complainant given in court that she had been under the influence of cannabis while speaking to police. The trial Judge dealt with that issue by conducting a careful examination of her recorded statement and noting that she was "clearly coherent" and "any lingering effect of any ganga was exceptionally minor". If there was such an effect it did not impact upon his Honour's acceptance of her evidence. His Honour's conclusion was supported by the evidence of Constable Kerr to the effect that upon his observation she was unaffected by any substance.
• [20] The appellant further submitted that it was unclear whether there was pressure upon the complainant in the conversation she held with police. His Honour concluded otherwise based upon the evidence of Constable Kerr and upon his own observations of the recorded interview. Of course, it has not been suggested that the complainant was pressured to give a particular version of events in her recorded statement. What is not in dispute is that the complainant flagged down the police and immediately thereafter complained of threats having been made by the appellant. Such conduct does not suggest that anything said by the complainant was as a result of police pressure. It was entirely consistent with her initial complaint.
• [21] There is nothing in the submissions made on behalf of the appellant that leads to a conclusion that the Local Court Judge must have entertained a reasonable doubt as to the appellant's guilt. The appellant has not established that the verdict was unsafe and unsatisfactory. The appeal is dismissed.

[1] [1994] HCA 63; (1994) 181 CLR 487 at 493.

[2] Libke v The Queen [2007] HCA 30 at [113].

[3] For example NS v Dunne [2021] NTSC 77 at [14].

[4] [2017] NTSC 91 ("Morluk").

[5] [2017] NTSC 75 at [61].

[6] [2020] HCA 12 at [35]- [37].

[7] See also in NS v Dunne [2021] NTSC 77.

[8] See the discussion in D Mildren, "Redressing the Imbalance Against Aboriginals in the Criminal Justice System" (1997) 21 Criminal Law Journal 7.