Nelson v Northern Territory Police [2026] NTSC 21

• Charge 1, a charge alleging that on 18 January 2025 the appellant, being a person against whom a Domestic Violence Order was in force, engaged in conduct that resulted in a contravention of that Domestic Violence Order and in circumstances of aggravation, namely, that the conduct involved harm or a threat of harm to OE.
• Charge 2, a charge alleging that on 18 January 2025 the appellant unlawfully assaulted OE in circumstances of aggravation, namely, that OE suffered harm, that she was a female and the appellant was a male, and that OE was threatened with an offensive weapon, namely a mobile phone.
• Charge 3, a charge alleging that on 18 January 2025 the appellant intentionally engaged in conduct that resulted in a breach of a condition of bail.
• Charge 4, a charge alleging that on 26 January 2025 the appellant, being a person against whom a Domestic Violence Order was in force, engaged in conduct that resulted in a contravention of that Domestic Violence Order.
• Charge 5, a charge alleging that on 26 January 2025 the appellant intentionally engaged in conduct that resulted in a breach of a condition of the grant of bail.

[2] To each of these charges, with the exception of Charge 5, the appellant pleaded not guilty. To Charge 5, he pleaded guilty.

[3] The hearing of these charges was due to commence in the Local Court at Alice Springs on 1 July 2025. From the outset of the hearing, there were difficulties. An interpreter was late arriving, and an elderly prosecution witness needed to attend a dialysis appointment later in the day. The main difficulty, however, was the apparent unavailability of the complainant, OE, to attend court that day.

[4] Before the hearing commenced on 1 July 2025, the prosecutor informed the court that the complainant had given birth the previous day and was therefore at the Alice Springs Hospital. The prosecutor made an application that recorded statements previously made by OE to the police regarding the events the subject of the charges, be received as an exception to the hearsay rule as permitted by s 65 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA). That section applies in criminal proceedings if a person who made a previous representation is not available to give evidence about an asserted fact. The appellant opposed that application. The relevant provisions of s 65 are:

Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was:

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

[5] The hearsay rule itself is set out in s 59 of the ENULA which states that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. A number of exceptions to that general rule are found in the ENULA, including in s 65. In making the application, the prosecution asserted that the complainant was "not available" to give evidence of the events that were the subject of the charges and about which she had made representations of fact in her recorded interviews.

[6] Whether a person is not available to give evidence about an asserted fact is determined by reference to Part 2, s 4 of the Dictionary to the ENULA, which relevantly provides that a person is taken to be not available to give evidence about a fact if the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability: Part 2, s 4(1)(c) of the Dictionary to the ENULA.

[7] The prosecutor called two witnesses on the voir dire in support of the application. The first was a police officer who attended Hidden Valley Camp on the morning of 1 July 2025 to convey OE to court. The police officer spoke to a number of persons at that location before he was eventually told that OE was at the Alice Springs Hospital. The police officer went to the Alice Springs Hospital and was advised that a woman believed to be OE had recently given birth there. The second witness was another police officer who had contacted the Alice Springs Hospital and was advised that a woman believed to be OE was an inpatient there, having just given birth.

[8] There was some debate in the Local Court proceedings regarding whether the evidence established that the female in the hospital was OE. It is not necessary to refer to that issue further. The presiding Judge was satisfied that the female in the hospital was OE and that determination has not been challenged in these proceedings. The presiding Judge then ruled that the witness was "unavailable to give evidence because of her physical circumstances and all efforts (inaudible) have been made and it is (inaudible) for her to give evidence today." This was clearly a ruling that OE was physically unable to give evidence on 1 July 2025, and it was not reasonably practicable to overcome that inability.

[9] The presiding Judge then heard submissions regarding the application of the criteria found in s 65(2) to the circumstances of this particular case, as well as submissions on the part of the appellant that the proposed evidence of OE's recorded interviews be excluded pursuant to s 137 of the ENULA. It is unnecessary to refer to the details of those submissions.

[10] By the time the evidence on the voir dire had been taken and submissions had been received, it was clear that the hearing of the charges could not proceed on 1 July 2025. The prosecution witness who had to attend dialysis had left the court, and the interpreter was no longer available. The presiding Judge adjourned the proceedings for a decision on the voir dire to 7 July 2025.

[11] On 7 July 2025 the presiding Judge ruled that evidence of the recordings of OE's interviews with police were admissible pursuant to s 65 of the ENULA and would not be excluded pursuant to s 137. The proceedings were then adjourned to 22 July 2025 for a contested hearing.

[12] On 22 July 2025, counsel for the appellant attempted to again raise the issue of OE's unavailability to give evidence. Counsel correctly identified that the earlier ruling that OE was not available to give evidence was based upon information regarding OE being in hospital on 1 July 2025 having just given birth. Counsel submitted that she understood that OE was no longer in hospital and "could have been available today". Curiously, the presiding Judge did not call upon the prosecutor to respond to this submission. The presiding Judge simply said "Well, I note your position", and the hearing proceeded.

[13] The prosecution tendered the video recordings of OE's interviews with police in the course of the hearing. Other witnesses were called but it is fair to say that the evidence of the recorded statements of OE were important, if not crucial, to the outcome of the hearing. In his reasons for decision, the presiding Judge referred to the evidence of OE as "persuasive and reliable". The presiding Judge found each of the offences proven. The appellant was sentenced to short periods of imprisonment which were backdated to allow for time he had spent in custody awaiting trial and sentence.

[14] Despite having served the sentences imposed, the appellant appealed from the convictions imposed on the charges other than Charge 5, to which he had pleaded guilty. The Grounds of Appeal were:

1. The finding of aggravation in Count 1 is unreasonable or cannot be supported having regard to the evidence.
2. The verdict on Count 2 is unreasonable or cannot be supported having regard to the evidence.

1. A substantial miscarriage of justice occurred because the Local Court admitted recorded statements of the complainant (OE) in circumstances where it had no longer been established that she was "not available to give evidence".

[15] In my opinion, this appeal must succeed on the third ground. The first two grounds were not strongly pressed by the appellant, and I am not satisfied that the decisions referred to in those grounds were unreasonable or not supported by the evidence.

[16] The fundamental issue raised by the third ground of appeal is whether there was any evidence capable of establishing that OE was not available to give evidence on 22 July 2025. In my opinion, there was clearly no such evidence.

[17] In his speech in R v Davis,[1] Lord Bingham said, at [5]:

It is a long-established principal of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross examine them and challenge their evidence.

[18] Davis was a case where extraordinary measures were taken at the trial of the accused to ensure that certain witnesses remained anonymous. The identities of the witnesses were not known to either the accused or his lawyers. The principles referred to in that case, however, have general application as stating a principle of the common law that applies not only in England, but also in this country. It is a fundamental right of an accused person to confront witnesses, to see and hear their testimony, and to question those witnesses. This right, of course, is subject to statutory modification. Such a statutory modification is found in the provisions of the ENULA governing the reception by a criminal court of previous statements relevant to proceedings before the court made by a person who is not available to give evidence at trial.

[19] A decision effectively depriving an accused person of the right to cross-examine their accuser should not lightly be made. It is a decision which may make the difference between a determination of guilt or innocence, and freedom or incarceration. Courts hearing an application to receive hearsay evidence on the basis that the maker of the hearsay representations is not available to give evidence should be careful to strictly apply the statutory provisions. In circumstances where a court is satisfied that a person is physically unable to give evidence on a particular date, the court must nevertheless be satisfied that it is not reasonably practicable to overcome that inability.

[20] The high point of the prosecution case that OE was physically unable to give evidence was on 1 July 2025. At that time, there was evidence accepted by the presiding Judge that OE was an inpatient at Alice Springs Hospital having recently given birth. It was reasonably open to the presiding Judge to determine that OE was, on 1 July 2025, physically unable to give evidence in the proceedings against the appellant. It does not appear to have occurred to the presiding Judge, or to prosecution or defence counsel, that an appropriate course would have been to adjourn the hearing to a date when OE was no longer physically unable to give evidence, or at least to a date when there would be clear evidence of when and if that was likely to be the case.

[21] In any event, the hearing of the charges did not substantively proceed on 1 July 2025. All that occurred on that date was that a voir dire was conducted. With respect, the sensible approach would have been for the prosecution to seek an adjournment of the hearing so that further information could be provided regarding the future availability of OE to give evidence.

[22] I appreciate that all parties were concerned that the appellant was being held in custody and had no desire to unnecessarily prolong the proceedings. When it became clear, however, that the appellant would not consent to waive his right to cross-examine OE, the prosecutor should have sought an adjournment of the proceedings to make the necessary enquiries regarding the condition of OE and when she would be able to give evidence. If the application for an adjournment had been opposed by the appellant, and refused by the presiding Judge, the prosecutor could then have made the application under s 65 of the ENULA.

[23] In any event, the issue of OE being physically unable to give evidence on 1 July 2025 became irrelevant when it was determined that the hearing could not substantively proceed on that date. The next effective hearing date was three weeks later, on 22 July 2025. The prosecution should not have assumed that the ruling made by the presiding Judge that OE was physically unable to give evidence on 1 July 2025 was one which bound the future conduct of the proceedings.

[24] In such cases, much depends upon the nature of the condition by reason of which a witness is physically unable to give evidence. For example, if there was evidence that a witness had sustained a serious brain injury which would not improve over time, a finding that the witness is physically unable to give evidence on one date would undoubtedly, unless further and different evidence was adduced, suffice to justify a continuing finding that the witness continued to be physically unable to give evidence on a date three weeks later. The present case is not such a case. The fact that OE had given birth shortly before 1 July 2025, by itself, did not justify a finding that she continued to be physically unable to give evidence three weeks later.

[25] The presiding Judge, with respect, erred in peremptorily dismissing the appellant's attempt to re-agitate the issue of OE's availability to give evidence on 22 July 2025. In light of the apparent transient nature of the cause of OE's inability to give evidence on 1 July 2025, the presiding Judge should have required further evidence to establish that OE remained physically unable to give evidence on 22 July 2025 if that was the position maintained by the prosecution at that time.

[26] In the result, there was no evidence that OE was either physically or mentally unable to give evidence on 22 July 2025. There was therefore no basis upon which the court could receive the previously recorded statements to the police by OE pursuant to s 65 of the ENULA.

[27] A miscarriage of justice occurred due to the previously recorded statements to the police made by OE being admitted into evidence in the Local Court. The appeal is upheld and the convictions and subsequent penalties on Charges 1, 2, 3 and 4 are set aside. The charges will be remitted to the Local Court to be heard according to law. In the light of the period of time the appellant already served in custody with regard to these charges, the Director of Public Prosecutions may regard it as appropriate to simply withdraw the charges in the Local Court.

[1] (2008) UKHL 36; [2008] 1 AC 1128.