Sheridan v Australian Federal Police [2026] NTSC 27

[2] The matter proceeded by summary hearing in the Local Court on 13 and 14 October 2025.

[3] On 15 January 2026, the hearing judge acquitted the appellant of Count 3 and convicted him of Count 4.

[4] The appellant filed an amended notice of appeal pressing the following grounds:

1. A substantial miscarriage of justice occurred because the Local Court failed to direct itself pursuant to Liberato v The Queen.[1]
2. A substantial miscarriage of justice occurred because the Local Court made a finding of fact that was not reasonably open on the evidence. This ground was abandoned prior to the hearing of the appeal.
3. The verdict was unreasonable or cannot be supported having regard to the evidence.

[6] It was common ground that the complainant, the appellant and the appellant's son were all on a 'red-eye' Jetstar flight from Brisbane to Darwin, sitting in the same row, with the complainant sitting in the window seat, the appellant sitting in the middle seat and the appellant's son sitting in the aisle seat.

[7] The Crown case was that, during the flight, the appellant behaved inappropriately towards the complainant, encroaching on her physical space. He then touched her thigh and vaginal area with his hand, that being the conduct the subject of Count 3. When the complainant stood up and asked the appellant to move so she could go to the toilet, and stepped past the appellant to exit the aisle, he touched or grabbed her vaginal area.

[8] The Crown called evidence from the complainant, two other passengers who were seated nearby and three airline employees present on the flight.

[9] When the flight landed in Darwin, the complainant reported the matter to the Australian Federal Police and gave a recorded interview at around 3.30am. The recorded interview was played at the hearing and relied on as part of the complainant's evidence-in-chief.

[10] Essentially, as regards the conduct the subject of Count 4, the complainant said that she stood up and asked the appellant to get up from his seat so that she could get out of the row to go to the toilet, he moved but remained in his seat, she said she was not going to step over him and asked him to get up, and he did not get up so she had to step over him. She stepped one leg over the appellant, facing him. As she put her second leg over him, he grabbed or pinched her on her vagina.

[11] The appellant did not give evidence but relied on a recorded interview he gave to the Australian Federal Police after the flight landed at around 5.30am, which was played by the Crown. In the interview, the appellant told Police that he had drunk around five or six drinks during the day before boarding the flight, he drank two beers during the flight, he and the complainant chatted during his first beer and for a little bit during his second beer. Their conversation slowed and stopped around the time he finished the second beer. Ten minutes later, he fell asleep wearing his headphones. He woke up to find that the complainant was not seated in her seat, but had no recollection of her leaving the row or speaking to him when she did. He denied that he touched the complainant as alleged, saying he would never do something like that, and he was asleep.

[12] Pursuant to s 184 of the Evidence (National Uniform Legislation) Act 2011 (NT), the appellant admitted that he boarded the flight to Darwin, travelling with his eight year old son, he sat in the middle seat of row 22, his son sat in the aisle seat of row 22, and the complainant sat in the window seat of aisle 22.

[13] Photographs of the seats in row 22 were tendered.

[14] At 3.21am on 9 September 2024, the complainant gave a recorded statement to police.

[15] The complainant said that she was seated in her seat on the plane when the appellant and his son came and sat in her row. She said: 'Straight away he was already looking funnily at me'. She had her headphones on and was looking out the window. When he sat next to her, she could smell alcohol on him. He was looking over at her and at her phone. When she took her headphones off to listen to the safety briefing, the appellant introduced himself and then she got stuck talking to him. They exchanged normal chit-chat, and it was fine.

[16] The complainant said the appellant tried to convince her to get a drink with him, saying: 'Come on, I'll buy you a drink. I'll buy you a drink'. She told him she did not drink and she was the tamest 22 year old he had ever met. She emphasised her age because she started to feel uncomfortable.

[17] The appellant was served a beer and she got her own hot chocolate and other food. The appellant had asked for two beers but they would only give him one. The lights went out and the appellant got up to go to the toilet. The complainant put her headphones back on so she could watch a movie and 'be done with the whole situation'.

[18] Earlier, the complainant had her tray table down and the appellant put his beers, phone and headphones on her tray table.

[19] After the appellant came back from the toilet, he put his headphones back in and looked like he was about to fall asleep. She was leaning towards the window. Every time she moved her legs closer to the window, he would move his legs closer to her. Then he put his arm over the arm rest and started rubbing her thigh. She moved again and he continued to rub her thigh, getting closer and closer to her vagina and started rubbing her vagina a little bit. That was when she 'sort of perked up' and was looking to see any cabin crew. She could not reach the attendance button. The thigh rubbing went for about five minutes in total and she was just frozen, panicking and did not know how to get herself out of the situation or what to do.

[20] When she 'perked up', she said: 'I need to go to the toilet. You need to stand up and let me out'. The appellant would not. He just moved himself over to the side. The people in front had their chairs back and the complainant said she did not want to step over the appellant and he needed to hop out of the aisle so she could go to the toilet. The appellant tried to move a different way. The complainant said she was not stepping over him, he needed to hop up. She was standing up the whole time. The appellant went down and made her step over him. When she got one leg over him, that's when he grabbed her vagina again. She got over him, nearly lost her shoe and 'basically ran' down to the back of the plane where the cabin crew sit and just broke down crying, barely able to get any words out.

[21] The complainant said that the appellant did not try to 'turn the conversation sexual' at any stage. When he started using her tray table instead of his own she felt invaded, trapped and uncomfortable.

[22] She then recalled additional information. She said that after he had touched her vagina the first time, she had really turned herself sideways and turned her iPad off to pretend she was going to sleep. The appellant lifted up the armrest and turned his body to face the same way as her, facing away from his son, and tried to start cuddling her. That was when she stood up.

[23] She said the thigh rubbing started with one pinkie, then went to his whole hand on her thigh continuously rubbing. Then he put one pinkie on her vagina and started to put his hand further towards her vagina running over that. The appellant did not go under her undies and she did not know whether his fingers went above or below her boxer shorts.

[24] Nothing was said between them when he had his hand on her thigh or lifted up the armrest. It was not until she stood up and said she needed to go to the toilet that she spoke to him.

[25] When she went to the back of the plane, she told the cabin crew that the man sitting next to her was touching her inappropriately. She was uncontrollably shaking. This was around 10pm or 10.10pm.

[26] She left her belongings in her seat and once the appellant got off the plane she collected her belongings.

[27] The complainant said the appellant had told her he had had a few drinks at the airport, he was going to continue on the plane and she should join him. She said she did not really drink and he said: 'Come on, just for the sake of it, have a beer with me'. She refused. She felt pressured to drink.

Q64: ...I know you said you had headphones on, but was there anything that you said to him or that he said to you during the time of the offending - to the best of your memory?

A: And then, once I was completely uncomfortable, I turned it off, put my pillow up like this, and went - pretended to go to sleep.

A: And then, um, that's when I was like, pretty much crying into my pillow, frozen there.

[29] Asked to describe in as much detail as she could what occurred after she made the decision to get up, the complainant said she stood up, told the appellant that she needed to go to the toilet and asked him to get up because she was not walking over him. The appellant pretended to wake up, like he did not know what was going on. He moved slowly to the right side, she said she could not walk over him and asked him to get up, so he moved to the left side. She said I cannot walk over you and asked him to get up. She was yanking on the seats of the people in front and they were getting 'pissed off'. Once she asked the fourth or fifth time and was getting really frazzled, that was when he put his legs out and that was the opportunity she had to get out of there. She had to decide whether to face the front or face him to see what was going to happen. She faced him. Once one leg was over him and her second leg started to come over, 'that's when he - it wasn't major, it was just, like, a - like, a pinch or a - on my vagina'. 'It was noticeable that it happened'.

[30] The cross-examination of the complainant was lengthy (occupying some 35 pages of transcript, excluding objections and directions to the witness), wide-ranging, dogged and, at times, complicated, pedantic, repetitive and with considerable attention given to relatively minor details or inconsistencies about the journey and what she said to police. The complainant was a forthright witness and not easily controlled. At one point during her cross-examination, she unilaterally turned off the video equipment via which she was giving evidence, saying she needed a break. A number of directions were given to the complainant by the Local Court regarding the manner in which she was giving evidence.

[31] I will not repeat or summarise much of the detail of the cross-examination and will instead focus on the more significant parts.

[32] The complainant denied that she got out of her seat to go to the toilet prior to the alleged touching. She denied speaking to the appellant after he returned from the toilet, saying she had her headphones on and was watching a movie.

[33] The complainant said that, to the best of her knowledge, there was no further discussion between her and the appellant after he came back from the toilet.

[34] The complainant denied that the appellant's legs were spreading out and thereby touching hers as he fell asleep. She agreed she told police it looked like he was falling asleep because his eyes were closed. She denied his posture was as if he was falling asleep. She said she did not know if his legs were spreading apart but they were touching her leg and every time she nudged his legs away, they would come back followed by the hand. At the point when it first started happening, she dismissed it as a mistake, but when the hand came over, she felt that 'something more sinister was happening'. She did not think the appellant was asleep at that point.

[35] The complainant agreed that when she stood up and asked the appellant to move so she could go to the toilet, she asked five times, her voice grew more assertive each time and she became more upset each time. She agreed it was a bit of a commotion, she was pulling on the seats in front of her trying to figure out how to get over him.

[36] The complainant denied that all that had happened was that the appellant had fallen asleep and leant on her, saying 'rubbing someone's vagina is not leaning on them'. She denied that she complained about the appellant touching her vagina because she wanted to move seats to get away from feeling invaded and trapped.

[37] The Crown called a passenger who will be referred to as 'JA'. JA was sitting in the middle seat directly behind the appellant.

[38] During the food and drinks service, JA heard the appellant tell the complainant to get something for herself and her response was to get a hot chocolate. JA heard the appellant and the complainant engage in general chit-chat.

[39] JA saw the complainant put her pillow up on the side between her seat and the window to have a sleep. While sitting in her seat, through the 'really small' gap between the seats, JA saw the appellant put his hand on the complainant's leg or lap. This was after the lights had been turned off. JA saw the appellant lean over and put his head on the complainant's shoulder. JA did not see the complainant respond. The next thing JA saw was that the complainant got up to go to the bathroom. She stood up and then went to the back of the plane. The other people in the row remained in their seats. When the complainant got up, she leant on the back of her seat, which almost knocked JA's daughter's tablet off the back of the complainant's seat. The complainant did not return to her seat for the duration of the flight.

[40] In cross-examination, JA agreed that she did not see any 'indecent touching or anything of that nature during the flight', that nothing that she saw was sufficiently alarming to cause her to do anything about it, the conversation between the complainant and the appellant was normal small talk, there was nothing particularly remarkable about their conversation about hot chocolate, or about the complainant leaning on the back of her seat to get out of the row. JA agreed she did not see any commotion or kerfuffle before the complainant got up and out of her row. JA agreed that the gap between the seats was quite small, she only saw the appellant's body move across (towards the complainant) and she could not say if the appellant was deliberately leaning across or did it while he was asleep. She could not say if the appellant was asleep or awake.

[41] The Crown called a passenger who will be referred to as 'GH'. GH was on the flight and seated in the same row as the complainant and the appellant, on the other side of the aisle in the aisle seat.

[42] GH said that the first time the people in the seats across the aisle came to his attention was when GH saw that they were talking. He looked over and the complainant asked to get up to go to the toilet and the appellant 'didn't let her through'. GH was watching a show on his tablet on his lap and was listening to it on his headphones. GH saw the man lift up his leg and heard him say: 'You've got to jump across'. The complainant looked uncomfortable from her body language. The complainant jumped over and GH did not see her come back.

[43] In cross-examination, GH agreed that when he first noticed the appellant and the complainant things appeared completely normal, they were engaging in normal chit-chat between people seated on a plane. He agreed that the complainant got up twice during the flight and it was on the second time that she did not return to her seat. He agreed that it was the first time she got up that he saw the 'business about moving legs or not moving legs and she had to step over'. He agreed he saw the man's leg go up and it looked like he was not letting her through. He agreed that he did not see the appellant grab the complainant on the vagina while she was jumping across to get out. He agreed he was 'in a pretty good position to see if anything that dramatic occurred'. GH agreed he told police he saw the appellant had fallen asleep and was laying on the complainant and her expression was 'like "Ew, get off me"'. GH agreed he told police that what the appellant was doing to make the complainant feel uncomfortable was getting too close. He agreed that from his vantage point, what appeared to have happened is that the appellant had fallen asleep and was leaning or laying over on her. GH agreed that he thinks he saw the appellant's leg coming up and separately he had seen him asleep on her and her having the 'get off me' expression. He agreed that was all he saw.

[44] The Crown called a number of the flight crew from that flight.

[45] A flight attendant who will be referred to 'SW' said she saw the appellant talking to the complainant and smiling. It was a friendly conversation. The complainant was smiling but leaning up towards the window. When SW performed the food and drink service at around 8.30 or 9pm, the appellant tried to order two beers but she could only serve him one. She told him that once he had finished one drink she could serve him the second one. Later when the appellant came out of the toilet he asked for his second beer. She served him the beer in his seat. The complainant's tray table was down and the appellant's wallet, phone and empty can were on her tray table.

[46] After the lights were dimmed, SW took her break and lay down on the back row of seats to try and sleep. She then had a conversation with the other flight attendant and then a conversation with the complainant in the back galley. The complainant was sitting in one of the 'jump seats' in the galley. SW asked the complainant what happened and the complainant said that the man next to her was trying to cuddle into her and had put his hand on her thigh and moved it up her leg. Then when she tried to get out and asked him to move his legs so she could, he said: 'Ha ha, no, you'll have to climb over me'. She insisted that he move his legs and he would not so she had to climb over. When she did, he 'grabbed a feel between her legs'. SW could not remember the complainant's exact words, but what she said was to the effect of 'copped a feel of her vagina'. SW observed the complainant to be panicky, upset and shaky. SW said that any time she walked through the cabin after that, she saw that the appellant was asleep for the rest of the flight. He was positioned upright with his seat reclined. The complainant remained in the galley until they were preparing for landing when they moved her to the back row for landing. During disembarking, the appellant stayed seated throughout. Once everyone was off, he was looking around and then stood up.

[47] In cross-examination, SW agreed that after she spoke to the complainant, the appellant was 'out cold type of asleep' and so was his son. She did not notice whether the son was asleep during the disembarking process. She agreed that the appellant left his phone in his seat pocket. SW said she would have woken up just prior to speaking to the complainant at around 10.50pm.

[48] A flight attendant who will be referred to as 'DG' was called. She said that during the flight, she was in the rear galley when the complainant walked towards her crying. Another flight attendant who will be referred to as 'KB' was sitting on one of the jump seats. The complainant was crying and shaking and DG's impression was that she had 'a medical on [her] hands'. The complainant told DG that the appellant had started touching her inappropriately. DG asked the complainant for as much detail as possible so she could write a report. The complainant told her that the appellant had lifted up the armrest, 'getting a little bit handsy, touching her thigh, then grabbing her vagina'. The complainant said that he grabbed her vagina and that's when she excused herself, pretending to be using the toilet, to find a crew member. She was trying to climb over the appellant's legs to get to report it to a crew member. DG agreed the crew left the appellant and monitored his behaviour for the rest of the flight. She said the appellant slept on and off and stayed in his seat. She said his eyes were closed but he was twisting and turning trying to get himself comfortable.

[49] In cross-examination, DG agreed the complainant told her the grabbing of her vagina happened while she was climbing over the appellant's legs. She confirmed she saw the complainant walking towards the galley when she was crying and shaking.

[50] KB's evidence was that at around 10.15pm, she was approached by the complainant. She was in the aft galley with DG at the time. The complainant came in, squatted down and was crying, upset and trying to talk. The complainant was jittery and hyperventilating as she tried to speak. She could not form her words and looked like she needed a cuddle. The complainant said to KB that she had woken up to the appellant in her personal space with his hands. She was gesturing with her hands that he was touching her legs and getting into her personal area. She told him to stop and moved his hand away but he persisted. The complainant thought she needed to get out of the situation so she asked the appellant to let her go past to the bathroom. The appellant put his legs out, not letting her pass or getting out of the way. The complainant had to climb over the appellant's legs and the appellant 'continued to grab up in her shorts and grab her vagina'. The complainant was motioning with her hands to describe how the appellant was touching her, 'in a feeling way', 'rubbing her thigh with her hand to gesture that that's what he was doing', which was when she woke up. KB said her reference to the complainant's 'personal area' was a reference to her vagina. KB said the complainant did not use the words that the appellant had grabbed her vagina until describing when she was getting out of her seat. She was gesturing with her hands that he was touching her vaginal area, but she did not say that to start with.

[51] KB said that when she did a walkthrough of the cabin later, she saw that the appellant had fallen asleep not long after they started speaking to the complainant and he was asleep every time she did a walkthrough. During disembarking, the appellant was one of the last people to get off the plane. When he did get off the plane, he was stumbling down the aisle, was incoherent, clumsy, dropped his bag and left his phone behind. His speech was slurred.

[52] In cross-examination, KB said 'stumbling' was not the right word, and the appellant was just slowly moving down the aisle. She thought he was intoxicated, but agreed he moved like someone who had had a few beers and fallen asleep on a red-eye flight. She agreed it was not unusual for sleepy people to leave their phone behind on one of those flights.

[53] At 5.21am on 9 September 2024, the appellant participated in a recorded interview with police at the Darwin Airport.

[54] The appellant said he had had five or six alcoholic drinks on 8 September 2024 from about lunch time and two beers on the plane. He said he was sober enough to participate in the interview.

[55] Informed of the allegations of indecent touching of the complainant, the appellant said it is not something he would ever do.

[56] He said he and the complainant had a normal friendly chat at the start, he had the two drinks and went to sleep. The conversation was just a normal chat as you do when you sit next to someone on a plane. They talked for a little bit, probably five or ten minutes. He then put his headphones on and went to sleep. The next thing he remembered was waking up and people saying that the plane was coming in to land. The complainant was not in her seat, which he thought was strange but did not think anything of it. He did not recall the complainant leaving her seat because he was asleep.

[57] He said he ordered two beers, but he was provided one at a time. He sat his drink on the complainant's tray table, which was down. He did not know why he did that. He said he did not put any of his other belongings on the complainant's tray table.

[58] Asked if he offered to buy the complainant a drink, he said he did, he bought her a hot chocolate. He was asked if he offered the complainant alcohol. His answer was not fully transcribed, but he said when he was getting it he asked the complainant if she wanted a drink and he was not going to force someone to drink if they don't want to. He said he was just being friendly when he asked if the complainant wanted something and she said a hot chocolate.

[59] The appellant said that after he drank his first beer and was chatting to the complainant, he went to the toilet. While there, he asked to be served his second beer, which he drank back in his seat. He put his beer on the complainant's tray table, because she had it down, and that did not seem to disturb her. He and the complainant talked for a little bit and then they stopped talking, she put her headphones on and he went to sleep. He remembered still drinking when the lights went off.

[60] The appellant was asked if the armrests were up or down and he said they were all down and he did not know they could go up.

[61] The appellant was asked if he remembered the complainant getting up to go to the toilet and speaking to him and he said: 'No'.

[62] The appellant was told that the complainant asked him up to five times to move out of his seat so she could get out, and he moved into various positions as if he was not going to get up. He said that it sounds like he was asleep. He did not recall that at all.

[63] He also did not recall lifting the armrest between himself and the complainant during the flight.

[64] The appellant denied the allegation that the initial touching of the complainant went on for about three to five minutes, starting on her leg, getting closer to her groin area, to her vagina and going up her shorts on top of her underwear. He said he did not believe it for a second as there is no way he would do that. The appellant denied touching the complainant when she stepped across him to get out of the aisle to go to the toilet, saying there was absolutely no way. He said he did not remember moving out of the way so the complainant could get out.

[66] In addition to reliance on the recorded interview he gave to police, the appellant tendered seven statutory declarations attesting to the appellant's good character.

[67] On 15 January 2026, the Local Court found the appellant not guilty of Count 3 and guilty of Count 4.[2]

[68] The Local Court began by stating that the complainant, two passengers and three members of the Jetstar crew gave evidence at the hearing, and there was other evidence received as Exhibits P1 through to D10.

Despite the various evidence given, I consider this matter is effectively an oath-on-oath case; the principles in Liberato apply. I don't need to descend into the detail of Liberato, it's well known.

But I do note that in the event that I do not accept or believe, and therefore reject the [appellant's] evidence - and that evidence was essentially a record of interview conducted by investigating members of AFP approximately five hours, or more than five hours following the landing of the flight ...

In that event, I would also need to give myself a Murray[3] direction concerning the degree of scrutiny required in assessing the complainant's evidence. ...

[70] The Local Court said that on the crucial aspects the appellant's account was quite clear. The Local Court noted the 'extensive' and unchallenged character evidence tendered by the appellant and accepted that the appellant was a person of good character. The Local Court said that bore upon the likelihood of the appellant offending as alleged and was also 'a fillip' (i.e., a boost) in relation to his credibility.

[71] The Local Court said that the appellant's account was straightforward and simple. He sat in his seat, had some usual plane travel conversation with the complainant who was sitting next to him in the window seat. On the flight he consumed two cans of beer in addition to some alcohol earlier consumed in the day and then went to sleep. The second beer was provided to him after he went to the toilet. Shortly after finishing his second beer, the appellant said he went to sleep and did not wake until the plane was preparing to land. The appellant said he had no recollection of anything between going to sleep and waking. He denied having touched the complainant in any inappropriate fashion either while she was seated next to him or when she was seeking to exit the row to go to the toilet. The basis of his denials was that he would never do anything like as alleged and that the touching could not have occurred on his account because he was asleep.

[72] The Local Court referred to the evidence of JA who was sitting behind the appellant and of GH who was sitting in the aisle seat in the same row. The Local Court noted that they both gave evidence that the complainant got up from her seat and sought to exit the row, apparently to go to the toilet.

[73] The Local Court said GH's evidence included that the complainant spoke to the appellant about getting out of the row and said that the appellant said: 'You've got to jump across'. The Local Court held that was 'also broadly consistent with the complainant's account'.

[74] The Local Court referred to the 'foibles' involved in the accuracy or otherwise of eyewitness accounts, particularly where seeking to recall words said. The Local Court held as follows:

However, I am satisfied to the necessary standard that conversation occurred between the complainant and the [appellant] at that point and that the [appellant] engaged in this and was awake. The [appellant's] evidence cannot be believed. It's not accepted, and I put it to one side. His account is rejected beyond reasonable doubt.

[75] The Local Court again noted Liberato and gave itself a Murray direction.

[76] The Local Court held that the complainant was a difficult and at times defiant witness. She chafed at the process of cross-examination, resented some of the questions asked, and at one point sought to second guess what defence counsel was seeking to establish. The Local Court said those things certainly detracted from her evidence and raised some concern in the eyes of the Court, 'making the close scrutiny required all the more important'.

[77] The Local Court noted the comprehensive written submissions provided by the parties and said close regard had been had to them.

[78] The Local Court noted the complainant had been interviewed by police a few hours after the flight landed and said that account 'was consistent, detailed and credible' and was also 'consistent with the complaint evidence' from the Jetstar cabin staff.

[79] The Local Court held that despite the complainant's presentation at hearing, her evidence on the essential aspects of her complaints remained consistent and accurate. The Local Court considered the complainant's evidence to be honest and accurate, albeit given from her perspective. The Local Court accepted her evidence 'including following application of Liberato and, particularly, the Murray principle'.

[80] As regards Count 3, the Local Court held that there was a possibility that the appellant's touching of the complainant while she was seated was not intentional to the extent required. The Local Court held that possibility was barely a reasonable one due to the persistence and content of the offence while the complainant was seated, but the possibility existed.

[81] As regards Count 4, the Local Court held that particularly having regard to the evidence of both the complainant and GH, it was satisfied that all elements of that count were proven beyond reasonable doubt.

[82] Ground 1 asserted that, despite expressly referring to Liberato, the Local Court did not reason in accordance with the requirements of a Liberato direction, thereby occasioning a substantial miscarriage of justice.

[83] In De Silva v The Queen,[4] the majority of the High Court described the case of Liberato and the identification of the direction. The majority observed (at [5]) that Liberato concerned charges of sexual intercourse without consent in which the trial judge in Liberato had identified the issue for the jury's determination as 'who do you believe'. The majority observed (at [7]) that it was Brennan J's dissenting reasons (at 515) which are the source of the Liberato direction. Brennan J said that when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is essential to ensure, by suitable direction, that the answer to the question 'who is to be believed?' if adverse to the defence is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. His Honour said the jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. Further, the jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

[84] The majority in De Silva noted (at [8]) that in Liberato, Deane J agreed with Brennan J that the directions given in Liberato were confusing because they left the impression that the jury's task was essentially one of making a choice between the differing prosecution and defence accounts.

[85] The majority in De Silva held (at [11]) that a Liberato direction should be given if a trial judge perceives a real risk that the jury will reason that an accused's answers in a record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt.

[86] The majority in De Silva expressed (at [12]) the preferable form for a Liberato direction.

[87] It was not in dispute that the principles and requirements of the Liberato direction operate in relation to offences tried summarily in the Local Court.[5] Nor was it in dispute that this case required a Liberato direction to be given.

[88] Applied to the circumstances of this case, a Liberato direction by the Local Court to itself would be as follows: (i) If I believe the accused's account in his recorded interview with police, I must acquit. (ii) If I do not accept that account but I consider that it might be true, I must acquit. (iii) If I do not believe the accused's account, I should put the account to one side. (iv) The question will remain: has the prosecution, on the basis of the evidence that I do accept, proved the guilt of the accused beyond reasonable doubt?

Did the Local Court fail to comply with a Liberato direction?

[89] The appellant argued that the basis upon which the Local Court determined to reject, as not reasonably possible, the appellant's account about the allegations in Count 4 was erroneously based on a false dichotomy, namely that the appellant's account (that he was asleep when the physical contact occurred) was inconsistent with the complainant's and GH's account (that he was awake when the physical contact occurred), these being 'broadly consistent'. The falsity of the dichotomy was sought to be demonstrated by reference to consistencies between the appellant's and the complainant's accounts and inconsistencies between the complainant's and GH's accounts.

[90] The appellant pointed to GH's evidence that he saw the complainant get up, ask the appellant to get up so that she could go to the toilet, saw the appellant's leg go up and saw the complainant jump across him looking uncomfortable, but did not see him grab her on the vagina as she did so, when he 'was in a pretty good position to see if anything that dramatic had occurred'. The appellant also pointed to GH's evidence that separately he had seen the appellant asleep and laying on the complainant, and she had the 'get off me' expression. The appellant said GH was an independent third-party witness sitting directly opposite the appellant and complainant in the aisle seat, who was looking over at the relevant time, but he did not see the alleged conduct. In that respect, it was argued that GH's evidence was inconsistent with the complainant's evidence.

[91] I do not accept that the evidence of the complainant and GH was inconsistent in this regard. The complainant's evidence was that the appellant grabbed her vagina. GH's evidence was that he did not see that. GH's evidence was not that it did not occur. To find a real or material inconsistency (i.e., it happened versus it did not happen), it would effectively be necessary to draw an inference from GH's evidence that the indecent touching did not occur.

[92] This is a different process of reasoning from deciding whether, on the basis of the whole of the evidence, there is a reasonable possibility that the indecent touching did not occur. It is different because what the appellant sought to establish here was a material inconsistency between the complainant's evidence and GH's evidence and it is not inconsistent for one witness to say that something happened and another witness to say that they did not see the thing happen, particularly when there is evidence of a number of matters that are likely to have prevented the other witness from seeing that thing happen.

[93] As set out above, when asked for more detail about the appellant's 'grab' of her vagina, the complainant described it as not major, like a pinch, on her vagina, but noticeable. This indicates the touching was brief but deliberate. At the time, the complainant said she was facing the appellant, had one leg over the appellant and her second leg was starting to come over. This indicates she was at that stage standing on her leg closest to the aisle. She said the people seated in front of her had their seats reclined back and she was 'yanking' on their seats as she was trying to get out. It is apparent from the photographs tendered that even with the seats in front in the upright position, there is very little room between the edge of the seats in the row and the back of the seats in front. If those front seats were reclined, there must have been even less room for the complainant to manoeuvre herself over the appellant, and his son, to gain access to the aisle. Further, at this stage, the cabin lighting had been dimmed so the cabin was dark. In all of these circumstances, that GH did not see the touching that the complainant described is readily explicable. Indeed, these circumstances make it highly unlikely that he could have seen it.

[94] The appellant argued that it was not permissible to explain GH's evidence that he did not see the touching by any one or more of these matters because GH was not asked about them and there is no evidence from him about whether they impeded his view, so it would be speculation and unfair to the appellant to reason in this way.

[95] I do not accept this submission. It would be artificial and improper to draw from GH's evidence an inference that the touching described by the complainant did not occur and thereby find that GH's evidence and the complainant's evidence were inconsistent without considering all of the circumstances when those circumstances provide a plausible and highly likely explanation for GH not having seen the touching the complainant described.

[96] The other material inconsistency pointed to by the appellant between the evidence of GH and the complainant was GH's evidence that he heard the appellant speak in response to the complainant's requests that he get up, whereas the complainant's evidence was said to be that the appellant did not speak in response to her requests.

[97] As set out above, GH's evidence was that the appellant said to the complainant: 'You've got to jump across'.

[98] The appellant relied on the complainant's negative responses to the following questions asked in her recorded statement:

Q46: ... during that time, did you speak to him at all? Was there anything said between you or him during that time where he's used his hand on your thigh or when he's lifted up (indistinct)

Q64: ...was there anything that you said to him or that he said to you during the time of the offending?

[99] Further, in the detailed narrative the complainant was asked to provide of what occurred from the time she got up and asked the appellant to move so that she could go to the toilet, the complainant did not say that the appellant spoke to her.

[100] It is abundantly clear from the context of those two questions that the complainant was not referring to conversation between herself and the appellant at the time she stepped over him to get into the aisle. She was clearly then referring to the earlier time when both she and the appellant had their headphones on and the appellant was touching her whilst she was sitting down.

[101] The complainant's failure to give evidence that the appellant spoke in response to her repeated requests for him to get up and allow her to get to the toilet is not inconsistent with GH's evidence that he did so. The complainant gave evidence that, when she initially told the appellant she needed to go to the toilet, he pretended to wake up, like he did not know what was going on. She gave evidence that she asked the appellant around five times to get up and each time he responded by moving his legs in a different direction, but would not let her out. That is consistent with GH's evidence that the complainant asked the appellant to get up, he saw the appellant lift up his leg and he did not let her through.

[102] There is also the complaint evidence of SW that the complainant told her that the appellant said in response to the complainant's requests: 'Ha ha, no, you'll have to climb over me'. That is consistent with GH's evidence about what he heard the appellant say.

[103] The asserted inconsistencies between the complainant's evidence and GH's evidence are not made out. Their evidence permits the rational rejection of any reasonable possibility identified by counsel for the appellant that the appellant was asleep at the time the complainant asked him to get up so she could go to the toilet, and was moving his legs in response to her requests 'in a state of partial wakefulness' but was actually asleep. That submission is contrary to the complainant's evidence that upon her initial request the appellant pretended to wake up and did not know what was going on.

[104] The appellant also argued that the finding of not guilty on Count 3, based as it was upon acceptance of a reasonable possibility that, at the time of that touching, the appellant was asleep, heightened the flaw in the Local Court's reasoning rejecting the appellant's account that he was asleep at the time of the alleged touching the subject of Count 4. As set out above, I do not accept that the Local Court's reasoning was flawed. The evidence about the circumstances of the two sets of touching were different on the complainant's account, and the evidence of both the complainant and GH was that the appellant was awake when Count 4 is alleged to have occurred.

[105] Nor do I accept the appellant's submission that the inconsistency between GH's evidence that the complainant got out of her seat twice during the flight and the complainant's evidence that she only got out of her seat once during the flight (when the alleged offending occurred) has any significant bearing on the matter. It is not uncommon for witnesses to give evidence which differs in varying degrees. This difference is about a peripheral matter which has little bearing on the reliability of the evidence of either witness on the more critical matters which have been addressed above.

[106] It is also noteworthy that the complainant's and GH's evidence were consistent in other respects, namely that the complainant looked uncomfortable when seated when the appellant leant on her, that the complainant asked the appellant to move out of his seat and he did not do so, that the appellant did move his leg in response to the complainant's requests, and that the complainant did jump over the appellant and did not come back to her seat thereafter.

[107] The appellant's complaint was that the Local Court did not sufficiently analyse the differences between GH's and the complainant's evidence and did not expressly address GH's evidence that he did not see the alleged conduct the subject of Count 4 so as to permit a conclusion that the Local Court properly reasoned to its rejection of the appellant's account in accordance with the Liberato direction.

[108] I do not accept that submission. It is sufficiently clear from the reasons that the Local Court did not simply prefer the complainant's evidence over the appellant's account that he was asleep from the time he finished his second beer to the time the plane was preparing to land. On the basis of the evidence of JA, GH and the complainant, who was found to be an honest and accurate witness, cognisant of differences between their evidence, the Local Court was satisfied that the appellant was awake when the complainant asked him to get up and stepped over him and consequently did not believe the appellant's account. The Local Court expressly rejected that the appellant's account could reasonably possibly be true, by rejecting it beyond reasonable doubt. Having rejected the appellant's account, the Local Court put that to one side, considered all of the other evidence in the case and determined that Count 4 was proven beyond reasonable doubt. The absence of reference to GH's evidence that he did not see the appellant grab the complainant's vagina is of little moment. It is not to be assumed that the Local Court ignored that evidence and, as set out above, there is no material inconsistency given its ready explanation. That absence does not demonstrate error on the part of the Local Court which took an entirely orthodox approach.

[109] The appellant relied on the observations of Kelly J in Dalton v The King.[6] In that case, the Local Court had referred to the conflict between the evidence of the complainant and the evidence of the defendant and said that it gave to itself 'the appropriate legal directions' before rejecting the defendant's account that he was acting in self-defence. Kelly J observed (at [33]) that simply reciting the relevant legal principles to be applied is not always necessary or necessarily sufficient. The trial judge's decision must be read fairly, as a whole, to determine whether there has in fact been an error in the reasoning process of the type contended by the appellant, and due regard must be had to the exigencies of a busy Local Court list.

[111] In Dalton, Kelly J held (at [36]) that there was no indication anywhere in the reasons of the Local Court that the trial judge had asked himself whether (even if he did not positively accept the defence evidence) that evidence raised any reasonable doubt in his mind as to the guilt of the appellant in that case.

[112] This case cannot be equated with what occurred in Dalton. Not only did the Local Court expressly refer to a Liberato direction, the Local Court's reasoning expressly rejected the appellant's version 'beyond reasonable doubt', thereby disclosing the proper approach.

Ground 3: Verdict unreasonable or not supported by the evidence

[114] The appellant argued that the guilty verdict was unreasonable and/or not supported by the evidence. It was argued that there were two key factual issues in respect of which this Court should have doubt, namely: (1) whether the appellant was awake at the time of the conduct alleged in Count 4; and (2) whether it was the appellant's hand or another body part that made contact with the complainant's vagina as she exited the row.

[115] The legal principles regarding appeals on the ground of unsafe, unsatisfactory or unreasonable verdicts are well settled and have been restated by the Court of Criminal Appeal a number of times.[7] Those principles apply equally to an appeal from a summary trial by judge alone.[8]

[116] It is unnecessary to repeat those principles here save to state that the test is whether the appeal court considers, upon the whole of the evidence, that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. The question is whether the tribunal of fact must, as distinct from might, have entertained a doubt, bearing in mind the advantages that the tribunal of fact had in having seen and heard the witnesses. In performing the appellate task, the appeal court must make its own independent assessment of the whole of the evidence and determine for itself whether, having regard to any advantages the tribunal of fact had, it holds a reasonable doubt about the guilt of the appellant.

[117] Further, in most cases, a doubt experienced by an appeal court will be a doubt which a tribunal of fact ought also to have experienced and it is only where a tribunal of fact's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appeal court that the court may conclude that no miscarriage of justice occurred. So, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the appeal court is a doubt which a reasonable tribunal of fact ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the tribunal of fact, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.[9]

Was the verdict unreasonable and/or not supported by the evidence?

[118] For the reasons set out above relating to ground 1, I have accepted that the Local Court properly rejected the appellant's account in his recorded interview as reasonably possibly true and put it to one side. In deciding ground 2, I do the same.

[119] The appellant argued that the Local Court made 'qualified findings' as to the reliability of the complainant's evidence which 'blunted' the deference this Court should give to the Local Court's credibility findings, and lessened the weight to be given to the complaint evidence, particularly the complainant's immediate distress. Reference was made to the Local Court's observations as set out in paragraph [76] above.

[120] That submission has little foundation given the Local Court's findings that the complainant's evidence-in-chief was consistent, detailed and credible and her evidence as a whole was honest and accurate as set out in paragraph [79] above. I do not accept that the Local Court's observations about the manner in which the complainant gave evidence in cross-examination in any way lessen the force of the complaint evidence or qualify the Local Court's credibility findings. If anything, they enhance them - the Local Court made positive credibility findings despite the manner in which the complainant gave her evidence in cross-examination.

[121] The appellant again relied on GH's evidence that he saw the complainant ask the appellant to move, he saw the appellant's leg go up and he saw the complainant step over the appellant, but he did not see the appellant grab the complainant's vagina. I have dealt with GH's evidence that he did not see the appellant grab the complainant's vagina above.

[122] The appellant relied on JA's evidence that she saw the complainant get up, the complainant leant on the back of her seat to get out, but JA did not see any commotion or kerfuffle as the complainant did so. The complainant's evidence was that she got over the appellant, nearly lost her shoe and 'basically ran' down to the back of the plane where the cabin crew were and broke down crying. Again, the evidence of the complainant and JA is not inconsistent in this respect. The complainant described pulling on the seats in front of her as she tried to get out and what she did after she got into the aisle. JA was seated behind the appellant and noticed the complainant leant on her own seat to get out. Bearing in mind the witnesses' different perspectives on the events that had just occurred, the complainant's description of her exit, to the extent that JA could see it from her seat, is not readily characterised as a 'commotion' or a 'kerfuffle'. JA's negative answer to that question is not particularly significant.

[123] The appellant argued that the only evidence that the appellant touched the complainant's vagina with his hand was that of the complainant and her evidence about the mechanism of that was somewhat equivocal and not sufficiently established as having a sexual connotation to be 'indecent'. I reject that submission. First, the terms 'grab' and 'pinch' as the complainant described it are properly understood to refer to the deliberate use of a hand to apply pressure with a finger or fingers and a thumb. Second, the complaint evidence consistently referred to a 'grab' or the appellant 'copping a feel' of the complainant's vagina. Third, to deliberately touch a person's genitals is 'indecent'.[10]

[124] The appellant correctly conceded that the immediate complaint evidence, which was consistent with the complainant's evidence, coupled with her distress at the time, was a strength in the Crown case. The complaint evidence both supports the complainant's credibility and a finding that the appellant did what is alleged in Count 4.

[125] The appellant argued that there was a 'shift' in the complainant's evidence in that she had told police that the appellant had placed his belongings on her tray table, which caused her to feel trapped and uncomfortable, but in cross-examination she had added that when he did that he had dropped his headphones on the floor and was trying to recover them. This shift was said to change the assessment of the appellant's behaviour in placing things on the complainant's tray table from 'unusual' to 'innocuous'. The Local Court did not mention this evidence and evidently placed no weight on it. Nor do I.

[126] The appellant relied on the good character evidence and the two purposes for which it can be used. It is clear the Local Court took them into account for both those purposes, as do I.

[127] Ultimately, the appellant argued that, in view of all of the evidence, the Local Court must have entertained a reasonable doubt that the touching of the complainant was unintentional or unwilled, either because it was not established to have been a deliberate use of his hand and/or because there was a reasonable possibility that it occurred whilst he was asleep.

[128] From my review of all of the evidence before the Local Court, for the reasons set out above, I do not accept that submission.

[130] The appellant's grounds of appeal have not been made out.

[1] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 ('Liberato').

[2] The Local Court mistakenly referred to the charges as 'Count 1' and 'Count 2', but there is no issue that the intended references were to Counts 3 and 4 respectively.

[3] See The Queen v Murray (1987) 11 NSWLR 12 at 19 per Lee J. In Ewen v The Queen [2015] NSWCCA 117 at [104], Simpson J held (Basten JA and Davies J agreeing) that a Murray direction is most commonly used to refer to a direction that, in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care.

[4] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57.

[5] See, for example, Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at [2] per Gleeson CJ.

[6] Dalton v The King [2025] NTSC 29.

[7] See, for example, FN v The Queen [2021] NTCCA 5 at [15]- [21] per Grant CJ, Brownhill J and Hiley AJ; Foster v The Queen [2021] NTCCA 8 at [2]- [3] per Grant CJ, Kelly and Brownhill JJ; Lynch v The Queen [2020] NTCCA 6 at [16]- [21] per Grant CJ, Blokland and Hiley JJ.

[8] Morluk v Firth [2017] NTSC 91 at [34] per Grant CJ.

[9] See also, Cooper v The King [2022] NTCCA 16 at [75] per Grant CJ and Hiley J.

[10] See The Queen v Gillespie (2014) 287 FLR 327 at [17] ff. That case concerned, as this case does, an offence against the Crimes Act (ACT). See also BD v The Queen [2017] NTCCA 2 at [12].