Ashley v Millar [2015] NTSC 63

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Majindi v Balchin [2011] NTSC 40, applied.

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

Ashley v Miller [2015] NTSC 63

[1] On 13 February 2015 the appellant was found guilty by the Court of Summary Jurisdiction in Katherine of unlawfully assaulting Constable Naomi Cox, a police officer in the execution of her duty, contrary to s 189A Criminal Code, and of resisting public officers Sergeant Simon Freson and Constable Naomi Cox while they were engaged in the discharge of the duties of their office under the Police Administration Act, contrary to s 121 of the Criminal Code.

[2] The guilty findings depend on whether Sergeant Freson had lawfully apprehended the appellant pursuant to s 128(1) Police Administration Act.

[3] A police officer is not acting in the execution of his or her duty in taking a person into custody, or maintaining or enforcing the custody of a person, if that person has not been lawfully apprehended under s 128(1) Police Administration Act. Any conduct in furtherance of an unlawful apprehension is unlawful.[1] Therefore, if the apprehension of the appellant was not lawful, the appellant's assault of Constable Cox and his resisting the two officers would not have been unlawful, and the findings of guilty and convictions on the two charges could not stand.

[4] The two grounds of appeal pressed by the appellant, as amended with leave, are as follows:

1. The learned magistrate erred in finding that at the time of purporting to apprehend the appellant under s 128 of the Police Administration Act, Sergeant Freson had reasonable grounds for believing the appellant was intoxicated.

2. The learned magistrate erred in finding that at the time of purporting to apprehend the appellant under s 128 of the Police Administration Act Sergeant Freson had reasonable grounds for believing that because of the appellant's intoxication the appellant was unable to adequately care for himself, or that he might do any of the things specified in s 128(1)(c) of the Police Administration Act.

[5] The preliminary requirement of s 128 Police Administration Act is that a member of the police force must have reasonable grounds for believing that a person is intoxicated. Under s 127A of the Act,[2] a person is "intoxicated" if:

• (a) the person's speech, balance, coordination or behaviour appears to be noticeably impaired; and

• (b) it is reasonable in the circumstances to believe the impairment results from the consumption or use of alcohol or a drug.

[6] Pursuant to s 128(1)(c) of the Act, in addition to the belief under s 128(1)(a) that the person is intoxicated, the apprehending police member must have reasonable grounds to believe one or more of the following: that, because of intoxication, the person (1) is unable to adequately care for himself or herself;[3] (2) may cause harm to himself or herself or someone else; (3) may intimidate, alarm or cause substantial annoyance to people; and (4) is likely to commit an offence.

[7] The appellant contends that the evidence before the magistrate was insufficient to prove beyond reasonable doubt that, at the specific time of apprehension, Sgt Freson had reasonable grounds for believing that the appellant was intoxicated, or that, because of such intoxication, the appellant was unable to adequately care for himself, might cause harm to himself, might cause substantial annoyance to people or was likely to commit an offence (for example, disorderly behaviour).

[8] The ultimate question for this Court on appeal is whether it was open to the magistrate to be satisfied of the appellant's guilt beyond reasonable doubt. In M v The Queen,[4] the majority said:

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. ...

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained in the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury 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 court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. ... the ultimate question must always be whether the court 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.

[9] It is not sufficient for the present appellant to show that there was material which the magistrate might have considered sufficient to preclude satisfaction of guilt beyond reasonable doubt. As Hayne J said in Libke v The Queen (Gleeson CJ and Heydon J agreeing):[5]

.... the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. ... It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

[10] The appellant's case requires consideration as to whether Sergeant Freson had reasonable grounds for the relevant belief prior to the specific time of apprehension, as distinct from having such grounds after the time of apprehension, even at a point in time very shortly after the time of apprehension (for example, when women with the appellant complained that he had been humbugging them).

[11] The evidence in chief of Sgt Freson[6] as to the relevant events leading up to his apprehending the appellant on 18 March 2014 was as follows:

Some time close to about 6 o'clock that afternoon myself and Constable Cox were patrolling along Katherine Terrace. We pulled up in relation to an unrelated matter to the grassed area just to the side of Red Rooster on Katherine Terrace. Whilst we were attending to people at that location I heard the voice of a male yelling loudly coming from the direction of Warburton Street and further back down towards where the Coffee Club is. Mr Ashley had just crossed Warburton Street, was walking with another couple of women. I could hear him yelling loudly over the din of the traffic on Katherine Terrace at that time of the afternoon on a week day although whilst talking to the other people I can't remember exactly what he was saying.

How many people were there at about that time?---I was dealing with probably four or five people in the area of Red Rooster and he was walking with up to four other people.

What happened then?---As he came closer to me out the front of Red Rooster whilst on the footpath I walked down to him and started speaking to him and I observed that his speech, balance and coordination was quite impaired. I could smell liquor on him and I observed him to be intoxicated. As a result of his behaviour, causing substantial annoyance to people in the area and disorderly behaviour and yelling out plus some information provided to me from a witness caused me concern that he was going to continue causing annoyance to people in the public place being Katherine Terrace so I determined to take him into protective custody under the provisions of s 128 of the Police Administration Act to prevent continuation of his behaviour or risk of him committing offences.

What did you do then?---I advised of such, that he was going to come with me for a sleep to sober up. Placed my hand just above his right elbow in an attempt to escort him to the police vehicle and upon me telling him that I was taking him into custody he immediately tensed up, clenched both of his fists and attempted to pull away from me. He continued to struggle and try to pull away from me and at that time Constable Cox approached him from his front left side and as she approached him and tried to grab his arm he continued to struggle to pull away from me. So it was at this point, while still just having hold of his arms I put him into what's called a wrist weave to gain greater control of his arm. At this point as Constable Cox has attempted to grab his arm he's clenched his left fist and thrown a punch in the direction of her face which she was able to block with her arm. Fearing that he was going to continue to resist and/or assault a member, fearing injury to the member if he continued to do so, I utilised a leg sweep to take him to the ground where I was able to then put his arms behind his back and secure the handcuffs. With him secured on the ground and handcuffed he was no longer able to present as a threat to myself or my partner.

[12] Sgt Freson's evidence in cross-examination[7] was, relevantly, as follows:

... when you said that you and Constable Cox had first arrived at the location you were speaking with some women on the grass area?---Yes there was a group of people sitting in and around behind the tree in that area.

And as you were talking to those people you would have been facing them?---Yes.

Now, you said you heard a male voice yelling loudly from Warburton Street. This was while you were talking to those people?---Yes.

Now, once you'd finished speaking with the women you turn - so you'd finished speaking with the women there you turned around to face Katherine Terrace?---When I heard the yelling, your Honour, I turned in the direction of the yelling. Constable Cox was still dealing with those people and bearing in mind I deemed that situation safe my attention was now drawn back towards Katherine Terrace where this yelling had been coming from.

You didn't hear what was said?---Not the specific words but certainly a loud male voice yelling out.

And you said it was a male voice. Now, you can't be absolutely sure that it was Mr Ashley that was yelling at that point can you?---No I wasn't 100% sure that it was Mr Ashley who had yelled out.

And at that point you said you had information that someone had told you he was causing annoyance?---a person that was in the group with him came up and when I approached them advised me that he was causing humbug and annoying them.

And, sorry, when you said that was in the group with him they were people that were just sitting down next to the palm tree on the grass area weren't they?---No it was not the people sitting down next to the palm tree. It was the group of women that was walking with him up Katherine Terrace.

Officer, the first time that you really noticed Mr Ashley was when he was standing just next to that grass area wasn't it?---Yes, your Honour, yes but - well, yes, your Honour. As I saw him walking up he was by now on the footpath probably not more than 10 metres from where we'd initially been standing. I approached him and the group of people he was with to find out what could have been the cause of the disturbance and, in fact, they were related to the disturbance.

So when you saw Mr Ashley standing next to the grass area you were standing with about three or four other persons?---About that, yes.

And he wasn't yelling at that time was he?---Not at that particular moment in time, no.

And you didn't hear the words that he was saying did you?---Not the initial words I didn't, no, because of the traffic noise.

And from where you were standing it only took you a few seconds to reach Mr Ashley?---Yes that's correct.

And you placed your hand on his arm?---Upon forming the view that he was intoxicated and upon receiving information from the people with him that he was causing humbug in their words and on observing him to be intoxicated I placed my hand on his arm once I've informed him I'd taken him into protective custody.

So as you just said, when you placed your hand on his arm you were apprehending him - - - ?---That's correct.

[13] I have watched CCTV footage of the incident.[8] At the 8.58 mins point, the sergeant started to approach the appellant from the appellant's left rear, from about 3 m away from the appellant. He then walked behind the appellant, crossing from the appellant's left rear to right rear, while the appellant was apparently engaged looking at, listening to or speaking with one or more of three women standing in front of him. At the 9.00 mins point, now standing to the right of the appellant, perhaps still slightly behind him, Sgt Freson with his left hand took hold of the defendant's right arm, just above the elbow. The defendant then turned to face the sergeant. Some conversation then took place between Sgt Freson, the appellant and one or possibly more of the three women at the scene. Sgt Freson did not apparently release his hold on the defendant's right arm at any time.[9] At the 9.16 mins point, the sergeant with his right hand touched, and then appeared to take hold of the appellant, in the area of the appellant's right wrist or lower right forearm. At the 9.20 mins point, a scuffle started.

[14] On Sgt Freson's evidence, the point in time at which he apprehended the appellant was when he placed his hand just above the appellant's elbow. That corresponds with the action shown on the CCTV footage at the 9.00 mins point, when the sergeant with his left hand took hold of the appellant's right arm, just above the elbow.[10]

[15] I bear in mind that Sgt Freson was required by s 128(1)(a) Police Administration Act to have reasonable grounds to believe that the appellant was intoxicated before apprehending him. That meant the sergeant had to have reasonable grounds to believe that the appellant's speech, balance, coordination or behaviour appeared to be noticeably impaired.

[16] Sergeant Freson said that, at a slightly earlier time, he had heard the voice of a male yelling loudly from the direction of Warburton Street, and that he attributed that yelling to the appellant, who had just crossed Warburton Street in the company of couple of a number of women.[11] He fairly acknowledged that he was not absolutely sure that it was the appellant who was yelling at that point.[12] Sgt Freson agreed in cross-examination that the first time he "really noticed" the appellant was when the appellant was standing next to the grassed area, on the footpath where he was apprehended:[13]

Officer, the first time that you really noticed Mr Ashley was when he was standing just next to that grass area wasn't it? --- Yes, your Honour, yes but - well, yes, your Honour. As I saw him walking up he was by now on the footpath probably not more than 10 metres from where we'd initially been standing.[14]

[17] With reference to s 128(1)(a) Police Administration Act, and the definition of "intoxicated", Sgt Freson said that, when he walked to the appellant and started speaking to him, he observed that the appellant's speech, balance and co-ordination were quite impaired. He could smell liquor on the appellant and observed him to be intoxicated.[15]

[18] The CCTV footage did not demonstrate noticeable impairment of the appellant's balance or co-ordination. Because the impairment must be noticeable, there is at least a reasonable doubt in relation to the sergeant's evidence that the appellant's balance and coordination were noticeably impaired. As to the alleged conversation, the CCTV footage showed the sergeant walking up to the appellant from behind and then taking hold of the appellant's right arm at or above the elbow (thereby apprehending him, based on the sergeant's own evidence) before then engaging him in conversation. The appellant did not even turn to face the sergeant until after the sergeant had taken hold of the appellant's right arm. Based on the CCTV evidence, the sergeant apprehended the appellant before he engaged him in conversation. Therefore, Sgt Freson's evidence that before apprehending the appellant he walked to him and started speaking with him, so as to be able to observe that his speech was quite impaired, cannot be relied on. It is inconsistent with the CCTV evidence. There is a reasonable doubt in this respect also.

[19] With reference to s 128(1)(c) Police Administration Act, Sgt Freson's evidence in examination in chief was that, having determined that the appellant was intoxicated, he noted that he was "causing substantial annoyance to people in the area" by "disorderly behaviour and yelling out". He also had some information provided to him by a witness. These things caused him concern that the appellant "was going to continue causing annoyance to people in the public place".[16]

[20] In cross examination, Sergeant Freson said that the appellant had not actually committed an offence of disorderly behaviour; rather, the sergeant believed "there was a likelihood that an offence of disorderly behaviour could occur", and there was the potential that his behaviour could escalate.[17] He also acknowledged that the appellant was not yelling out at the time he was apprehended.

[21] Sgt Freson explained his reference in examination in chief to the information provided by a witness as follows:

A person that was in the group with him came up and, when I approached them, advised me that he was causing humbug and annoying them.

[22] Sgt Freson said that the witness was someone from the group of women who had been walking with the appellant on Katherine Terrace. His evidence was clear that the information provided by the witness had been provided before the sergeant apprehended the appellant. It was something relied on by him in making the decision to take the appellant into protective custody,[18] in that it made him think that the appellant would "continue causing annoyance to people". The CCTV evidence, however, does not show any apparent conversation between a female person and Sgt Freson before he apprehended the appellant. Rather, it shows an apparent conversation after the sergeant had apprehended the appellant.

[23] In giving evidence on 12 February 2015, Sgt Freson was most probably doing his best to accurately recall the events of 18 March 2014. However, the sergeant was at a significant disadvantage. The relevant events had taken place almost 11 months previously. Sgt Freson had completed his witness statement on 6 July 2014, more than three months after the events.[19] He had suffered a stress-related heart attack in late 2014.[20] When he gave evidence, he was not shown the relevant CCTV footage in his examination or cross-examination. He probably had not seen it previously, even when completing his statement. These matters do not permit allowing leeway to the respondent on appeal, as argued by the respondent;[21] rather, they increase the reasonable doubt.

[24] The matters set out in [18], [22] and [23] raise a reasonable doubt as to the accuracy of the evidence of Sergeant Freson in relation to the matters relied on by him in apprehending the appellant. The CCTV evidence establishes that the things the sergeant said happened prior to his apprehending the appellant did not happen until after he apprehended the appellant.

[25] In her detailed outline of submissions,[22] counsel for the respondent submits that it is clear that the apprehension described by Sgt Freson in his evidence was effected by the sergeant placing his second hand on the appellant's arm.[23] The respondent's submission continues that, when giving evidence, the sergeant "simply forgot that he placed his other hand on the appellant's arm at the outset". Of course, if the apprehension had been effected by the sergeant placing his second hand on the appellant's arm, there would have been more time and greater opportunity for the various things, which the sergeant said happened prior to his apprehending the appellant, to have happened. However, the situation postulated by counsel is inconsistent with the clear evidence of Sgt Freson himself. It is also inconsistent with the submission made by the prosecutor in the Court of Summary Jurisdiction.[24] Moreover, it is inconsistent with the magistrate's consideration of the evidence and her Honour's findings.[25] I therefore reject the respondent's submission.

[26] Relevantly, the magistrate made the following statements and findings in her consideration of the evidence:[26]

The observations of Constable Cox clearly support a view that Mr Ashley was intoxicated. What the court is being asked to do is essentially dissect an incident which occurred in something, I would have said, less than perhaps 30 seconds, or perhaps around 30 seconds, to find that Sergeant Freson did not have reasonable grounds for the beliefs, which are required for the purposes of s 128 of the Police Administration Act.

In my view, that presents a considerable difficulty. The police, when carrying out their duties and making a decision about whether a person meets the level that is required for the definition of "intoxicated" pursuant to the Police Administration Act and then whether the circumstances are such that they should be taken into protective custody, are required to do that within a very short period of time.

There is not the opportunity to sit back when dealing with a person who is intoxicated, to sit back and forensically go through the requirements of s 128 to essentially tick the box on all the things that are there.

They are decisions that are largely made with some urgency. They are decisions that need to be made often out of the experience of the police officers and their observation of people and people's behaviour. Rather than spending some time and of course we have spent something like two or three hours dissecting in court an incident that took something like 30 seconds.

I think I have to approach the determination of whether the officer in question was properly executing his duty by considering what he had to consider in the time period that he had to consider it in.

In my view, his observation of Mr Ashley didn't commence at the point of which he placed his hand on Mr Ashley's elbow. His observations of Mr Ashley and whether he had the reasonable grounds of belief that are required s 128, no doubt commenced from the moment that he turned around to see who was in the group that was approaching and which - I think he obviously made, or drew an inference, it would seem to me, that was connected to the very loud yelling that had earlier been heard, a male voice yelling loudly.

He would have made some observation of Mr Ashley in that approach. He placed his hand on Mr Ashley's elbow. And it can be seen from the CCTV footage that there's a whole lot going on at that point, that there are people waving their arms around; they're clearly engaged in some conversation with Sergeant Freson. And of course, in his evidence, he says that the people that Mr Ashley was with, ladies, said, 'well, he's been humbugging us and he's annoying us.'

It would, I think, have been relatively clear to him at that point that they really didn't want Mr Ashley to continue in their company. So he makes, in my view, pretty well a contemporaneous assessment of the situation, contemporaneous with his placing his hand on Mr Ashley's elbow.

From what I can see in the CCTV footage, it's not an aggressive hold of the elbow, he doesn't appear to seize Mr Ashley's elbow or pull his arm away in anyway, he simply places his hand on his elbow.

In my view, he had reasonable grounds for believing Mr Ashley was intoxicated. He gave evidence that Mr Ashley was swaying. He gave evidence that his speech, his balance, his coordination were all impaired. And of course he gave evidence that he was - appeared to be continuing to cause annoyance to the people that he was with. ...

So I am satisfied that he formed a proper view that Mr Ashley was intoxicated, but he had reasonable grounds for that belief in rising out of Mr Ashley's demeanour. There's no contest that Mr Ashley was in a public place. The sergeant is then required to have also reasonable grounds for believing that, because of the intoxication, one of four elements is satisfied. First that he is unable to adequately care for himself and it's not practicable at that time for him to be cared for by someone else.

Once again, I think there needs to be some reality about the circumstances of policing for protective custody purposes ...

He appeared to be, according to the evidence of both of the police officers, and Constable Cox's observations are relevant to this, intoxicated to a level where one would have concern about his stability[27] to adequately care for himself at the time.

Sergeant Freson was concerned that he might cause some harm to himself, as he put it, I think, he wasn't prepared to take the risk, that if he just let him go off, that he would not later get skiddled by a truck. Now, I don't think in the circumstances of someone on Katherine Terrance, heavily intoxicated with road-trains regularly passing through the township, that that was an unreasonable fear.

He certainly already had people saying, well, he's annoying us, he's humbugging us, he's annoying us.' So that, in my view, either or any of those three grounds was sufficient. In forming that reasonable belief of course, a reasonable belief has to be more than an idle suspicion, but it certainly doesn't have to reach some level of certainty. And in my view, on Sergeant Freson's evidence, he had more than an idle suspicion in relation to each of those three matters.

[27] With respect, for reasons explained in [18], [22], [23] and [24], I take a different view to the magistrate in relation to whether the prosecution proved beyond reasonable doubt that Sgt Freson had lawfully apprehended the appellant. I acknowledge that the learned magistrate had the benefit of seeing and hearing the witnesses; however, my doubt is based on my viewing of the CCTV evidence and comparing that evidence with the evidence of the apprehending member. I consider that there were legally significant discrepancies between the two.

[28] Although the magistrate had watched the CCTV footage, her Honour's focus appears to have been on the apprehension itself, and on the events subsequent thereto. Moreover, her Honour did not have the benefit of transcript, to be able to compare the precise evidence of Sgt Freson with the CCTV footage of the events which occurred before the sergeant apprehended the appellant.

[29] Having reviewed the whole of the evidence, I am left with a reasonable doubt that Sgt Freson had reasonable grounds for believing, at the time he apprehended the appellant, that the appellant was intoxicated. I am also left with a reasonable doubt that Sgt Freson had reasonable grounds for believing any of the matters specified in s 128(1)(c) of the Act.

[30] The evidence of Constable Cox does not resolve, in the respondent's favour, the doubts I described in [29]. Her evidence was that, as she was speaking with another group of people in the immediate area, she "could just hear a bit of yelling", which made her feel that Sgt Freson needed some assistance.[28] She then walked over and noted that the appellant appeared to be quite upset. Based on my comparison of the content of her evidence with the CCTV footage, Constable Cox was describing the situation after Sgt Freson had apprehended the appellant. Constable Cox was not the apprehending member. Her evidence in relation to the appellant's intoxication cannot cure the defect that Sgt Freson apprehended the appellant prematurely.

[31] In my judgment, the prosecution failed to prove beyond reasonable doubt that Sgt Freson had acted in accordance with the authority granted to him under s 128 of the Police Administration Act when he apprehended the appellant. There is thus a reasonable doubt that Sergeant Freson lawfully apprehended the appellant.

[32] The consequence is that the prosecution failed to prove beyond reasonable doubt that Constable Cox was, at the time she was assaulted, a police officer in the execution of her duty. Likewise, the prosecution failed to prove beyond reasonable doubt that the appellant resisted public officers Sgt Freson and Constable Cox while they were engaged in the discharge of the duties of their office.

[33] I allow the appeal. The verdict of guilty on the two charges should be quashed and a verdict of not guilty should be entered.

[1] Majindi v Balchin [2011] NTSC 40 at [7] and the cases there cited.

[2] The Act has been amended subsequent to the decision in Majindi v Balchin.

[3] It is not relevant to the appeal, but I mention for completeness that the sub-paragraph continues "... and it is not practicable at that time for the person to be cared for by someone else" - see s 128(1)(c)(i).

[4] [1994] HCA 63; (1994) 181 CLR 487 at [7] and [9], per Mason CJ, Deane, Dawson and Toohey JJ.

[5] [2007] HCA 30; (2007) 230 CLR 559 at [113].

[7] Transcript 12/02/2015, pp 12.9 to 14.4.

[8] Exhibit P1 in the Court of Summary Jurisdiction.

[9] This observation is confirmed by Sgt Freson at transcript 12/02/15, p 18.5.

[10] Transcript 12/02/15, p 16.1. See also transcript extracts in [11] and [12]. The apprehension was for the purposes of protective custody; it was not an arrest for the offence of disorderly behaviour.

[14] Although Sgt Friesen addressed this answer to the magistrate, the question was asked by cross examining counsel.

[16] Transcript 12/02/15, p. 9.2. See the more complete transcript extract in [11] above.

[17] Transcript 12/02/215, p 15.9; 16.1.

[18] Transcript 12/02/215, p 9.1; 14.3.

[21] Respondent's Outline of Submissions, par 21.

[22] Respondent's Outline of Submissions, par 20.

[23] Sgt Freson's action in using his right hand to take hold of the appellant by the wrist or lower forearm took place at the 9.16 minute point described in [13] above.

[24] Transcript 13/02/2015, p 38.9: "And from the footage, it was fairly clear that is what's going on; his initial approach to Mr Ashley is calm, he does place a hand on his arm. From that point on, Mr Ashley's apprehended ...".

[27] Her Honour probably said "ability".