Gonyley v Gaughran [2025] ACTSC 513

1. The appellant, Dieu Gonyley, entered a plea of not guilty in the Magistrates Court to the following charge: (a) CAN2023/11720: Destroy/damage property not exceeding $5000, contrary to s 116(3) of the Crimes Act 1900 (ACT).

2. The matter proceeded to hearing in the Magistrates Court on 4 September 2024. On 16 October 2024, the Magistrate delivered his decision, recorded a finding of guilt and sentenced the appellant. The appellant was convicted and sentenced to a Good Behaviour Order for a period of six months.

3. A Notice of Appeal was filed on 14 November 2024 with respect to both the finding of guilt and the sentence.

4. The grounds of appeal are: (a) The learned Magistrate erred in finding that the appellant was lawfully arrested pursuant to s 212 of the Crimes Act 1900 (ACT). (b) The learned Magistrate erred in finding that the appellant was lawfully detained pursuant to s 4 of the Intoxicated People (Care and Protection) Act 1994 (ACT) (‘IPCPA’). (c) The learned Magistrate erred in finding that a ‘frisk search’ of the appellant was lawfully authorised pursuant to s 5 of the IPCPA. (d) The learned Magistrate ought to have concluded that the evidence was unlawfully or inappropriately obtained pursuant to s 138 of the Evidence Act 2011 (ACT). (e) The evidence against the appellant obtained in consequence of the appellant’s arrest and/or detention was unlawfully or inappropriately obtained and ought not to have been admitted against him. (f) The sentence imposed was manifestly excessive.

Background

The prosecution case

5. The prosecution case was that on 25 November 2023 at about 2pm, police were requested to attend Jerilderie Court, a unit complex in Reid, in response to a fight involving a group of people. Police arrived at Jerilderie Court at approximately 2:05pm and in a common area of the complex they spoke with the appellant, his brother, a man who alleged he had been assaulted, and a number of witnesses.

6. Much of the interaction between the arresting officers, the appellant and others present were captured on Body Worn Camera (BWC) footage. By agreement some of the footage was played at the appeal hearing.

7. Detective Sergeant Tadic eventually directed Constable Moore and Constable Seminas to arrest the appellant. The appellant was placed under arrest on suspicion of committing an assault. The appellant was placed in the rear of a caged police vehicle.

8. Police continued to speak with witnesses at the scene however those witnesses were either not able or not willing to provide a statement regarding the altercation which was alleged.

9. Police determined that the appellant was no longer under arrest for the offence of common assault though would continue to be detained pursuant to s 4 of the IPCPA.

10. The appellant was transported to the ACT Watch House where a frisk search was conducted, and he was placed into a cell.

11. Whilst the appellant was in the cell, he removed a metal zipper from his clothing and used it to scratch a Perspex cover over a camera in the corner of the cell which caused damage. This conduct was captured by camera in the cell.

12. As a result, the appellant was charged with the offence of causing damage to property contrary to s 116(3) of the Crimes Act.

The proceedings before the magistrate

13. A voir dire was conducted before the magistrate on 4 September 2024 in relation to the admissibility of the evidence relied upon to support the damage property charge. At the outset the magistrate was informed by the legal representative for the appellant that there was an application to exclude the evidence pursuant to s 138 of the Evidence Act on the basis that it was obtained in consequence of improprieties and contraventions.

14. The circumstances relied upon individually or cumulatively in support of the application were identified before the magistrate at the outset as: (a) The failure to use BWC ‘overtly’ in contravention of the Crimes (Surveillance Devices) Act 2010 (ACT); (b) Aspects of the appellant’s arrest which were unlawful; (c) The power to require the appellant to submit to a breath analysis; (d) The power to ‘frisk’ search the appellant;

15. On 16 October 2024 after receipt of written submissions from both parties the magistrate delivered his decision admitting the evidence and finding the damage property offence proved.

16. The evidence of four police witnesses was adduced at hearing and can be summarised as follows:

First Constable Matthew Gaughran

17. First Constable Gaughran attended Jerilderie Court in response to a radio transmission in relation to an ongoing disturbance. On arrival, other police were present and talking to some males, including the appellant, who were located in the area. He observed the males “appeared to be consuming alcohol”. He spoke with a witness who described the appellant as “antagonising” another male.

18. Following this, First Constable Gaughran was advised that the appellant was to be arrested on a suspicion of committing an assault. The appellant was placed into the rear of a caged police vehicle. First Constable Gaughran approached the vehicle where he described the appellant as yelling, kicking and behaving “quite violently”.

19. First Constable Gaughran was advised by Constable McQueen that police were no longer proceeding with the offence of assault as the relevant witness declined to provide a statement. He relayed this information to Constable Seminas who was also standing at the caged vehicle.

20. At this time, First Constable Gaughran formed the belief that the appellant was still “highly intoxicated and aggressive” and as a result he was not prepared, nor did he believe it would be safe to open the police caged door and inform the appellant that he was no longer under arrest due to his violence and demeanour.

21. First Constable Gaughran’s evidence was that he was of the belief the appellant was “highly intoxicated” due to his behaviour and his observations of cans of alcohol in the area. He described the appellant as aggressive and having had made vague threats to police. He gave evidence that: …in my opinion and my belief he’d already been involved in a physical altercation and I didn’t believe that – for not only his protection, but other – protection of other people involved – that it was not safe to put him back in that environment.

22. He gave evidence that the incident took place “in a sort of public area”. He was “worried about the other people, including the witnesses involved, as well as himself”.

23. First Constable Gaughran gave evidence that he had not made enquiries with a sobering up shelter as he did not believe such facilities were open at the time and in his experience, it would not be “a suitable place for aggressive people”. He did not make enquiries about other persons who could care for the appellant due to his aggressive behaviour.

24. The appellant was transported to the ACT Watch House. First Constable Gaughran observed on the monitoring screen that the appellant “continued to behave aggressively” during his transport to the Watch House.

25. First Constable Gaughran’s BWC which was played and tendered as an exhibit depicted the area which the appellant was located and police discussions with various witnesses about the allegation that the appellant had been involved in a physical altercation. The footage also depicted the arrest of the appellant.

26. In cross examination, First Constable Gaughran agreed that Jerilderie Court was a residential apartment complex with a courtyard in the middle and that there were residential parking spots around the block where the complex is located. He said that the decision to keep the appellant in custody was a result of his belief the appellant was still intoxicated and disorderly at that point. He gave evidence that he “did not believe it was safe for him to be released”.

27. During cross-examination, he was questioned regarding his knowledge of the power in s 4 of the IPCPA to which he stated: …to the best of my knowledge, I believe a police officer must believe the person is intoxicated and as a result of that intoxication the person’s – or words to the effect of the person is disorderly and there is no alternative care for the person as well.

28. First Constable Gaughran was subsequently asked whether he had turned his mind to whether the appellant had at any point in time been in a public place as defined in that IPCPA. He gave evidence that “I did…I believed the courtyard of Jerilderie Court would be considered a public place that is open to and used by the public”.

29. First Constable Gaughran agreed that he knew his BWC was operating and that he did not tell anyone that it had been activated. He was aware that he was to use the BWC “overtly”.

30. First Constable Gaughran gave evidence that the damaged Perspex had been replaced but agreed that no invoice for the cost of replacement had been produced as a part of the brief of evidence. Constable Mackenzie Moore

31. Constable Moore also attended Jerilderie Court in response to reports of a disturbance. When he arrived, he observed six people sitting down and some bystanders. He spoke with both the appellant and another male. He gave evidence that the appellant was slurring his words, holding a bottle of beer and smelt strongly of alcohol. The appellant disclosed that he had been drinking.

32. Constable Moore said that the appellant was arrested for assault which was “changed for intoxicated and disorderly”. Constable Moore became aware of this when they arrived back at the police station.

33. In cross-examination, Constable Moore agreed that he was aware of the appellants name, address and mobile phone number. Police also had details for his brother.

34. When asked why he did not proceed by way of a summons against the appellant, Constable Moore stated that at that stage, he was under the suspicion that an assault had occurred. He asserted that “at that stage, I wouldn’t have been happy with proceeding with a summons, given we had not obtained all that information, and to prevent any further offences to make sure that everyone was safe”. His said it was his belief that proceeding by way of a summons would not have been ideal.

35. Constable Moore’s BWC became an exhibit in the hearing before the magistrate. The footage depicted Constable Moore’s arrival at the location and his discussions with the appellant and his brother where the appellant made some admissions to being involved in an altercation. The footage also depicted the arrest of the appellant and his transfer to a caged police vehicle.

36. Constable Moore agreed that he did not explicitly tell anyone his BWC was activated. He explained that he was not aware he had to notify people he was recording. He was under the impression that audio beep was sufficient to communicate use of the BWC. Constable Moore stated he later received training that he was required to announce the operation of his BWC.

Acting Sergeant Kimberly Richardson

37. Acting Sergeant Richardson was the Watch House Sergeant on 25 November 2023. She recalled the appellant had been brought in for being drunk and disorderly. She described that the appellant was initially quite argumentative, refused to tell her his name, and was just generally hard to converse with.

38. Acting Sergeant Richardson gave evidence that the appellant underwent breath analysis which returned a reading of 0.202 grams of alcohol and was searched prior to being taken into a cell. The appellant immediately attempted to cover the CCTV camera with wet toilet paper. Once this was removed, the appellant was observed to break something from his pants and scratch the Perspex covering the camera.

39. Acting Sergeant Richardson stated that this “completely distorted the view” which prevented police from seeing the appellant in his cell. Acting Sergeant Richardson stated that the Perspex was fixed by an independent contractor, and she was unaware of any invoice for the damage.

40. In cross examination, Acting Sergeant Richardson agreed that when a person was brought in under the IPCPA, she was required to be satisfied that there is no reasonable alternative for the persons care and protection. Her evidence was that she had spoken with the arresting officer and due to the appellants demeanour, it was inappropriate for him to be in the care of other persons. She agreed she made no alternative enquiries to facilitate the appellants care by a responsible person. She agreed that she observed the appellant being frisk searched by other officers.

Constable Samantha Cooper

41. Constable Cooper was working at the ACT Watch House on 25 November 2023. Her role was to work with the Watch House Sergeant and care for people who were in custody. She met the appellant when he was in the back of the caged police vehicle and escorted him to the front counter to the Sergeant. She described the appellant as in a “very heightened state” and stated, “he was very belligerent towards myself and other members of my team”.

42. She recalled placing the appellant into cell 25 and that once he was inside, he began using the mattress and wet toilet paper to cover the CCTV camera. This was observed by officers, so they entered the cell and removed the items.

43. The appellant was then observed fiddling with his pants and subsequently stepping up to the camera and scratching the Perspex cover which distorted the camera view of his cell. Constable Cooper gave evidence that she then entered the cell and observed the appellant had broken off a zipper which he had used to scratch the Perspex.

Defence case

44. The appellant did not give evidence at hearing. He relied on the following improprieties in support of the application to exclude the evidence: (a) The lawfulness of the appellant's initial arrest in respect of whether the necessary preconditions for the arrest under s 212 of the Crimes Act had been met, and whether the appellant had been released 'forthwith' once police had decided that the arrest in relation to the assault would not proceed. (b) Whether the necessary preconditions existed for the appellant's detention under s 4 of the IPCPA, particularly, whether Jerilderie Court was a 'public place' as defined by the IPCPA, and if so, whether there were reasonable grounds for the belief that the appellant was intoxicated and behaving in a disorderly way to the extent that it was necessary to justify his detention under the IPCPA. (c) Once the appellant had been transported to the Watch House, whether the IPCPA empowered police to conduct a 'frisk search' of the appellant.

45. The appellant also advanced a submission that he was acting in self-defence in scratching the Perspex as a result of the arrest which he asserted was unlawful. The appellant asserted that the principle of de minimis non curat lex applied insofar as that there was no case to answer in relation to the damage property charge as there was a lack of evidence as to the extent of any damage, which was submitted to have been “unquantifiably small”.

The Magistrate’s decision

46. The magistrate delivered his decision on 16 October 2024 following receipt of written submissions from the parties.

47. The magistrate concluded that the evidence relied upon to establish the damage property offence was not unlawfully or inappropriately obtained and admitted the evidence. The magistrate found the offence proved, convicted the appellant and sentenced him.

48. In dismissing the application to exclude the evidence pursuant to s 138 of the Evidence Act, the magistrate considered the following matters raised by the appellant in support of the application.

The lawfulness of the arrest

49. The magistrate accurately noted that s 212 of the Crimes Act requires a police officer have reasonable grounds that an offence has been committed and that a summons would not be effective to achieve one of the stated purposes in order to arrest a person without a warrant.

50. The magistrate concluded that the evidence established that the arresting officer had a reasonable suspicion that the appellant had committed an assault. The magistrate noted that the police had received a complaint that the appellant was involved in an altercation with another resident of the complex.

51. Accordingly, the magistrate concluded that evidence established that the police had held a reasonable suspicion of an assault having been committed by the appellant due to the complaint received and the information received from those present at the complex. Further, the magistrate stated that where it was clear that the altercation was ongoing there is a “real risk” had the appellant not been confined, that the altercation would have continued.

52. The magistrate reasoned that as a result, attending police were justified in concluding that a summons would not have achieved the purpose of preventing a repetition or continuation of the offence or the commission of the offence. Therefore, the magistrate concluded that the requirements of s 212 of the Crimes Act had been established.

Necessary preconditions for detention under s 4 of the IPCPA

53. The magistrate observed that the appellant was “unarrested, or the basis of his detention was changed” after the police lost confidence in the capacity to establish the commission of an offence by the appellant.

54. The appellant was then detained pursuant to s 4 of the IPCPA.

55. The magistrate outlined the relevant preconditions which needed to be met for detention under the IPCPA. The magistrate noted “the requirement there is that the defendant be in a public place while intoxicated; because of the intoxication he was behaving in a disorderly way”.

56. The magistrate found that there was evidence which would justify a belief that on reasonable grounds the appellant was behaving in a disorderly way explaining: He was, to my mind, clearly intoxicated and interrupting; and also, the way he spoke and what he was focusing on appeared to be entertaining a right or grievance based solely on the fact he was not allowed to enter someone else’s unit to see a young woman.

57. The magistrate also referred to the evidence of reports to police which indicated that the appellant had been engaged in some kind of confrontation with the resident and had even made admissions that there had been “a pushing and shoving” with that resident.

58. The magistrate found that the police officer believed on reasonable grounds that the appellant was intoxicated and was behaving in a disorderly way as a result of that intoxication. Public place

59. The question which faced the magistrate was whether the incident occurred in a public place. The magistrate accurately identified that a ‘public place’ was defined in the IPCPA as follows: public place means a place to which the public, or a section of the public, has access, whether by payment or not, and includes a school and any land or premises that belong to or are occupied or used in relation to a school.

60. The magistrate summarised what the evidence demonstrated about the place where the appellant was detained by police: Jerilderie Court was a group of buildings that appeared to occupy the perimeter of a block and there was an open area inside and within that open area was a barbeque area with seats and shading, and that’s where the [appellant] was located. The question, therefore, is was (sic) that location of the barbeque area to which the public, or a section of the public, had access whether by payment or not.

61. The magistrate cited Higgins J in Winbank v Baker (1993) 112 FLR 466, where the expression “to which the public has access” was considered and stated: It [the judgment] deals with the term or expression ‘to which the public has access’ and it infers that such expression involves access with permission, either express or implied. So it’s not about physical access but in fact it is about legal access and it appears from the limited expression that I can see, or limited extract, that two expressions were being considered in that authority, that is, whether or not the public had access, as well as whether or not the public – I withdraw that. Just bear with me a moment. It goes on to extend that definition to say if it’s being used the public, then – and it gives an example as a pedestrian thoroughfare – then it would also be part of ‘to which the public had access’, therefore it extends it beyond that legal definition.

62. The magistrate concluded: The approach I would prefer and will adopt today, is that – well, depends on some features of the lot, or the barbeque area. What is clear is that there was some signage suggesting that parking was for tenants only. There’s also signage which depicts a map of the building complex and then at the base of the map says ‘tenants only’. Now it’s unclear to me who is responsible for placing that sign on the wall adjacent to fence and gate, which was one form of access to the property. It’s also unclear to me whether or not similar signs were located at every access point. But what is clear from the video and has been noted in the submissions, is that the unit complex involved, as you would expect, a number of individual units occupied by various individuals and that access to those units was through that central area and during the video you could see people walking past, back and forth, as the police were having conversations with the defendant and others. Helpfully the implied right to approach and to communicate with the person on their private property is actually referred to in the written submissions the defendant and that authority is Romani v State of New South Wales [2023] NSWSC 49, and it qualifies that implied license or right to approach premises to communicate with the occupant by saying that, essentially, if there was a notice – just bear with me a moment – well, it essentially qualifies it by saying if there is no notice the access is left unobstructed, gates unlocked, there is no noticing (sic) indicating visitors are forbidden or unauthorised, then the law will imply licence in favour of any member of the public to gulp on the driveway to the entrance of the dwelling for the purpose of lawful communication with any person in the house. It goes on to say that licence, implied or tacit, can be precluded or revoked at any time by express or implied refusal, or to withdraw it. The question is, is the setup of that block of units, including the one signed it in evidence that says ‘tenants only’, is enough to remove that implied right and in circumstances where there are individual occupants of various units, the sign would not – or it’s unclear whether or not it’s been endorsed by everyone, and in any event, the sign is ambiguous and equivocal as to whether or not it, without reservation, prohibits people to operate in the ordinary way and approach someone’s front door and knock on it. I would have thought, in those circumstances, members of the public would have access to approach the doors and go through that barbecue area, and I say members of the public noting that it could be reduced to a section of members of the public who have an intention to enter for that purpose. For those reasons I am satisfied that the [IPCPA], in the sense as it refers to a public place applies to the location where the defendant was arrested at the barbecue area. Body worn camera

63. Although not a specific ground of appeal in these proceedings, for completeness I record that the magistrate considered an issue which had been raised by the appellant about the absence of an overt declaration by police in relation to their BWC.

64. The magistrate noted that it was uncontroversial on the evidence that the police activated BWC and did not expressly advise the appellant or any other person with whom they interacted. The magistrate noted that the police officers had subsequently received training and gave evidence that they were now aware that they were required to expressly disclose the use of BWC. The magistrate, by inference, did not consider this a material consideration for the purposes of the application pursuant to s 138 of the Evidence Act.

Power to conduct a frisk search

65. The magistrate next considered whether the appellant was lawfully searched at the watchhouse. The magistrate noted that at the Watch House the appellant “was searched by placing hands on him” and made reference to the power to conduct a search as contained in s 5 of the IPCPA: 5 Search of people in custody (1) A police officer may search a person who is taken into custody under section 4 (1) and may take possession of any articles found in the person’s possession. (2) A person is entitled to the return of any articles taken from the person under subsection (1) when the person ceases to be detained under section 4. (3) In subsection (1): search means a search of a person or of articles in the person’s possession, which may include— (a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes, socks and hat; and (b) an examination of those items.

66. The magistrate compared this definition with the definitions in the Crimes Act of an ‘ordinary search’ and a ‘frisk search’. The magistrate noted that the ‘ordinary search’ language in the Crimes Act was adopted in the IPCPA and concluded that a frisk search was a subset of an ordinary search.

67. The magistrate found that s 5 of the IPCPA permits a search of a person which includes the application of physical touch on the outside of clothing and may involve “something more”. The magistrate determined that the frisk search of the appellant was lawful.

Elements of the offence

68. The magistrate found that each element of the offence was proved beyond a reasonable doubt given all the evidence adduced on the voir dire was admitted and accordingly the operation of s 138 of the Evidence Act in those circumstances was extinguished.

The sentence imposed

69. The appellant was sentenced the same day the decision was delivered. The appellant was convicted and sentenced to a six-month good behaviour pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT) with the core conditions per s 86 of the Crimes (Sentence Administration) Act 2005 (ACT).

70. The appellant asserts that sentence was manifestly excessive.

71. In the sentencing hearing, the appellant’s counsel invited the magistrate to dismiss the charge without conviction pursuant to s 17 of the Crimes (Sentencing) Act. The appellant’s counsel made comprehensive submissions with regard to the appellant’s subjective circumstances and the low value of the damage caused. The appellant also highlighted that he had been previously detained under the IPCPA in 2017 where he was refused medical treatment in the watchhouse with the intercom eventually being switched off.

72. The prosecution opposed a disposition pursuant to s 17 on the basis that the offending was fuelled by alcohol and whilst the value of damage caused was low, it resulted in inconvenience as the damage made the cell unable to operate. The appellant’s criminal history contained previous convictions relating to damaging property and violent offending. The magistrate observed “a bit of a theme of alcohol” in the appellant’s criminal history.

73. The magistrate imposed a conviction and imposed a six-month good behaviour order with core conditions. In his reasons for sentence, the magistrate noted that the damage was deliberate and that the appellant spent some eight hours in custody. The magistrate also noted that the appellant had a very high blood alcohol reading at the time of the offence which did not excuse the offending but reduced his moral culpability.

Principles on appeal

74. The Supreme Court’s jurisdiction to conduct appeals against convictions imposed on summary offences from the Magistrates Court is governed by divs 3.10.1 and 3.10.2 of the Magistrates Court Act 1930 (ACT) (the ‘MCA’), namely ss 207–219. This appeal is brought pursuant to ss 207 and 208 and is by way of re-hearing: see Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27. On a rehearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose and has power to draw inferences of fact”: s 214 of the MCA.

75. The standard of review to be applied in conviction appeals from the Magistrates Court brought under s 208 was clarified and confirmed in Alexander at [18] where it was stated: …[A]n appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.

76. A consideration of error in the magistrate’s decision must take into account the pressure of the work performed in the Magistrates Court: Alexander at [21]. Appeals by way of re-hearing require a “real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion”: Alexander at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149; [55]-[56].

77. The appellants assertation that the sentence imposed was manifestly excessive invokes a consideration of the fourth proposition in House v The King [1936] HCA 40; 55 CLR 499. The High Court in House held at 505 that: It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

78. The principles in relation to assessing whether a sentence is manifestly excessive are well established. The Court of Appeal summarised those principles in Hawker v the Queen [2020] ACTCA 40 at [14]: The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28], or where the result arrived at below is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58]. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76].

79. A consideration of whether a sentence is manifestly excessive must occur in the context of the maximum penalty for the offence, the standards of sentencing for the offence, the relative objective seriousness of the offence and the personal circumstances of the offender: see Tracey v the Queen [2020] ACTCA 51 at [38].

Grounds of appeal

Ground 1 – lawfulness of the arrest

80. The appellant’s contention with respect to the lawfulness of his arrest was two-pronged. First, he submitted that the magistrate had no basis to find there was any ongoing altercation, or risk of further altercation necessitating the appellant’s immediate arrest under s 212 of the Crimes Act (‘issue 1’). Secondly, the appellant argued that he was not released “forthwith” once a determination had been made that the assault offence would not be pursued (‘issue 2’).

81. It is useful to extract s 212 of the Crimes Act here: 212 Power of arrest without warrant by police officers (1) A police officer may, without warrant, arrest a person for an offence if the police officer suspects on reasonable grounds that— (a) the person has committed or is committing the offence; and (b) proceedings by summons against the person would not achieve 1 or more of the following purposes: (i) ensuring the appearance of the person before a court in respect of the offence; (ii) preventing a repetition or continuation of the offence or the commission of another offence; (iii) preventing the concealment, loss or destruction of evidence relating to the offence; (iv) preventing harassment of, or interference with, a person who maybe required to give evidence in proceedings in respect of the offence; (v) preventing the fabrication of evidence in respect of the offence; (vi) preserving the safety or welfare of the person. (2) A police officer may, without warrant, arrest a person for a family violence offence if the police officer suspects on reasonable grounds that the person has committed or is committing the offence. (3) If— (a) a person has been arrested under subsection (1) or (2) in connection with an offence; and (b) before the person is charged with the offence, the police officer in charge of the investigation into the offence does not have, or ceases to have, reasonable grounds to suspect that— (i) the person committed the offence; or (ii) for a person arrested under subsection (1)—holding the person in custody is necessary to achieve any of the purposes referred to in subsection (1) (b); the person shall forthwith be released from custody in respect of the offence. (4) A police officer may, without warrant, arrest a person whom he or she suspects on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence. (5) In this section: family violence offence—see the Family Violence Act 2016, dictionary. Issue 1

82. The magistrate concluded that the evidence established that police had a reasonable suspicion that the appellant had committed an assault due to the complaint and the information received at the premises. Therefore, reasonable grounds to arrest the appellant existed.

83. The necessary elements for an arrest to be lawful pursuant to s 212(1) of the Crimes Act are that a police officer suspects on reasonable grounds that an offence has been or is being committed and suspects on reasonable grounds that proceeding by way of a summons would not achieve one or more of the stated purposes in s 212(1)(b) of the Crimes Act.

84. Relevantly, the High Court observed in George v Rockett [1990] HCA 26; 170 CLR 104 at 112: When a statute prescribes that there must be "reasonable grounds" for a state of mind -including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

85. The High Court in George v Rockett at 115 endorsed the remarks of Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; 115 CLR 266 at (65): A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it.

86. As assessment of whether reasonable grounds existed is not conducted with the benefit of hindsight and a police officer can form a belief that is reasonable based on their own observations as well as matters which have been reported to them by others: per McColl JA in Hyder v Commonwealth [2012] NSWCA 336; 217 A Crim R 571 at [15] and [43].

87. The evidence before the magistrate demonstrated that the officers had been acting on a report of, at least, a “disturbance”. Upon arrival they were given information that an assault had occurred, and that the appellant was the alleged perpetrator. First Constable Gaughran was informed by a witness at the scene that the appellant was “antagonising” another male. Although the alleged complainant and witnesses to the assault ultimately declined, or were unable, to make a statement which resulted in a determination not to charge the appellant with the offence of assault, the determination not to charge the appellant does not inform whether the belief formed at the time of his arrest was reasonable in the circumstances.

88. In my view, the magistrate was correct to be satisfied on the evidence before him that the police had, at the time of the appellant’s arrest, reasonable grounds to believe that he had committed the offence of common assault.

89. As for the determination to arrest the appellant and not summons him, the assessment required by the magistrate was whether there were reasonable grounds for arresting police to suspect that proceeding by way of summons would not achieve one of the stated purposes.

90. The evidence before the magistrate included that arresting police believed the appellant to be intoxicated. The reasonableness of this belief was borne out in their observations of him which included that he was consuming alcohol when they first engaged with him. This reasonableness of this belief was later confirmed by the results of a breath analysis conducted upon him. The BWC footage revealed that there were several people congregated in the common area of the complex. The police received information which identified the appellant as, at least, one aggressor in interactions with others.

91. Evidence established that police had information that there was enough tension within the group who had congregated at the common area for the appellant to become antagonistic toward another member of the group. The reasonable inference from police evidence was that concerns about “safety” were central to the decision not to summons the offender because there was a risk that he would continue to behave in a way that risked safety and the commission of an offence.

92. The fact of the appellant’s obvious intoxication was a relevant factor in coming to consider his capacity to control his conduct and ignore any further tension once police left the scene (the effect of a decision to summons). Based on the information before them, there were reasonable grounds for police to suspect that a summons would not prevent repetition or continuation of the offence or the commission of another offence: Crimes Act, s 212(1)(b)(iii).

93. The magistrate was right to conclude that the evidence established that the suspicion of arresting police as to the offender having committed the offence of assault and that proceeding by way of summons would not achieve a purpose in s 212(1)(b) was based on reasonable grounds. The appellant has not established this ground of appeal.

Issue 2

94. The appellant contended that the failure to release him “forthwith” once a determination had been made that the assault offence would not be pursued rendered his arrest unlawful. Accordingly, the appellant argued that the magistrate’s conclusion to the contrary was wrong. I do not agree, and the ground can be readily disposed of.

95. This assertion turns on the operation of s 212(3) of the Crimes Act. If a person has been arrested pursuant to s 212, and prior to being charged a police officer does not have, or ceases to have, reasonable grounds to suspect the person committed the offence or that holding the person in custody is necessary to achieve the purposes referred to in s 212(1)(b), “the person shall forthwith be released from custody in respect of the offence”.

96. The appellant asserted that the requirement to release him forthwith once the determination was made that the offence for which he was arrested was no longer being pursued was not observed and should have been, notwithstanding that he remained in custody pursuant to s 4 of the IPCPA.

97. The appellant pointed to that which was observed by the Court of Appeal in Martin v R; R v Martin [2015] ACTCA 38 at [62] being that s 212(3) contemplates a person arrested being released without charge which “does not support any implication that the section is intended to permit arrest for the purposes of investigation”. The Court of Appeal further observed at [62]: The power of arrest granted by s 212 is granted to any police officer and is contingent on that officer having a suspicion on reasonable grounds that the person has committed the offence for which they are arrested. The obligation to release an arrested person without charge found in s 212 (3) is to be exercised where “the police officer in charge of the investigation into the offence” does not have such a suspicion on reasonable grounds, or ceases to have such a suspicion. This variance is understandable, as an officer in charge of an investigation may have, or come into possession of, information or evidence that an arresting officer did not possess at the time of arrest.

98. While useful to recall, the observations are not to the point in this case. In the present matter, whilst the appellant was not released once the decision was made not to pursue the assault charge, nor was he further detained for the purposes of investigation. He was detained because simultaneous with the decision not to arrest him for the offence of common assault came the determination that he would be detained pursuant to the power contained in the IPCPA.

99. The appellant contended that the legal effect of the decision made by the arresting police was that he ought to have been released “forthwith” (presumably by release from the police caged vehicle) and then immediately taken back into custody by police for the purposes of detaining him under s 4(1) of the IPCPA.

100. I do not accept that this process was the necessary legal effect of the decision making on the evidence.

101. Having determined that there would be no charge laid against him, police simultaneously identified another basis upon which he would remain in their lawful custody. This did not require police to give physical effect to the requirement to physically release him “forthwith” only to immediately take him back into custody pursuant to the power available to them in the IPCPA. Whilst the evidence demonstrated that the appellant’s conduct made such a course practically difficult, I do not consider that the failure to physically release him to give effect to s 212(3) in the circumstances established by the evidence, rendered the appellant’s continued detention unlawful.

102. The requirement to release the appellant “forthwith” in s 212(3) says nothing about any other power police had available to lawfully detain the appellant.

103. Whilst it may well be best practice to advise a person of any change in the basis upon which they are being detained by police, the appellant’s conduct (no doubt influenced by his state of intoxication) which reasonably gave rise to safety concerns, rendered it virtually impossible to do so. Whilst I am not satisfied that it was necessary, for the same reason it is plain that the appellant’s removal from the caged police vehicle so that he could be physically released to give effect to s 212(3) only for him to immediately be retaken into custody pursuant to the IPCPA, was impracticable.

104. It follows that the magistrate was correct to determine that the requirement for the appellant to be released “forthwith” pursuant to s 212(3), in circumstances where his detention was continued pursuant to another police power, did not require the appellant to be physically released from the caged vehicle and police custody. The arrest was not unlawful on that basis.

105. For those reasons, this ground must fail.

Ground 2 – the lawfulness of the appellant’s detention under s 4 of the IPCPA

106. The appellant asserted that the magistrate incorrectly concluded that the area where the appellant was congregated with others in Jerilderie Court was a “public place” for the purposes of the detention power in s 4 of the IPCPA which relevantly provides: 4 Detention of intoxicated people (1) If a police officer believes, on reasonable grounds, that a person in a public place is intoxicated and is, because of that intoxication— (a) behaving in a disorderly way; or (b) behaving in a way likely to cause injury to himself, herself or another person, or damage to any property; or (c) incapable of protecting himself or herself from physical harm; the officer may take the person into custody and detain the person. (2) The police officer may take the person into custody only if the officer is satisfied that there is no other reasonable alternative for the person’s care and protection. (3) A person detained under subsection (1) must be released— (a) when the person ceases to be intoxicated; or (b) at the end of 8 hours after the person is detained; whichever is earlier. (4) A police officer must not allow a person detained under subsection (1) to remain at a police station where the person was detained for longer than 12 hours after the person is first detained. (5) This section does not prevent a police officer from releasing a person detained under subsection (1) if, in the police officer’s opinion, it is reasonable to release the person. (6) For subsection (5), a police officer is taken to have acted reasonably if the officer releases a person detained under subsection (1) into the care of the manager of a licensed place.

107. The magistrate determined that the area where the appellant was arrested inside the Jerilderie Court complex was a ‘public place’ for the purposes of the IPCPA applying the definition in the Act “a place to which the public, or a section of the public, has access, whether by payment or not…”.

108. The appellant argued that the area where he and others were gathered in Jerilderie Court was an “open private place” and not a “public place” as defined.

109. In support, the appellant pointed to signage affixed outside Jerilderie Court and the features of the architecture which could be observed in the BWC footage, said to make clear that any implied license for the public, or a section of the public, to enter the internal courtyard was expressly precluded on a permanent and ongoing basis. The appellant drew comparison between the definition of “public place” in the IPCPA and the definition of public place in the Litter Act 2004 (ACT) which employs the same phrasing though has an expanded definition which includes “a road or road related area” and additionally defines “open private space” to be “a private place that is situated in or on land and that is not within a building on the land; or a private place that is situated in or on waters”.

110. The concept of “open private place” is not contemplated in the IPCPA.

Was the internal area of Jerilderie Court “a place to which the public, or a section of the public, has access, whether by payment or not”?

111. In coming to the task of resolving this issue I turn first to consider the meaning of the phrase. The text, context and purpose of the statutory provision in which the phrase appears are all relevant considerations.

112. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ observed as follows at [47]: This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Footnotes omitted.)

113. The High Court set out in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Footnotes omitted.)

114. The comparisons drawn by the appellant to definitions contained in the Litter Act were of little assistance. As McWilliam J observed in Benz v Baldock [2024] ACTSC 399 at [65] there may be limited utility in definitions contained in other acts to the task of statutory interpretation: Other than to note that camping has been defined by other statutes elsewhere in Australia, it is difficult to see the relevance of the definitions to which the magistrate referred. To the extent that this was an attempted application of the principle that statutes upon “the same subject matter along the same lines” are to be construed in a similar manner, that is, in pari materia, (as to which see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [24]), regulations in different states on recreational reserves could not be said to be the same subject matter as National Land. The High Court in SZTAL went on at [24] to say (references omitted): Without this feature there is no warrant to transpose the meaning of a word from one statute to another or to assume, where the same words are used in a subsequent statute, that the legislature intended to attach the same meaning to the same words.

115. The text must be read with regard to and consistent with the provisions of the Act as a whole: see Legislation Act 2001 (ACT), s 140; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. The context of the phrase, which includes words and/or expressions proximate to it, the subject of the provision as a whole, the place in the Act where the phrase appears and the whole of the Act, are significant considerations in coming to consider the intention of parliament revealed in the words of a statute.

116. The notion of a public place or an area “open to or used by the public” or an area to “which the public has access” has been the subject of substantial consideration by courts in various contexts.

117. In Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728 at 734, Glass JA took guidance from the High Court in Schubert v Lee (1946) 71 CLR 589 at 592 where it was observed: It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop other premises.

118. The premium the law places on personal liberty requires a statute which authorises the detention of a person to be strictly construed: per McColl JA in Hyder at [13] and the authorities there cited.

119. In Ryan v Nominal Defendant [2005] NSWCA 59; 62 NSWLR 192 Santow JA (with whom McColl JA agreed) likened the notion of “access” by the public to the notion of “openness to the public”. Invoking the High Court of Justiciary in Harrison v Hill [1931] SLT 598 at [77]-[78] where it was observed that “access” is a reference to a state of affairs in which the public “actually and legally enjoys access to” the area in question access “must be permitted or allowed, either expressly or implicitly, by the person or persons” to whom the area belongs” Santow JA comprehensively considered “the complex relationship between openness and usage”.

120. His Honour concluded at [73] that openness and usage are subtly interrelated and observed: The concept of openness inherently connotes the factual potential for use, where as use itself is typically the fulfillment of that potential. This goes some way to explaining why openness is often treated as logically anterior to use.

121. And further on at [75] citing Harrison, Schubert and Mercantile Mutual: The nature and extent of use is clearly relevant to determining whether a place is open to the public as the factors consistently taken into account by the courts demonstrate.

122. His Honour also observed at [80] in the context of the phrase “a road to which the public has access”: It is evident that their Lordships in Harrison and Bugge respectively considered that at the point where members of the public wilfully render a place open to them by defying the owner’s assertion, consistently maintained, of his private rights of property, it should not be open to them to say that the places was one to which the public have access. The public does not have access; it has taken access. Thus, public access is not a characteristic of the place at the relevant time nor the product of a de facto tolerance by the owner.

123. Hall v Rigby [2018] NTCA 12; 170 NTR 1 at [27]-[29] involved a consideration of whether a place was a public place for the purposes of a similar police power of detention as that which involved the appellant. The provision in Hall required the police officer to have “reasonable grounds for believing the person is in a public place or trespassing on private property”. In Hall the person was taken into custody by police in a common area of a private lodge and a police officer gave evidence that he believed the area where the person was detained to be an area that was part of a thoroughfare accessed by members of the public and residents of the lodge’s units.

124. The court observed that a “public place” in the context of the provision in which it appeared was not concerned with the nature of the estate or who holds the property, and further that private property, in certain circumstances and from time to time, may nonetheless be a “public place” depending on how the property is “used and accessed” stating at [29]: ‘Public place’ describes the factual conditions surrounding the nature or use of a particular area or location. The matters to be taken into account in considering if a place is a public place include (i) the place being actually open to the public who have occasion or social purpose to be at that place; and (ii) a real use of the place by the public, as opposed to only casual or occasional use, so that there is a real need for regulation of the place. The access and use must be permitted or allowed, either expressly or implicitly by the person or persons to whom the property belongs or tolerated by the proprietor. All that is required is that members of the public may go to that place if they choose.

125. The court concluded that the evidence disclosed that there were reasonable grounds for the police officer to believe that the place was a public place and rejected an argument that the principle of legality precluded the broad interpretation of “public place” that the court came to apply in dismissing the appeal.

126. In Gonyley v Raiser [2020] ACTSC 86 Loukas-Karlsson J considered an appeal from a conviction for offences under the ACT road transport legislation which required proof that an area was a “road or road related area”. The definition of “road related area” included “area that is not a road and that is open to or used by the public for driving, riding or parking vehicles”.

127. Her Honour referred to Dowling v Nominal Defendant (1975) 6 ACTR 17, where Connor J stated: I think that when the legislature speaks of ‘any other open place to which the public has access…’ it refers to a place which has three characteristics; first that it is a place ‘other than a park, reserve etc’; secondly, that it is ‘open’ in the dictionary sense to which I have referred, that is to say it allows of access; and thirdly, that the public do in fact enjoy access to it.

128. In concluding at [34] that “there is no difference of any substance, as a matter of statutory construction and taking into account the relevant authorities discussed above, between the phrase “open to or used by the public” and “to which the public has access”” and finding “for the purposes of the definition of a road related area” and “open to or used by the public”, such a public place is a place where access is available to the public generally and not some special class of the public such as unit holders and invitees”, Loukas-Karlsson J drew on the analysis in Schubert at 592: The words “open to or used by the public” are apt to describe a factual condition consisting in any real use of the place by the public as the public—as distinct from use by licence of a particular person or only casual or occasional use.

129. Like the magistrate in the appellant’s case, Loukas-Karlsson J considered Winbank where Higgins J found that public access “must be with the permission express or implied, of the owner or other persons with lawful authority to permit or forbid entry”.

130. The provision in which the phrase is used in this instance provides police with a power of detention in respect of intoxicated persons, who because of their intoxication, behave in public in a manner that is disruptive, harmful or potentially harmful to themselves, to others or to property. The police power to detain a person is constrained by a requirement that police form the view that there is no alternative for the intoxicated person’s “care and protection”. The provision is protective not punitive. It does not create an offence.

131. Other provisions of the IPCPA provide for the circumstances in which an intoxicated person may be admitted into the care of a “caring service”, the granting of licences to those services and regulation of those services. A “caring service” is defined to mean a service that provides immediate, short-term care for intoxicated people, but does not include a service provided at a hospital or other medical facility. The IPCPA creates certain obligations on those services with respect to the treatment of intoxicated persons.

132. The whole of the IPCPA, as the name of the Act would suggest, is directed to the care and protection of people intoxicated in public, who because of their state of intoxication, are at risk of engaging in certain behaviour and there is no alternative for their care and protection.

133. The police power to detain such a person is the foundation for the application of the rest of the IPCPA. The detention provision provides police with a tool to address the risk to public good order that intoxicated persons might present. It allows police to intervene and regulate behaviour in public arising from intoxication, that does not amount to a criminal offence, but which is a risk to safety and good order where there is no alternative for the person creating the risk to be cared for care and protected.

134. In the context of the provision in which the phrase appears and the purpose of the IPCPA as a whole, there is a distinction drawn between behaviour arising from intoxication which warrants the regulation of police because of the public nature of it and behaviour which does not warrant regulation because it is occurring in a place that is not public (for example, ‘disorderly’ conduct in private premises). In light of the necessity for police to be satisfied that no alternative exists for the persons care and protection before they can be detained under the provision, the distinction between a public place and a place that is not public, can be seen as founded in common sense to avoid detaining people who could be cared for and protected (regulated) by others suited to the task of caring for them. A person behaving in a way which is disorderly (and not criminal) in a place which is not a public place cannot be subject to police regulation under the IPCPA. Their conduct could only be the subject of police regulation if police were invited into the private space by the owner to address the person’s conduct. For example, if a person’s access to a private space was withdrawn by the owner of the private space because of their intoxicated, disorderly conduct then police could intervene on the basis that the person was trespassing.

135. I am not persuaded that the definition of public place for the purposes of the IPCPA should be as broad as was observed in Hall, namely that for a place to be a public place “all is required is that members of the public may go to that place if they choose”. In any event it is an observation that must be read in light of the statement which preceded it where the court stated, “access or use must be permitted or allowed, expressly or impliedly by the person or persons to whom the property belongs or tolerated by the proprietor”. This is consistent with the authorities to which I have referred.

136. In my view for a place to be one which the public, or a section of the public has access for the purposes of the IPCPA it must be an area to which the public or a section of the public actually and legally enjoys access in that they are expressly or impliedly permitted or allowed access by the owner of the area. The respondent accepted that whether an area is one which the public, or a section of the public, has access depends upon “the factual conditions surrounding the nature and use of a particular area or location”.

137. In this matter the magistrate found that a section of the public, namely those who had an intention to approach a unit located within Jerilderie Court to communicate with a resident, had an implied licence to be in the barbeque area where the appellant was located upon police arrival.

138. The respondent submitted that the nature and use of the internal courtyard was an area where “members of the public would likely be present from time to time” and accordingly presented a “real need for regulation”.

139. For the reasons that follow I do not agree that the barbeque area where the appellant was detained by police was a public place for the purposes of the IPCPA.

140. The magistrate concluded that the ‘Tenants Only’ sign was “ambiguous and equivocal as to whether or not it, without reservation, prohibits people to operate in the ordinary way and approach someone’s front door and knock on it” and it was “unclear whether or not it’s been endorsed by everyone”. The magistrate found as a result that “members of the public would have access to approach the doors and go through the barbeque area, and I say members of the public noting that it could be reduced to a section of the members of the public who have an intention to enter for that purpose”.

141. The BWC footage revealed the Jerilderie Court was a block of units bounded by public roads with access points into an internal area which provided a garden like, communal space which included the barbeque area. The barbeque area where the appellant was detained by police was situated alongside a grassed area which was surrounded by internal footpaths which lead to individual units and staircases which appeared to give access to individual units. There was signage on staircase walls which pointed in the direction of individual units. The BWC footage captured a sign entitled “Notice to all Residents” located at the base of one set of stairs but there was no evidence about what the words underneath the title read and it was not possible to read the words on the BWC footage.

142. To access the appellant at the barbeque area police parked in a car park where a sign which read “Residents Parking Only” was affixed to a wall of the unit block. Police were depicted walking through an open gate attached to fencing which was attached to walls of the unit block to separate the internal area from the car park. The barbeque area, grassed area and internal footpaths were all internal areas of Jerilderie Court around which the physical building was wrapped.

143. Once inside the internal area of the Jerilderie Court complex, ground floor units had a fenced area with a gate which opened out onto the internal pathways. The internal pathways led around the outside of a grassed area and the barbeque area.

144. It could be observed that use of the internal pathways which led to individual ground floor units and staircases which appeared to lead to upper-level units, did not require access to or use of the barbeque area or the grassed area. The gates to the ground floor units and the staircases to the other units could be accessed via the internal pathways and did not require access to or movement across the barbeque area or the grassed area.

145. The magistrate accurately described the BWC footage as depicting “people walking past, back and forth as police were having conversations with the [appellant] and others” and the respondent submitted that “various persons were walking in and around the area”. But there was no evidence at all about whether those people were residents or whether they were invitees or members of the public who were using the internal space as a thoroughfare or to access the units to “knock on someone’s front door”.

146. A conversation was captured between police and a man who came out of a gate from a ground floor unit who identified himself by name and that he was from “number 37”. He was not asked by police any questions about access to or use of the internal space, for example how visitors accessed his unit or how mail or deliveries were left for him. He was not asked if the gate he used to enter the internal area was the only access point for his unit or whether there was another door to his unit which faced out onto the street for example. This man was not called to give evidence.

147. The significance of the observation that other people were captured moving around the area where the appellant was detained by police should not be misunderstood or overstated. Putting aside the appellant, the appellant’s brother (who the evidence established was also a resident of Jerilderie Court) and the complainant (who was also a resident), the number of people captured walking within the internal area of Jerilderie Court in the period captured by BWC was no more than 8 (which included the resident from number 37 and another man who appeared with him). The appellant, his brother and the complainant appeared to be interacting with people in the barbeque area but there was no evidence about whether they were tenants, invited visitors or members of the public who had accessed the area. The number of people depicted in the BWC footage was not unusual for daytime in a large unit block nor was it necessarily suggestive of the area being used by the public, or a section of the public, as a thoroughfare or for some other purpose. The number of people captured was consistent with residents within a large unit complex moving around an area which was designated for their use.

148. Except for the resident from ‘number 37’ none of the other people walking within the internal area of Jerilderie Court were spoken to by police about their presence in the internal area and no person gave specific evidence about access to or use of the internal area where the barbeque area was located.

149. The magistrate determined that the ‘Tenants Only’ sign was “ambiguous” or “equivocal”. This conclusion was founded, it would seem, on the basis that there was no evidence that each resident had endorsed it and there was no evidence that a sign in the same terms was at other access points.

150. The first point to observe is that there was no evidence that such a sign was not at other access points to the complex. The absence of evidence as to the presence of signage at other access points did not undermine the effect of the ‘Tenants Only’ sign which was in evidence.

151. The ‘Tenants Only’ sign included a map which marked the boundaries of Jerilderie Court. It was similar in appearance to the “Residents Parking Only” sign which was affixed to a wall of the complex and visible in the BWC footage when police pulled into the Jerilderie Court carpark. It was intended, in my view, to announce to the ‘public’ at large that the area inside the boundary of the complex was only for ‘tenants’.

152. Absent evidence which undermined or limited its effect, on its face the sign was a clear indication that the area inside the physical boundary created by the building and fencing of Jerilderie Court was not to be accessed by anyone who was not a tenant. The physical set up of the internal area revealed in the BWC footage was consistent with that indication. The physical construction of the area supported the area as being reserved for the use of tenants only and not intended for access by the public.

153. The internal area of Jerilderie Court could not be seen from the carpark where police were parked. The carpark where police came to stop had a sign which read “Residents Parking Only”. The internal area of Jerilderie Court was enclosed by the fencing and the walls of the unit block which made up the complex, at least one access point included a gate which could be secured and there was at least one “Tenants Only” sign as described on an external wall of the complex. There was no basis to consider the sign ambiguous or equivocal. It was plain on its face that it was notice to the world that the area was for the exclusive use of tenants of Jerilderie Court.

154. In my view the evidence did not establish that the internal area of Jerilderie Court which included the internal grassed area, internal footpaths and the barbeque area, was an area to which the public at large, enjoyed access. The appellant, in using the barbeque area of the internal precinct of Jerilderie Court, was in an outdoor area exclusively for his use as a tenant.

155. The magistrate by inference came to the same conclusion because his finding that the area was a public place was based on only a section of the public, namely those wishing to “knock on the front door” of Jerilderie Court units, having an implied right to access the area for that purpose. The passage in Romani v State of New South Wales [2023] NSWSC 49 from which I apprehend the magistrate drew support for his conclusion appeared at [42] as follows: The question whether an occupier of land has consented or granted a licence to another to enter upon it is essentially a question of fact. If a driveway or path leading to the entrance of a dwelling is left unobstructed, with the entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the driveway to the entrance of the dwelling for the purpose of lawful communication with any person in the house but such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. (Citations omitted.)

156. The magistrate inferred from the BWC footage that the front entrance to each unit could only be accessed via the internal area. There was no evidence about how the units of Jerilderie Court could be accessed by visitors or by any other person who might wish to exercise an implied right to approach a unit. Certainly, the footage demonstrated that at least one access point to a unit could be accessed from the internal area of Jerilderie Court but there was no evidence about access to the units from the public roads which surrounded the complex or whether there was a call system for those outside the complex to notify a tenant that they wished to come to their front door.

157. Importantly, implied permission to knock on the front door of a unit or units which made up Jerilderie Court did not require a person to access the barbeque area where the appellant was first approached by police. The BWC footage demonstrated that units could be accessed using the internal footpaths of the internal Jerilderie Court area without access to or movement across the barbeque area.

158. If there existed an implied right to enter the internal area of Jerilderie Court to “knock on the front door” of Jerilderie Court units, that right did not extend to access to the barbeque area.

159. For completeness, I cannot agree with the respondent’s submission that the nature of the space was such that it demanded a “real need for regulation”. The appellant was a tenant of Jerilderie Court. So too, his brother. The barbeque area was a space set aside for residents to have access to garden like, outdoor space. The appellant was, when detained by police, effectively in an area akin to a backyard or courtyard of a private residence. If the gate to the backyard of a private residence was left open or was broken or if a backyard could simply be physically accessed because there was no barrier which obstructed access and a member of the public simply chose to access the backyard because they were not physically obstructed from doing so, it would not render that backyard a place to which the public had access and therefore a place in “need of regulation”. If a person entered the backyard in those circumstances and was intoxicated, whilst the police could not deal with that person pursuant to the IPCPA they would, as I have already recorded, have the power to deal with the person as a trespasser.

160. The fact that a member of the public or a member of a section of the public could physically access the barbeque area of Jerilderie Court if they chose to do so because a gate was open or because there was no physical barrier, did not render it a public place in need of regulation for the purposes of the IPCPA.

161. The respondent submitted that it was not fatal to the case against the appellant if I determined that the internal area of Jerilderie Court was not a public place for the purposes of the IPCPA. The submission, citing Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [40] and George v Rockett at 116 and the arresting officer’s evidence that he considered the area to be “a public place that is open to and used by the public”, was made that I need only be satisfied that the arresting police officer believed on reasonable grounds that the internal area of Jerilderie Court was a public place. I note this was not the way the issue was approached before the magistrate.

162. In any event I am not persuaded that this approach finds support either on a textual or purposive analysis of the provision. I observe here that the text of the provision considered in Hall was differently constructed to the IPCPA provision and permitted a police officer to detain an intoxicated person if they had “reasonable grounds to believe that the person is in a public place or trespassing on private property”.

163. Given the context in which they were decided, I have doubt about the application of Ruddock v Taylor and George v Rockett to this matter. Both involved examinations of an exercise of power which required a reasonable suspicion or belief to be formed about a particular matter. The IPCPA requires an officer detaining a person pursuant to the Act to form a belief on reasonable grounds about the person’s state of intoxication and the nature of their conduct because of it. The section permits dramatic interference with the liberty of people who have not committed a criminal offence. The provision must be interpreted strictly and, in my view, not so as to authorise detention of a person based on a mistaken view as to the public nature of a place.

164. The wording of the provision dictates that the person must be in a public place for the power to be lawfully invoked, not that the officer need only believe of reasonable grounds that the person is in a public place. The status of the place as a public place for the purposes of the IPCPA provision seems to me to be a matter of law determined by reference to the factual conditions surrounding the nature and use of the place and not a matter to which a belief on reasonable grounds can attach for the exercise of the power to be lawful. In my view, the text of s 4 does not evince an intention that a police officer can lawfully detain a person when, as a matter of law, they are not in a public place.

165. If I am wrong about that, in this instance I do not consider, because of the features of the building to which I have already referred, that there were reasonable grounds for the arresting officer to form such a belief.

166. Accordingly, the appellant was not in a public place for the purposes of the IPCPA when he was detained by police pursuant to s 4. A necessary precondition for his lawful detention by police did not exist.

167. During the course of the appeal hearing submissions were made about the requirement for an arresting officer to be satisfied, before lawfully detaining a person pursuant to s 4, that there was no reasonable alternative for the intoxicated person’s care and protection. The arresting officer’s evidence about this issue was limited. He explained that operating on his mind was the fact that there had already been an incident to which police had been called and that the appellant’s brother was also intoxicated. He conceded that he did not consider whether there was any other member of the appellant’s family who might be able to see to his care and protection.

168. The BWC footage demonstrated that the appellant, having been established by police to be a tenant of the complex, told a police officer who placed him into the back of the police wagon that he had a “wife and a child” to which the police officer responded, “I get that”. The police officer who had this interaction with the appellant was not the arresting officer and did not pass this information on to the arresting officer.

169. I accept the respondent’s submission that an arresting officer is not required to exhaust all avenues of inquiry to be satisfied that no other reasonable alternative exists for an intoxicated person’s care and protection. I have also heeded the respondent’s caution, invoking the reasoning of McColl JA in Hyder at [43], that the exercise of power by the arresting officer pursuant to s 4 should not be scrutinised with an “overly legalistic, hindsight, cold court room type of approach”.

170. The arresting officer’s evidence did not reveal any specific consideration of whether there was any alternative for the appellant’s care and protection. Conceding the limitations of the arresting officer’s evidence in this regard, the respondent nonetheless submitted that the inference to be drawn from his evidence was satisfaction on his part that there was no other reasonable alternative because the appellant’s conduct in the context of conflict with another tenant rendered him remaining at the unit complex an unreasonable alternative.

171. Neither the appellant, nor his brother were asked any questions about whether anyone else lived with them or whether there was anyone present at their residences at the time the appellant was detained. The reference by the appellant to his wife and child to the officer who placed him in the police wagon was not shared with the arresting officer. Whilst this would have been ideal and potentially provided some foundation for the arresting officer to reflect on the view he formed about an alternative for the appellant, I am nonetheless satisfied that the arresting officer was satisfied that there was no other reasonable alternative for the appellant’s care and protection when he detained the appellant.

Ground 3 – was the search of the appellant at the Watch House lawful?

172. This ground of appeal asserted that the magistrate erred in finding that the search of the appellant was lawful pursuant to s 5 of the IPCPA. The provision is extracted above at [65].

173. “Search of a person” is not explicitly defined in the IPCPA. The definition of “search” in s 5 of the IPCPA mirrors the definition of “ordinary search” contained in s 185 of the Crimes Act: ordinary search means a search of a person or of articles in the possession of a person that may include— (a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes, socks and hat; and (b) an examination of those items.

174. Such was noted by the magistrate in his decision.

175. “Frisk search” is also defined in the Crimes Act at s 185: frisk search means— (a) a search of a person conducted by quickly running the hands over the person’s outer garments; and (b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

176. The appellant argued that a frisk search is the only form of search which permits a police officer to touch a detainee and accordingly the frisk search which took place was unlawful as the language of “search” in s 5 of the IPCPA does not contemplate a frisk search.

177. The appellant relied on the second reading speech of the Intoxicated Persons (Care and Protection) Bill 1994 where it was observed that “police will retain the power to search a person, but the search is limited to that of specified outer clothing” as well as the Explanatory Memorandum to the Intoxicated Persons (Care and Protection) Bill 1994 (ACT) which stated that: Subsection (3) defines the limitations of search which can be undertaken to the removal of specified outer garments and examination of those items.

178. The appellant submitted that the intention of the legislature was clearly to permit only the most limited form of search which could be conducted on a person who is detained under the IPCPA.

179. As was underscored by the respondent, the language of the statute provides for the search “of a person” “or” of articles in their possession plainly contemplates the application of physical touch. The respondent submitted that although the extrinsic materials the appellant referred to could be taken to indicate that the power in s 5 is limited to that of searching outer garments, this would be contrary to the plain language of the provision and inconsistent with the whole of the Act. I agree.

180. Section 6C of the IPCPA provides a power to search a person who is detained by police and released into the care of a ‘licenced place’ pursuant to s 6. Section 6C(1) permits a “frisk search” of a person by a carer in a licenced place. “Frisk search” is defined at s 6C(6) consistent with the definition contained in the Crimes Act. The respondent observed that on the appellant’s argument a police officer has power to search a detainee which is more limited than the power available to a carer at a licenced place.

181. Acting Seargent Richardson gave evidence that she believed a ‘frisk search’ was permitted by the Corrections Management Act 2007 (ACT) (‘CMA’). Section 6 of the CMA applies the Act to “detainees” which includes “anyone else while the person is required to be held in custody or detention under a territory law or law of the Commonwealth, a state or another Territory”.

182. There is no basis to conclude that the power to search a detainee in s 5 does not include the power to touch a detainee. The appellant’s interpretation would limit the power to search a detainee to making observations of them and searching certain items of clothing after they are removed. Noting the protective nature of the IPCPA it would be nonsensical for police to have the power to detain a person for their own protection but not be able to conduct a search of them to determine whether they have an item which might harm them or others.

183. The appellant was subject to what can best be described as a ‘frisk search’; an officer ran their hands lightly over his outer clothing. Like the magistrate I consider s 5(1) of the IPCPA permitted a search of the appellant of this nature. The language of the provision in my view plainly contemplated the application of physical touch in order that a ‘search of a person’ be effected.

184. Whilst strictly unnecessary to consider in light of my conclusion, I observe that there is no reason to doubt that the CMA applied to the appellant. That Act provided power for police to subject a detainee to a “frisk search” and an “ordinary search” defined in the same terms as the Crimes Act.

185. The magistrate was correct to conclude that the search of the appellant was lawful.

186. This ground of appeal has not been established.

Finding

187. I have concluded that the detention of the appellant pursuant to s 4 of the IPCPA was unlawful because he was not in a public place.

188. I will hear further from the parties as to the consequence of that finding.

I certify that the preceding one hundred and eighty-eight [188] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor Associate: P Beohm Date: 19.11.2025