Mole v Prior [2016] NTCA 2

Evidence (National Uniform Legislation) Act 2011 (NT) s 138, s 142

Police Act 1892 (WA) s 50

Dumoo v Garner [1998] NTSC 8; (1998) 143 FLR 245; Prior v Mole [2015] NTSC 65; referred to

Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 90 ALJR 38; _Parker v Comptroller-General of Custom_s (2009) 83 ALJR 494; Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514; applied

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1; Donaldson v Broomby [1982] FCA 58; (1982) 60 FLR 124; DPP v AM [2006] NSWSC 348; (2006) 161 A Crim R 219; DPP v Carr [2002] NSWSC 194; (2001) 127 A Crim R 151; DPP (NSW) v CAD & Ors [2003] NSWSC 196; Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147; discussed

Respondent: North Australian Aboriginal Justice Agency

Mole v Prior [2016] NTCA 2

[1] The respondent is an indigenous man. On New Year's Eve (31 December 2013), he was drinking red wine outside the Stuart Park shops with two other men. He was intoxicated.

[2] A police car drove past the shops. The respondent gestured to the police officers with the middle finger of his right hand and shouted abuse at them. The police car did a U-turn and parked in front of the area where the men were drinking. As the police parked their car the respondent sat down on a shop window ledge and picked up a large plastic bottle that contained red wine. There were also several open and unopened bottles of beer in the area where the respondent and the other two men were sitting.

[3] Constable Blansjaar got out of the police car and had a brief conversation with the respondent. He inspected the contents of the plastic bottle, determined that it contained red wine, poured the contents out, and threw the bottle in a nearby rubbish bin. The other bottles of alcohol were also poured out. Constable Fuss began writing out an infringement notice for the respondent for drinking alcohol in a regulated place and causing a nuisance contrary to s 101V of the Liquor Act 1978 (NT). The maximum penalty for this offence is a fine of five penalty units. Constable Fuss did not finish writing out the infringement notice because of what happened next.

[4] The police asked the respondent to speak to them at their car and he walked to the police car. He was a bit unsteady on his feet but not staggering. He smelled strongly of liquor, his eyes were bloodshot and he was very dishevelled. Constable Fuss asked him why he had given them "the bird" and abused them. He said something like, "Because you are all cunts and you gave me the finger last week." The police officers also asked the respondent to give them his details and tell them why he was drinking in a regulated area. When he spoke to police, he was belligerent and aggressive and he was slurring his words.

[5] There were members of the public present. Two parents putting their two children into a car looked quite alarmed. They grabbed their children and quickly put them in the car. They told Constable Fuss that what they were hearing was not nice.

[6] At about this point, Constable Blansjaar told the respondent he was being placed in protective custody. When that happened, the respondent became more abusive and Constable Blansjaar called for another police unit in a motor vehicle that had a cage on the back. Constable Mole and Sergeant O'Donnell then arrived in the caged vehicle. Constable Blansjaar told the respondent that he would be taken to the police station in the cage. The respondent picked up his backpack and walked to the back of the vehicle. Constable Blansjaar took the respondent's backpack from him and asked him to hand over his mobile phone. The respondent said that they were not taking his phone because he wanted to call his wife. Police told him he would have an opportunity to call a sober adult when they arrived at the police station. This made the respondent angry and he began to swear more and become more aggressive. He kept calling Sergeant O'Donnell a "dog cunt".

[7] Sergeant O'Donnell forcibly took the phone from the respondent and assisted him into the cage. While the respondent was being placed in the cage, he spat on Sergeant O'Donnell twice. He was then placed under arrest for assaulting Sergeant O'Donnell in the course of his duty.

[8] After the cage was locked, Sergeant O'Donnell and Constable Mole drove off in the caged vehicle and Constables Blansjaar and Fuss followed in their police car. Both vehicles stopped at the traffic lights at the corner of Westralia Street and the Stuart Highway and while the vehicles were stopped the respondent continued to shout abuse and spit. He then stood up, undid the zipper of his jeans, withdrew his penis and attempted to urinate on the police car occupied by Constables Blansjaar and Fuss.

[9] As a result, the respondent was charged, by Complaint dated 31 December 2013, with the offences of:

(1) behaving in a disorderly manner in a public place contrary to s 47(a) of the Summary Offences Act 1923 (NT) (count 1); and

(2) behaving in an indecent matter in a public place contrary to s 47(a) of the Summary Offences Act (count 3).

[10] He was also charged by Information dated 31 December 2013 with the offence of unlawfully assaulting a police officer whilst in the execution of his duty contrary to s 189A of the Criminal Code 1983 (NT) (count 2).

[11] The charges were heard before the Court of Summary Jurisdiction on 14 May 2014. The court at first instance found that:

(1) the "arresting" officers were credible and reliable witnesses;

(2) the respondent was intoxicated, in the vicinity of licensed premises, aggressive and belligerent, and in the belief of the arresting officers likely to continue drinking and cause substantial annoyance to members of the public;

(3) the belief held by the "arresting" officers was reasonable, as was the determination to take the respondent into custody;

(4) the evidence concerning the respondent's conduct following the "arrest" was admissible.

[12] The magistrate found the respondent guilty of count 2 (assault [spitting] on Sergeant O'Donnell in the execution of his duty); guilty of count 3, (exposure of his penis in a public place); and not guilty of count 1, on the basis that the evidence concerning the content and volume of the respondent's statements was not sufficient to prove beyond reasonable doubt that he had behaved in a disorderly manner in a public place.

[13] By Notice of Appeal dated 15 May 2014, the respondent appealed to the Supreme Court against his convictions.

[14] The two main issues in the appeal were:

(1) whether the respondent was lawfully apprehended under the Police Administration Act 1979 (NT) ("PAA") s 128; and

(2) if lawfully apprehended, whether the evidence concerning counts 2 and 3 should nonetheless have been excluded in the exercise of the discretion under the Evidence (National Uniform Legislation) Act 2011 (NT) ("UEA") s 138 because the conduct of the police in apprehending the respondent failed to comply with minimum standards of police conduct as the apprehension was unnecessary.

[15] The Supreme Court made the following findings on appeal.

(1) Before the respondent was apprehended, there were reasonable grounds for Constable Blansjaar's belief that the respondent was intoxicated in the relevant sense.

(2) Before the respondent was apprehended, there were reasonable grounds for the belief that he would continue to commit the offence of drinking in a regulated place because of his intoxication.

(3) Before the respondent was apprehended, there was a reasonable doubt as to whether there were reasonable grounds for any of the police officers to believe that the respondent was likely to intimidate, alarm or substantially annoy other people.

(4) Following the respondent's apprehension, and while he was being placed in the police vehicle, he spat on Sergeant O'Donnell. The respondent was then arrested for assaulting Sergeant O'Donnell in the course of his duty. This assault constituted count 2.

(5) While the police vehicle in which the respondent was being conveyed was stopped at the traffic lights at the intersection of Westralia Street and the Stuart Highway, he stood up, undid his zipper, withdrew his penis and attempted to urinate on the following police vehicle occupied by Constables Blansjaar and Fuss. This act constituted count 3.

(6) By reason of the matters at (1) and (2) above, the respondent was lawfully apprehended in pursuance of PAA s 128 and accordingly grounds 1, 2 and 3 of the appeal could not be sustained.

(7) Although the respondent was lawfully apprehended, the evidence concerning counts 2 and 3 was obtained in consequence of an impropriety because the apprehension of the respondent was contrary to the proper standards of conduct expected of the police officers in the circumstances of the case. The apprehension of the appellant was inconsistent with the minimum standards of acceptable police conduct because the apprehension was unnecessary. Accordingly, the evidence should have been excluded under UEA s 138.

[16] The respondent's convictions on counts 2 and 3 were set aside and he was acquitted of those counts.

[17] In making the finding that the apprehension of the respondent was contrary to the proper standards of conduct which were expected of the police, his Honour accepted the submission by the appellant (the present respondent) that the content of the minimum standards of acceptable police conduct could and should be informed by Police General Orders which indicate the standard of propriety to be observed by the police.[1]

[18] Paragraph 1.1 of General Order A7 states that police powers of arrest and the taking of persons into protective custody under the PAA should be read in conjunction with General Order A7. Paragraph 2.2 of that General Order states the following:

2.2 The arrest of a person should be an action of last resort and police should arrest offenders only:

2.2.1 To prevent the continuation or repetition of an offence;

2.2.2 To prevent the risk of further offences causing a serious danger to the public;

2.2.3 If it is unlikely that a summons will ensure the offender's appearance in court;

2.2.5 If the person is intoxicated to the extent that they would not understand the consequences of their actions or the process of being summoned.

[19] His Honour held that sub-paras 2.2.1 to 2.2.5 inclusive do not constrain the breadth of what his Honour described as "the fundamental rule" set out in para 2.2 that the arrest of a person should be an action of last resort, they simply provide guidelines which lay down necessary but not always sufficient factors which must be established before a person is apprehended: arrest and apprehension should be reserved for circumstances in which they are clearly necessary. In so holding, his Honour set out the following statement of principle:[2]

General Order A7 is a very important order. The statement that "the arrest of a person should be an action of last resort" recognises that the right to personal liberty is "the most elementary and important of all common law rights".[3] The order is also consistent with the principle that "it is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined."[4] A police practice of arbitrary detention is a negation of any true right to personal liberty and "a hallmark of tyranny".[5]

[20] As a consequence, his Honour accepted a submission that the effect of General Order A7 is that police should not apprehend a person for protective custody unless they have given genuine consideration to the order and there are no other available alternatives to apprehension for protective custody. His Honour found that in this case, Constable Blansjaar and Constable Fuss did not give genuine consideration to the general order and to other available options. They were therefore in breach of the General Order and their behaviour fell below the minimum standards of acceptable police conduct.

[21] In reaching this conclusion, his Honour relied on a series of cases in which courts have used s 138 to exclude evidence of offences which have been committed after (and caused by) an unnecessary arrest of an offender in circumstances where a summons (or other initiating process) was the appropriate way to proceed against the person arrested.[6]

[22] His Honour found that the evidence about counts 2 and 3 in this case was obtained in consequence of what his Honour described as "the ill-advised and unnecessary apprehension" of the respondent and said:[7]

While he was intoxicated within the meaning of s 127A, the appellant was not seriously affected by alcohol. Before the police turned into the carpark, the appellant had only engaged in a single act of belligerent defiance. The act only involved the police and was of very short duration. His conduct then became more belligerent and abusive after the police tipped out his alcohol, took his mobile telephone from him and placed him in the cage of the second police motor vehicle. While it is likely that the appellant would have continued to drink in a regulated place it is unlikely that he would have engaged in any other offending once the police left the scene. The penalty for drinking in a regulated place is forfeiture of the alcohol. Given the offender's defiant attitude towards the police, his behaviour was entirely predictable. It was to be expected. There was a very close connection between it and his apprehension. Unfortunately, such behaviour is prevalent. However, if the appellant was issued with an infringement notice as was contemplated by Constable Fuss, it is unlikely that he would have assaulted the police and behaved in an indecent manner.

The apprehension of the appellant significantly interfered with his liberty and his detention was significantly in excess of any penalty that may have been imposed on him by the Court of Summary Jurisdiction for drinking in a regulated place even if he was creating a nuisance.[9]

[24] The appellant appeals to this Court on the grounds that the intermediate court, having found that the respondent had been lawfully apprehended under PAA s 128, fell into error by:

(1) misapplying Police General Order A7 and holding that the apprehension of the respondent was unnecessary; and

(2) excluding the evidence concerning counts 2 and 3 in reliance on UEA s 138.

[25] The essence of the complaint is that his Honour wrongly equated the apprehension of the respondent under the protective custody provisions in PAA s 128 with a criminal arrest.

[26] UEA s 138 provides relevantly:

Exclusion of improperly or illegally obtained evidence

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

[27] The burden is on the party seeking exclusion of the evidence to establish that it was improperly or illegally obtained.[10] If the party seeking exclusion of the evidence establishes that it was obtained unlawfully or improperly, the court must balance those considerations supporting exclusion of the evidence against those supporting its admission in the particular circumstances of the case. In this phase, the onus shifts to the party supporting admission of the evidence.

[28] The intermediate court having found that the respondent was lawfully apprehended in pursuance of PAA s 128, there is no issue on the appeal of evidence having been obtained in contravention of an Australian law, or in consequence of a contravention of an Australian law. (There is, however, a challenge to this finding of the intermediate court in the notice of contention. That is dealt with at [64] below.)

[29] The issue is whether the evidence was obtained "in consequence of an impropriety". The UEA contains no general or specific definition of "impropriety". The method or conduct will only be "improper" in the relevant sense if it is "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".[11]

[30] It is not necessary for the conduct in question to have been intentionally designed to bring about the commission of the offence. In determining whether evidence has been "improperly" obtained, the court must identify "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement" in the particular context, and determine whether the conduct in question was "quite inconsistent with" or "clearly inconsistent with" those standards. It is not sufficient for the conduct to merely contravene those standards in some minor respect.[12]

[31] PAA s 128 provides (relevantly):

Circumstances in which a person may be apprehended

(1) A member may, without warrant, apprehend a person and take the person into custody if the member has reasonable grounds for believing:

(b) the person is in a public place or trespassing on private property; and

(c) because of the person's intoxication, the person:

(i) is unable to adequately care for himself or herself and it is not practicable at that time for the person to be cared for by someone else; or

(ii) may cause harm to himself or herself or someone else; or

(iii) may intimidate, alarm or cause substantial annoyance to people; or

[32] Mr Wyvill SC for the respondent submitted that although on their facts DPP v Carr and DPP v AM (and others considered by his Honour) were cases in which the impropriety being considered consisted of the use of powers of arrest where there was an available alternative, they were simply illustrative of a wider common law principle enunciated in the cases cited by his Honour (Trobridge v Hardy, Donaldson v Broomby and Cleland v The Queen) and given effect to in General Order A7, that the power to arrest or detain an individual should always be a last resort. It is evident from his Honour's reasons that his Honour accepted that view.

[33] The Solicitor-General, Mr Grant QC for the appellant contended that the intermediate court erred in applying cases concerned with the use of powers of arrest for a minor offence when there was no reason to believe that a summons would not be effective, and in applying general principles referred to in Trobridge v Hardy, Donaldson v Broomby and Cleland v The Queen, essentially conflating two separate lines of authority, neither of which was applicable to the exercise of the power to apprehend a person under s 128.

[34] We agree that the cases concerning the improper use of criminal arrest when a summons would answer the purpose are of no real relevance to the issue in the present case. The purposes of the two powers of apprehension being so different, the factors relevant to one are of little relevance to the other.

[35] As the appellant contended, although the power of apprehension set out in PAA s 128 is referred to colloquially as "protective custody", it has both a protective and a preventative element, and the language of the section evinces a clear legislative determination that the act of taking a person into civil protective custody is not the equivalent of a criminal custodial arrest. The distinction between the purposes of the two was adverted to in North Australian Aboriginal Justice Agency Limited v Northern Territory[13] in the following terms:

The evident law enforcement function served by Div 4AA is to be contrasted with the evident protective function served by Div 4. Division 4, which predated Div 4AA, authorises a member of the Police Force to apprehend without warrant a person who the member has reasonable grounds for believing is intoxicated and is either in a public place or trespassing on private land. The member must have reasonable grounds for believing that, because of his or her intoxication, the person: is unable adequately to care for himself or herself and cannot practicably at that time be cared for by someone else; may cause harm to himself or herself or someone else; may intimidate, alarm or cause substantial annoyance to people; or is likely to commit an offence. The person so apprehended can be held in custody for no longer than it reasonably appears that the person remains intoxicated, and is then to be released. The person is to be neither charged with an offence nor questioned in relation to an offence.[14]

Section 128 in Div 4 of Pt VII of the PA Act provides for apprehension of an intoxicated person and taking him or her into custody but, by operation of s 129, "only for so long as it reasonably appears ... that the person remains intoxicated." The apprehension is not an arrest.[15]

[36] The purpose of the power of criminal arrest and detention is to ensure that a person accused of a crime is available to be dealt with by the courts. The alternative to criminal arrest, in order to achieve that purpose, is to proceed by way of summons (or other available initiating process such as the issue of an infringement notice). We agree with the appellant's submission that it is in that context that questions of necessity and appropriateness arise when considering the exercise of the power of criminal arrest. The use of the term "last resort" in that context simply means that the exercise of the power of arrest should be confined to circumstances where the alternative of proceeding by way of summons would be unlikely to ensure that the accused is available to be dealt with by the courts or, in certain circumstances, where the adoption of any course other than criminal arrest would not allay the immediate risk that potential witnesses might be interfered with or material evidence destroyed.

[37] By contrast, the purpose of civil protective custody is to take an intoxicated person off the street in circumstances where by reason of that intoxication one or other of the conditions described in PAA s 128(1)(c) is satisfied. That being the purpose, the alternatives to civil protective custody are quite different to the alternatives to arrest, and questions of necessity and appropriateness (what constitutes "the last resort") will also be governed by different considerations - as indeed the respondent conceded. Certainly, as the appellant submitted, the issue of an infringement notice was not an alternative to the exercise of the power to place the respondent in protective custody.[16] Accordingly, the principles enunciated in the cases concerning the impropriety of arresting a person when a summons would have sufficed are of little or no relevance to a case which concerns the propriety of the exercise of the power to detain a person in "protective custody". As an example, the important consideration that the process of criminal arrest may involve an additional penalty over and above (and sometimes more severe than) that applicable to the relevant offence is simply irrelevant to the protective custody situation.

[38] Mr Grant for the appellant also disputed that the cases cited by his Honour and relied on by the respondent established the general principle of common law contended for by the respondent. He pointed out that those cases were by and large cases on statutory interpretation. That is essentially correct.

[39] In Donaldson v Broomby (a decision of the Full Federal Court sitting on appeal from the ACT Supreme Court) the appellant had been arrested without warrant for a suspected past offence notwithstanding that the arresting officer did not believe that a summons would be ineffective. Deane J began his judgment with general statements of principle quoted in part by his Honour in the passage set out above. However, the decision of the court that the arrest was unlawful (and the arresting officer not entitled to the benefit of protective provisions in the legislation) was not based on an application of those general principles, or on any over-riding principle that arrest should only be used as a last resort, but on the fact that s 8A of the Crimes Act (Cth)[17] which was applicable in the ACT specified the circumstances in which a constable was entitled to arrest a person for a suspected past breach of the law. Those circumstances were that the constable had reasonable grounds to believe two things: that the person had committed an offence against a law of the Commonwealth (or a Territory); and that "proceedings against the person by summons would not be effective".

[40] Trobridge v Hardy likewise concerned the applicability of protective provisions - in that case a provision to the effect that no action shall lie against any police officer on account of anything done in carrying the provisions of the relevant Act into effect. The defendant police officer purportedly acted under a section of the Act which provided: "Any officer or constable of the police force may demand from and require of any individual with whose person he shall be unacquainted his name and address and may apprehend without warrant any such person who shall neglect or refuse to give his name and address or either of them when required so to do as aforesaid."[18] The plaintiff had in fact given his name and address on request - handing over his business card. He was nevertheless arrested forcefully, taken to the police station and unlawfully imprisoned for two hours in humiliating circumstances. At the point when he was arrested, he was not suspected of having committed any offence whatsoever. The court held that the police officer was not attempting in any way to carry the provisions of the Act into effect, but rather was acting "wantonly and in abuse of his authority". He was not entitled to the protection of the relevant provision. Again, the case did not depend upon any general principle that arrest should be a last resort, but on an application of the statute and a characterisation of the conduct of the defendant police officer.

[41] The relevant part of Cleland v The Queen concerned the question of whether a confession made in circumstances where it was accepted that the accused's continued detention was unlawful by the time the confession was made ought to have been excluded as improperly obtained. (The appeal was allowed on other grounds.) No improper pressure had been applied and the majority (Gibbs CJ, Wilson and Dawson JJ, Murphy and Deane JJ dissenting) held that the confession had been rightly admitted. It was in the context of a discussion of the public policy reasons behind the exclusion of improperly obtained confessions that Deane J made the remarks quoted in part by his Honour in the intermediate court:

Since a new trial is being ordered, it seems desirable that I indicate that it is not apparent to me that the balancing of the relevant considerations of public policy did not favour the exclusion of evidence of the alleged confession. A police power or practice of arbitrary detention is, like a police power or practice of arbitrary arrest, a negation of any true right to personal liberty and a hallmark of tyranny. It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed. In a number of recent cases, judges of the Supreme Court of South Australia have rightly been at pains to emphasize the importance of observance by law enforcement officers of those restraints by excluding, on the grounds of public policy, evidence of a confessional statement obtained while an accused was unlawfully detained.[19]

[42] One cannot derive from these cases (or these cases in conjunction with the "unnecessary arrest" cases referred to by his Honour) a general proposition that, regardless of the statutory regime, arrest or detention must always be "a last resort".

[43] Nevertheless, we consider that there is nothing in s 128 which evinces a clear intention to abrogate the fundamental freedom of the individual's right to liberty more than is necessary to achieve the purpose of that provision. The courts will not construe a statute as having the effect of abrogating or suspending a fundamental freedom (such as an individual's right to liberty) unless the Parliament makes its intention unmistakably clear. The court will not impute such an intention to the legislature. An unmistakably clear intention must be manifested in explicit language which shows that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined that they should be abrogated or curtailed.[20]

[44] The appellant contended that General Order A7 did not impose on police a general, over-riding obligation to always treat arrest (defined in General Order A7 1.1 to include "the taking of a person into protective custody") as a last resort, and that the specific provisions in 2.2.1 to 2.2.5, essentially covered the field, defining what is meant by "last resort" for the purposes of the General Order.

[45] The respondent, on the other hand, contended that the General Order did impose such an overarching general obligation, and that those sub-paragraphs were simply specific examples, not intended to limit the generality of the general obligation set out in the introductory words to General Order 2.2. We agree. First, that appears to be the ordinary grammatical sense of the words used. The Order provides: "The arrest of a person should be an action of last resort and police should arrest offenders only [for the purposes or in the circumstances set out in sub-paras 2.2.1 to 2.2.5]." The use of the word "and" seems to indicate an added requirement (or a series of examples), not that what follows is an exhaustive definition of what went before.

[46] Also, although General Order A7 1.1 defines "arrest" to include "the taking of a person into protective custody", as Mr Grant pointed out, the purposes and circumstances in 2.2.1 to 2.2.5 are ill-adapted to protective custody. More importantly, other considerations which are relevant to the appropriateness of placing a person in protective custody, and which are not set out in para 2.2, readily spring to mind; for example the degree of intoxication, the degree of likelihood that the person will commit an offence or possibility that the person may intimidate, alarm or cause substantial annoyance, and the seriousness of the likely offending or possible intimidation, alarm or annoyance: there are many others.

[47] Mr Grant for the appellant rightly pointed out that General Order A7 cannot override the statute. However, we see nothing inconsistent between the two. PAA s 128 sets out the circumstances in which a police officer may (not must) take a person into protective custody: it confers a discretion on police officers. The General Order does not purport to limit that discretion: it sets out principles with which officers are expected to comply in exercising the discretion, including the principle that "arrest" (as defined) should be an action of last resort.

[48] The question for the learned magistrate at first instance, for the intermediate court and for this Court remains: was the conduct of the police officer in placing the respondent in protective custody in the circumstances of this case clearly inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement.

[49] The respondent submitted that the officer's conduct was plainly inconsistent with those standards because he did not abide by the principle that protective custody should only be used as a last resort. In his written submissions, counsel for the respondent listed a range of suggested alternatives which, he submitted, were available to police. The appellant contended that the respondent did not call evidence at first instance to establish that a relevant alternative to civil protective custody was actually available in the respondent's case. However, the respondent's primary submission was simply that the police officer who made the decision did not consider at all the question of what (if any) alternatives were available and that this was an error of principle.

[50] We do not agree that in each and every situation where the conditions for taking a person into protective custody have been satisfied, a police officer must necessarily turn his or her mind to what alternatives there may be and that it is an error of principle not to consider whether it might be more appropriate to warn the person, tell them to go home, ask whether they have someone who can come and collect them or take some other course of action less restrictive of the person's liberty. Indeed, counsel for the respondent was at pains to disclaim any suggestion that the police were obliged to "tick the boxes".

[51] In compliance with General Order A7, a police officer contemplating placing someone into protective custody must keep firmly in mind that that should only be done as a last resort. It is plainly desirable, where it is practicable, for police to actively consider possible alternatives and to ask relevant questions in order to assess the situation. However it is not a pre-condition for the exercise of the power that in every case the police officer must turn his or her mind to what alternatives may exist or that General Order A7 requires this. The circumstances are almost infinitely variable and sometimes an experienced police officer will know from the person's behaviour and other surrounding circumstances, that protective custody is the only available option.

[52] In this case, it would probably have been desirable for the police officers to have asked the respondent where he lived and if someone could come and get him. It would probably have been desirable for them to have given him an opportunity to phone his wife. On the other hand, they had been subjected to swearing, abuse and aggressive behaviour from the beginning of their dealings with the respondent. They may well have formed the view that such questions would have been futile, given the nature of the answers they had received to the questions they had already asked.

[53] There was extensive cross-examination of the two police officers in the Court of Summary Jurisdiction which established that they did not know the respondent and it seems that these officers acted to a certain degree on stereotyping the respondent. There is no evidence that, for example, the respondent had a history of recently or frequently being taken into protective custody or of alcohol related offending that the officers were aware of at the time. Constable Foss said in evidence that in his experience during five and a half years of policing, two years of which had been "social order" policing, "when someone's intoxicated" [and drinking in a public place near a liquor outlet], "if they've still got money on them, it's more than likely that's where they'll be going" [ie into the liquor outlet to buy more alcohol]. As counsel for the respondent noted, stereotyping is highly undesirable. However, the decision to place the respondent in protective custody was also based on the behaviour of the respondent at the relevant time (which was aggressive, abusive, indicative of intoxication, displayed a lack of judgment, and included blatant drinking in a public place in the presence of police) and the officers' experience over many years of the patterns of behaviour of people found intoxicated, drinking in the daytime in public areas close to liquor outlets. The police officer who made the decision to place the respondent into protective custody[21] was entitled to take that experience into account.

[54] Reasonable minds may differ as to whether the police officer concerned in this instance ought to have asked more questions and explored more fully the available options. However, although (as counsel for the respondent pointed out) the decision to place the respondent into protective custody was made reasonably quickly, the evidence does not establish that Constable Blansjaar did not turn his mind at all to the question of whether there was an available alternative that was less restrictive on the respondent's liberty. This Court was given numerous references to the evidence and it seems to us to be quite equivocal but to fall short of establishing on the balance of probabilities that Constable Blansjaar did not turn his mind to the question of whether there was a less restrictive option available before he decided to place the respondent into protective custody.

[55] Even if the evidence did establish that the officer did not turn his mind to that question, and even if this Court were of the opinion that the officer ought to have asked more questions before concluding that the respondent should be taken into protective custody, these are questions upon which reasonable minds may differ. We are not of the view that failing to ask these questions or to consider other options in the circumstances constituted conduct that was clearly inconsistent with the minimum standards which society should expect and require of those entrusted with powers of law enforcement.

[56] We therefore find that his Honour was in error in determining that the evidence relating to counts 2 and 3 should have been excluded under UEA s 138. The appeal is allowed on this ground.

[57] The judge in the intermediate court held that the grounds of appeal based on the contention that the police actions in taking the respondent into protective custody were unlawful had not been made out. (The contention was that the prosecution had not proved beyond reasonable doubt that the apprehension of the respondent under s 128 was lawful, and thus that Sergeant O'Donnell was acting in the course of his duties when the respondent assaulted him.)

[58] His Honour was satisfied that the prosecution had proved beyond reasonable doubt that the respondent was intoxicated to the relevant standard[22] (and, presumably, in a public place), and that there were reasonable grounds for Constable Blansjaar to believe both that the respondent was intoxicated and that he was likely to commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act if the police had left him on the pavement. Consequently, the police had power to apprehend the respondent under s 128. His Honour continued (at [37]):

However, I do entertain a reasonable doubt about whether the prosecution has proven that there were reasonable grounds for any of the police officers to believe that the appellant was likely to intimidate, alarm or substantially annoy other people. [emphasis added]

[59] The appellant conceded that (apart from the fact that s 128 only requires the police officer to have reasonable grounds to believe that the person may intimidate, alarm or cause substantial annoyance to people) his Honour posed the correct question for the purpose of determining whether the prosecution had proved beyond reasonable doubt that the apprehension of the respondent under s 128 was lawful, and the officer acting in the course of his duty. However, the appellant contended that his Honour ought to have re-considered the evidence relating to the possibility that the respondent may have intimidated, alarmed or caused substantial annoyance to people when determining the question of whether there had been impropriety in the police conduct for the purposes of UEA s 138.

[60] UEA s 142 provides that the civil standard applies to the proof of facts necessary for determining questions of the admissibility of evidence. It follows that facts going towards determining whether police acted "improperly" for the purpose of s 138(1) need only be determined on the balance of probabilities. The material facts relevant to determining whether police acted "improperly" in the relevant sense included:

(1) whether police believed on reasonable grounds that the respondent was likely to commit an offence; and

(2) whether police believed on reasonable grounds that the respondent might intimidate, alarm or cause substantial annoyance to people.

[61] Having found, at [37] that he entertained a reasonable doubt about whether the prosecution had proven that there were reasonable grounds for any of the police officers to believe that the respondent was likely to intimidate, alarm or substantially annoy other people, his Honour did not then go on to consider whether the evidence proved on the balance of probabilities that the police officer reasonably believed that the respondent might intimidate, alarm or cause substantial annoyance to people.

[62] The appellant contended that, had his Honour posed that question, he must inevitably have found on the balance of probabilities that Constable Blansjaar did believe on reasonable grounds that the respondent might intimidate, alarm or cause substantial annoyance to people. Constable Blansjaar gave evidence as to the existence of the relevant belief. Constable Fuss also said that the respondent was being "very aggressive towards police" and "his language was terrible, especially when there was a young family with young kids in the area." The magistrate at first instance accepted that both police officers were witnesses of truth, and his Honour's findings of fact indicate an acceptance of this. As to the reasonableness of Constable Blansjaar's belief, the respondent placed emphasis on the fact that the anti-social actions of the respondent were directed towards the police only, and that there was no evidence that the respondent had been harassing passers-by. The appellant, on the other hand, relied on the unchallenged evidence of Constable Fuss that members of the public appeared to be alarmed by the respondent's actions, and also on the evidence of the unprovoked abusive shouting and rude gesture which initiated police interaction with the respondent and the belligerent and aggressive nature of his subsequent conversation with them before he was placed in protective custody. These matters, the appellant contended, provided a further rational basis for police to believe that the respondent might similarly confront others passing by or entering and leaving the shops. We agree, and consider that it is clearly established on the balance of probabilities that Constable Blansjaar had reasonable grounds for his belief that the respondent might

intimidate, alarm or cause substantial annoyance to people.[23]

[63] We agree further with the appellant's contention that the failure of the intermediate court to consider the possible intimidation, alarm or annoyance to the public led to an undervaluation of the necessity and appropriateness of the police actions in taking the respondent into protective custody. Application of the correct test may well have led his Honour to conclude that the officer's actions were not improper in the circumstances. We have, in any event allowed the appeal on the basis set out above.

[64] By his Amended Notice of Contention the respondent contended that the decision of the intermediate court "may be supported on further grounds, namely that his Honour should have concluded (and erred in concluding otherwise) that:

(2) the evidence did not establish beyond a reasonable doubt that there were reasonable grounds for Constable Blansjaar's belief that, because of his intoxication, the respondent was likely to commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act (NT); and further

(2A) that the respondent had established on a balance of probabilities that Constable Blansjaar did not have reasonable grounds for his belief that because of his intoxication, the respondent may intimidate, alarm or cause substantial annoyance to people or was likely to commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act (NT);

(4) Constable Blansjaar did not have the power to apprehend the respondent and take him into custody pursuant to s 128(1) of the Police Administration Act (NT);

(5) by reason of (2) and (4) above, Sergeant O'Donnell was not acting in the exercise of his duty for the purposes of s 189A(1) of the Criminal Code in relation to count 2; and further

(6) by reason of (2A) and (4) above, the evidence in relation to count 3 had been obtained in consequence of a contravention of an Australian law within the meaning of s 138(1)(b) of the UEA and ought not to have been admitted.

[65] Paragraphs (2), (4) and (5) challenge his Honour's conclusion that the respondent was lawfully apprehended.[24] Consequently Sergeant O'Donnell was not acting in the course of his duty when the events the subject of count 2 occurred.

[66] His Honour reached the conclusion that the respondent was lawfully apprehended after finding that the prosecution had proved beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar to believe that the respondent was intoxicated and was likely to commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act if the police had left him on the pavement, and consequently that he had a belief of the kind required by s 128 of the PAA.[25]

[67] His Honour's main reasons for the conclusions concerning Constable Blansjaar's belief in relation to s 128(c)(iv) PAA were expressed at [26] of the reasons for judgment.

There were also reasonable grounds for believing that the appellant would continue to commit the offence of drinking in a regulated place because of his intoxication. Alcohol was readily available for purchase by the appellant. The appellant was located on the footpath between two shops that sold alcohol. He had alcohol in his possession and he was drunk. He was brazenly drinking alcohol in company on a footpath in a shopping area before the police arrived. When he saw the police driving by, he stood up and abused them. After the police drove into the carpark in front of the shops, the appellant sat down and picked up the bottle of red wine he was drinking. He did not offer to stop drinking and move on but continued to behave in a belligerent and defiant manner towards the police. The police presence did not cause him to change his behaviour in any way. No evidence was led to the effect that he and his companions did not have the means to purchase more alcohol after the police tipped out their alcohol.

[68] Counsel challenged two of the opinions expressed by his Honour in this passage, and contended that they formed necessary parts of his Honour's reasoning that led to his conclusion about Constable Blansjaar's belief.

[69] The primary challenge was to his Honour's observation that "alcohol was readily available for purchase by the appellant." Counsel pointed out that the police had already poured out the alcohol in the three or four bottles found where the respondent and his companions had been standing and sitting and contended that there was no evidence that the respondent and his companions had the means to purchase more alcohol, or even that the respondent had purchased the alcohol he originally had in his possession. Counsel also contended that it would have been unlikely that the shopkeepers nearby would have sold alcohol to the respondent, having regard to his condition. Counsel submitted that without further information about such matters Constable Blansjaar could not reasonably have formed the relevant belief, namely that the respondent may continue to drink alcohol in contravention of s 101U of the Liquor Act.

[70] We reject this submission. What his Honour was conveying, correctly in our view, was that Constable Blansjaar had reasonable grounds for believing that the respondent was likely to have continued drinking alcohol at that place, irrespective of how he obtained it. The respondent was not obviously a person without means. He had with him a backpack and a mobile phone. Further, one should not assume that he would have had to purchase more alcohol himself. It could have been procured by others, it being readily available.

[71] Counsel also challenged his Honour's findings that the respondent "continued to behave in a belligerent and defiant manner towards police. The police presence did not cause him to change his behaviour in any way." While agreeing that "the respondent certainly continued to behave with belligerence towards the police" counsel submitted that he did not continue to act in a defiant way once the police had arrived. Counsel pointed out that the respondent complied with the request for him to come over to the police car and speak to police, had placed the plastic bottle containing the wine on the ground before walking to the police car, did not try to thwart the police in their efforts to dispose of the alcohol and did not tell the police that he would buy more alcohol.

[72] But, as we have noted in [53] above, the respondent's behaviour at the relevant time was aggressive, abusive, indicative of intoxication, displayed a lack of judgment and had included blatant drinking in a public place in the presence of police. See too his Honour's unchallenged observations, when discussing Constable Blansjaar's belief that the respondent was intoxicated, that his "behaviour towards the police showed that his judgment was noticeably impaired and that he did not appreciate the effect that his behaviour was having on othe[26]."26 There was no reason for the police to think that the respondent's behaviour and lack of insight would change if he was allowed to remain where he was and was not apprehended.

[73] Counsel contended that Constable Blansjaar should have obtained more information before forming a relevant belief. Presumably, it is contended that before forming a view about the likelihood of the respondent drinking more alcohol (or committing some other offence such as causing a nuisance or behaving in a disorderly manner) or substantially annoying others, Constable Blansjaar and or other police officers should have questioned the respondent, his companions and nearby shopkeepers about a wide range of matters. These would include the ability of the respondent and his companions to buy or otherwise procure more alcohol and where they were likely to go if they left the shopping area, with or without more alcohol.

[74] Putting aside the obvious practical difficulties with embarking upon investigations of that kind in such a situation, such enquiries would be quite unnecessary if there were other appropriate circumstances which enabled Constable Blansjaar to form his belief. Those circumstances would include information held by Constable Blansjaar as a result of his own observations and the observations conveyed to him by others, for example other police officers or members of the public who had seen or heard the respondent's conduct shortly before his apprehension. Constable Blansjaar was also entitled to, and did, rely upon his experience of more than 12 years as a police officer and his dealings with people displaying similar behaviour to that displayed by the respondent.

[75] We do not consider that his Honour erred in reaching the conclusions expressed in [26] of his reasons and thus in being satisfied beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar's belief that the respondent was intoxicated and was likely to commit an offence such as the offence of drinking in a regulated place contrary to s 101U of the Liquor Act.

[76] The respondent has not established the contention in paragraph (2), and therefore the consequences asserted in paragraphs (4) and (5) of the Notice of Contention do not follow.

[77] The contention in paragraph (2A) also necessarily fails following our conclusions, at [62] above, that there was a rational basis for the police to believe that the respondent may have intimidated, alarmed or caused substantial annoyance to other people if he was permitted to remain where he was. The respondent did not establish on the balance of probabilities that Constable Blansjaar did not have reasonable grounds for either of the beliefs referred to in s 128(1)(c)(iii) or 128(1)(c)(iv) of the PAA.

[78] Neither of the contentions has been made out.

[79] The Appeal is allowed and the Notice of Contention dismissed.

[80] The order made by the Supreme Court on 28 September 2015 setting aside the convictions on counts 2 and 3 and ordering the respondent's acquittal of those counts is set aside.

[81] The findings of guilt and convictions on counts 2 and 3 made and recorded against the respondent of the Court of Summary Jurisdiction on 15 May 2014 are reinstated.

[1] relying on Dumoo v Garner [1998] NTSC 8; (1998) 143 FLR 245 at p 261

[2] Prior v Mole [2015] NTSC 65 at [49]

[3] Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at p 152; [1955] HCA 68

[4] Donaldson v Broomby [1982] FCA 58; (1982) 60 FLR 124 at [3]; [1982] FCA 58; [1982] 5 A Crim R 160; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at p 26; [1982] HCA 67

[6] in particular DPP v Carr (2002) 127 A Crim R 15_;_ [2002] NSWSC 194; DPP v AM (2006) 161 A Crim R 219; [2006] NSWSC 348; DPP (NSW) v CAD & Ors [2003] NSWSC 196

[9] The penalty for drinking in a regulated area is simply forfeiture of the liquor, for drinking in a regulated place and causing a nuisance, the maximum penalty is a fine of five penalty units.

[10] Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] per French CJ; [2009] HCA 7

[12] Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546 at [23] per Basten JA; [2005] NSWCCA 426; 64 NSWLR 612

[13] (2105) 90 ALJR 38; [2015] HCA 41

[15] Ibid at [13] fn 16 per French CJ, Kiefel and Bell JJ

[16] We do not understand his Honour to have determined that an infringement notice was an alternative to protective custody. In the extracts from the judgment set out at [22] and [23] above we understand his Honour to be saying that if police had simply issued the respondent with an infringement notice for the original offending and then left, his behaviour would not have escalated.

[18] Police Act 1892 (WA) s 50, repealed

[20] Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at p 523 per Brennan J; [1987] HCA 12

[21] This was Constable Blansjaar who had been a police officer attending to similar kinds of duty for around 12 to 13 years.

[23] In fact, given that the onus is on the respondent to show impropriety, the question is whether the respondent has established on the balance of probabilities that there was no reasonable ground for this belief, but the answer is the same.