Prior v Mole [2015] NTSC 65

Supreme Court of the NT|2015-09-28|Before: Act J, Agency J, Southwood J

FURTHER SUBMISSIONS: 10 November 2014 and 9 January 2015

CRIMINAL LAW - Justices appeal - appeal against conviction - offences committed after appellant taken into protective custody - criteria for apprehension - apprehension lawful - Police Administration Act (NT), s 127A and s 128.

EVIDENCE - Admissibility - in consequence of an impropriety - whether apprehension justified - Police General Orders - in consequence of an impropriety - exclusion of improperly obtained evidence - (NT), s 138 - evidence of offences excluded - appeal allowed.

Evidence (National Uniform Legislation) Act (NT) s 138

DPP v AM [2006] NSWSC 348; (2006) 161 A Crim R 219; Director of Public Prosecutions v CAD [2003] NSWSC 196; M v The Queen [1994] HCA 63; (1994) 181 CLR 487, followed.

DPP v Carr [2002] NSWSC 194; (2001) 127 A Crim R 151; Director of Public Prosecutions v Coe [2003] NSWSC 363; Robinett v Police [2000] SASC 405; (2000) 78 SASR 85, considered.

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Campbell v Gokel [2003] NTSC 81; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Donaldson v Broomby [1982] FCA 58; (1982) 60 FLR 124; Dumoo v Garner [1998] NTSC 8; (1998) 143 FLR 245; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Kauri v Malagorski [2011] NTSC 17; Majindi v Balchin [2011] NTSC 40; Trobridge v Hardy [1955] HCA 68; (1995) 94 CLR 147, cited.

D Mildren, The Appellate Jurisdiction of Courts in Australia (2015, The Federation Press) referred to.

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

Prior v Mole [2015] NTSC 65

[1] The appellant appeals against his convictions on 15 May 2014 in the Court of Summary Jurisdiction for the offences of unlawfully assault a police officer in the execution of his duty contrary to s 189A of the Criminal Code (NT) (count 2) and behave in an indecent manner contrary to s 47(a) of the Summary Offences Act (count 3). The appellant was acquitted of the offence of behaving in a disorderly manner (count 1).

[2] The appellant relies on the following amended grounds of appeal.

The learned Magistrate erred in finding that the apprehension of the appellant under s 128 of the Police Administration Act was lawful, as there was a reasonable possibility that the appellant was not intoxicated to the level required by s 127A of the Police Administration Act.

On the whole of the evidence, it was not open to the learned Magistrate to be satisfied beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar's belief that the appellant was likely to commit an offence due to his level of intoxication.

On the whole of the evidence it was not open to the learned Magistrate to be satisfied beyond reasonable doubt that the apprehension of the appellant under s 128 of the Police Administration Act by Constable Blansjaar was lawful.

The learned Magistrate erred by failing to exclude the evidence going to count 3 (indecent manner) in a proper exercise of the discretion under s 138 of the Evidence (National Uniform Legislation) Act.

The learned Magistrate erred by failing to exclude the evidence going count 2 (assault police in the execution of their duty) in a proper exercise of the discretion under s 138 of the Evidence (National Uniform Legislation) Act.

[3] The respondent filed a notice of contention on 10 November 2014 in which it is contended that evidence was adduced at the trial of the appellant which established beyond reasonable doubt that the appellant was intoxicated to a level which justified his apprehension under s 128 of the Police Administration Act.

[4] The appeal is brought under s 163 of the Justices Act. The grounds of appeal may include any question of law or fact, or both, or any other ground.[1]

[5] The appeal is an appeal by way of a rehearing. In appeals of this type, this Court decides factual issues based on the transcript of the proceeding and exhibits admitted into evidence in the Court of Summary Jurisdiction, subject only to the right to exclude any evidence wrongly admitted by the Court of Summary Jurisdiction and with a special power to receive further evidence.[2] This Court may give such judgement on appeal as ought to be given if the case came before the Court of Summary Jurisdiction at the time of hearing the appeal.[3]

[6] If there has been no further evidence admitted and no relevant change in the law, it is usually necessary for the appellant to establish error, whether of fact or law, by the Court of Summary Jurisdiction. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission the plurality of the High Court stated:

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of appeals by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.[4]

[7] Further, the appeal is subject to what the plurality of the High Court stated in Fox v Percy[5] at [25]:

[T]he appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.

[8] There are two main issues in this appeal. First, was the appellant lawfully apprehended under s 128 of the Police Administration Act? Second, even if the appellant was lawfully apprehended, should the evidence about counts 2 and 3 have nonetheless been excluded on policy grounds under s 138 of the Evidence (National Uniform Legislation) Act by the Court of Summary Jurisdiction because the conduct of the police in apprehending the appellant failed to comply with minimum standards of police conduct as the apprehension of the appellant was unnecessary?

Section 127A and s 128 of the Police Administration Act

[9] Section 127A of the Police Administration Act states the following.

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

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

[10] The ordinary meaning of noticeably is easily seen or perceptible. The ordinary meaning of impaired is reduced in capacity.

[11] Section 128 of the Police Administration Act states the following.

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

(a) the person is intoxicated[within the meaning of s 127A]; and

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

(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

[12] For the purposes of s 128(c)(iv) of the Police Administration Act an offence includes a crime, a felony, a misdemeanour and any offence triable summarily and includes an offence against a law of the Commonwealth or of the Territory.[6]

[13] Section 128 of the Police Administration Act enables a police officer to apprehend a person if the person is manifesting particular behaviour as a result of being intoxicated within the meaning of s 127A of the Police Administration Act. For there to have been a lawful apprehension under s 128 of the Act, in this case, it was necessary for the prosecution to prove the following facts:

Constable Blansjaar had reasonable grounds for believing:

(a) The appellant's speech, balance, coordination or behaviour appeared to be noticeably impaired as a result of the consumption of alcohol; and

(b) Because of the appellant's intoxication, he may intimidate, alarm or cause substantial annoyance to people; or

(c) Because of the appellant's intoxication, he was likely to commit an offence under the Liquor Act or Summary Offences Act.

[14] Having reviewed the whole of the evidence, I find that the following facts are established by the evidence.

[15] On 31 December 2013 Constable Ryan Charles Fuss and Constable Tony Blansjaar were conducting a mobile patrol of the Westralia Street shops in Stuart Park. When they drove past the shops, the appellant was standing on the footpath immediately in front of the shops. He was with two other men, who were seated on the footpath, and he was drinking alcohol. The three men were between two shops that sold alcohol. The appellant gestured to the police officers with the middle finger of his right hand and shouted at them in an angry, abusive and defiant manner.

[16] Constable Blansjaar pointed out the appellant to Constable Fuss who was driving the police car. Constable Fuss did a U-turn at the entry to the carpark in front the shops and parked the police car in front of where the appellant was standing. The police attended because the appellant drew their attention to him because of his behaviour and they saw he was drinking alcohol in a public place which is an offence contrary to s 101U the Liquor Act.

[17] The police found the appellant's gesture rude and offensive but it did not wound their feelings or frighten them. It is a common gesture.

[18] As the police parked their car the appellant sat down on a shop window ledge and picked up a large plastic bottle that had red wine in it. He picked up the bottle in front of the police in a public place. There were also several open and unopened bottles of beer in the area where the appellant and the other two men were seated.

[19] Constable Blansjaar got out of the police vehicle and approached the appellant. He had a brief conversation with him, 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. Constable Fuss began writing out an infringement notice for the appellant for drinking in a regulated place and cause nuisance presumably contrary to s 101V of the Liquor Act but he did not complete the notice. The maximum penalty for this offence is a fine of 5 penalty units.

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

[21] There were members of the public present. There were two parents putting their two children into a car and they 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.

[22] The matters set out at [15] to [21] occurred before the appellant was apprehended and were known to Constables Fuss and Blansjaar at the time they apprehended the appellant.

[23] After observing and speaking to the appellant, Constable Blansjaar decided to place the appellant in protective custody. The appellant was in a public place and Constable Blansjaar believed he was intoxicated, had committed the offence of drinking in a regulated place, may intimidate alarm or cause substantial annoyance to people and was likely to continue to commit the offence of drinking in a regulated place. He thought the appellant would defy any direction the police gave him to stop drinking in a public place.

[24] There were reasonable grounds for Constable Blansjaar believing that the appellant was intoxicated. The appellant's speech, balance and coordination were noticeably impaired. He was slurring his words and he was unsteady on his feet. The appellant's behaviour was also noticeably impaired. He behaved in an inappropriately and unreasonably belligerent, abusive and defiant manner towards the police. 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 others.

[25] At the trial in the Court of Summary Jurisdiction, counsel for the prosecution asked Constable Mole if he made any observations of the appellant's level of intoxication. Before Constable Mole could respond, counsel for the appellant interjected and said, "It is not in issue that he was drunk."

[26] 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.

[27] While the appellant's drunken presence and dishevelled appearance may have affronted some people and made them feel quite uncomfortable, it is less clear that there were reasonable grounds for believing that because of his intoxication the appellant may intimidate, alarm or cause substantial annoyance to people. The only evidence of any alarm is contained in the evidence of Constables Fuss and Blansjaar about a family with a South Australian registered motor vehicle. The two parents were putting their children in their car which was nearby to where the police were speaking to the appellant. Constable Fuss said he asked them how they felt about the appellant's behaviour and they said what they were hearing was not very nice. Constable Blansjaar said, "You could see the parents were quite alarmed ... they grabbed their children and quickly put them in their car." There is no suggestion that the appellant had been badgering any shoppers or begging them for money to buy more alcohol or had been arguing with his companions. He was found not guilty of behaving in a disorderly manner. His defiant and belligerent behaviour seems to have been solely directed at the police who were not alarmed or intimidated.

[28] Constable Blansjaar's evidence was that he formed the opinion that the appellant's current behaviour would intimidate, alarm or cause substantial annoyance to any other person and there were members of the public present; or if the police left the appellant at the shops he would most likely commit further offences under the Liquor Act or Summary Offences Act such as drinking in a regulated place or disorderly behaviour. He gave evidence that the appellant's behaviour did not frighten the police nor did it intimidate them.

[29] After the appellant was told that he was being placed in protective custody, he became more abusive and Constable Blansjaar called for another police unit with a motor vehicle that had a cage on the back. Constable Mole and Senior Constable O'Donnell then arrived. After they arrived, Constable Blansjaar told the appellant that he would be conveyed in the police motor vehicle with a cage on the back. The appellant picked up a blue backpack and immediately walked to the rear of that motor vehicle. Constable Blansjaar took the appellant's backpack from him before he got into the rear of the police vehicle. The appellant also had a mobile telephone in one of his hands and he was asked to hand that to the police. The appellant said that they were not taking his telephone because he wanted to call his wife. He was told that he would have an opportunity to call a sober adult when they arrived at the police station. This made the appellant angry and he began to swear more and become more aggressive. He kept calling Sergeant O'Donnell a "dog cunt".

[30] Sergeant O'Donnell forcibly removed the telephone from the appellant and assisted him into the cage. While the appellant was being placed in the cage, he hawked back and then made as if to spit at Sergeant O'Donnell. As the police moved back to close the door to the cage, the appellant spat and his spit hit Sergeant O'Donnell in the face and on his shirt. Before the police were able to lock the cage, the appellant spat on Sergeant O'Donnell a second time. The appellant was then placed under arrest for assaulting Sergeant O'Donnell in the course of his duty. This assault constituted count 2.

[31] After the cage was locked, Sergeant O'Donnell and Constable Mole drove off in the vehicle with the cage on the back and Constables Blansjaar and Fuss followed in their police car. Both motor vehicles stopped at the traffic lights at the intersection of Westralia Street and the Stuart Highway which is adjacent to the entrance to the carpark at the shops. While the motor vehicles were stopped the appellant 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. This act constituted count 3.

[32] Grounds 1, 2 and 3 of appeal relate to the appellant's conviction for unlawfully assaulting Sergeant O'Donnell in the execution of his duty contrary to s 189A of the Criminal Code. They are, in effect, particulars of a ground of appeal that the appellant's conviction for count 2 was unsafe and unsatisfactory or unreasonable.

[33] In order for the appellant to be convicted of count 2 the prosecution was required to prove beyond reasonable doubt that Sergeant O'Donnell was acting in the execution of his duty when the unlawful assault occurred.[7] A police officer is not acting in the execution of his duty while placing a person, who was unlawfully apprehended under s 128 of the Police Administration Act, in the cage of a police motor vehicle.[8] Conduct in furtherance of an unlawful apprehension is also unlawful.[9]

[34] The essence of these grounds of appeal is that it was not open to the Court of Summary Jurisdiction to be satisfied beyond reasonable doubt that the appellant was intoxicated nor was it open for that court to be satisfied that the appellant may intimidate, alarm or cause substantial annoyance to people, or was likely to commit an offence.

[35] In determining this ground of appeal this Court is required to make an independent assessment of the evidence both as to its sufficiency and quality.[10] In M v The Queen the plurality of the High Court stated:

In reaching such a conclusion the court does not consider as a question of law whether there is evidence to support the verdict, .... The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury [or Court of Summary Jurisdiction] might convict, "nonetheless it would be dangerous in all the circumstances to allow the verdict to stand.[11]

In most cases a doubt experienced by an appellate court will be a doubt which a jury [or Court of Summary Jurisdiction] ought also to have experienced. It is only where a jury's [or Court of Summary Jurisdiction's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury [or Court of Summary Jurisdiction], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury [or Court of Summary Jurisdiction] to be satisfied beyond reasonable doubt that the accused was guilty.[12]

[36] Grounds of appeal 1, 2 and 3 cannot be sustained. Having reviewed the whole of the evidence and for the reasons set out at [15] to [28], I am satisfied that the prosecution proved beyond reasonable doubt that: (1) the appellant was intoxicated within the meaning of intoxication specified in s 127A of the Police Administration Act; (2) there were reasonable grounds for Constable Blansjaar to believe the appellant 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 (3) that he had the belief required by s 128 of the Police Administration Act. Consequently, the police had power to apprehend the appellant under s 128 of the Police Administration Act.

[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.

[38] Difficulties have arisen in this case because the trial magistrate only made findings of fact at a very general level. His Honour failed to condescend into necessary detail and make express specific findings about each of the elements that must be established for there to be a lawful apprehension under s 127A and s 128 of the Police Administration Act.

[39] His Honour's reasons were also made more confusing by the following statement which appears to be inconsistent with his ultimate finding that Sergeant O'Donnell was unlawfully assaulted in the execution of his duty, which appears to have been based, in part, on counsel for the appellant's concession in the Court of Summary Jurisdiction that it was not in issue that the appellant was drunk.

There is no issue that he is affected by alcohol to quite an extent but I would not find to the extent that per se would see him apprehended reasonably under s 128. But the context was that he was intoxicated.

[40] The appellant sought to rely on this statement by the trial magistrate in support of his contention that there was a reasonable possibility that the appellant was not intoxicated to the level required by s 127A of the Police Administration Act.

[41] The trial magistrate seems to have done one of three things: his Honour (1) meant to say that the appellant was not so drunk as to be unable to adequately care for himself,[13] or (2) conflated the degree of intoxication required under the current s 128 of the Police Administration Act with the repealed sections 127A and 128 of the Act which required a member of the police force to have reasonable grounds for believing that the person was seriously affected apparently by alcohol, or (3) completely misunderstood what the prosecution had to prove for there to be a lawful apprehension under s 128 of the Act and simply considered whether in all the circumstances the police behaved reasonably in apprehending the appellant instead of strictly construing the provisions of s 128 of the Act.

[42] Given that per se means 'by itself', 'taken alone' and 'without reference to anything else' and that the trial magistrate, who is a very experienced magistrate, did go on to consider the other aspects of s 128 of the Police Administration Act, I think his Honour was saying no more than that the appellant was not so drunk as to be unable to care for himself. The appellant's intoxication alone was not ground for apprehending him under s 128 of the Act.

[43] In any event, given all of the police officers' descriptions of the appellant's state of intoxication, the concession made by counsel for the appellant in the Court of Summary Jurisdiction, and the lower level of intoxication required by s 127A of the Police Administration Act as amended, I do not think that there is a reasonable possibility that the appellant was not intoxicated to the level required by the Act.

[44] The consequence of all of the findings that I have made is that the appellant was lawfully apprehended.

[45] Counsel for the appellant also contended that, even if the appellant's apprehension under s 128 of the Police Administration Act was lawful, the Court of Summary Jurisdiction should have excluded the evidence about the assault on Sergeant O'Donnell under s 138 of the Evidence (National Uniform Legislation) Act as the apprehension of the appellant was improper because it was unnecessary and contrary to the proper standards of conduct which were expected of the police officers in the circumstances of this case. The apprehension of the appellant was inconsistent with the minimum standards of acceptable police conduct because the apprehension was unnecessary.[14]

[46] The appellant submitted that the actual content of these minimum standards of acceptable police conduct may be informed by particular legislative provisions or administrative guidelines or instructions or codes of practice issued by the Commissioner of Police. In the Northern Territory the Police General Orders indicate the standard of propriety to be observed by the police.[15]

[47] It was said that in the present case there had been a breach of paragraph 2.2 of General Order A7 which is applicable to apprehensions under s 128 of the Police Administration Act which are discretionary. Paragraph 1.1 of General Order A7 states that police powers of arrest and the taking of persons into protective custody under the Police Administration Act should be read in conjunction with General Order A7. Paragraph 2.2 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 consequence of their actions or the process of being summoned.

[48] As I interpret paragraph 2.2 of General Order A7, subparagraphs 2.2.1 to 2.2.5 inclusive do not constrain the breadth of the statement contained in the chapeau but simply provide guidelines which lay down necessary but not always sufficient factors which must be established before a person is apprehended. The fundamental rule remains that an arrest should be an action of last resort. Arrest and apprehension should be reserved for circumstances in which they are clearly necessary.[16]

[49] 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".[17] 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."[18] A police practice of arbitrary detention is a negation of any true right to personal liberty and "a hallmark of tyranny".[19]

[50] The appellant submitted 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 options to apprehension for protective custody. In this case, genuine consideration was not given to the general order and there were other options available to police. By failing to give consideration to the order and to the available options to apprehension, Constable Blansjaar and Constable Fuss breached the order and their behaviour fell below the minimum standards of acceptable police conduct.

[51] The compliance issue raised by the appellant in this appeal is an important issue given the recent significant expansion in police powers of arrest and apprehension in the Northern Territory; and because the purpose of an apprehension under s 128 of the Police Administration Act is preventative. There was no evidence to suggest that the appellant could not care for himself or was likely to harm himself or someone else, the offence that the appellant was likely commit was a low level offence which is usually dealt with by infringement notice or forfeiture of any alcohol that is seized by the police and would not have resulted in the appellant being sentenced to imprisonment and there was no evidence to suggest the appellant would not have understood the purpose and effect of an infringement notice and would not have complied with it.

[52] In circumstances where it seems the liberty of the subject is in increasing need of protection, it is of critical importance to the existence and protection of personal liberty under the law that minimum standards of police conduct with respect to apprehending and detaining citizens should be scrupulously observed.[20] For many years the courts have been at pains to emphasize the importance of the observance by police officers of those minimum standards by excluding on the grounds of public policy evidence obtained as a result of breaches of those standards.[21]

[53] Section 138 of the Evidence (National Uniform Legislation) Act provides that evidence that was obtained in consequence of an impropriety is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained in the way in which the evidence was obtained. In a series of cases courts have held that under s 138 of the Evidence (National Uniform Legislation) Act courts have the discretion to exclude evidence of offences which have been committed after and caused by an unnecessary arrest of an offender.

[54] For example, in DPP v Carr[22] the Supreme Court of New South Wales held that evidence about a person committing the offences of resisting, assaulting and intimidating police after he was arrested had been obtained in consequence of an improper act and the evidence was capable of being excluded because the arrest of the offender was unnecessary and a summons was the appropriate way to proceed against him.

[55] The facts of DPP v Carr were as follows. On 25 February 1999 Constable Robins was on vehicular patrol in Wellington. He saw Mr Carr and a female standing in the roadway and a number of rocks being thrown towards them. He saw Mr Carr throw a rock towards the residence from where the rocks were coming. A rock was thrown and hit the police vehicle. Constable Robins left the vehicle and asked Mr Carr and the female a number of times who had thrown the rock at the police vehicle and Mr Carr refused to tell him. Mr Carr appeared to be moderately affected by alcohol. The constable was under the impression that Mr Carr thought that the constable was accusing him of throwing the rock. This was not so. An argument ensued between the constable and Mr Carr, and Mr Carr used the term "fuck this" or something similar. The constable could not remember the exact words. Shortly after that Mr Carr started to walk away yelling and swearing. The constable cautioned Mr Carr and told him to calm down and stop swearing. Mr Carr continued to walk away, then turned back and said, "Fuck you. I didn't fucken do it. You can get fucked." The constable replied, "Lance, you are under arrest for offensive language." The words that led to the arrest were spoken in the middle of Marsh Street about one or two meters from the constable. There were about five other adults in front of other residences. Mr Carr was facing the constable and the words were said in a hostile, aggressive manner. The constable said that in his view Mr Carr was being uncooperative by not telling him who threw the rock. When he told Mr Carr he was under arrest, the constable took a number of steps towards Mr Carr and took him by the arm as he tried to walk away. Mr Carr pushed him in the chest, broke free and ran. The constable said that he gave chase for about 25 meters and tackled Mr Carr. After a short struggle he managed to restrain Mr Carr who stood calmly and walked towards the rear of the police vehicle. As Mr Carr neared the door he pushed the constable again in the chest putting him off balance. Constable Robins said that he was still holding Mr Carr when he reached forward and took hold of his shirt causing the front of his police shirt to tear. Constable Robins said that he tried to pull Mr Carr towards the rear door. However, he broke free from his grip and ran down the side of the police vehicle. The constable took hold of Mr Carr near the driver's door and called for urgent assistance. He then pulled Mr Carr back to the rear of the police vehicle and placed him partially within it.

[56] Constable Robins had been a police officer for five years. He knew Mr Carr as a long term resident of Wellington and where he lived. There was no question as to his identity and his usual place of residence. Constable Robins was aware that it was open to him to proceed by way of summons or a field court attendance notice. Constable Robins said that he ended up charging and bailing Mr Carr.

[57] Constable Robins agreed that he could have told Mr Carr that he would be reported for offensive language and typed out a breach report. Constable Robins said, "It was open to me to allow him to walk away, but he continued to yell offensive language, which is the reason why he was arrested ... if I allowed him to continue to walk down the street yelling abuse towards a police officer, the offence would continue, and that's the reason why he was arrested."

[58] Constable Robins said that he did not consider the option of a summons but he did consider the option of a field court attendance notice. Constable Robins agreed that he could have let Mr Carr walk away and later attended his residence and issued him with a field court attendance notice or served a summons which he had caused to issue. He did not take either of these courses because the offence was continuing. The constable agreed that the issue of such a notice did not require him to arrest Mr Carr.

[59] The trial magistrate found that the evidence about the offences committed by Mr Carr after his arrest was improperly obtained and he excluded the evidence under s 138 of the Evidence Act 1995 (NSW). The DPP appealed to the Supreme Court of New South Wales. In his reasons for decision in DPP v Carr Smart AJ stated the following.[23]

[T]he inquiry is whether what was done (or not done) is inconsistent with minimum standards of acceptable police conduct.

Mr Carr submitted that there is no need to define improper, as what is improper will vary from case to case and will be determined by reference to the relevant facts and circumstances of each case. That submission is correct.

Mr Carr submitted that it was inappropriate to apply the concept of "improper" as discussed in Ridgeway to a case concerning offensive language as Ridgeway involved questions of entrapment and a serious drug offence for which the maximum penalty was imprisonment for 25 years. I agree.

Among the matters that the court is to take into account under s 138 is the nature of the relevant offence and the nature of the subject matter of the proceeding and the gravity of the impropriety.

Under s 138(1) and (3) it is not necessary for there to be the subjective element of bad faith or abuse of process or abuse of power or intentional wrong doing in relation to the offence of offensive language. Section 138(2) and 139 indicate that the word "improperly" and the phrase "in consequence of an impropriety" should not be narrowly construed.

This Court in its appellate and trial divisions has been emphasizing for many years that it is inappropriate for the powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that the summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this court were heeded.

The initial decision to arrest was born of expediency. It was open to the magistrate to make this finding.

It is hard to resist the conclusion that in the present case the officer did not issue a summons because the procedure involved him in more work and took far more time. The actions of the officer, as he must have realized would happen, escalated the incident and led to the alleged commission of further offences.

It was a classic case for issuing a summons and not inflaming the situation.

The magistrate found that the evidence relating to resist police, assault police and intimidate police was obtained in consequence of an impropriety in the sense that the actions and words that flowed after the words "you are under arrest" would not have occurred had the officer not acted improperly.

[60] Smart AJ then approved the following statements of Bleby J in Robinett v Police.[24]

The appellant's increasingly offensive language and ultimately the threats directed at Senior Constable Smith would appear to have been a direct consequence of a number of factors. The first was the ongoing irritation to his eyes caused by the capsicum spray. Second was the ignoring by police of his concerns over asthma and his requests for a doctor. There was his enforced confinement in the holding cell and, of course, the appellant's intoxication. Absent any one of those factors, the words in question may not have been uttered. One would have to conclude that the failure to respond to the requests for assistance was a contributing cause to the ultimate threats and abusive language.

The failure by the police to respond was not unlawful. Was it improper, such as to call for the exercise of discretion to reject the evidence of the conversations which followed?

Three questions arise for consideration. The first is whether the conduct is of a type that could give rise to the exercise of the public policy discretion. Second is whether the conduct caused or contributed to the commission of the offence. If the answer is 'yes' to both those questions, it must then be asked whether it called for the exercise of the discretion to exclude the evidence.

The evidence must therefore have that necessary disqualifying element, or an element that justifies the court expressing its disapproval of the conduct, not merely by verbal expression of disapproval, but by imposing a sanction against the conduct by declaring inadmissible the evidence thereby obtained. ... The conduct complained of does not consist of any deliberate act, or indeed of any act at all. The complaint is of an omission - a failure to respond in any way to a request. .... In my opinion this was an omission which was not only inappropriate, but which fell into that category of impropriety or unfairness that gives rise to the exercise of the public policy discretion. It was a neglect which, if allowed to persist, was almost certain, in the circumstances, to give rise to the type of offending which in fact occurred on this occasion.

I repeat: I do not consider that the police officers in this case allowed the situation to develop merely for the purpose of encouraging the commission of another offence. However, their inaction almost inevitably had that effect.

As to the second question, I believe in the light of the observations that I have made about the events in question, that the failure to react did cause or contribute to the commission of the alleged offences.

[61] Bleby J held that the omission called for the exercise of the discretion to reject the evidence. He continued:

The conduct was not illegal. On the part of the police officers, there was probably not even a conscious apprehension of the impropriety or unfairness. There was nevertheless a conscious failure to act when some ameliorating steps could have been taken ...It is not insignificant that the conduct had the effect, not of bringing to light evidence of some past offence, but of contributing to the commission of fresh offences."

[62] Bleby J stated that in weighing the conflicting public interests involved in the exercise of the court's discretion, the court was permitted to have regard to the circumstances in which the offence was committed. His Honour further said:

Whilst I am prepared to accept, for present purposes, that, if the evidence were admitted, the offences could be proved, it must be accepted that the threats were substantially influenced by the intoxication of the appellant, and were not necessarily those which he would utter, let alone be likely to carry out, when sober. In my opinion, the circumstances are not such that the public interest in securing a conviction for that type of offence, committed in those circumstances, outweighs what would otherwise be condoning the impropriety and unfairness, if the evidence were to be admitted.

Bleby J was considering the position at common law. The DPP submitted that the evidence excluded in Robinett could not fall within the statutory test in s 138(1) of the Evidence Act 1995 in that it could not be said that the evidence was obtained in consequence of an impropriety. Robinett provides a telling example of a factual situation which cannot be overlooked. Any formulation of principle cannot leave that situation out of account.

Mr Carr submitted that the approach urged by the DPP would not cater for an 'omission' case. That submission is correct. I would not so construe s 138(1).

I do not accept that on the point in question there is a significant difference between the position under s 138 of the Evidence Act 1995 and that at common law. The ALRC Report, Vol 1, ch 20, para 964 is to the effect that the Commission favored the discretionary approach developed by the High Court but with some changes to the law to meet some criticisms of it.

On the approach of Bleby J and assuming improper police conduct (or misconduct) was significant and the offences were not of medium to major seriousness, the evidence may be excluded.

All of the offences were closely related and interconnected and at the lower end of the criminal scale. The offences and the evidence stemmed from the ill-advised and unnecessary arrest. A narrow construction should not be given to s 138(1)(a) and (b) nor one that is unduly broad.

Section 138 requires the court to consider the gravity of the impropriety. The fact that a police officer has acted lawfully, honestly and with integrity does not prevent the impropriety being serious. In the present case the officer's failure to consider the issue of a summons and his predisposition to FCANs for reasons of expediency was ill-advised and led predictably to arrest and the deprivation of liberty of Mr Carr. That impropriety was serious.

[64] Ultimately, Smart AJ allowed the appeal in DPP v Carr on a separate ground. He found that the trial magistrate had failed in one respect to accord the prosecution procedural fairness.

[65] In Director of Public Prosecutions v Coe[25] Adams J took a different approach to that adopted by Smart AJ in DPP v Carr. In Director of Public Prosecutions v Coe his Honour held that something more than a mere causal link or trigger was necessary before s 138 of the Evidence Act 1995 (NSW) comes into play. At [23] and [24] Adams J stated the following.

[In DPP v Carr] Smart AJ, having observed that, in Robinett, Bleby J "took a robust approach which was based on the realities of the situation in which the defendant found himself", proceeded to consider whether the evidence sought to be excluded in the case before him was a consequence of or caused by the arrest, held to be improper because, in the circumstances, a summons would have sufficed. His Honour concluded that the magistrate was entitled to find that the offences charged "stemmed from the ill-advised and unnecessary arrest", pointing out that his Worship "was dealing with the well-known trilogy of an ill-advised arrest where a summons should have been employed, resist arrest and assault police and, as so often happens, the utterance of coarse threats by a moderately intoxicated man". His Honour considered that the sequence of events was not unusual and were "closely related and interconnected". It is, I think important to note (as a matter very relevant in the present case) that his Honour was of the view that "if the offences were moderately serious to serious and disproportionate to an ill-advised arrest, it would not be possible to contend that the evidence of such offences was obtained in consequence of an impropriety" (my emphasis). This was a reference, not to the balancing process prescribed by the concluding words of subs 138(1) but to the necessity of establishing a causal link between the impropriety and the offences committed by the defendant. A disproportionate reaction meant that, although the impropriety was the occasion for the offences, it was not the cause, which must then be found in the voluntary acts of the defendant. Applying this reasoning to the present case, the mere fact that the unlawful arrest or attempted unlawful arrest "triggered" what followed, did not dispose of the problem of causation and the failure of the learned magistrate to consider this matter amounted to a fundamental error of law. It is obvious from the facts here that the alleged response of the defendant to the constable's conduct was so disproportionate and so serious an offence that, even if it was "obtained" by that conduct, was not caused by it. Accordingly, even if at common law the evidence of the offences may be excluded on proof of improper conduct that caused or gave rise to them, the defendant must also fail.

It will be seen from the above discussion that Smart AJ considered that "obtained" was the practical equivalent of "caused" or "stemmed from". For the reasons that I have given, I am, with the greatest respect, unable to agree with this interpretation. The word "obtained" is in ordinary parlance and should not be unduly or artificially restricted: Haddad & a,p; Treglia (2000) A Crim R 312 per Spigelman CJ at [73] but it cannot apply more widely than circumstances which fairly fall within its ambit. Where "real evidence" is indeed obtained as a result of impugned conduct, then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring the evidence. Where, however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been "obtained" unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of "obtained", almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences. In some cases, of which Robinett and Carr may be examples, there could be such an expectation that offences will result from the impugned conduct that it will be reasonable to say, as an objective matter, that they were "obtained" by that conduct but these situations will be rare.

[66] The differences in the approaches between Smart AJ and Adams J appeared to have been reconciled by Hall J in DPP v AM.[26]

[67] The facts of DPP v AM were as follows. The offender was charged with resisting arrest, use offensive language and assault police. The offender was one of a group of five persons who were asked by four police officers to move on from the vicinity of a shopping complex after a broken window was reported to police. There was no suggestion that the defendant had broken the window. Two of the police officers departed the scene but as the two remaining police officers were departing in their police car, the group returned and the offender called out, "Fuck you. Fuck off pigs." Constable Molyneux stopped the police car and Constable Thomas spoke to one of the 18 year old males in the group. The offender approached the police officers and swore again. This was in the vicinity of Woolworths. There were people going in and out of Woolworths. Constable Molyneux asked the offender her name and she replied, "Get fucked. I am not telling you." Constable Molyneux then reached for the offender's bag and Constable Thomas said, "We need some identification and then you can leave." The offender responded, "Fuck off. You are not getting it." The offender and another member of the group lunged at Constable Molyneux and grabbed the bag. A 50 year old woman in the group then told the police the offender's first name. Constable Molyneux then turned to the defendant and said, "This is your last warning. You need to stop using offensive language." The offender replied, "Get fucked. You pig." Constable Molyneux then arrested the offender. The offender then ran off. She was subsequently apprehended and then committed an assault on the police. The trial magistrate excluded the evidence about the offences with which the offender was charged. He relied on s 138 Evidence Act 1995 (NSW) to do so. The matter was then appealed to the Supreme Court of New South Wales.

[68] Having regard to the particular circumstances in DPP v AM, Hall J found that a finding of impropriety was not open to the magistrate because the arrest was not improper as the police were faced with a defiant juvenile who declined to identify herself and presented a risk of flight. However, in his reasons for decision his Honour stated the following.[27]

It was submitted that there was involved an important point of law in relation to this aspect by reason of both the frequency with which s 138 is invoked and what was submitted to be a tension between Carr's case and Coe. Mr Zahra SC characterized the approach of Adams J in Coe as the narrow view of the meaning of the word "obtained" in s 138 and that of Smart AJ in Carr as the broad approach.

The fact that evidence may be obtained either by deliberate action or by inadvertence during the course of an investigation underlies the proposition referred to by Smart AJ in Carr's case and by Howie J in Cornwell that an impropriety or contravention referred to in s 138(1) is not necessarily associated with conduct that is willful or intentional.

Evidence, as has been discussed above, may, at least, in relation to the investigation of some types of criminal activity, be obtained by action designed to procure the commission of an offence (through subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence). In other circumstances, evidence of the commission of an offence may, of course, also be obtained or ascertained, but not procured, by or through the actions or omissions of a law enforcement officer. The cases respectively of Coe (above) and Robinett are examples of such situations where, on the evidence in those cases, it could not be said that the acts or omissions of the police officers in question were intentional or deliberate or procured the commission of further offences.

In these proceedings, submissions have been made in relation to the meaning to be attributed to the word "obtained" in the context of s 138 so far as the term relates to evidence that was neither real (tangible items) nor by way of admissions, but which only came into existence, in the aftermath of the impugned conduct (the arrest of the defendant), in the form of the alleged commission of further offences ("resist officer" and "assault officer") claimed to have stemmed from or to have been causally linked to the alleged impropriety associated with the arrest.

The point raised by Adams J in Coe at [24] of the judgment in relation to circumstances where the actions of a police officer "triggers" the occurrence of subsequent offences was, in his Honour's view, that "something more" must be shown than "the mere causal link" to fit "fairly" within the meaning of the word "obtained", as employed in s 138(1). This is the proposition that the plaintiff has advanced in these proceedings in reliance upon the dicta of Adams J in Coe to that effect.

With the greatest respect to the view expressed by Adams J in Coe at [24], I am unable to agree with all that is therein stated. Before identifying the area of disagreement, I record the following propositions:

(a) Where a law enforcement officer intentionally engages in purposive action designed or expected to procure or induce the commission of offences, then plainly evidence of those offences will have been "obtained" in relation to them.

(b) Where a person is subject to an ill-advised or unnecessary arrest but the suspected offender acts in a way which amounts to a disproportionate reaction, an issue may arise, as it did in Coe, as to whether that offence can, as a matter of causation, be said to be a consequence of the arrest.

(c) In other circumstances, however, offences that stem from an ill-advised and unnecessary arrest, may objectively be considered the anticipated or expected outcome and so "obtained" for the purposes of s 138. Carr is such a case

The reservation that I have expressed in the preceding paragraph relates to the observation of Adams J, that in the context of offences that are said to stem as an unintended consequence from an arrest, that there is a need to establish "conduct that was intended or expected (to a greater or lesser extent) to achieve the commission of offences" as a necessary and separate element in order to satisfy the notion of "obtained" in that context.

In the passages quoted from the judgment of Adams J set out in paras [77] and [78] above, the proposition is advanced that in cases of the kind referred to in the preceding paragraph, the word "obtained" in s 138(1) requires, in addition to a causal nexus, that the impugned conduct must either be "intended" or "expected" to achieve the commission of offences. However, cases involving an ill-advised or unnecessary arrest which result in unintended consequential offences by definition lack a purposive element. In other words, offences stemming from such an arrest occur without any intention on the part of the arresting officer to provoke such offences. It is, for that reason, that I cannot agree with Adams J that in such cases the word "obtained" cannot be satisfied unless the causal nexus is also accompanied by "something more" in the nature of "intended" conduct. I do, however, with respect agree with his Honour's observation that in order in such cases for evidence to be "obtained", it may, in some such cases, be necessary that the conduct (the arrest) be of a kind that could be "expected" to give rise to the commission of further offences. The reference to an "expectation" by Adams J in Coe may, in some cases, be a material aspect and Robinett and Carr could, as his Honour observed, be seen as examples of that proposition.

However, I should add that in relation to the term "obtained" in s 138(1), the reference by Adams J to a need in some cases for there to exist circumstances from which the commission of offences may be expected seems to me not to involve or require proof of an element additional or separate to the essential causal relationship. Reference to what might be expected to follow from certain conduct essentially, in my opinion, relates to the likelihood of an event occurring. In other words, whether one thing might be expected to give rise to another is really an aspect that is related to causation - how likely is an arrest, for example, to give rise to particular conduct? This essentially involves questions of predictability and anticipation. I do not, with respect to the observations of Adams J on this aspect, see that as a separate or additional matter (the "something more") distinct and separate from the question of causation. Whether one matter can be said to be expected to give rise to or be the cause of another will often depend upon the intensity of the relationship between them or, as Adams J observed, whether there was a "close link" between them as indeed Bleby J was persuaded existed in Robinett.

In applying the provisions of s 138(1) to the circumstances of this case, what must be brought into account is the fact that the alleged offences in question, if they are established as having occurred, arose in circumstances where there is no suggestion that they were in any way "procured" by an intentional or deliberate act of the police officer. In those circumstances, the question would become whether the evidence as to the alleged later offences can be said to have been "obtained" improperly or as "a consequence of" the arrest effected by the police officer?

On the analysis of the facts and circumstances in the present matter, I have, as earlier stated, concluded that the arrest was not an ill-advised or unnecessary one. On that basis, there was no impropriety established within the meaning of s 138(1). Accordingly, the question as to whether evidence was "obtained" within the meaning of that provision does not arise.

[69] It seems to me that the approach adopted by Hall J is the correct approach. It is an approach which is now regularly applied.

[70] It also seems to me that the evidence about counts 2 and 3 in this case was obtained in consequence of an impropriety. The apprehension of the appellant was unnecessary. 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.

[71] The evidence about counts 2 and 3 should have been excluded under s 138 of the Evidence (National Uniform Legislation) Act. The undesirability of admitting the evidence about counts 2 and 3 outweighed the desirability of admitting it. The assault on Sergeant O'Donnell was a low level assault and the indecent behaviour was a very low level offence. Sergeant O'Donnell was not injured and his face was, to some degree, protected from the appellant's sputum by his glasses. The apprehension of the appellant was ill-advised and unnecessary and the offences were objectively the anticipated or expected outcome of the apprehension. 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.

[72] The trial magistrate erred in admitting the evidence about counts 2 and 3. Ground 5 is made out by the appellant.

[73] For the same reasons that I allowed the appeal based on ground 5 the appeal is allowed on ground 4. It is apparent from exhibit 1 that the intersection between Westralia Street and the Stuart Highway is very close to the Stuart Park Shops. It would not have taken very long at all for the police to travel to that intersection. There would not have been sufficient time for the appellant to have cooled down by the time he reached that intersection. The appellant's defiant behaviour at the intersection was caused by his apprehension and was entirely predictable.

[74] The appeal is allowed. The appellant's convictions of counts 2 and 3 are set aside and he is acquitted of those counts.

[2] D Mildren, The Appellate Jurisdiction of Courts in Australia (2015 The Federation Press).

[3] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 620 referred to in D Mildren, The Appellate Jurisdiction of Courts in Australia (2015 The Federation Press) at par 2.09.