GORDON J. Anthony Prior was in a public place - on the footpath in front of the Westralia Street shops in Darwin and between two shops that sold alcohol - drinking red wine. He was with two other Aboriginal men. He was intoxicated. As a police car drove past, he gestured to the police officers with the middle finger of his right hand (that is, he gave them "the bird") and shouted abuse at them.
Constables Blansjaar and Fuss parked the car in front of the men and got out. Constable Blansjaar poured out the contents of the bottles of alcohol. Constable Fuss began writing out an infringement notice for Mr Prior for drinking alcohol in a regulated place and causing a nuisance contrary to s 101V of the Liquor Act (NT). The police asked Mr Prior 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, smelled strongly of liquor, had bloodshot eyes and was dishevelled. In response to questions from the police about why he had given them "the bird" and abused them, Mr Prior was belligerent and aggressive, swore and slurred his words. Two parents nearby with their children told Constable Fuss that what they were hearing was not nice.
Constable Blansjaar ("the Apprehending Officer") apprehended Mr Prior and took him into custody under s 128(1) of the Police Administration Act (NT) ("the PA Act"), which provides:
"A member [of the Police Force] 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; and
(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
(iv) is likely to commit an offence."
Mr Prior was charged with three offences for conduct that occurred following his apprehension. It was alleged that he unlawfully assaulted a police officer in the execution of the officer's duty contrary to s 189A of the Criminal Code (NT) when he spat twice on a sergeant whilst he was being placed in a caged vehicle ("count 2"). It was also alleged that he behaved in a disorderly manner in a public place contrary to s 47(a) of the Summary Offences Act (NT) ("count 1"), and that he behaved in an indecent manner in a public place contrary to s 47(a) of the Summary Offences Act ("count 3") when he stood up in the back of the caged vehicle, unzipped his jeans, withdrew his penis and attempted to urinate on the police car occupied by the Apprehending Officer and Constable Fuss.
It was not contested that the elements of s 128(1)(a) and (b) of the PA Act were satisfied - Mr Prior was intoxicated in a public place. The central issue on appeal to this Court was whether, at the time of Mr Prior's apprehension under s 128(1) of the PA Act, the Apprehending Officer had reasonable grounds for believing that, because of Mr Prior's intoxication, Mr Prior may have "intimidate[d], alarm[ed] or cause[d] substantial annoyance to people" or was "likely to commit an offence" within the meaning of s 128(1)(c)(iii) or (iv) of the PA Act.
If the Apprehending Officer did not have that subjective belief and did not hold that subjective belief on reasonable grounds at the time he apprehended Mr Prior, Mr Prior's apprehension would not have been lawful. And if Mr Prior's apprehension was not lawful, then the respondent accepted both that the assaulted police officer would not have been acting in the execution of his duty when he was spat on, and that it was open for the evidence of all the charged conduct to be found inadmissible under s 138(1) of the Evidence (National Uniform Legislation) Act (NT) ("the Evidence Act").
For the reasons that follow, the appeal to this Court should be dismissed. The apprehension of Mr Prior was lawful.
Decisions below
In the Court of Summary Jurisdiction, Mr Prior was acquitted of count 1 but convicted of counts 2 and 3. Mr Prior appealed against his convictions to the Supreme Court of the Northern Territory. That appeal was by way of rehearing.
Southwood J held that Mr Prior's apprehension under s 128(1) was lawful. His Honour was not satisfied that the prosecution had proved that there were reasonable grounds for the Apprehending Officer to have formed the opinion that Mr Prior's behaviour at the time would intimidate, alarm or cause substantial annoyance to any other person. His Honour did make a finding that the prosecution had proved (a) that Mr Prior was intoxicated within the meaning of s 127A of the PA Act; (b) that there were reasonable grounds for the Apprehending Officer to believe that Mr Prior was intoxicated and, if the police left Mr Prior at the shops, he would likely commit an offence under s 101U of the Liquor Act for drinking in a regulated place; and (c) that the Apprehending Officer held the requisite belief.
However, Southwood J also held that the apprehension, while lawful, was ill-advised and unnecessary when regard was had to General Orders issued by the Commissioner of the Northern Territory Police, which provided that arrest was an "action of last resort". His Honour held that evidence of the charged conduct was therefore obtained in consequence of an impropriety, and that it should have been excluded under s 138(1) of the Evidence Act. Accordingly, Southwood J allowed the appeal, set aside Mr Prior's convictions on counts 2 and 3 and acquitted him of those counts.
The prosecution appealed to the Court of Appeal of the Northern Territory. The Court of Appeal (Riley CJ, Kelly and Hiley JJ) allowed the appeal and reinstated the findings of guilt and the entry of conviction on counts 2 and 3. Among other findings, the Court of Appeal rejected Southwood J's conclusion in respect of impropriety under s 138(1). That issue was not the subject of a grant of special leave to appeal to this Court. The ground of appeal in this Court in relation to the Evidence Act is limited to whether the apprehension was unlawful and therefore "in contravention of an Australian law" within the meaning of s 138(1) of the Evidence Act.
Statutory framework
Section 128 is in Pt VII of the PA Act, which deals with police powers. Division 3 of that Part is titled "Arrest", while Div 4 - which contains s 128 - is titled "Apprehension without arrest".
The text of s 128(1) has been set out earlier. For the purposes of Div 4 of Pt VII, s 127A provides that "a person is intoxicated if: (a) the person's speech, balance, coordination or behaviour appears to be noticeably impaired; and (b) it is reasonable in the circumstances to believe the impairment results from the consumption or use of alcohol or a drug".
As stated earlier, there is no dispute that s 128(1)(a) was satisfied. There is also no dispute that Mr Prior was in a "public place" and that s 128(1)(b) was satisfied.
That leaves s 128(1)(c). If s 128(1)(a) and (b) are satisfied, a member of the Police Force may apprehend a person and take the person into custody if the member has reasonable grounds for believing, because of the person's intoxication, the person satisfies one of the criteria in s 128(1)(c)(i) to (iv).
At the time of the apprehension, the member must hold a relevant subjective belief and that subjective belief must be based on identifiable grounds and those grounds must be reasonable. It is necessary to say something further about each of these matters.
Subjective belief
As already noted, the member must hold a relevant subjective belief. But it is important to stress that the belief held by the member must be that, because of the person's intoxication, one of the matters set out in s 128(1)(c) is engaged. It is not enough that a member have the belief that a person "may intimidate, alarm or cause substantial annoyance to people" or "is likely to commit an offence". The belief held by the member must be that, because of the person's intoxication, the person "may intimidate, alarm or cause substantial annoyance to people" or "is likely to commit an offence".
The importance of the link between the person's intoxication and the matters in s 128(1)(c) is reinforced by s 129. Subject to the other provisions in Div 4 of Pt VII, s 129 limits the period of detention for a person apprehended and taken into custody under s 128(1). The person can be held in custody "only for so long as it reasonably appears to the member of the Police Force in whose custody [they are] held that the person remains intoxicated". Once it "reasonably appears ... that the person is no longer intoxicated", the person must be released from custody. Section 129, together with s 130 - which prohibits a person from being charged with an offence or questioned in relation to an offence while in custody after apprehension under s 128(1) - reflects the "evident protective function served by Div 4": the evident function being both the protection of an intoxicated person from themselves and the protection of other people; the protection being necessary because of certain things the intoxicated person is unable to or might do as a result of their intoxication.
Reasonable grounds
Next, for the member to have the power to apprehend a person under s 128(1), the member must have "reasonable grounds" for holding the requisite belief.
When a statute prescribes that there must be "reasonable grounds" for a state of mind, it requires the existence of facts sufficient to induce that state of mind in a reasonable person. It is an objective test. The question is not whether the relevant person thinks they have reasonable grounds.
In explaining the connection between the "reasonable grounds" and the requisite "belief", this Court in George v Rockett stated:
"The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof."
Belief is not certainty. "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture".
Those considerations are important in this appeal. The matters set out in s 128(1)(c)(iii) and (iv) are the "subject matter" of the belief. That subject matter necessarily involves an element of opinion and judgment - a predictive opinion and judgment about what the person (here, Mr Prior) may or is likely to do in the future. That opinion and judgment is related to, but separate from, the objective facts and circumstances. Together, they constitute all of the relevant circumstances for assessing the reasonableness of the grounds. Accordingly, when considering whether there were reasonable grounds for the relevant belief for the purposes of s 128(1)(c)(iii) and (iv), matters of both fact and opinion must be considered.
Apprehending Officer's decision
That the Apprehending Officer had formed a subjective belief, and the content of that subjective belief, were not in dispute. The subjective belief has been set out earlier in these reasons.
Further, there was no dispute that the Apprehending Officer's decision to apprehend Mr Prior under s 128(1) of the PA Act was based on three circumstances:
(1) the behaviour of Mr Prior at the relevant time, which was aggressive, abusive and indicative of intoxication, displayed a lack of judgment and included drinking in a public place in the presence of police;
(2) the Apprehending Officer's experience over many years of the patterns of behaviour of people found intoxicated, drinking in the daytime in public areas close to liquor outlets, and displaying similar behaviour to that of Mr Prior; and
(3) the presence of members of the public who appeared to be alarmed by Mr Prior's actions.
Against that background, it is necessary to turn to consider s 128(1)(c)(iii) and (iv) separately. It is appropriate to consider sub‑par (iv) before sub‑par (iii).
"Likely to commit an offence" - s 128(1)(c)(iv)
Were there reasonable grounds for the Apprehending Officer to form the belief that Mr Prior, because of his intoxication, was likely to commit an offence?
First, it is necessary to identify the offence. For the purpose of s 128(1)(c)(iv), "offence" is relevantly defined to include "a crime, a felony, a misdemeanour and any offence triable summarily" and includes "an offence against a law ... of the Territory". The offence relied on in this appeal was that provided by s 101U(1) of the Liquor Act. Under s 101U(1) of the Liquor Act, "[a] person commits an offence if the person consumes liquor at a regulated place". A "regulated place" relevantly includes a place that is within 2km of licensed premises and is in a public place.
The circumstances and matters on which the Apprehending Officer relied in forming the subjective belief that Mr Prior, because of his intoxication, was likely to commit an offence against s 101U(1) of the Liquor Act have been set out earlier. Those circumstances and matters must be considered together.
Mr Prior submitted that the Apprehending Officer's reference to, and reliance on, Mr Prior's "general demeanour", his "behaviour" and "the circumstances" were not sufficiently particularised to rationally bear upon the matters in s 128(1)(c)(iii) or (iv). That submission should be rejected. The circumstances and matters identified by the Apprehending Officer would induce a reasonable person to be inclined to accept, rather than reject, the proposition that Mr Prior, because of his intoxication, was likely to commit an offence of drinking alcohol in a regulated place contrary to s 101U(1) of the Liquor Act.
First, there were the observations that the Apprehending Officer made of Mr Prior. Mr Prior was intoxicated. He was aggressive and abusive. He swore at the police. His judgment was impaired. There is no dispute that, prior to his apprehension, Mr Prior was drinking liquor in a regulated place and that he was committing an offence against s 101U(1) of the Liquor Act. Even though it is an offence to sell liquor to a person who is drunk, there were two bottle shops nearby where liquor was available to be purchased.
But, of course, that was not all. The Apprehending Officer relied upon his 12 or 13 years' experience as a police officer to predict that there was a good chance that if the police left, Mr Prior would simply purchase more alcohol at the bottle shop 20 metres away and continue drinking. The Apprehending Officer did not know Mr Prior before the incident, but made an "educated assumption", based on Mr Prior's behaviour, the circumstances and his own experience, that it was "most likely" that Mr Prior would have purchased more alcohol when the police left. The Apprehending Officer's prior policing experience was a, not the, basis for his belief. Moreover, the Apprehending Officer's prior policing experience was not relied upon in a vacuum. It was experience relied upon in the context of Mr Prior's "general demeanour", his "behaviour" and "the circumstances".
And it must be recalled that the Apprehending Officer's reference to and reliance on Mr Prior's "general demeanour", his "behaviour" and "the circumstances" occurred in the context of the Apprehending Officer considering what activities Mr Prior "may" or was "likely to" engage in within a relatively short space of time after police left the scene. It was a predictive judgment. It was dealing with what might happen, not what would certainly happen.
The behaviour that the Apprehending Officer predicted - drinking alcohol in a regulated place - was what Mr Prior had been doing. Mr Prior was intoxicated and his judgment was noticeably impaired. As the Court of Appeal found, an absence of evidence that Mr Prior had the means to purchase more alcohol, or that it would be sold to him despite his intoxication, did not deny the existence of the relevant belief or suggest that the grounds relied on by the Apprehending Officer were not sufficient to induce that state of mind in a reasonable person.
Mr Prior submitted that the inclusion in the "reasonable grounds" for the relevant belief of the Apprehending Officer's prior policing experience of persons who "exhibited similar characteristics" to Mr Prior was impermissible on two bases. First, it was an irrelevant and improper consideration because, given the very short period of contact between the Apprehending Officer and Mr Prior, there was an inference open to be drawn that the Apprehending Officer had "stereotyped" Mr Prior; and, second, there was an absence of particulars of the Apprehending Officer's experience to provide any basis for relying on that experience. In respect of the second basis of his submission, Mr Prior accepted that an apprehending officer could rely upon their experience but submitted that the experience might not assist in establishing that the grounds were reasonable. Both of those contentions should be rejected.
Mr Prior did not contend at trial that the Apprehending Officer "stereotyped" Mr Prior, and did not cross-examine the Apprehending Officer about Mr Prior's "characteristics" or how they were relevant to or affected the Apprehending Officer's belief. In particular, it was not contended at trial, and it was not put to the Apprehending Officer in cross‑examination, that Mr Prior was apprehended, or treated in a particular manner, because he was an Aboriginal person. Questions about Mr Prior's characteristics and how they were relevant to or affected the Apprehending Officer's belief (if at all) should have been addressed and considered at trial. The same is true for issues of whether the Apprehending Officer turned his mind to consider options other than apprehending Mr Prior, such as asking Mr Prior about his personal circumstances - for example, where he lived and whether someone was able to collect him; those being issues that are said to be relevant to Mr Prior's submission that his apprehension was a disproportionate exercise of the power under s 128(1). That submission is considered below.
Put another way, the power of the police to apprehend a person under s 128(1) is only to be exercised for the purposes for which the power is granted and, therefore, only for a legitimate reason. If the apprehension is unlawful, then actions in assault, trespass and false imprisonment may lie.
These kinds of facts and matters may be relevant in assessing whether an apprehension under s 128(1) was lawful and, in particular, in identifying an apprehending officer's subjective belief, the grounds on which that belief was held and whether those grounds were reasonable. And if these kinds of facts and matters are considered relevant, then they should be raised at trial and the apprehending officer should be cross‑examined about them.
The matter may be tested this way. If a police officer sees a person who is drinking alcohol in public, apparently intoxicated, aggressive and abusive and displaying the lack of judgment associated with being intoxicated, and, having poured that person's alcohol down the gutter, that officer concludes that it is likely that the intoxicated person will endeavour to obtain more alcohol to keep drinking, that may be described as a predictive opinion and judgment based on the police officer's own observations and some assumptions about the human behaviour of intoxicated persons.
That was what occurred here. The decision of the Apprehending Officer to place Mr Prior in custody under s 128(1) was based on Mr Prior's behaviour at the time, described above. That behaviour not only was observed by the Apprehending Officer but was directed at him and the other police officer. Then, by reference to the Apprehending Officer's prior policing experience, the Apprehending Officer predicted what a person exhibiting that kind of behaviour may do, or was likely to do, in the near future. The contention that there was an absence of particulars of the Apprehending Officer's experience to provide any basis for relying on that experience should be rejected.
Mr Prior's apprehension was lawful. His appeal should be dismissed.
"May intimidate, alarm or cause substantial annoyance to people" - s 128(1)(c)(iii)
Although it is strictly unnecessary to consider whether there were reasonable grounds for the Apprehending Officer to form the further belief that Mr Prior, because of his intoxication, might intimidate, alarm or cause substantial annoyance to people, it is appropriate to make the following observations.
In the Supreme Court, Southwood J referred to the fact that the Apprehending Officer's evidence was that he had formed the opinion that Mr Prior's behaviour at the time would intimidate, alarm or cause substantial annoyance to any other person and there were members of the public present. The behaviour referred to and relied upon by the Apprehending Officer was that, in response to questions from the police about why Mr Prior had given them "the bird", he abused them, was belligerent and aggressive, swore and slurred his words.
However, Southwood J went on to note that Mr Prior's behaviour "seem[ed] to have been solely directed at the police who were not alarmed or intimidated". The facts suggest that his behaviour was a direct consequence of being questioned by the police. Indeed, one of the key reasons the officers stopped him initially was that Mr Prior gave them "the bird" and abused them as they drove past. Before the arrival of the police, there had been no complaints or reports about the behaviour of Mr Prior.
The Court of Appeal noted that the initial abuse and gesture to the police car was "unprovoked". The Court of Appeal considered that this was a basis on which the relevant belief could be formed because Mr Prior might "similarly confront others passing by or entering and leaving the shops". But the evidence was that, when asked by the police why he gave them "the bird", Mr Prior swore at them and said it was because "you gave me the finger last week". Mr Prior's behaviour was directed towards the police. He had done nothing to indicate that he would engage in similar behaviour with people who were not the police.
There was no evidence upon which a reasonable person would be induced to be inclined to accept, rather than reject, the proposition that Mr Prior may intimidate, alarm or cause substantial annoyance to others because of his intoxication. There was no evidence upon which the condition in s 128(1)(c)(iii) could have been satisfied.
But for the reliance on s 128(1)(c)(iv), Mr Prior's apprehension would have been unlawful.
Exercise of s 128(1) power did not exceed limits of power
Mr Prior submitted that, even if the pre-conditions to the exercise of the power of apprehension under s 128(1)(c)(iii) or (iv) were satisfied, his apprehension under s 128(1) of the PA Act was a disproportionate exercise of power that exceeded the purpose for which the statutory power was conferred, and was therefore unreasonable, an abuse of power and not a proper exercise of that power. That submission should also be rejected.
The Apprehending Officer was required to, and did, identify his subjective belief. That belief was required to be held on "reasonable grounds". The requirement that there be "reasonable grounds" opens "many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers".
The legal standard of reasonableness is the standard indicated by the proper construction of the statute in issue. Put another way, "[e]very statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred". And, of course, an inference of unreasonableness may be objectively drawn even where a particular error in reasoning cannot be identified.
But judicial review for unreasonableness is not a vehicle for challenging a decision on the basis that the decision‑maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment was rationally open to the decision-maker. And it does not provide a mechanism for later seeking to challenge a decision that, for whatever reason, was not challenged on particular grounds at trial.
Unlike the "ill-defined" discretion considered by this Court in Minister for Immigration and Citizenship v Li, s 128(1) of the PA Act specifies mandatory pre-conditions for the exercise of the power. Those mandatory pre-conditions do not include the seriousness of the likely future offence or an officer's options to address a person's past behaviour. That is not surprising. The purpose of the apprehension power in s 128(1) is to prevent the commission of alcohol-related offences and the misuse of alcohol, and to protect people from harm or nuisance resulting from misuse of alcohol. The power has both a protective and a preventative function. An exercise of the power for the purpose of preventing an intoxicated person, because of their intoxication, from possibly intimidating, alarming or causing substantial annoyance to people or from likely future consumption of alcohol in a regulated place is, upon the true construction of s 128(1) of the PA Act, within the bounds of legal reasonableness and a proper exercise of the power. That is what occurred here.
Conclusion and order
For those reasons, the appeal should be dismissed.