[5] Before dealing with the appellant's arguments it is convenient to state the facts which gave rise to the appellant's two convictions by the Court of Summary Jurisdiction.
[6] On 10 December 2004 police Constables Theo Karamanidis and Sherry Baxter were performing general duties on the 7.00 pm to 5.00 am shift in Alice Springs. They were both in uniform. At about 8.54 pm they were tasked to investigate a complaint that someone was "hooning around doing burn outs" in a Holden station wagon in the industrial area near the Shell Truckstop in Alice Springs. They drove to the area in a paddy wagon, which is a marked police vehicle with a cage on the back, and conducted a mobile patrol. While on patrol they saw a blue Holden station wagon that was of a similar description to the motor vehicle that was the subject of the complaint that they were tasked to investigate. The Holden station wagon was parked in the yard of a business premises. The yard of the business premises was private property.
[7] The police officers drove into the yard of the business premises where they saw the appellant. He was moving from the Holden station wagon to the building and he was carrying some sort of a box. While still seated in the driver's seat of the police vehicle Constable Karamanidis spoke to the appellant. He was about 20 to 25 metres away from the appellant when he did so. Constable Karamanidis said, "Good day! How are you?" The appellant replied in an aggressive tone, "Fuck off mate! What the fuck do you want?" Constable Karamanidis then got out of the police vehicle and said, "Calm down. What is your name?" The appellant put the box down and walked towards Constable Karamanidis in an aggressive manner waving his arms and asked, "What the fuck for? What's your fucking name?" Constable Karamanidis then told the appellant his name and the appellant said that his name was Dave "Skits" or something similar.
[8] While the appellant was approaching Constable Karamanidis he saw the appellant put both his hands in his pockets and he became concerned that the appellant may have a weapon in his pockets. Constable Karamanidis grabbed one of the appellant's arms, put it behind the appellant's back and then placed the appellant face down on the bonnet of the police vehicle where the appellant was searched. Constable Baxter assisted Constable Karamanidis restrain and search the appellant. The appellant did not have a weapon. While the appellant was still restrained on the bonnet of the police vehicle Constable Karamanidis again asked the appellant to calm down. He told the appellant that they just wanted to talk to him. The appellant calmed down and he was then released.
[9] After the appellant was released Senior Constable Muir arrived at the yard of the business premises in a police car. By this time the appellant was not struggling. He had lowered his voice and he was not behaving in a loud or aggressive manner. Constable Karamanidis asked the appellant what had been happening. The appellant told him that he did not have any money. He had been ripped off. He had nowhere to go and his boss had said that he could stay at the business premises as the caretaker. The appellant then appeared to become emotionally upset. He began to cry and he appeared to be in a fluctuating mood going from a teary state to an aggressive state. Constable Karamanidis then asked the appellant if he was on any medication. The appellant said that he had been on medication for schizophrenia. He had been taking double the amount of his medication but he had then gone off it. He needed something stronger. Constable Karamanidis then asked the appellant if he would like to see a doctor. The appellant said, "Yeah" and he calmed down. Constable Karamanidis again asked the appellant his name. The appellant started to yell loudly again. He said his name was "Dave Stitches" or something similar.
[10] While Constable Karamanidis was talking to the appellant another police paddy wagon arrived. In the paddy wagon were Constables Barrett and Smith. Ultimately there were two paddy wagons and an unmarked police car at the yard of the business premises and five police officers in attendance.
[11] As a result of his observations Constable Karamanidis formed the opinion that the appellant was suffering from some sort of mental disorder. He decided to get the appellant to a doctor to have a chat to somebody or counselling or something like that to see if they could help the appellant. Constable Karamanidis continued to talk to the appellant. He wanted the appellant to voluntarily go and see a doctor. However, he was beginning to form the opinion that if the appellant did not go voluntarily then he may have to take the appellant to see a doctor regardless. If the appellant had broken away he would have chased him and restrained him. Constable Karamanidis gave evidence that he would have acted under the authority of the Mental Health and Related Services Act.
[12] While Constable Karamanidis was talking to the defendant Constable Baxter made an enquiry with the police radio base about the appellant's Holden station wagon and she was told that there was a medical alert because of the appellant's mental health. She told Constable Karamanidis what she had learned. Constable Karamanidis relied on this information as part of his overall assessment that the appellant was suffering from a mental disorder.
[13] Constable Karamanidis said to the appellant, "Come on, let's go and speak to a doctor, let's go and see a doctor." The appellant again became aggressive. He replied, "Where? In the fucking gaol?" Constable Karamanidis responded, "No, to the hospital." The appellant said, "What, at fucking Alice Springs Hospital? Yeah, right, you want to take me to fucking gaol." Constable Karamanidis said, "Look, calm down, I just want to help you. Let me take you to a doctor." After Constable Karamanidis said this the appellant appeared to calm down again. The appellant said, "Yeah, okay."
[14] After the appellant said that it was okay to go to the hospital to see a doctor Constable Karamanidis put his hand upon the appellant's shoulder to guide him to a police paddy wagon. He did not suggest the appellant get into the back seat of the police car so that he could be taken to the hospital. Constable Baxter accompanied them. However, at no time was she holding the appellant. It was Constable Baxter's opinion that the appellant was going to be taken to hospital because of his distressed condition. She believed that the appellant may have been a danger to himself and to the community. They walked with the appellant some three to four metres towards a police paddy wagon and then without warning the appellant swung around and began punching Constable Karamanidis to the head. He also hit and kicked Constable Baxter. After Constable Karamanidis was hit by the appellant he retaliated by punching the appellant in the head. The other police joined in to help restrain the appellant. The appellant was then ground stabilised and handcuffed. It was Constable Karamanidis' evidence that the appellant was struggling when he was picked up and that he yelled out a number of words to the police officers. Constable Karamanidis said that the appellant did not say anything to him before the appellant struck him. The appellant was told that he was now under arrest for assaulting police and he was put in the cage on the back of Constable Barrett's and Smith's paddy wagon. He was then taken to the police watch house behind the police station in Alice Springs.
[15] Constable Karamanidis had intended to convey the appellant to the hospital by placing the appellant in the cage on the back of a paddy wagon. He gave evidence that in the past he had taken people to the hospital in the back of a paddy wagon and that they had been quite happy to get into the cage. Once in the cage the appellant would not have been able to open the door of the cage.
[16] At no stage did any of the police officers contact the Alice Springs hospital and speak to anybody in the psychiatric ward to get some assistance.