Anthony Prior(Appellant) v Robert Mole

• Jurisdiction: Australia Federal only
• Judge: Kiefel,Bell JJ,Gageler J.,Nettle J.,Gordon J.
• Judgment Date: 08 March 2017
• Neutral Citation: [2017] HCA 10
• Docket Number: D5/2016
• Court: High Court
• Date: 08 March 2017

[2017] HCA 10

HIGH COURT OF AUSTRALIA

Kiefel, Bell, Gageler, Nettle and Gordon JJ

D5/2016

Anthony Prior

Appellant

and

Robert Mole

Respondent

Representation

B E Walters QC with E M Nekvapil and F L Batten for the appellant (instructed by North Australian Aboriginal Justice Agency)

S L Brownhill SC, Solicitor-General for the Northern Territory with T J Moses for the respondent (instructed by Solicitor for the Northern Territory)

Liquor Act (NT), s 101U(1).

Police Administration Act (NT), s 128(1).

Criminal law — Procedure — Apprehension and detention — Reasonable grounds — Where appellant drinking alcohol in public place near shops selling alcohol — Where appellant intoxicated and behaving belligerently towards police — Where appellant apprehended on basis of police officer's belief that appellant would commit offence of drinking liquor in regulated place — Whether belief held on reasonable grounds — Whether policing experience valid basis for reasonable grounds for forming belief.

Criminal law — Procedure — Apprehension and detention — Statutory powers of apprehension — Where appellant apprehended on basis of police officer's belief that appellant would commit offence of drinking liquor in regulated place — Where maximum penalty for offence forfeiture of liquor and issue of contravention notice — Whether decision to apprehend exceeded limits of apprehension power.

Words and phrases — ‘likely to commit an offence’, ‘policing experience’, ‘reasonable grounds’.

ORDER

Appeal dismissed.

1 Kiefel and Bell JJ. Section 128(1) of the Police Administration Act (NT) (‘the PAA’) confers power on a member of the Police Force of the Northern Territory to apprehend without warrant a person who the member has reasonable grounds for believing is intoxicated (s 128(1)(a)) and is either in a public place or trespassing on private property (s 128(1)(b)). The power is further conditioned on the member having reasonable grounds for believing that because of the person's intoxication the person: 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 (s 128(1)(c)(i)); or may cause harm to himself or herself or someone else (s 128(1)(c)(ii)); or may intimidate, alarm or cause substantial annoyance to people (s 128(1)(c)(iii)); or is likely to commit an offence (s 128(1)(c)(iv)). A person who is apprehended under s 128 is to be held in the custody of a member of the Police Force but only for so long as it reasonably appears to the member that the person remains intoxicated 1.

2 In the mid-afternoon on New Year's Eve 2013, Mr Prior was apprehended under s 128(1) of the PAA by Constable Blansjaar on the footpath outside the Westralia Street shops, in Stuart Park. Constable Blansjaar believed that Mr Prior was intoxicated in a public place and, because of his intoxication, that Mr Prior might intimidate, alarm or cause substantial annoyance to people and that it was likely that he would commit an offence. The offences that Constable Blansjaar believed it was likely that Mr Prior would commit involved drinking in a regulated place or disorderly behaviour.

3 In the Supreme Court of the Northern Territory, Southwood J found that Constable Blansjaar had reasonable grounds for his belief that Mr Prior was likely to commit the offence of drinking at a regulated place contrary to s 101U(1) of the Liquor Act (NT) (‘the Liquor Act offence’) 2. The Court of Appeal of the Supreme Court of the Northern Territory (Riley CJ, Kelly and

Hiley JJ) upheld that finding 3. By grant of special leave, Mr Prior appeals to this Court.

4 The principles governing the exercise of a power that is conditioned on the existence of reasonable grounds for belief are not in question 4. The lawful exercise of the power conferred by s 128(1) required that Constable Blansjaar in fact hold each of the beliefs referred to in sub-s (1)(a) and (b) and one or more of the beliefs referred to in sub-s (1)(c) and that the facts and circumstances known to Constable Blansjaar constituted objectively reasonable grounds for those beliefs. Proof of the latter requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief. This is not to say that it requires proof on the civil standard of the existence of that matter. Facts and circumstances that suffice to establish the reasonable grounds for a belief may include some degree of conjecture 5.

5 It is common ground that Constable Blansjaar in fact held each belief and that there existed reasonable grounds for his belief that Mr Prior was intoxicated and that Mr Prior was in a public place. Mr Prior contends that the Court of Appeal erred in holding that Constable Blansjaar had reasonable grounds for his belief that, because of his intoxication, Mr Prior was likely to commit the Liquor Act offence in circumstances in which Constable Blansjaar knew nothing of Mr Prior's background and based his belief at least in part on his policing experience. For the reasons to be given, we consider that it was open in law to find that Constable Blansjaar had reasonable grounds for his belief.

Procedural history

6 The lawfulness of Mr Prior's apprehension arises in circumstances in which, after being taken into custody as an intoxicated person pursuant to s 128(1) of the PAA, Mr Prior engaged in conduct which led to him being arrested and charged with three criminal offences: behave in a disorderly manner in a public place (offence (i)) 6; unlawfully assault a police officer, Sergeant O'Donnell, whilst in the execution of his duty (offence (ii)) 7; and

behave in an indecent manner in a public place (offence (iii)) 8. All three offences were tried before the Court of Summary Jurisdiction in Darwin (Cavanagh SM). Proof of offence (ii) required the prosecution to establish beyond reasonable doubt that Sergeant O'Donnell was acting in the execution of his duty at the time of the assault. At that time, Sergeant O'Donnell was placing Mr Prior in the rear of a police vehicle following Constable Blansjaar's decision to take Mr Prior into custody under s 128 of the PAA. Mr Prior argued that the prosecution had not proved that his apprehension was lawful. Relying on the same claimed illegality, Mr Prior submitted that evidence of the conduct charged in offences (i) and (iii) should be excluded in the exercise of the discretion conferred by s 138 of the Evidence (National Uniform Legislation) Act (NT) (‘the Evidence Act’) 9.

7 Cavanagh SM found that Mr Prior had been lawfully apprehended under s 128 of the PAA. Mr Prior was convicted of offences (ii) and (iii). Cavanagh SM was not satisfied that the prosecution had proved that Mr Prior behaved in a disorderly manner and he was acquitted of offence (i). On appeal in the Supreme Court 10, Southwood J was satisfied beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar's belief that, because of his intoxication, Mr Prior was likely to commit the Liquor Act offence. Proof of the belief sufficed to establish the lawfulness of Mr Prior's apprehension and to remove any doubt that Sergeant O'Donnell was acting in the execution of his duty at the time of the assault charged as offence (ii). His Honour was not satisfied on the criminal standard that there were reasonable grounds for Constable Blansjaar's belief that because of his intoxication Mr Prior might intimidate, alarm or cause substantial annoyance to people 11.

8 Mr Prior relied on a new argument for discretionary exclusion of evidence before Southwood J. Mr Prior argued that even if his apprehension was lawful

and the evidence of the conduct charged as offences (ii) and (iii) was not obtained in consequence of a contravention of Australian law it should nonetheless be excluded under s 138 of the Evidence Act because it had been obtained in consequence of an impropriety. The action of the police in taking Mr Prior into custody was said to have been unnecessary and to fall below the minimum standard of conduct required of those charged with enforcing the law 12. This argument succeeded before Southwood J 13. That acceptance was the subject of the prosecution's successful appeal to the Court of Appeal 14. The Court of Appeal's conclusion that evidence of the conduct charged in offences (ii) and (iii) should not have been excluded on the ground that it was obtained in consequence of an impropriety is not the subject of this appeal.

9 This appeal is from the Court of Appeal's dismissal of Mr Prior's amended notice of contention, which sought to support Southwood J's orders acquitting him of both offences on two additional grounds. The first ground contended that the evidence did not establish on the criminal standard that there were reasonable grounds for Constable Blansjaar's belief that Mr Prior was likely to commit the Liquor Act offence 15. The second ground was directed to the discretionary exclusion of the evidence of each offence as having been obtained in consequence of a contravention of Australian law. Mr Prior contended that he had discharged the onus of proving, on the civil standard, that Constable Blansjaar did not have reasonable grounds for his belief under s 128(1)(c)(iii) or s 128(1)(c)(iv) 16.

10 The Court of Appeal considered that it was clearly established on the civil standard that Constable Blansjaar had reasonable grounds for his belief under s 128(1)(c)(iii) that because of his intoxication Mr Prior may intimidate, alarm or cause substantial annoyance to people 17. It did not determine whether the prosecution had proved the existence of reasonable grounds for that belief on the criminal standard for the purposes of proof of offence (ii). The Court of Appeal was satisfied that...