Prior v Mole [2017] HCA 10: Police Powers

In Prior v Mole [2017] HCA 10 (8 March 2017), the High Court of Australia, in a majority decision, has dismissed an appeal from a decision of the NT Court of Appeal holding that the apprehension of Mr Prior (the appellant) pursuant to section 128(1) of the Police Administration Act 1979 (NT) (the PAA), was not unlawful, because it was open for a court to find that the apprehending officer had reasonable grounds to believe the  appellant was likely to commit an offence.

The PAA in Section 128(1) allows a member of the NT Police Force to apprehend "without warrant" a person who the police member has ". . . reasonable grounds for believing is intoxicated, is in a public place, and that, because of the person's intoxication, the person may intimidate, alarm or cause substantial annoyance to others, or is likely to commit an offence".  

Background Facts

The incidents giving rise to the proceedings took place on New Year’s Day 2013 when the appellant had been drinking outside the Stuart Park shops in Darwin and was intoxicated. The appellant gestured to the police officers in a passing police car, and shouted abuse at them. The passing police car turned and parked in front of the shops and the police in the car asked the appellant to speak to them. The appellant walked to the police car, smelling strongly of liquor, his eyes bloodshot and he being "very disheveled".

When the appellant spoke to the police, he was reported as being belligerent and aggressive and slurring his words. The appellant was told by Constable Blansjaar that he was being placed in protective custody with the result that the appellant became more abusive, requiring Constable Blansjaar to call for another police unit in a motor vehicle equipped a restraining cage. Constable Mole and Sergeant O’Donnell subsequently arrived in the "caged vehicle" and Constable Blansjaar told the appellant that he would be taken to the police station in the "caged vehicle". When asked to hand over his mobile phone the appellant objected and became more aggressive. Whereupon Sergeant O’Donnell "forcibly" took the phone from the appellant and assisted him into the caged vehicle.

While being placed in the caged vehicle, the appellant it is reported "spat on Sergeant O’Donnell twice". This caused the appellant to be placed under arrest for "assaulting Sergeant O’Donnell in the course of his duty". The caged vehicle was driven off with the appellant in it by Sergeant O’Donnell and Constable Mole while Constables Blansjaar and Fuss followed in their police car. While stopped at traffic lights, it is reported that the appellant stood up, undid the zipper of his jeans, and attempted to urinate on the police car. 

Nature of Charges Against Appellant

Resulting from the above facts, the appellant was charged with the offences of:

• Count 1; "behaving in a disorderly manner in a public place contrary to section 47(a) of the Summary Offences Act 1923 (NT); 
• Count 2; unlawfully assaulting a police officer whilst in the execution of his duty contrary to section 189A of the Criminal   Code 1983 (NT);
• Count 3; behaving in an indecent matter in a public place contrary to s 47(a) of the Summary Offences Act 1923 (NT).

Initial Hearing 

The charges against the appellant were heard before the Court of Summary Jurisdiction on 14 May 2014. In those proceedings the magistrate found the appellant guilty of counts 2 and 3 but not guilty of Count 1. 

Appeal to the Supreme Court NT

The appellant appealed to the Supreme Court against his convictions (see Prior v Mole [2015] NTSC 65 (28 September 2015) where the key issues were: 

• First, whether the appellant was lawfully apprehended under the the PAA section 128;   and
• Second, if the appellant was lawfully apprehended, whether the evidence concerning counts 2 and 3 should nonetheless have been excluded in the exercise of the discretion under the Evidence (National Uniform Legislation) Act 2011 (NT) (the UEA) section 138 because ". . . the conduct of the police in apprehending the appellant failed to comply with minimum standards of police conduct".

In the NT Supreme Court, Justice Southwood found that although the appellant was lawfully apprehended, the evidence relating to counts 2 and 3 of the charges had been obtained in consequence of an impropriety, because the apprehension of the appellant was contrary to the proper standards of conduct expected of the police officers in the circumstances of the case, as the apprehension was unnecessary. As a result the appellant’s convictions on counts 2 and 3 were set aside and he was acquitted on those counts.

Northern Territory Court of Appeal

The respondent appealed to the NT Court of Appeal (see Mole v Prior [2016] NTCA 2 (3 March 2016) - Riley CJ, Kelly and Hiley JJ) where they were successful. The NT Court of Appeal were not in agreement with the appellant’s contention that under section 128 of the PAA  ". . . in each and every situation where the conditions for taking a person into protective custody have been satisfied, a police officer must necessarily turn his or her mind to what alternatives there may be and that it is an error of principle not to take some other course of action less restrictive of the person’s liberty". 

The NT Court of Appeal held that although a police officer contemplating placing someone into protective custody must keep firmly in mind that,  it should only be done as a last resort, and it is plainly desirable, where it is practicable, for police to actively consider possible alternatives - ". . . it is not a pre-condition for the exercise of the power that in every case the police officer must turn his or her mind to what alternatives may exist".  This was because the ". . . circumstances are almost infinitely variable and sometimes an experienced police officer will know from the person’s behaviour and other surrounding circumstances, that protective custody is the only available option".

The NT Court of Appeal also found that Justice Southwood was in error in determining that the evidence relating to counts 2 and 3 should have been excluded under the UEA section 138 and allowed the appeal.

Appeal to the High Court

Before the High Court, the appellant seeks to argue that the none of the required possible concerns contained in section  128(1)(c) of the PAA had been met, because the arresting officer could not have formed the relevant reasonable beliefs, based on the facts at the scene and his own evidence. The grounds of appeal include:

•  The NT Court of Appeal erred in failing to dismiss the appeal on the basis that Justice Southwood should have been satisfied on the balance of probabilities that the appellant was apprehended in contravention of an Australian law, within the meaning of section 138(1) of the Evidence (National Uniform Legislation) Act NT, because:
•  the precondition in section 128(1)(c) of the PAA was not met before Constable Blansjaar apprehended the appellant, purportedly under s 128(1) of that PAA; or, alternatively
•  if the precondition in s 128(1) of the PAA was met, Constable Blansjaar’s apprehension of the appellant nevertheless exceeded the limits of the discretion conferred by section 128(1).

The High Court's Decision

The High Court of Australia, in its majority decision, held that, ". . . the lack of precise particularisation of Constable Blansjaar's experience did not deprive the NT Court of Appeal of its capacity to assess the reasonableness of his belief". Thus it was fair for the NT Court of Appeal to infer that Constable Blansjaar's belief about how the appellant was likely to behave was informed at least in part by Constable Blansjaar's experience in dealing with other intoxicated people, and it was open to hold that, based on Constable Blansjaar's experience, it was reasonable for him to believe that the appellant was likely to continue drinking liquor in a regulated place.  

Separate argument that the apprehension of the appellant exceeded the limits of the section 128(1) PAA power, was also rejected by the High Court.

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Prior v Mole [2017] HCA 10 (8 March 2017) and supporting High Court Summary, and Transcript materials.

Mole v Prior [2016] NTCA 2 (3 March 2016)

Prior v Mole [2015] NTSC 65

Prior v Mole (High Court Blog)