Prior v Mole [2017] HCA 10

HIGH COURT OF AUSTRALIA

KIEFEL, BELL, GAGELER, NETTLE AND GORDON JJ

ANTHONY PRIOR APPELLANT

AND

ROBERT MOLE RESPONDENT

Prior v Mole [2017] HCA 10 8 March 2017 D5/2016

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Northern Territory

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)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Prior v Mole

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".

Liquor Act (NT), s 101U(1). Police Administration Act (NT), s 128(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. 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. 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"). The Court of Appeal of the Supreme Court of the Northern Territory (Riley CJ, Kelly and Hiley JJ) upheld that finding. By grant of special leave, Mr Prior appeals to this Court. The principles governing the exercise of a power that is conditioned on the existence of reasonable grounds for belief are not in question. 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. 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 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)); unlawfully assault a police officer, Sergeant O'Donnell, whilst in the execution of his duty (offence (ii)); and behave in an indecent manner in a public place (offence (iii)). 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"). 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, 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. 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. This argument succeeded before Southwood J. That acceptance was the subject of the prosecution's successful appeal to the Court of Appeal. 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. 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. 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). 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. 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 Southwood J had been right to hold that the prosecution had proved on the criminal standard that Constable Blansjaar had reasonable grounds for belief in the likely commission of the Liquor Act offence. The question that is determinative of the appeal in this Court is whether, in law, it was open to the Court of Appeal to find that the facts and circumstances known to Constable Blansjaar provided reasonable grounds for his belief that because of Mr Prior's state of intoxication it was likely that Mr Prior would continue drinking alcohol in the street outside the Westralia Street shops, thereby committing the Liquor Act offence. Evidence of the facts and circumstances leading up to the decision to apprehend Mr Prior was given by Constable Fuss and Constable Blansjaar. Cavanagh SM found both officers to be credible and reliable witnesses. Cavanagh SM's reasons were brief and did not include findings as to the precise sequence of events. The appeal to the Supreme Court, by way of rehearing, was conducted on the transcript of the proceedings and the exhibits admitted into evidence in the Court of Summary Jurisdiction. Southwood J made detailed factual findings which were accepted by the Court of Appeal. Those findings are set out in Gordon J's reasons and need not be repeated here. Some of Mr Prior's submissions in this Court amounted to an invitation to depart from the concurrent findings below, as with the submission that Mr Prior was apprehended before the incident involving children being placed in a car occurred. That invitation should be resisted and the question of principle determined on the basis of Southwood J's factual findings. Southwood J's conclusion that there were reasonable grounds for Constable Blansjaar's belief that, because of his state of intoxication, Mr Prior would commit the Liquor Act offence took into account that alcohol was readily available for purchase at the Westralia Street location and that Mr Prior had been drinking alcohol in company with others in that location before the arrival of the police. In particular, it took into account that the arrival of the police did not cause Mr Prior to change his behaviour. Mr Prior behaved in a belligerent and defiant manner towards the police and in their presence sat back on a ledge outside the shops and picked up a container of red wine. The Court of Appeal upheld Southwood J's finding largely on the strength of his Honour's analysis. In this Court Mr Prior repeats a criticism of that analysis which was rejected by the Court of Appeal. He points to the lack of evidence that he had the means to purchase more alcohol and he submits that his evident state of intoxication made it less likely that he would continue drinking alcohol following the confiscation of his wine. It is said to have been less likely because the Liquor Act (NT) makes it an offence for a licensee or the employee of a licensee to supply liquor to a person who is intoxicated. The Court of Appeal rejected these arguments, observing that it should not be assumed that Mr Prior would have had to purchase alcohol himself. Their Honours considered that Constable Blansjaar had reasonable grounds for believing that Mr Prior would continue to drink on the footpath outside the Westralia Street shops irrespective of how he obtained the alcohol. Reliance on policing experience The error which Mr Prior contends vitiates the Court of Appeal's finding is the holding that: "Constable Blansjaar was also entitled to, and did, rely upon his experience of more than 12 years as a police officer and his dealings with people displaying similar behaviour to that displayed by [Mr Prior]." The Court of Appeal's reference was to an answer given by Constable Blansjaar in cross-examination. It was put to Constable Blansjaar that he had no reason to think that it would not have been effective to tell Mr Prior to stop drinking and that he was not allowed to drink alcohol on the footpath outside the Westralia Street shops. Constable Blansjaar rejected this proposition, saying "[m]y experience as a police officer tells me that there's a good chance if we left he would simply purchase more alcohol at the bottle shop 20 metres away and continue drinking." Constable Blansjaar stated that his belief in this respect also took into account Mr Prior's "general demeanour" and his behaviour, which was "very telling". There the matter was left. Both Constable Fuss and Constable Blansjaar had earlier given evidence of Mr Prior's demeanour and behaviour. Mr Prior's argument is that an "undifferentiated pool of experience" about other people cannot provide a reasonable ground for a belief about how a person, of whom the police officer has no knowledge, is likely to behave. There are two strands to the argument. The broad strand asserts that a police officer's experience of others cannot rationally bear on whether a particular individual, because of his or her intoxication, is likely to commit an offence. The narrower strand accepts that a police officer's experience may inform his or her belief but contends that the court cannot assess the reasonableness of the grounds for the belief unless the experience is particularised. It is said that, absent particularisation, the court cannot exclude the possibility that "arbitrary assumptions" are at play. The submission is apt to suggest that the experience on which Constable Blansjaar relied may have been based upon arbitrary assumptions about the behaviour of Aboriginal persons. That submission does not take account of the conduct of the proceedings below. The cross-examiner did not raise with Constable Blansjaar the features of his policing experience or Mr Prior's general demeanour or behaviour on which Constable Blansjaar's belief in the likely commission of the Liquor Act offence was based. It was not put to Constable Blansjaar that he acted on the basis of assumptions about the conduct of Aboriginal persons. It was not put to Constable Blansjaar that the decision to apprehend Mr Prior was a reaction to his offensive gesture or abuse of the police. The evidence that the initial response of the police to Mr Prior's conduct in drinking alcohol in a regulated place and making the offensive gesture was to issue him with an infringement notice was unchallenged. Any invitation to infer that Constable Blansjaar's reliance on his policing experience may have cloaked racial or other prejudice should not be accepted. Mr Prior is right to submit that Constable Blansjaar's belief about how he, Mr Prior, was likely to behave was informed at least in part by Constable Blansjaar's experience of other people. This is not to accept that it is irrational to take into account observed patterns of human behaviour in predicting the likely behaviour of an individual. In the circumstances of this case, we do not consider that the lack of particulars of Constable Blansjaar's experience can be said to have deprived the Court of Appeal of the capacity to assess the reasonableness of the grounds of his belief. The Court of Appeal drew the inference from Constable Blansjaar's evidence that the experience of which he spoke was of dealing with intoxicated people who were, for that reason, behaving in the aggressive, abusive way in which Mr Prior was behaving. This was a fair inference to draw. The Court of Appeal accepted that Mr Prior's judgment was impaired by his intoxication. The Court of Appeal considered that it was reasonable, based on his experience in dealing with people whose judgment is impaired by intoxication, for Constable Blansjaar to believe that informing Mr Prior that he was not allowed to drink alcohol in that location was unlikely to achieve the desired result. The Court of Appeal considered that it was reasonable, based on his experience in dealing with people whose judgment is impaired by intoxication, for Constable Blansjaar to believe that Mr Prior's likely reaction in his intoxicated condition to having his alcohol confiscated would be to procure more alcohol and to continue drinking where he was. The Court of Appeal's capacity to assess the reasonableness of these conclusions did not depend upon, and was unlikely to be advanced by, an account of Constable Blansjaar's history of dealing with intoxicated persons. The assessment is one about which reasonable minds may differ, but in our view the Court of Appeal's finding was open to it. The alternative ground Mr Prior relies on an alternative ground which accepts that the preconditions for the exercise of the s 128 power were met but contends that the decision to apprehend him nonetheless exceeded the limits of the power. To apprehend Mr Prior and take him into custody based on a belief that he was likely to commit an offence which is punishable by no more than forfeiture of the alcohol and the issue of a contravention notice is challenged as having been out of all proportion to the protective purposes for which the power is conferred. No basis apart from the nature of the offence that it was believed Mr Prior was likely to commit is identified in support of the contention that the decision to apprehend him was taken for a "disproportionate and illegitimate purpose", a contention which was not put below. The purposes of the power include protection of the intoxicated person and other persons and the prevention of the commission of offences by intoxicated persons. Section 128(1) in its current form was inserted with the object among other objects of preventing the commission of alcohol‑related offences. This object is not confined to the prevention of offences punishable by imprisonment. It was within the scope of the power to take Mr Prior into custody in circumstances in which Constable Blansjaar had reasonable grounds for believing that because of Mr Prior's intoxication he was likely to continue drinking alcohol at a regulated place. For these reasons, we would dismiss the appeal.