JP v Cassidy - [2022] NTSC 26

CITATION:JP v Cassidy [2022] NTSC 26
PARTIES:JP

v
CASSIDY, Craig

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from YOUTH JUSTICE COURT exercising Territory jurisdiction
FILE NO:LCA 12 of 2021 (22019680)
DELIVERED:  4 April 2022
HEARING DATE:  28 January 2022
JUDGMENT OF:  Kelly J

CATCHWORDS:
Evidence (National Uniform Legislation) Act 2011 (NT) s 138, s 138(3), s 138(3)(c)
Police Administration Act 1978 (NT) s 128, s 128(1), s 128(1)(c)
Prior v Mole (2017) 343 ALR 1
REPRESENTATION:
Counsel:
Appellant:T Collins
Respondent:  P Williams
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Kel2213
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
JP v Cassidy [2022] NTSC 26

No. LCA 12 of 2021 (22019680)

BETWEEN:

JP

Appellant

AND:

CRAIG CASSIDY

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 4 April 2022)

On 11 March 2021 the appellant was found guilty in the Local Court in Alice Springs of:
(a)behaving in a disorderly manner in a police station;
(b)intentionally or recklessly causing damage to a mattress belonging to NT Police; and
(c)two counts of unlawfully assaulting a police officer while in the execution of his duty, aggravated by the fact that the police officer suffered harm.
Background
On 16 June 2020, two police officers, Officers Frost and Elworthy were called to a home in which there had been a domestic disturbance. Their interactions with the appellant and other people present were recorded on body worn camera footage.
When they arrived a woman who police believed, correctly, was the mother of the appellant said to them, “My son is getting mad - just want him to get locked up.”
Officer Frost asked her, “And none of these big boys here can handle him?” referring to some other men who were in the house.
The mother said, “Nah, this is his big brother.”
The appellant went inside the house and the police officers went inside and into the appellant’s bedroom. (The door was unlocked for them by someone who was assisting.) The police officers detected a strong smell of cannabis coming from the room. They then went into the yard where they met up with the appellant.
The appellant went up to Officer Frost with his arms held out to the side and said, “What’s up? What’s up? What’s the problem man?” Officer Frost gave evidence that he thought the appellant was intoxicated and aggressive.
Police asked the appellant to relax several times and then took him by the arm and walked him to the police vehicle parked at the front of the house. Officer Frost gave evidence that his intention at that time was to have a conversation with the appellant at the back of the police vehicle about options for dealing with the appellant, the most important of which, in his mind, was to remove the appellant from the house.
As they got closer to the police vehicle, the appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JP v Cassidy

Details

AGLC: JP v Cassidy [2022] NTSC 26
Case: [2022] NTSC 26
Decision Date: 4 April 2022

CaseChat Overview and Summary

In the case of JP v Cassidy, the appellant, JP, was found guilty in the Local Court in Alice Springs of disorderly conduct in a police station, causing damage to police property, and assaulting police officers while they were executing their duties. The convictions were based on events that occurred on 16 June 2020, when JP was apprehended by police officers Frost and Elworthy after a domestic disturbance. The officers took JP into custody, leading to a series of incidents in the police station that resulted in the charges against him. JP appealed against his convictions, arguing that the trial judge erred in finding that he was trespassing for the purposes of section 128 of the Police Administration Act 1978 (NT) and that the findings of guilt were unsafe and unsatisfactory.

The legal issues before the court were whether Officer Frost had reasonable grounds to apprehend JP under section 128 of the Police Administration Act 1978 (NT) and whether the evidence obtained as a result of JP's apprehension was lawfully obtained. The appeal hinged on the interpretation of section 128 and whether the officer's beliefs about JP's intoxication, presence on private property, and potential to cause harm were reasonable and supported by objective circumstances. Additionally, the court had to consider whether any impropriety occurred that would render the evidence inadmissible under section 138 of the Evidence (National Uniform Legislation) Act 2011 (NT).

The court found that Officer Frost had lawfully taken JP into protective custody under section 128 of the Police Administration Act 1978 (NT). The court determined that Officer Frost had reasonable grounds to believe that JP was intoxicated, trespassing on private property, and likely to cause harm to others, based on JP's aggressive behaviour and the information provided by the appellant's mother. The court also found that the objective circumstances supported the officer's beliefs, and therefore, the apprehension was lawful. Furthermore, the court rejected the argument that there was any impropriety in taking JP to the Watch House or in placing him in an emergency restraint chair. Consequently, the court upheld the trial judge's findings, and the appeal was dismissed.

The final orders of the court were that the appeal against the convictions was dismissed, and JP remained convicted of the charges as determined by the trial judge in the Local Court in Alice Springs.

Orders

Orders of the court

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Background

Background to the litigation

On 11 March 2021 the appellant was found guilty in the Local Court in Alice Springs of:(a)behaving in a disorderly manner in a police station;(b)intentionally or recklessly causing damage to a mattress belonging to NT Police; and(c)two counts of unlawfully assaulting a police officer while in the execution of his duty, aggravated by the fact that the police officer suffered harm.Background On 16 June 2020, two police officers, Officers Frost and Elworthy were called to a home in which there had been a domestic disturbance. Their interactions with the appellant and other people present were recorded on body worn camera footage. When they arrived a woman who police believed, correctly, was the mother of the appellant said to them, “My son is getting mad - just want him to get locked up.” Officer Frost asked her, “And none of these big boys here can handle him?” referring to some other men who were in the house. The mother said, “Nah, this is his big brother.” The appellant went inside the house and the police officers went inside and into the appellant’s bedroom. (The door was unlocked for them by someone who was assisting.) The police officers detected a strong smell of cannabis coming from the room. They then went into the yard where they met up with the appellant. The appellant went up to Officer Frost with his arms held out to the side and said, “What’s up? What’s up? What’s the problem man?” Officer Frost gave evidence that he thought the appellant was intoxicated and aggressive. Police asked the appellant to relax several times and then took him by the arm and walked him to the police vehicle parked at the front of the house. Officer Frost gave evidence that his intention at that time was to have a conversation with the appellant at the back of the police vehicle about options for dealing with the appellant, the most important of which, in his mind, was to remove the appellant from the house. As they got closer to the police vehicle, the appellant became louder and somewhat aggressive. Officer Frost’s evidence was that at that point he believed that the appellant was likely to flee and so he made the decision to “apprehend” the appellant and take him into protective custody.[1] He said he needed to remove the appellant from the premises and that, due to his increasingly belligerent behaviour, he thought it would be safest to take him to the Watch House. Accordingly, he put the appellant in the back of the caged police vehicle and took him to the Watch House. Things escalated from there. On the way to the Watch House in the police vehicle the appellant took off his clothes. While at the Watch House he refused offers of clothes and blankets; he tried to flush the clothes that were given to him down the toilet in his cell causing the toilet to become blocked and to overflow and he started tearing up the mattress. Then he banged his head against the cell door. The custody sergeant at the Police Station was concerned that the appellant would hurt himself and police officers placed him in an emergency restraint chair. In that process the appellant assaulted two of the police officers by spitting on them.Local Court proceedings

Evidence

Evidence Before The Court

The appellant was charged with the offences referred to in [1]. He pleaded not guilty, the main issue raised by the defence being that the evidence was not lawfully obtained or was obtained as a result of an impropriety and so should be excluded under s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) which provides:Exclusion of improperly or illegally obtained evidence(1) Evidence that was obtained:(a)improperly or in contravention of an Australian law; or(b)in consequence of an impropriety or of a contravention of an Australian law;is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The illegality alleged was that Officer Frost had illegally detained the appellant, the pre-conditions for apprehending him under s 128 of the Police Administration Act 1978 (NT) (“PAA”), not having been satisfied. (The defence also alleged impropriety in taking the appellant, who was aged 17 at the time, to the Watch House, instead of, for example, a sobering up shelter, and placing him in an emergency restraint chair.) PAA s 128(1) provides:Circumstances in which a person may be apprehended(1) A member 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. The trial judge rejected the defence arguments, finding that Officer Frost had lawfully taken the appellant into protective custody under PAA s 128 and that there had been no impropriety in the other conduct on the part of police. In relation to PAA s 128, the trial judge found that “Officer Frost had reasonably formed all of the subjective beliefs necessary under s 128” namely:(a)that the appellant was intoxicated;(b)that he was trespassing on private property, it having been made clear to him that he was unwelcome, and occupants of the house having requested police assistance to remove him; and(c)that he may intimidate, alarm or cause substantial annoyance to people and had in fact already done so. The trial judge also found that “the objective circumstances provide sufficient basis that Officer Frost’s beliefs were reasonable in the circumstances”. Accordingly, she found that “the apprehension was lawful” and that “the actions of the attending members did not contravene s 128”.This appeal On 8 April 2021, the appellant filed a notice of appeal against the findings of guilt by the trial judge on the following grounds:Ground 1:The learned judge erred on finding that the appellant was trespassing for the purpose of PAA s 128.Ground 2:The finding of guilt was unsafe and unsatisfactory.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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