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 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
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.
In Prior v Mole,[2] Gagelar J set out the matters that must be satisfied for a person to be lawfully taken into protective custody under s 128:
First, the member must have an actual subjective belief in the existence of each of the specified matters. Belief is more than “suspicion”; it is not merely an “apprehension” or even a “fear”; it is an actual “inclination of the mind”. Second, the subjective belief of the member must be a belief that is formed by the member by reference to objective circumstances. The relevant objective circumstances are those known to and taken into account by the member in forming the belief. That is not to say that those circumstances might not include information provided to the member by someone else. Nor is it to say that the formation of the belief by reference to those circumstances might not involve an element of surmise or conjecture on the part of the member. Third, the objective circumstances by reference to which the belief is formed must be such as can be determined by a court to be “sufficient to induce that state of mind in a reasonable person”. Even if the formation of the belief might involve an element of surmise or conjecture on the part of the member, the sufficiency of the objective circumstances to induce that belief in a reasonable person must be capable of appearing to the satisfaction of a court.
For a court to resolve a controversy as to whether the precondition was met in a case where a member of the Police Force, without warrant, has in fact apprehended a person and taken that person into custody, the court must look in the first instance into the mind of the member of the Police Force who purported to exercise the power. Two initial questions arise. What was his belief? What were the objective circumstances by reference to which he formed that belief? Other evidence might shed light on the objective circumstances. Only his evidence can identify them directly. [citations omitted]
The chief argument on the appeal was that there was no evidence on which the trial judge could have found that Officer Frost held the subjective belief that the appellant was trespassing on private property at the time he was apprehended. It was agreed (properly) between the appellant and the respondent that, if there was in fact no such evidence, the appeal should be allowed. Counsel co-operated in marking up a copy of the transcript of the evidence of Officer Frost to identify all those parts of his evidence that could have a bearing on that issue.
At no point in his evidence did Officer Frost say explicitly that he believed the appellant was trespassing on private property.
The respondent relied on this part of Officer Frost’s evidence:
COUNSEL:     So, coming back to that, you first attended the premises, what do you see when you first arrived at the gate?
FROST:          First of all I spoke to a lady who I now know to be the person’s mother that is sitting across the table from me. I believe that she had been – made a 000 phone call and I had a conversation with her and she told me some information about her son’s behaviour.
COUNSEL:     What did she say to you about her son’s behaviour?
FROST:          “Take him away. Lock him up. He’s been going mad and been violent.”
The respondent contended that one can infer from this evidence that Officer Frost believed that the appellant was trespassing. He had spoken to the person who was apparently the householder who told him, essentially, that the appellant was not welcome.
I do not think that such an inference can legitimately be drawn. First, there is no evidence that Officer Frost even turned his mind to the question of whether the appellant was a trespasser. Indeed there is evidence which suggests that he did not. In the cross-examination of Officer Frost, the following exchange occurred:
COUNSEL: And, to the best of your knowledge, can you describe to the court what s 128 actually says?
FROST: Okay. So, where a person appears to be under the influence of an intoxicating drug and alcohol and no longer has the ability to look after themselves.
It would appear from that answer that Officer Frost believed that the only pre-conditions for taking a person into protective custody under PAA s 128 are that the person be intoxicated and unable to look after themselves. He did not mention the need for the person to be in a public place or trespassing on private property - or indeed any of the alternative matters in s 128(1)(c).
Counsel for the appellant relied on the following exchange in the cross-examination of Officer Frost:
COUNSEL:     All right. So now you’ve attended the house. Could you repeat, who did you speak to when you first got to the house?
FROST:          I believe the lady was his mum.
COUNSEL:     And, did you speak to anyone else at the premises?
FROST:          No. No. Like I was led through the house by his brother, but I can’t say I had a conversation with him.
COUNSEL:     And, based on your conversation with people, based on your assessment of the environment, you would say that it looked like it was his house as well?
FROST:          Yeah. Certainly.
COUNSEL:     And, you would agree that a person’s home is private property? It is not public property?
FROST:          Yes.
COUNSEL:     And so, you would agree when I say that when you first saw [the appellant] he was at his house?
FROST:          Yeah. He was in the yard. Yep.
COUNSEL:     And you assessed the situation as him being at his home?
FROST:          Yep.
COUNSEL:     He wasn’t, for example in a stranger’s home?
FROST:          No.
COUNSEL:     Randomly stumbled upon?
FROST:          No.
That is the sum total of the evidence relevant to the question of whether Officer Frost held a subjective belief that the appellant was trespassing at the time he was taken into protective custody, purportedly under PAA s 128. It boils down to this.
(a)Officer Frost does not seem to have been aware that it was a pre-condition of the power to apprehend a person under PAA s 128 that the person be in a public place or trespassing on private property. From this it can be inferred that he did not turn his mind to the question of whether the appellant was trespassing at the time he took him into custody and so, cannot be said to have formed an actual subjective belief that he was trespassing.
(b)Officer Frost had an actual subjective belief at the time that the appellant was at home – “at his house” – which is not compatible with a subjective belief that he was trespassing.
Accordingly, there is no evidence on which the trial judge could have found that Officer Frost in fact had a subjective belief that the appellant was trespassing when he apprehended him purportedly pursuant to PAA s 128.
It follows that the evidence of the offences with which the appellant was charged was obtained in consequence of a contravention of an Australian law and ought to have been excluded under s 138 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.
In determining this question, the Court must take into account the matters set out in s 138(3):
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
There is no suggestion that the contravention of PAA s 128 was deliberate; it appears that Officer Frost simply did not know that it was a pre-condition of the exercise of the power under PAA s 128 that the person to be taken into protective custody under that section be in a public place or trespassing on private property. Taking into account the matters in s 138(3)(c), counsel for the respondent has properly conceded that, if it were shown that the apprehension of the appellant under s 128 was unlawful, the evidence should have been excluded under UEA s 138 and the appeal should be allowed.[3] If not for the unlawful apprehension of the appellant, the offences would not have been committed. The findings of guilty should not be permitted to stand.
The appeal is allowed.
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[1]In fact the respondent had already been apprehended when the police took him by the arm and walked him from the property. Elsewhere in his evidence Officer Frost said the thought a person was in police custody from the moment they began talking to police.

[2] (2017) 343 ALR 1 at [24] and [25]

[3] Initially, counsel for the respondent contended that the decision could be justified on the alternative ground that the appellant was actually apprehended on the footpath outside his home – ie in a public place. However, when it was pointed out that that was not the basis on which the trial judge determined the s 138 question and found the appellant guilty, there was no notice of contention, and, further, that the evidence was that the police officers in question took the appellant by the arm and escorted him from the yard of his home intending to remove him from the premises, counsel quite properly withdrew this submission.