Mole v Prior

Case [2016] NTCA 2

Mole v Prior [2016] NTCA 2

PARTIES:MOLE, Robert

v

PRIOR, Anthony

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 11 of 2015 (21359150)

DELIVERED:  3 MARCH 2016

HEARING DATES:  3 FEBRUARY 2016

JUDGMENT OF:  RILEY CJ, KELLY & HILEY JJ

APPEAL FROM:  SOUTHWOOD J

CATCHWORDS:

APPEAL – Against decisions of intermediate court overturning conviction for assault – Respondent taken into “protective custody” under Police Administration Act 1979 (NT) s 128 – Spat on police officer – Convicted of assault – Intermediate court found apprehension lawful but unnecessary – Held evidence of assault obtained in consequence of impropriety - Evidence should have been excluded under Evidence (National Uniform Legislation) Act 2011 (NT)

APPEAL – Whether evidence obtained as a result of impropriety – Purpose of apprehension under Police Administration Act 1979 (NT) s 128 different from criminal arrest – Different principles apply – Police conduct not clearly inconsistent with minimum standards expected of law enforcement officers – Evidence not obtained as a result of impropriety – Appeal allowed

Crimes Act 1914 (Cth) s 8A (repealed)

Criminal Code 1983 (NT) s 189A

Evidence (National Uniform Legislation) Act2011 (NT) s 138, s 142

Liquor Act 1978 (NT) s 101V, s 101U

Summary Offences Act 1923 (NT) s 47(a)

Police Act 1892 (WA) s 50

Police Administration Act 1979 (NT) s 128

Police General Orders A7 (NT) para 2.2

Dumoo v Garner (1998) 143 FLR 245; Prior v Mole [2015] NTSC 65; referred to

Robinson v Woolworths Ltd (2005) 158 A Crim R 546; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38; Parker v Comptroller-General of Customs (2009) 83 ALJR 494; Re Bolton; Ex parte Beane (1987) 162 CLR 514; applied

Cleland v The Queen (1982) 151 CLR 1; Donaldson v Broomby (1982) 60 FLR 124; DPP v AM (2006) 161 A Crim R 219; DPP v Carr (2001) 127 A Crim R 151; DPP (NSW) v CAD & Ors [2003] NSWSC 196; Trobridge v Hardy (1955) 94 CLR 147; discussed

REPRESENTATION:

Counsel:

Appellant:Solicitor-General M Grant QC

with S Geary

Respondent:  A Wyvill SC with P Bellach

Solicitors:

Appellant:Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:    B

Number of pages:  36

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Mole v Prior [2016] NTCA 2

No. AP 11 of 2015 (21359150)

BETWEEN:

ROBERT MOLE

Appellant

AND:

ANTHONY PRIOR

Respondent

CORAM:     RILEY CJ, KELLY & HILEY JJ

REASONS FOR JUDGMENT

(Delivered 3 March 2016)

THE COURT:

Background

  1. The respondent is an indigenous man.  On New Year’s Eve (31 December 2013), he was drinking red wine outside the Stuart Park shops with two other men.  He was intoxicated. 

  2. A police car drove past the shops.  The respondent gestured to the police officers with the middle finger of his right hand and shouted abuse…

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Details
AGLC
Mole v Prior [2016] NTCA 2
Case
[2016] NTCA 2
Decision Date

CaseChat Overview and Summary

The appellant, Mole, appealed against the decision of an intermediate court which had overturned his conviction for assault. The respondent, Prior, had spat on a police officer and was taken into “protective custody” under section 128 of the Police Administration Act 1979 (NT). Mole was subsequently convicted of assault but the intermediate court found that the apprehension was lawful but unnecessary and that the evidence of the assault was obtained in consequence of an impropriety. The court held that the evidence should have been excluded under section 138 of the Uniform Evidence Act 1995 (NT).

The legal issue before the court was whether the evidence was obtained as a result of an impropriety. The court considered the purpose of apprehension under section 128 of the PAA and whether the principles which apply to criminal arrest also apply. The court noted that the police conduct was not clearly inconsistent with the minimum standards expected of law enforcement officers and that the evidence was not obtained as a result of an impropriety. The appeal was allowed.

The court found that the apprehension under section 128 of the PAA was different from criminal arrest and that different principles apply. The court held that the police conduct was not clearly inconsistent with the minimum standards expected of law enforcement officers and that the evidence was not obtained as a result of an impropriety. The court further found that the intermediate court had erred in its analysis of the evidence obtained in consequence of an impropriety. The court held that the evidence should not have been excluded and that the conviction of Mole should be reinstated.

The final orders of the court were that the appeal was allowed, the decision of the intermediate court was set aside, and the conviction of Mole was reinstated. The court further directed that Mole be released on bail pending the determination of any further appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

UEA s 138 provides relevantly: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 burden is on the party seeking exclusion of the evidence to establish that it was improperly or illegally obtained.[10] If the party seeking exclusion of the evidence establishes that it was obtained unlawfully or improperly, the court must balance those considerations supporting exclusion of the evidence against those supporting its admission in the particular circumstances of the case. In this phase, the onus shifts to the party supporting admission of the evidence. The intermediate court having found that the respondent was lawfully apprehended in pursuance of PAA s 128, there is no issue on the appeal of evidence having been obtained in contravention of an Australian law, or in consequence of a contravention of an Australian law. (There is, however, a challenge to this finding of the intermediate court in the notice of contention. That is dealt with at [64] below.) The issue is whether the evidence was obtained “in consequence of an impropriety”. The UEA contains no general or specific definition of “impropriety”. The method or conduct will only be “improper” in the relevant sense if it is “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”.[11] It is not necessary for the conduct in question to have been intentionally designed to bring about the commission of the offence. In determining whether evidence has been “improperly” obtained, the court must identify “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement” in the particular context, and determine whether the conduct in question was “quite inconsistent with” or “clearly inconsistent with” those standards. It is not sufficient for the conduct to merely contravene those standards in some minor respect.[12] PAA s 128 provides (relevantly):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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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