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[1].
[1]PAA, s 129(1). In the case of a person who has been taken into custody under s 128 and who is in custody after midnight and before half past 7 o'clock in the morning on that day, s 129(3) provides that the person may be held in custody until half past…
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.
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Details
AGLC
Prior v Mole [2017] HCA 10
Case
[2017] HCA 10
Decision Date
CaseChat Overview and Summary
The case of *Prior v Mole* concerned an appeal to the High Court of Australia by the appellant, Mr Prior, against the decision of the Northern Territory Court of Appeal. The dispute arose from Mr Prior's apprehension by police officers while he was consuming alcohol in a public place near licensed premises. Mr Prior was subsequently convicted of offences committed while in custody, which he sought to have quashed.
The High Court was required to determine two primary legal issues. Firstly, whether the police officers held reasonable grounds to believe that Mr Prior was likely to commit an offence under section 101U(1) of the *Liquor Act* (NT), which prohibits the consumption of liquor in a regulated place. This involved considering whether the officers' subjective belief was supported by objective circumstances and whether their policing experience constituted a valid basis for forming such a belief. Secondly, the Court had to consider whether the decision to apprehend Mr Prior exceeded the limits of the statutory powers of apprehension, particularly given that the maximum penalty for the offence of drinking liquor in a regulated place was forfeiture of the liquor and the issue of a contravention notice.
The High Court, in a majority decision, found that there was an insufficient basis in the objective circumstances to support a reasonable belief that Mr Prior was likely to continue consuming liquor in contravention of the *Liquor Act*. While acknowledging that Mr Prior was consuming liquor in a regulated place, was intoxicated, and behaving belligerently, the Court held that these factors alone, or in combination, did not establish a reasonable likelihood that he would obtain further alcohol and continue to consume it in contravention of the prohibition if he had not been apprehended. The Court emphasised the distinction between a reasonable suspicion and a reasonable belief, and that the latter requires a higher degree of certainty.
The appeal was allowed, and the order of the Court of Appeal was set aside. This had the effect of reinstating the order of Southwood J, which quashed Mr Prior's convictions for offences committed while in custody and acquitted him of those offences.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL AND BELL JJ
GAGELER J
NETTLE J
GORDON J
Making my own independent assessment, I consider there to have been an insufficient basis in the objective circumstances as disclosed by evidence to found a reasonable belief (as distinct from a reasonable suspicion) that Mr Prior was likely to have continued to consume liquor in contravention of s 101U(1) of the Liquor Act at the time Constable Blansjaar took him into custody. That Mr Prior had most likely already been consuming liquor in contravention of that provision before his encounter with Constable Blansjaar and Constable Fuss, that he was obviously intoxicated, and that he was angry and abusive towards the constables do not alone or in combination make it reasonable to conclude that the likelihood was that Mr Prior would somehow have obtained more alcohol and would have continued to consume it in a public place within 2 km of licensed premises – in contravention of that prohibition – if he had not been apprehended.Conclusion The result is that I would allow the appeal and set aside the order of the Court of Appeal. That would have the effect of reinstating the order of Southwood J, which quashed Mr Prior's convictions for offences he is alleged to have committed while in custody and acquitted him of those offences. In the middle of the afternoon on New Year's Eve in 2013, Mr Prior ("the appellant"), an Aboriginal man, and two other men of Aboriginal descent were drinking liquor in front of the Westralia Street shops in Darwin, Northern Territory. The appellant was situated on the footpath between two licensed premises which sold liquor. By consuming liquor in that place[45], the appellant was committing an offence against s 101U(1) of the Liquor Act (NT). The following description of the events that ensued emerges from the judgments of the courts below[46].[45]Liquor Act (NT), s 101T(1)(a).[46]Mole v Prior (2016) 304 FLR 418 at 419-420 [1]-[8]; Prior v Mole [2015] NTSC 65 at [15]-[31]. Constables Fuss and Blansjaar of the Northern Territory Police Force drove past the Westralia Street shops in a marked police car. As they did, the appellant gestured at them with the middle finger of his right hand, while shouting at them in an angry, abusive and defiant manner. Constable Fuss, who was driving the police car, made a U-turn so as to park the car in front of where the appellant was standing. As Constable Fuss parked the car, the appellant sat down on a window ledge and picked up a large plastic bottle containing red wine. Constable Blansjaar observed several bottles of beer in the area where the three men were sitting. Constable Blansjaar got out of the police car and approached the appellant. He had a brief conversation with him and inspected the contents of the plastic bottle. Section 101Y of the Liquor Act empowered Constable Blansjaar, if he believed on reasonable grounds that the appellant was committing an offence under s 101U(1), to seize any open or unopened container, which there was reason to believe contained liquor, in the appellant's possession or immediate vicinity and empty or destroy the container. Having determined that the plastic bottle contained red wine, Constable Blansjaar poured out the contents and put the bottle into a nearby rubbish bin. Constable Fuss then began writing out an infringement notice pursuant to s 101V of the Liquor Act. The penalty attaching to an offence of consuming liquor in a regulated place contrary to s 101U(1) was the forfeiture of the seized liquor. An offence of causing nuisance while consuming liquor in a regulated place contrary to s 101V carried a maximum penalty of five penalty units[47].[47]Liquor Act, ss 101U(2), 101V(1).
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL AND BELL JJ,
GAGELER J,
NETTLE J,
GORDON J