Prior v Mole

Case [2015] NTSC 65

Prior v Mole [2015] NTSC 65

PARTIES:PRIOR, Anthony

v

MOLE, Robert

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 27 of 2014 (21359150)

DELIVERED:  28 September 2015

HEARING DATE:  6 October 2014

FURTHER SUBMISSIONS:             10 November 2014 and 9 January 2015

JUDGMENT OF:  SOUTHWOOD J

APPEAL FROM:  CAVANAGH SM

CATCHWORDS:

CRIMINAL LAW – Justices appeal – appeal against conviction – offences committed after appellant taken into protective custody – criteria for apprehension – apprehension lawful – Police Administration Act (NT), s 127A and s 128.

EVIDENCE – Admissibility – in consequence of an impropriety – whether apprehension justified – Police General Orders – in consequence of an impropriety – exclusion of improperly obtained evidence – Evidence (National Uniform Legislation) Act (NT), s 138 – evidence of offences excluded – appeal allowed.
Criminal Code (NT) s 189A
Evidence (National Uniform Legislation) Act (NT) s 138
Justice Act s 163
Liquor Act s 101U, s 101V
Police Administration Act (NT) s 127A and s 128
Summary Offences Act (NT) s 47(a)

DPP v AM (2006) 161 A Crim R 219; Director of Public Prosecutions v CAD [2003] NSWSC 196; M v The Queen (1994) 181 CLR 487, followed.

DPP v Carr (2001) 127 A Crim R 151; Director of Public Prosecutions v Coe [2003] NSWSC 363; Robinett v Police (2000) 78 SASR 85, considered.

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Bunning v Cross (1978) 141 CLR 54; Campbell v Gokel [2003] NTSC 81; Cleland v The Queen (1982) 151 CLR 1; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Donaldson v Broomby (1982) 60 FLR 124; Dumoo v Garner (1998) 143 FLR 245; Fox v Percy (2003) 214 CLR 118; Kauri v Malagorski [2011] NTSC 17; Majindi v Balchin [2011] NTSC 40; Trobridge v Hardy (1995) 94 CLR 147, cited.

D Mildren, The Appellate Jurisdiction of Courts in Australia (2015, The Federation Press) referred to.

REPRESENTATION:

Counsel:

Appellant:P Bellach

Respondent:  S Geary

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:   B

Judgment ID Number:  Sou1507

Number of pages:  37

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

Prior v Mole [2015] NTSC 65

No. JA 27 of 2014 (21359150)

BETWEEN:

ANTHONY PRIOR

Appellant

AND:

ROBERT MOLE

Respondent

CORAM:    SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 28 September 2015)

Introduction

  1. The appellant appeals against his convictions on 15 May 2014 in the Court of Summary Jurisdiction for the offences of unlawfully assault a police officer in the execution of his duty contrary to s 189A of the Criminal Code (NT) (count 2) and behave in an indecent manner contrary to s 47(a) of the Summary Offences Act (count 3). The appellant was acquitted of the offence of behaving in…

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Prior v Mole [2015] NTSC 65
Case
[2015] NTSC 65
Decision Date

CaseChat Overview and Summary

Prior v Mole is an Australian case that revolves around the appellant's convictions for various offences that were committed after he was taken into protective custody. The case was heard and determined by the court, which was tasked with deciding whether the appellant's apprehension by police was lawful and whether the evidence obtained as a result of that apprehension should have been excluded from the trial. The court was required to examine the provisions of the Police Administration Act, particularly sections 127A and 128, to determine if the police had reasonable grounds for apprehending the appellant. Additionally, the court had to consider the admissibility of evidence obtained in consequence of an impropriety, specifically whether the evidence was obtained due to an unlawful apprehension, and whether it should be excluded under the Evidence (National Uniform Legislation) Act.

The legal issues before the court were twofold. Firstly, whether the police officer had reasonable grounds to apprehend the appellant under sections 127A and 128 of the Police Administration Act. The court had to assess if the appellant's behaviour and intoxication met the criteria for lawful apprehension as outlined in the Act. Secondly, the court had to determine if the evidence obtained from the appellant as a result of the apprehension should be excluded due to any impropriety in the process of obtaining it, under section 138 of the Evidence (National Uniform Legislation) Act. This involved examining the Police General Orders and considering whether the evidence should be excluded if it was obtained in consequence of an impropriety.

In its reasoning, the court found that the police did not have reasonable grounds for apprehending the appellant as the evidence did not sufficiently establish that the appellant's behaviour was noticeably impaired due to alcohol consumption or that he posed a risk of intimidating, alarming, or causing substantial annoyance to others, or was likely to commit an offence under the Liquor Act or Summary Offences Act. The court also found that the evidence obtained from the appellant should be excluded as it was obtained in consequence of an impropriety, specifically due to the unlawful apprehension. As a result, the court allowed the appeal, set aside the appellant's convictions, and acquitted him of the charges.

The final orders of the court were that the appeal was allowed, and the appellant's convictions on counts 2 and 3 were set aside. The appellant was acquitted of those counts, resulting in a significant outcome for the appellant in this case. The court's decision highlights the importance of ensuring that police apprehensions are based on reasonable grounds and that evidence obtained as a result of any impropriety is excluded from the trial.

Orders

Orders of the court

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Background

Background to the litigation

Section 128 of the Police Administration Act enables a police officer to apprehend a person if the person is manifesting particular behaviour as a result of being intoxicated within the meaning of s 127A of the Police Administration Act. For there to have been a lawful apprehension under s 128 of the Act, in this case, it was necessary for the prosecution to prove the following facts:Constable Blansjaar had reasonable grounds for believing:(a)The appellant’s speech, balance, coordination or behaviour appeared to be noticeably impaired as a result of the consumption of alcohol; and(b)Because of the appellant’s intoxication, he may intimidate, alarm or cause substantial annoyance to people; or(c)Because of the appellant’s intoxication, he was likely to commit an offence under the Liquor Act or Summary Offences Act.The facts Having reviewed the whole of the evidence, I find that the following facts are established by the evidence. On 31 December 2013 Constable Ryan Charles Fuss and Constable Tony Blansjaar were conducting a mobile patrol of the Westralia Street shops in Stuart Park. When they drove past the shops, the appellant was standing on the footpath immediately in front of the shops. He was with two other men, who were seated on the footpath, and he was drinking alcohol. The three men were between two shops that sold alcohol. The appellant gestured to the police officers with the middle finger of his right hand and shouted at them in an angry, abusive and defiant manner. Constable Blansjaar pointed out the appellant to Constable Fuss who was driving the police car. Constable Fuss did a U-turn at the entry to the carpark in front the shops and parked the police car in front of where the appellant was standing. The police attended because the appellant drew their attention to him because of his behaviour and they saw he was drinking alcohol in a public place which is an offence contrary to s 101U the Liquor Act. The police found the appellant’s gesture rude and offensive but it did not wound their feelings or frighten them. It is a common gesture. As the police parked their car the appellant sat down on a shop window ledge and picked up a large plastic bottle that had red wine in it. He picked up the bottle in front of the police in a public place. There were also several open and unopened bottles of beer in the area where the appellant and the other two men were seated. Constable Blansjaar got out of the police vehicle and approached the appellant. He had a brief conversation with him, inspected the contents of the plastic bottle, determined that it contained red wine, poured the contents out and threw the bottle in a nearby rubbish bin. Constable Fuss began writing out an infringement notice for the appellant for drinking in a regulated place and cause nuisance presumably contrary to s 101V of the Liquor Act but he did not complete the notice. The maximum penalty for this offence is a fine of 5 penalty units. The police asked the appellant to speak to them at their car and he complied. He was a bit unsteady on his feet but not staggering when he walked to the police car. The appellant smelled strongly of liquor. His eyes were bloodshot and he was very dishevelled in appearance. Constable Fuss asked him why he gave them “the bird” and he abused them. He said “because you are all cunts and you gave me the finger last week”. The police officers also asked the appellant to give them his details and tell them why he was drinking in a regulated area. When he spoke to police, his demeanour was belligerent and aggressive and he was slurring his words.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the same reasons that I allowed the appeal based on ground 5 the appeal is allowed on ground 4. It is apparent from exhibit 1 that the intersection between Westralia Street and the Stuart Highway is very close to the Stuart Park Shops. It would not have taken very long at all for the police to travel to that intersection. There would not have been sufficient time for the appellant to have cooled down by the time he reached that intersection. The appellant’s defiant behaviour at the intersection was caused by his apprehension and was entirely predictable.Conclusion The appeal is allowed. The appellant’s convictions of counts 2 and 3 are set aside and he is acquitted of those counts.

Ratio Decidendi

Legal Principle Established

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