R v KRJ  SCC 31 (21 July 2016)
The Supreme Court of the Northern Territory has upheld the right to liberty by excluding evidence of offences committed after a legal, but improper, arrest by police officers for drinking in a public place.
The appellant, an Aboriginal male, was drinking alcohol in a public place, gesturing offensively with his finger and yelling abusively towards Constables Blansjaar and Fuss while the constables were conducting a mobile patrol. The constables approached the appellant with the intention of charging him with drinking alcohol in a public place contrary to section 101U of the Liquor Act (NT). They ultimately chose to apprehend him on the basis that he was likely to continue to commit the offence of drinking in a public place, may intimidate, alarm or cause substantial annoyance to people and would defy any direction the police gave him to stop drinking in a public place.
After his apprehension, the appellant became more abusive and the constables called for backup. Constable Mole, the respondent in this case, arrived at the scene with Sergeant O’Donnell. The appellant was told to get into the police motor vehicle with a cage on the back. Prior to getting into the vehicle, Constable Blansjaar confiscated the appellant's backpack and mobile telephone. The appellant became more aggressive. Sergeant O'Donnell assisted the appellant into the cage, during which process the appellant spat on Sergeant O'Donnell twice. The appellant was then placed under arrest for assaulting a police officer in the course of his duty (count 2). During the drive to the police station, while stopped at a red light, the appellant attempted to urinate on the police car occupied by Constables Blansjaar and Fuss. This led to a charge of behaving in an indecent manner (count 3).
The appellant was convicted of counts 2 and 3 on 15 May 2014. He was also charged with, and acquitted of, behaving in a disorderly manner (count 1). The case does not discuss the basis for this charge.
On appeal, Justice Southwood was required to consider two issues. First, whether the appellant was lawfully apprehended under section 128 of the Police Administration Act (NT). Second, even if he was, whether the evidence regarding counts 2 and 3 should have been excluded on policy grounds under section 138 of the Evidence (National Uniform Legislation) Act (NT) (Evidence Act) because the appellant’s apprehension was unnecessary and therefore inconsistent with the minimum standards of acceptable police conduct.
Lawful apprehension for intoxication
To successfully convict the appellant for count 2, the prosecution was required to prove beyond reasonable doubt that Sergeant O'Donnell was acting in the execution of his duty when the unlawful assault occurred, namely, the appellant spitting on him. A police officer is not acting in the execution of his duty while placing a person, who was unlawfully apprehended, in the cage of a police motor vehicle. The relevant question therefore was whether the appellant was lawfully apprehended.
Justice Southwood found that the appellant was lawfully apprehended under section 128 of the Police Administration Act, which permits apprehension where there are reasonable grounds for believing the person is intoxicated in a public place, and may commit an offence because of their intoxication. Justice Southwood accepted that the appellant was intoxicated within the meaning of the Act, with reference to the appellant's display of impaired balance, speech and coordination, and his behaviour towards the police. His Honour also found that there were reasonable grounds for believing that the appellant would continue to commit the offence of drinking in a public place because alcohol was readily available to him and he was already drunk. It followed that Sergeant O’Donnell was acting in his duty as a police officer when apprehending the appellant, and therefore at the time of the appellant’s assault upon him.
The appellant submitted that, although legal, his apprehension was improper because it breached paragraph 2.2 of Police General Order A7, which applies to discretionary apprehensions and indicates the standard of propriety to be observed by the police.
Paragraph 2.2 provides that police should arrest offenders only:
- to prevent the continuation or repetition of an offence;
- to prevent the risk of further offences causing a serious danger to the public;
- if it is unlikely that a summons will ensure the offender's appearance in court;
- if the charge is of a serious nature; or
- if the person is intoxicated to the extent that they would not understand the consequences of their actions or the process of being summoned.
His Honour recognised that these were merely guidelines, but emphasised that the fundamental rule is that an arrest should be an action of last resort. Importantly, his Honour noted that the orders were underpinned by the fundamental common law right to liberty, and expressed that police practice of arbitrary detention is a negation of that right and 'a hallmark of tyranny'. His Honour found that the constables did not give genuine consideration to the general order and the other options available to them, such as infringement notices or forfeiture of the alcohol, and concluded that they breached the Police General Order.
Excluding evidence on public policy grounds – the exercise of the section 138 discretion
By establishing that his apprehension was improper, the appellant sought to persuade the court to use its discretion under section 138 of the Evidence Act to exclude the evidence of his acts that gave rise to counts 2 and 3. Section 138 provides that evidence that was obtained in consequence of an impropriety is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained in that improper manner.
In considering whether to exercise the section 138 discretion, his Honour drew guidance from DPP v Carr (2001) 127 A Crim R 151 (Carr); Director of Public Prosecutions v Coe  NSWSC 363 (Coe); and DPP v AM (2006) 161 A Crim R 219 (AM). In Carr, it was considered that evidence can be excluded by section 138 where it is obtained due to an improper or unnecessary arrest. In Coe, the Court considered that more than a mere causal link is required. Justice Adams held at  that: ‘the circumstances must be such as to fit fairly within the meaning of “obtained”, almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences’.
In AM, Justice Hall reconciled these positions, considering that the necessary causal connection itself actually related to the 'likelihood of an event occurring'; that is, whether the conduct in question, such as a wrongful apprehension 'might be expected' to give rise to consequential offences, such as assault or indecent behaviour towards the police.
Applying AM, Justice Southwood concluded that the appellant’s apprehension was unnecessary and that the subsequent offences were objectively the anticipated outcome of the apprehension. As such, evidence of counts 1 and 2 should have been excluded under section 138.
In coming to the finding that the apprehension was unnecessary, his Honour considered that:
- although the appellant was intoxicated within the meaning of the Police Administration Act, he was not seriously affected by alcohol;
- before the police turned into the carpark, the appellant had only engaged in a single act of belligerent defiance which was of short duration;
- the appellant’s conduct became more belligerent and abusive after the police tipped out his alcohol, took his mobile telephone from him and placed him in the cage of the motor vehicle;
- the appellant did not pose any risk to the public or himself and the only offence he was likely to commit was to continue drinking in public;
- given that public drinking is a low level offence usually dealt with by infringement notice or forfeiture of the alcohol and certainly not with imprisonment, the apprehension of the appellant significantly interfered with the appellant’s liberty and his detention exceeded any penalty that may have been imposed on him by the Court; and
- no evidence suggested that the appellant would not have understood the purpose and effect of an infringement notice and would not have complied with it.
Prior v Mole is currently under appeal to the NT Criminal Court of Appeal. The decision as it stands is significant as it reinforces the importance of the right to liberty in the context of police powers of apprehension, at a time when those powers are being expanded. The Northern Territory recently introduced the ‘paperless arrest’ provisions, which allows the police to apprehend an individual without a warrant if they believe on reasonable grounds that the person has committed, is committing or is about to commit an offence for which an infringement notice may be served, and may take the person into custody for a period of up to four hours (or longer if the person is intoxicated).
The validity of the 'paperless arrest' provisions was challenged in North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia  HCA 41, but the legislation was ultimately upheld by the High Court of Australia. In the face of these new laws, and at a time when the Northern Territory has an Indigenous imprisonment crisis, decisions upholding an individual's right to liberty, such as Prior v Mole, play a role in highlighting that police powers have limits, and that unnecessary apprehensions are improper.
Prior v Mole also serves as a positive development in the use of the section 138 discretion, particularly in light of previous cases such as Ashley v Balchin  NTSC 41 in which although the Supreme Court of the Northern Territory found that the initial arrest of five people for assault and resisting police (which led to all subsequent offences) was inappropriate and strictly unnecessary, the Court refused to exercise the discretion and upheld the convictions. Prior v Mole reinforces that the section 138 discretion can operate as a safeguard against arbitrary detention.
Rohan Nanthakumar is a lawyer at Allens.