Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, but convicted of assaulting a police officer and indecent behaviour. The NTCA held that the arrest was lawful, despite a lack of evidence that the defendant would continue to drink in public or intimidate people after the police left, and not an improper use of the power. Before the High Court the appellant sought to argue that the none of the required possible concerns contained in s 128(1)(c) had been met, because the arresting officer could not have formed the relevant reasonable beliefs, based on his limited engagement with the facts at the scene as admitted in his own evidence, and instead relied at least in part on his ‘policing experience’ which was not sufficient to discharge the requirements of s 128.

The High Court, by majority, dismissed the appeal 4:1 in four judgments (Kiefel and Bell JJ, Nettle J, Gordon J, Gageler J dissenting).

Kiefel and Bell JJ focused on and rejected the appellant’s central contention that the Court of Appeal erred in holding that the arresting officer was entitled to rely on his policing experience to support the beliefs required by s 128, because an ‘”undifferentiated pool of experience”‘ of other people could not be a reasonable ground for a belief about how a particular person is likely to behave (at [14]–[16]). Kiefel and Bell JJ rejected the suggestion in the submission that this might have included ‘arbitrary assumptions’ based on racially prejudiced views of Indigenous people, as this was not raised in cross-examination (at [17]–[18]) and concluded that the Court of Appeal’s inference was drawn instead from the officer’s experience of dealing with intoxicated people who were behaving aggressively (at [19]): ‘The Court of Appeal’s capacity to assess the reasonableness of these conclusions did not depend upon, and was unlikely to be advanced by, an account of Constable Blansjaar’s history of dealing with intoxicated persons. The assessment is one about which reasonable minds may differ, but in our view the Court of Appeal’s finding was open to it.’ Kiefel and Bell JJ also rejected the appellant’s alternative ground that even if the requirements of s 128 were met, the decision to apprehend him was beyond the limits of the power as disproportionate to its legitimate purpose: while the actual offence was not punishable by imprisonment, the purposes of the custody power included preventing alcohol-related offences, which the officer had reasonable grounds for suspecting would occur once the police left (at [20]).

Nettle J also rejected the appellant’s contentions that the officer’s previous experience was not a sufficiently reasonable basis for forming the beliefs required by s 128 (at [69]ff). Specifically, the appellant’s argument before the Court of Appeal and the High Court suggesting that the officer acted on the basis of racial prejudice should be rejected because it was not raised in the lower courts or in cross-examination (at [70]ff). Nettle J also rejected the contentions that the only experience relevant to s 128 was how the appellant himself had behaved in the past, or that the officer needed to precisely identify each fact and circumstance supporting his view that the appellant should be put in protective custody; rather, it was sufficient for the officer to outline is past experience combined with his observations of the appellant and the circumstances, namely, of similar intoxicated people and their situations (at [72]). Nettle J likewise rejected the exercise of the custody power arguments, holding that the object of the power was to prevent alcohol-related offending and protect people from harms or nuisance from the misuse of alcohol, which here included taking people who were likely to continue drinking illegally into custody (at [77]).

Gordon J also dismissed the appeal, on the basis that the officer had reasonable grounds for believing that the appellant was likely to commit an offence contrary to sub-s (1)(c)(iv), namely a combination of the officer’s observation of the appellant’s demeanour, behaviour and circumstances (specifically, his drunkenness and the ready availability of alcohol at nearby bottle shops) and his experience to conclude that it was likely the appellant would continue drinking in public and thus commit and offence once the police left the scene (at [105]ff). Gordon J also dismissed the suggestions of racial stereotyping as not raised at trial or cross-examination (at [114]) and the wider argument that general experience was impermissible because the officer had only observed the appellant for a short period of time (at [118]). Gordon J concluded at that point that the appeal should be dismissed, but her Honour did go on note that the ‘intimidate, alarm or cause substantial annoyance to people’ ground for the arrest would not have been supported here (at [120]ff). Finally, Gordon J rejected the general disproportionate and unreasonable exercise of the s 128 power argument: the power here has a protective and preventative function, and preventing putting into custody a person likely to commit further alcohol-related offences was within the bounds of legal reasonableness and a proper exercise of the power (at [130]).

Gageler J, in dissent, first stated a general principle of a common law protection of personal liberty, secured partly by the confinement, plain statement and ready ascertainment of the circumstances in which a police officer can arrest or detain a person without a warrant: at [22]. In the context of preconditions in s 128 reflecting this principle, a court must answer three questions: ‘What was [the officer’s] belief? What were the objective circumstances by reference to which he formed that belief? [and] Did those objective circumstances provide a sufficient foundation for a reasonable person to form the requisite state of mind, being a belief in (and not merely a suspicion of) the existence of the matters in s 128(1)(a) and (b) of one or more of the matters in s 128(1)(c)(i) to (iv)?’ (at [24]–[26]). For Gageler J, the manner in which a court answers this third question is ‘central to the realisation of the legislative purpose of guarding against an arbitrary deprivation of liberty’, specifically, to assess the identified circumstances for itself (at [27]):

Reference to the member’s actual process of reasoning might assist that assessment. But this is not an occasion on which a court can be justified in giving weight to the opinion of the repository whose exercise of power is the subject of judicial review. The whole point of requiring “reasonable grounds” for the requisite belief is to ensure that the reasonableness of the belief appear to a court and not merely to the member. That the member, as an experienced member of the Police Force, might have thought that his belief was reasonable is not to the point. The member’s belief in the reasonableness of his own belief is not relevant to the task of the court. The court must arrive at its own independent answer through its own independent assessment of the objective circumstances which the member took into account.

As applied here, for Gageler J the officer’s brief observations of the appellant and the circumstances were not sufficient to lead a reasonable person to believe the appellant might intimidate, alarm or cause substantial annoyance to another person or continue drinking alcohol if left where he was (at [34]). Gageler J’s evaluation was based on two problems his Honour identified in the officer’s beliefs: first, anger and abuse towards the public as the abuse was directed at the police, not the public (at [36]–[40]), and second that the appellant would continue drinking after the alcohol was poured out, because no relevant patterns of behaviour specifically about the appellant’s conduct could be drawn from general ‘experience’ as a police officer (at [41]–[47]). Ultimately, in Gageler J’s ‘own independent assessmnet’ there was an insufficient basis in the circumstances disclosed by the evidence to found a reasonable belief that the appellant would continue to consumer liquor, contrary to the Liquor Act when he was taken into custody: at [48].

High Court Judgment [2017] HCA 10
Result Appeal dismissed
High Court Documents Prior v Mole
Full Court Hearing [2016] HCATrans 294 6 December 2016
Special Leave Hearing [2016] HCATrans 192 1 September 2016
Appeal from NTCA [2016] NTCA 2 3 March 2016
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

4 thoughts on “Prior v Mole

  1. Thanks so much, Martin, for publishing this elegant little summary.

  2. It is interesting that (as you summarise it) Gageler J’s observed the “evaluation was based on two problems his Honour identified in the officer’s beliefs: first, anger and abuse towards the public as the abuse was directed at the police, not the public…”

    This would not have appealed to Sir Robert Peel, the nineteenth century UK Home Secretary and the inventor of the modern civilian but uniformed police service. His most famous observation about such a service or force as he conceived it (and this is all over the Internet): “The police are the public and the public are the police; the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”

    Read more at:

    • Many thanks Kevin — yes that’s right: I think Gageler J’s point is that the anger and abuse was only directed at the police after they arrived, and only towards them, so they had no reason to think it would continue or be directed at other members of the public in general once they left (and it was that kind of threat, nuisance etc that the statutory language was directed at). More generally, unsurprisingly Bobby Peel would probably not have agreed with Gageler J on this, but as is well known relations between Indigenous people and the police in (at the least) the NT, are very far from any idealised Bobby Peel public=police idea: commentary around the NAAJA case on paperless arrests documents this well. I think this is where Gageler J was driving at by making this point. Systemic racial prejudice and policing was something the other judges only really considered in the narrower sense of ‘was this particular officer motivated by racial prejudice’ which as they stated was not brought up in cross-examination and so could not be argued here. And of course the law doesn’t reflect the Bobby Peel system either: officers hold wide ranging and serious powers to deprive people of liberty that can be exercised on very broad grounds. Whether that’s a good thing or not, how far those powers should extend, and what kinds of grounds are relevant (and how are they framed) and is up for (a very long) debate: but their powers certainly far exceed that of ordinary citizens. Thanks again.

  3. The question of whether the police are (or aren’t) the public is one of the most important issues in public order offences, notably a big issue in Coleman v Power and in many of the swearing cases, and not especially resolved. In this case, though, there was evidence of some children nearby who were hurried away by the parents, telling the cops it was ‘not nice’. This (quite ambiguous, I think) evidence was mentioned in all of the judgments except Gageler J’s.

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