Majindi v Balchin [2011] NTSC 40

PARTIES:	MARCELLUS MAJINDI

	v

	VIVIEN LYNETTE BALCHIN

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA 19 of 2010 (21013289)

DELIVERED:	14 June 2011

HEARING DATE:	5 September 2010

JUDGMENT OF:	SOUTHWOOD J

APPEAL FROM:	Trigg M

CATCHWORDS:

APPEAL AGAINST CONVICTION – misdirection as to the elements of assaulting a police officer in the execution of his duty – verdict unreasonable or cannot be supported by the evidence – meaning of seriously intoxicated – scope of authority under s 128 of the Police Administration Act (NT) – appeal allowed

Police Administration Act s 127A, s 128, 128(1), s 129
Police Administration Amendment Act 1983 s 3
Criminal Code s 189A

Hortin v Rowbottom (1993) 61 SASR 313; M v The Queen (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606; Morris v R (1987) 163 CLR 454; Sinclair v Burgoyne (2007) 208 FLR 101; SKA v R (2010) 276 ALR 425, applied

R v Dungay (2001) 126 A Crim R 216; Hayes v Quinn (1992) 57 SASR 6; MacDonald v Sherrin (1998) 8 Tas R 146; R v Ormsby [1945] NZLR 109, followed

R v Conway (2005) 157 A Crim R 474, referred to

REPRESENTATION:

Counsel:
	Appellant:	G Lewer
	Respondent:	M Chalmers

Solicitors:
	Appellant:	North Australian Aboriginal Justice Agency
	Respondent:	Office of the Director of Public Prosecutions

Judgment category classification:	B
Judgment ID Number:	Sou1106
Number of pages:	40

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

Majindi v Balchin [2010] NTSC 40
No. JA 19 of 2010 (21013289)

	BETWEEN:

	MARCELLUS MAJINDI
	Appellant:

	AND:

	VIVIEN LYNETTE BALCHIN
	Respondent:

CORAM:	SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 14 June 2011)

Introduction
[1]	This is an appeal against conviction.  
[2]	On 4 June 2010, following a summary trial, the appellant was convicted by the Court of Summary Jurisdiction in Darwin of assaulting Senior Constable Miller in the execution of his duty by spitting in his face contrary to s 189A of the Criminal Code.  The appellant spat in Snr Constable Miller’s face on 20 April 2010 while he was in custody in the Darwin Police Station and was being processed following his apprehension by police under s 128 of the Police Administration Act.
[3]	The appellant was granted leave to argue the following grounds of appeal.
1.	The trial Magistrate erred in failing to make an express finding about whether the apprehension and subsequent detention of the appellant was lawful.
2.	The trial Magistrate erred in finding the appellant guilty as the evidence before him did not exclude the reasonable possibility that Snr Constable Miller was not acting in the execution of his duty at all relevant times.
3.	The trial Magistrate’s discretion miscarried when he failed to exclude all of the evidence obtained after the apprehension of the appellant because his apprehension was unlawful.
The issues
[4]	Ground 1 raises an issue as to whether the trial Magistrate misdirected himself as to the elements of the offence which would be an error of law.  Ground 2 raises an issue as to whether the judgment of the trial Magistrate was unreasonable or cannot be supported having regard to the evidence.  Ground 3 raises an issue as to whether the trial Magistrate wrongly admitted the evidence about the assault on Snr Constable Miller. 
[5]	The principle issue in the appeal is: does this Court think that on the whole of the evidence it was open to the trial Magistrate to be satisfied beyond reasonable doubt that Snr Constable Miller was acting in the execution of his duty when the appellant spat in his face?  More specifically, was it open to the trial Magistrate to be satisfied beyond reasonable doubt that Snr Constable Miller and Constable Fitzell had reasonable grounds for believing the appellant was seriously affected by alcohol when he was apprehended by them and taken into custody?  In determining this question this Court is to make an independent assessment of the evidence both as to its sufficiency and its quality.  In M v The Queen, Mason CJ, Dawson and Toohey stated:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict,  questions of law are separately dealt with by s 6(1).  The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would dangerous in all the circumstances to allow the verdict to stand”.
Section 189A of the Criminal Code
[6]	Section 189A of the Criminal Code states that any person who unlawfully assaults a police officer in the execution of the police officer's duty is guilty of a crime.  
[7]	In order for the appellant to be convicted of the charge against him the prosecution was required to prove beyond reasonable doubt that Snr Constable Miller was acting in the execution of his duty when the unlawful assault occurred.  A police officer is not acting in the execution of his duty while he is processing a person who was unlawfully apprehended under s 128 of the Police Administration Act.  Such an apprehension is a continuing act which merely starts with the initial taking of a person into custody and continues while the person is kept in custody.  Conduct in furtherance of an unlawful apprehension is also unlawful.  In the circumstances of this case it was necessary for the prosecution to prove that at the time Snr Constable Miller and Constable Fitzell apprehended the appellant they were acting in accordance with the authority granted to them under s 128 of the Police Administration Act.
Subsection 128(1) of the Police Administration Act
[8]	Section 128 of the Police Administration Act states:
(1)	Where a member has reasonable grounds for believing that a person is intoxicated with alcohol or a drug and that that person is in a public place or trespassing on private property the member may, without warrant, apprehend and take that person into custody. 
(2)	For the purposes of carrying out his duties under subsection (1), a member may, without warrant, enter upon private property. 
(3)	A member of the Police Force who takes a person into custody under subsection (1) may: 
(a)	search or cause to be searched that person; and 
(b)	remove or cause to be removed from that person for safe keeping, until the person is released from custody, any money or valuables that are found on or about that person and any item on or about that person that is likely to cause harm to that person or any other person or that could be used by that person or any other person to cause harm to himself or another.
(4)	For the purposes of subsection (3), the person of a woman shall not be searched except by a woman. 
(5)	All money or valuables taken from a person under subsection (3) shall be recorded in a register kept for that purpose and shall be returned to that person on receipt of a signature or other mark made by that person in the register. 
(6)	A member may use the force that is reasonably necessary to exercise a power under this section. 
[9]	Under the Police Administration Act “intoxicated” means “seriously affected apparently by alcohol or a drug”.  “Seriously” is not further defined in the Act.  A person is seriously affected by alcohol when, as a result of the person’s consumption of alcohol, the person’s physical and mental faculties are seriously impaired in the conduct of the ordinary affairs or acts of daily life.  The ordinary connotation of the definition of intoxication under the Police Administration Act is that the person is very drunk.  
[10]	Section 127A of the Police Administration Act was enacted in 1983 as a result of an amendment to the Police Administration Amendment Bill (Serial 281) which was moved by Mr Bob Collins who was then Leader of the Labour Opposition in the Northern Territory Legislative Assembly.  The Government agreed to the amendment.
[11]	Prior to the enactment of the Police Administration Amendment Act 1983, 128(1) of the Police Administration Act stated as follows.
Where a member of the Police Force has reasonable grounds for believing that a person is intoxicated with alcohol or a drug and that person is –
(a)	in a public place or trespassing on private property; and
(b)	because of his intoxicated condition, likely to –
(i)	commit an offence;
(ii)	use physical force against another person;
(iii)	cause damage to the property of another person;
(iv)	intimidate, alarm or cause substantial annoyance to another person;
(v)	unreasonably disrupt the privacy of another person;
(vi)	cause bodily harm to himself or expose himself to bodily harm;
(vii)	expose himself to having an offence committed upon or against him; or
(viii)	be unable to adequately care for himself and is not likely to be adequately cared for by any other person,
the member may, without warrant, apprehend and take that person into custody.
[12]	Section 3 of the Police Administration Amendment Act 1983 omitted the provisions referred to in par [11] above and substituted the current provisions of s 128(1) of the Police Administration Act.  The object of this substitution was to facilitate the removal of drunken persons from public places.  The Northern Territory Government in 1983 believed that the omitted prerequisites to apprehension under s 128 of the Police Administration Act were too restrictive to enable drunken persons to be removed from public places.  Section 127A of the Police Administration Act was enacted to ensure that only those persons who are seriously affected by alcohol or are very drunk are to have their liberty interfered with and are to be apprehended and taken into custody.
[13]	Whether a member of the police force has reasonable grounds for believing that a person is seriously affected apparently by alcohol is a question of fact and degree to be determined according to all of the circumstances existing at the time a person is apprehended under s 128 of the Police Administration Act.
Background facts
[14]	Snr Constable Wayne Miller and Constable Adam Jeffrey Fitzell are members of the Northern Territory Police Force.  At about 5.45 pm on 20 April 2010 the two police officers were on patrol in their police motor vehicle in Darwin when they were asked to attend a disturbance near the Fannie Bay shops.  There was no disturbance when they arrived at the shops so they continued on patrol.
[15]	While on patrol they were flagged down by two females.  One of the females was heavily intoxicated.  She complained to the officers that the appellant, who was nearby, was drunk and he was ‘humbugging’ her.  She asked if the appellant could be taken into custody.
[16]	Snr Constable Miller had a brief conversation with the appellant who denied that he had done anything wrong.  As a result Snr Constable Miller had a further conversation with the drunken female.  While he spoke to her the appellant wandered off as he was entitled to do.  
[17]	In an attempt to avoid further contact with the police the appellant ran from the police and climbed over a number of fences and made his way through the yards of various nearby premises.  Constable Fitzell followed the appellant and apprehended and handcuffed him.  However, he was not arrested for any offence.  The appellant was placed in the back of the police van and the handcuffs were taken off him.   There was no physical contact at any stage between Snr Constable Miller and the appellant.
[18]	The police officers then made enquiries of people in the neighbourhood to see if anyone wanted to make a complaint against the appellant.  Nobody did.  The residents simply wanted the appellant removed from the area.  A decision was then made by either Snr Constable Miller or Constable Fitzell to take the appellant into protective custody under s 128 of the Police Administration Act.
[19]	The appellant was then taken to Darwin Police Station.  He was able to get out of the police van by himself and he was able to walk to the holding cell unaided.  He entered the holding cell and he sat down.  The appellant stayed seated for quite some time.  Then he got up and moved to the glass wall and spent some time looking through it.  While he was in the holding cell he was also yelling out.  He was complaining about being bashed by the police who apprehended him.
[20]	While the appellant was in the holding cell the police officers completed the paperwork about the appellant’s apprehension.  The door to the holding cell was then opened and the appellant walked to the counter in the reception area of the Darwin Watch House.  The appellant was still complaining about being bashed.  He pointed to Snr Constable Miller and Constable Fitzell and to the area above his right eye.  
[21]	The appellant then stood at the counter in the reception area so that he could be searched and processed for the purposes of moving him from the holding cell to a general cell where he was to be held under s 128 and s 129 of the Police Administration Act.  He had both his hands on top of the counter and Senior Auxiliary Officer Brendon Shervill was behind him, patting him down in order to search the appellant and remove any articles in his possession before placing him in the cells.  The appellant was not restrained by anybody.  Snr Constable Miller was to the right of the appellant and about two to four paces away from the appellant.
[22]	Although the appellant was still angry about the alleged bashing, he gave the appearance of being compliant.  Then for no obvious reason he suddenly spat in Snr Constable Miller’s face.  Snr Constable Miller did not do or say anything immediately before the appellant spat on him.  He did not provoke the incident.
The reasons for decision of the trial Magistrate
[23]	While delivering his reasons for decision the trial Magistrate made the following statements which are of particular relevance to this appeal.
A decision was made to take the [appellant] into protective custody under s 128(1) of the Police Administration Act.  Section 128(1) is in the following terms: “When a member has reasonable grounds for believing that a person is intoxicated with alcohol or a drug and that person is in a public place or trespassing on private property, the member may without warrant apprehend and take that person into custody.”
Under s 127A it states: “In this division intoxicated means seriously affected apparently by alcohol or a drug.”  Seriously is not further defined in the Act nor does it, in my view, need to be.  It is a word of common usage.  Clearly people can be affected by alcohol to various degrees.  Some people think that anybody who has a sip of alcohol is affected.  Some people who have consumed two casks of wine would argue vehemently that they were not affected, they were quite alright.  It is clearly a question of fact and degree.  
…
It is a difficult question as to how affected a person is but clearly under the legislation it is intended that only those people who are seriously affected by alcohol or drugs are to have their liberty interfered with and be taken into custody.  It is a difficult task for police, they are on the streets, they are dealing with all manner of incidents, they are there not only to serve but also to protect.  They are there to protect the wider community but also to protect those who might not be able to protect themselves.  Clearly there was no suggestion that they came upon the [appellant] in a public place where he was passed out or asleep.  Clearly people in that situation are prone to be assaulted or robbed or sometimes sadly killed by people who have taken gratuitous action against them.  
This was not a case where the [appellant] was staggering across roads and putting himself in danger from vehicles or vehicles in danger from avoiding him.  He had clearly on the evidence, there was no suggestion on the evidence that the [appellant] had not been drinking.  He clearly had some indicia of a person who was intoxicated to some level.  He did on the evidence smell of intoxicating liquor, he did have bloodshot eyes and there was evidence from Miller and to a lesser extent from Shervill that he might have been somewhat slightly unsteady on his feet.  
I accept the submission by Mr Bellach that the [appellant] was not staggering drunk.  I did not have a great opportunity to view the [appellant] on the video.  It does not show him walking long distances.  But what it does show is not a person who is incapable of maintaining balance or maintaining a relatively stable straight line, whether it is purely straight or not is open to conjecture.  But he is not a person who is staggering drunk and unable to sit up.  He is not falling over.  He is not falling asleep.  He is not obviously slurring his words.  Clearly English is not his first language and he may, therefore, speak with a heavy accent when he does speak English.  But he was not incoherent on the video.  
The apprehension and taking the [appellant] into custody, I think on the evidence before me, must be somewhat questionable.  I could not be satisfied beyond reasonable doubt that the [appellant] was seriously affected by alcohol to the stage where he needed to be taken into protective custody.  Hindsight is a wonderful thing, who knows what might have happened if he had not been taken into protective custody.  He might have ended up hurting himself or might have ended up doing something which might have ended up having him arrested for other matters.  But he might simply have gone off on his way and nothing else would have happened, I do not know.  
I think the apprehension of the [appellant] under s 128 is somewhat questionable when looked at objectively in my view of him on the video.  He is certainly affected by alcohol but I agree with Mr Bellach that the deprivation, taking of someone’s liberty is something that needs to be done somewhat cautiously and only in those circumstances where it is reasonably clear.  I am not satisfied this was necessarily such a case.  
That being said what follows from that.  There is no suggestion on the evidence before me that at the time the [appellant] was taken into protective custody that he resisted or that he objected to himself being taken into protective custody.  There is no evidence that the [appellant] denied that he was intoxicated or argued that he should not be taken away.  There is no suggestion that he resisted Officer Fitzgerald when he was initially apprehended.  There is no evidence that he resisted Officers Fitzell or Miller when he was placed into the back of the police van.  The [appellant] was handcuffed but that seems to be more precautionary from Fitzell given that he was in the backyard of a private property and he was alone and there was no backup immediately available to him.  It was a precaution to ensure his own safety just in case the [appellant] reacted.  
The [appellant] was then, it appears after some initial enquiries were made with residents as to whether any charges should be laid, then conveyed to the Darwin Police Station.  He was then taken out of the police van.  He was able to get out by himself.  He was able to walk to the holding cell unaided where you have to be held.  He entered the holding cell and proceeded to sit down.  He stayed seated for quite some time.  Then he got up and moved to the glass wall and appeared to be spending some time looking through it.  And it appears from subsequent videos that while he was in the holding cell he was also yelling out and saying things.
The [appellant] was generally complaining that he had been bashed.  He was not complaining about being held in protective custody.  He was not complaining that he was not drunk.  He was not complaining about wanting to be let out.  He was simply complaining about what he alleged had happened to him.  There was no evidence before me that the [appellant] was assaulted by Officer Fitzell.
There was no suggestion in the case at all that whatever had or might have happened to the [appellant] that Miller was in any way involved.  Senior Constable Miller was driving the police van trying to find his partner, Constable Fitzell and the [appellant].  He eventually stopped and was alerted to a particular address and the [appellant] came out of a property from the rear escorted by Constable Fitzell and the [appellant] was then placed in the back of the police van.  It appears to have been the total sum of Senior Constable Miller’s involvement with the [appellant].  He had spoken to him initially at the scene near Kurringal Flats and he had then been at the back of the police van when the [appellant] was put in.  There is no suggestion there was any physical contact at any stage between the [appellant] and Senior Constable Miller.
… At the watch house the [appellant] spent a few moments in the holding cell, a few minutes while paperwork was being organised.  Then the door was opened and he walked voluntarily to the counter while still making comments about where he had been struck.  He pointed to an area above his right eye.  
…
The [appellant] was upset and angry.  The [appellant] was standing at the front counter.  He had both hands up on the counter on top of it and Shervill was behind him patting him down in order to do a search and remove his items before placing him in the cells.  ….  The two police officers were at all times no closer than one to two paces away from the [appellant].  There was nothing about their actions or their words that were in any way threatening to the [appellant] at all.  They were simply there exercising their duty as they believed it.
Clearly they believed that they were entitled to arrest the [appellant] - or not arrest him, take the [appellant] into custody under s 128.  They might have been mistaken in terms of that.  They were still acting on what they believed was their duty at the time.  The [appellant] clearly needed to be placed in a cell.  You could not have him wandering around if he was in protective custody.  They had to comply with their obligations in that regard.  The [appellant] was not under threat from anybody.  He was not protesting his custody.  He was not protesting his being searched.  He was not attempting to resist the search by Shervill.  He was not doing anything to attempt to stop Shervill from searching him and taking his items.  
….
Clearly the assault was not authorised by Miller, he did not invite it and he did nothing, in my view, to provoke it.  The [appellant] was in my view, not, as I say, and if he perhaps should not have been in protective custody, the actions of the [appellant] were not in response, on the material before me, to that custody.  His actions were one of anger, directed at what he thought or believed in his own mind, whether rightly or wrongly, was some unjust harsh treatment.  But, however, if any such treatment had been inflicted upon the [appellant], it was not by Miller.  There was nothing Miller did to justify or warrant or even incite the [appellant] spitting in his face.  It appears to have been a gratuitous assault.  
...
The police perform a very difficult and onerous task.  In my view the need to protect police in this incident outweighs the need to protect the [appellant’s] liberty.  He had his rights to pursue other avenues if he had been unlawfully detained.  He was not seriously affected by alcohol [emphasis added].  He did not have the right to a gratuitous assault upon Miller.  Miller in my view did not seem to be doing anything which would warrant any form of self defence issue to arise.  In relation to the defence I find that if self defence is raised, which I doubt that it has been, if it were raised then I would be satisfied beyond reasonable doubt that it has been negatived.  
On the evidence before me I am satisfied that the assault on Miller was unlawful and that it was an assault where a police officer was in the execution of his duty at the time.  I find the [appellant] guilty of [the] charge.  
[24]	As to the appellant’s level or state of intoxication the trial Magistrate made the following findings of fact.  Clearly there was no suggestion that the police officers came upon the appellant in a public place where he was passed out or asleep.  This was not a case where the appellant was staggering across roads and putting himself in danger from vehicles or vehicles in danger from him.  The appellant was not staggering drunk.  The appellant was not a person who was incapable of maintaining balance or maintaining a straight line.  He was not unable to sit up.  He was not falling over.  He was not obviously slurring his words.  He was not incoherent on the video.  The appellant was able to get out of the police van by himself.  He was able to walk to the holding cell unaided.  He entered the holding cell and proceeded to sit down.  While in the holding cell the appellant was generally complaining that he had been bashed.  He clearly had some indicia of a person who was intoxicated to some level.  He did on the evidence smell of intoxicating liquor, he did have bloodshot eyes and there was some evidence that he was slightly unsteady on his feet.  Overall, the trial Magistrate concluded that he could not be satisfied beyond reasonable doubt that the appellant was seriously affected by alcohol to a stage where he needed to be taken into protective custody.  In fact his Honour ultimately found that the appellant was not seriously affected by alcohol.
The evidence of Snr Constable Miller
[25]	During his examination in chief Snr Constable Miller gave evidence as summarised below.
The report that we received was there was an Aboriginal male causing a disturbance at the shops, humbugging and trying to pick fights with a number of the local long grassers in the area.  
We came across the complainant who waved us down at the Kurringal Flats.  She was female.  She had another female friend with her at the time and also the [appellant] who was following her approximately 10 to 12 metres behind.  She was heading in towards the flats when we arrived.  She has seen us.  She has waved us down and the [appellant] had been following her down towards the flats.  When she saw us she has then approached us, walking towards us.  
The [appellant] has seen us.  He has also walked towards us.  But [when he has approached us he tried] to avoid us by walking around us.  
The complainant told us that the [appellant] had been following her and humbugging her.  He was trying to start fights.  
After we have had a brief conversation with the complainant we had a conversation with the [appellant] who kept saying that we had the wrong person.  It was not him.  He did not do anything.  He was not involved.  We then had another conversation with the complainant during which time the [appellant] walked off.  He walked across the road.
The complainant was highly intoxicated.  Her friend was sober and her friend informed us that [the complainant] had a place to go to with her in the Kurringal Flats.  I could smell alcohol on the complainant’s breath.  Her eyes also were bloodshot and she was unsteady on her feet at the time.  
[The appellant] was pretty much the same.  His eyes were bloodshot, there was alcohol on his breath, he smelled highly of alcohol and although not as – he was a little unsteady on his feet as well.  
During the second conversation with the complainant the [appellant] started to walk away from us.  He went across the road to where the BP Service Station is and then he started to run.  At that stage we finished our conversation with the complainant and we pursued the [appellant] to have a further talk with him.  The [appellant] ran down one of the side streets and along Ross Smith and in an attempt to avoid police he has begun to jump a number of fences into people’s backyards.  
We then conducted patrols around the outside in an effort, to hope, that he would come out of the yards.  That patrol lasted a few minutes.  We could hear him jumping fences as we were patrolling along the streets.  So he has gone from one yard to another as he went down the street.
We have then got to the end of the street or as we were coming to the end of the street that he had gone down, we noticed that he had run across in front of us, across the road.  That was down towards the race track.  We have gone down to that area where we have gotten out of the car and started conducting patrols on foot.  My partner has then seen and pointed out to me that the [appellant] had run back in the direction he had just come from which I had also noticed.  He had gone around the corner, my partner followed on foot.  I have then jumped in the police vehicle and followed.  
…
I then followed around the corner.  I was waved down by a resident in one of the houses in the street that he had run down.  Again I cannot remember the name of the street or the number of the house.  And he directed me or he informed me that my partner was in his backyard with the [appellant].  I then pulled up and my partner was escorting the [appellant] out of the backyard where we then placed him in the back of the vehicle or the back of the police vehicle.  At that stage the [appellant] had a number of small cuts on his face which I assumed had been due to him running through the backyards and jumping fences, going through the bushes and whatnot trying to avoid us.
I informed the [appellant] that he was being taken into protective custody due to his intoxication and that he would be conveyed back to the Darwin Watch House for a sleep until he sobered up.  The [appellant] just kept on repeating saying that we had the wrong person.  It was not him.  He had not done anything.
The [appellant] was incoherent because we had to repeat ourselves several times to explain to him what we were there for and he just kept on repeating basically the same thing that we have got the wrong person.  It was not him.  And, well, we have not even told him like whether any offences had even occurred at that time.  So, even just on our first conversation with him he was telling us that he had not done anything.  
[The Senior Constable was asked if there was a reason why he did not charge the [appellant] with trespass or disorderly conduct.  He answered as follows.]  For the disorderly side of things there was no complaint and we had not seen the disorderly so we could not do anything in regards to that.  In regards to the trespass we took him into custody because he was on the other people’s property under s 128 of the Police Administration Act.  So we were taking him into custody for going through people’s property without permission and due to his level of intoxication.  We basically told him that he was just going in for a sleep at that time.  So we did not charge him for the trespassing because the people that owned the property at that time just said we are just happy to have him removed from our property.
Once he was in the back of the van we then drove him directly to the Watch House where he was placed in the sally port which is a holding cell until you go through to the reception area to be processed.  From the van to the sally port he was a little hesitant, a little tense as though – because we had to take hold of – I believe I had to take hold of an arm, I cannot fully remember.  But I notice he was a little hesitant and aggravated towards going in there, but he did go in quite willingly.  Once he was in the cell he was a little abusive.  Just saying that he was going to take us to Court and that he had not done anything wrong.  I believe he also kicked the car, the cell door on an occasion.  And that is pretty much all that really happened.   He was – considering the number of people we have in the cells and his behaviour, he was not too bad in the sally port, he was pretty good.  
… 
We took him over to the reception.  While he was in the sally port again I informed him that he was only here for a sleep so – that he was only here for protective custody.  He had not committed any offences at that stage.  And once we took him out of the sally port to the reception desk where he gets searched and processed he was standing there fine by himself to start with. … He had been asked the usual questions, had he been on medication, has he got any illness and whatnot, which he – I cannot remember if he answered or not.  But during this time he was being searched by Senior Auxiliary Shervill, he has then turned towards me like to his right and in turning towards me he has thrust his head forward and spat directly into my face.
[26]	During his cross examination Snr Constable Miller gave the following evidence. 
COUNSEL:		You made some contemporaneous notes. 
W A MILLER:	That is right.
COUNSEL:		They were made in your notebook.
W A MILLER:	That is correct.
COUNSEL:		There is nothing [in your notebook] as to your observations of [the appellant’s] intoxication is there?
W A MILLER:	No, because my observations were my observations.  I remember what they were, I know what they were.  I wrote my statement pretty much well an hour or two after he was arrested.
COUNSEL:	What was your intention in apprehending Mr Majindi?
W A MILLER:	Our intention was to take him in for a sleep so he could sober up and to prevent any further calls that may have happened due to him being intoxicated if he was out causing problems.  The simple fact that he ran from us gave us an indication that he was out causing problems and he did not want to be taken into custody.
COUNSEL:	What power did you apprehend Mr Majindi under?
W A MILLER:	Under s 128 of the Police Administration Act.
COUNSEL:	You know the criteria for a lawful apprehension under s 128 of the Police Administration Act?
W A MILLER:	I do.
COUNSEL:	Can you please tell me.
W A MILLER:	Yes.  He has to be seriously affected by alcohol or a drug or be trespassing on private property which he was.
COUNSEL:	Where in your statement does it say that he was seriously intoxicated?
W A MILLER:	It does not.  I just said he has got it in here that he was taken into protective custody due to his intoxication.
COUNSEL:	Where in your notes does it say that he was seriously intoxicated?
W A MILLER:	I do not have it in my notes.
COUNSEL:	Where in your statement does it say the observations as to … 
W A MILLER:	As I stated to you before, his intoxication was not a point of issue when the assault occurred.  Like I wrote the statements as – in regards to the assault, not as in regards to why he was taken into protective custody.
COUNSEL:	Who made the decision to apprehend Mr Majindi under s 128?
W A MILLER:	Both myself and my partner, sorry Constable Fitzell.  We both came to the same conclusion.
COUNSEL:	Did you discuss it with Constable Fitzell?
W A MILLER:	We did.  It was at the back of the van once he was apprehended.  We discussed what we were going to do with him.  
COUNSEL:	It was at the back of the van once he had been apprehended?
W A MILLER:	That is right.  As I said we went – we wanted to speak to him in regards to the other information we received and that is when he did a – it is like he was running from us.  That gave us more information to say that, yes, he was causing problems.  Again he was on the other people’s property which we have the right to remove somebody from, whether they are there or not and he was taken into custody for trespassing on other people’s land.
COUNSEL:	You already made the decision to apprehend him under s 128 before you started pursuing him?
W A MILLER:	No.  Even when we were speaking to him the first time, we can still smell the alcohol and notice the bloodshot eyes and he was a little swaying on his feet and he was a candidate for being in protective custody.
COUNSEL:	Well, can I say to you that Mr Majindi was walking straight?  There was nothing wrong with the way he was walking?
W A MILLER:	Well, you can say it but it is not true.
COUNSEL:	The decision to apprehend Mr Majindi under s 128 you say that you and Constable Fitzell made that decision together?
W A MILLER:	Yes.
COUNSEL:	And you say it was made at the back of the van after Mr Majindi had been apprehended?
 W A MILLER:	That was when one of the decisions were made, yes.  At that stage there was nil complaint.  We still had to talk to the people that he had trespassed on their property.  They did not want anything to do with it.  They just wanted him gone.  So, the final decision was made at the back of the van to take him to the watch house.  As you can understand, we are constantly making decisions throughout the entire process at the stage of when we first arrive there, we made the decision that, yes, he is drunk, he is intoxicated.  He has then left the area.  Our next thing was to go and talk to him in regards to the further information that we had received and then go from there.  And again, as I said, a final decision was made at the back of the van, not to say that was the only decision.
COUNSEL:	Senior Constable Miller, there is obviously no mention of Mr Majindi being seriously intoxicated in your statement or your notes.  The reason that you haven’t included that information in your statement is because Mr Majindi really wasn’t seriously intoxicated.
W A MILLER:	No.
COUNSEL:	And you only cottoned on to that this morning after speaking to the prosecutor?
W A MILLER:	No.
COUNSEL:	And you are aware that your apprehension was going to be challenged on this basis and you have exaggerated his intoxication in your evidence?
W A MILLER:	No.  That is – I would not have taken him in.  Like I would not take the female in to protective custody because she had somewhere else to go.  Had he had somewhere else to go and been able to tell us that, we would have taken him straight there.  But because he stated that he was an evil warrior and came from Port Keats, he had nowhere else to go, the best place was the watch house.
COUNSEL:	You spoke to the complainant and then you said in your evidence you had a conversation with Mr Majindi?
W A MILLER:	That is right.
COUNSEL:	You said that he was telling you you’ve got the wrong person, I have not done anything, I did not do anything and that he was not involved.
W A MILLER:	That is what he was saying yes.  That is why I had a second conversation with the complainant.  And that is when he ran off which gives us reason to believe he was involved in whatever she was telling us and gave us reason to pursue the matter further.
COUNSEL:	Now, after that apprehension you went straight to the watch house.
W A MILLER:	That is correct.
COUNSEL:	So about fifteen minutes to get back to the watch house from where you were?
W A MILLER:	That is right.  Like we did have a conversation with [the appellant] at the back to try and find out whether he wanted somewhere else to go but like I said, he did not give us an address or anything, so he went straight back to the watch house.
COUNSEL:	Do you say that Mr Majindi’s level of intoxication when he got to the watch house was the same as what it had been when he was apprehended?
W A MILLER:	It was pretty much the same, yes.
COUNSEL:	Do you say there was any difference?
W A MILLER:	He was a bit more agitated from the first time we spoke to him and he was also agitated once he was put in the back of the van due to knowing that he was going to the watch house.
COUNSEL:	But other than that he’s – that is agitation but I am asking specifically 
W A MILLER:	He was still the same.
[Senior Constable Miller was then shown a number of DVDs which were played by Counsel for the appellant]
COUNSEL:	Having watched that do you accept that you did not actually need to take hold of Mr Majindi’s arm?
W A MILLER:	Well I say I could not fully remember whether I did or not.  A lot of them we do but, yes, I admit I did not have to take hold of his arm.
COUNSEL:	I’m saying that he walked by himself.
W A MILLER:	Yes.
COUNSEL:	Had he actually got out of the police van and walked by himself to the holding cell?
W A MILLER:	Yes.
COUNSEL:	Senior Constable Miller, when you gave evidence earlier you were describing Mr Majindi’s behaviour at the cell, in the holding cell and you said that he actually kicked the cell door.
W A MILLER:	Well, I thought he had kicked it.  He may have knocked on the window getting our attention.  As you saw he was up against the speak hole.  I had my back to him.  I assumed that he had kicked the door.  I also said that he was very well – quite well behaved in the sally port as well.  So.
COUNSEL:	Wasn’t he saying I’m going to make a complaint to Legal Aid?  Why did you assault me?
W A MILLER:	He said he was going to take us to Court.  He did not mention anything about assault.  He was saying that you have the wrong person.  That is what he was telling us all the way along.  
[Counsel pressed a number of questions about what the [appellant] was saying while he was in the holding cell]
W A MILLER:	Well, he is I heard the bit where he did say he is going to complain of assault and that – in the last one, that was a bit clearer.
COUNSEL:	And as Mr Majindi walked out of the holding cell he was actually pointing at Constable Fitzell and yourself.  Fitzell was on his right, you are on his left.  He was saying I’m going to report both of you.
W A MILLER:	Well, that is up to him.
The evidence of Constable Fitzell
[27]	During his examination in chief Constable Fitzell gave evidence as summarised below.
We got a call over the radio that there was a general disturbance at the Fannie Bay shops.  The complainant stated that there was a male there getting drunk and acting silly.  So, they required us to attend at the location and find out what was going on.  
We attended the location.  We pulled up on the grassed area between the Kurringal Flats and the BP Service Station there on Dick Ward Drive.  A group of people there waved us down.  There were three people, two females and one male.  One of the females waved us down.  That is what gave us an indication, well, this must be the job that we are attending.  That is when we have stopped and we have both got out of the car and proceeded to go over to the people.
They all appeared to be at a level of intoxication.  The first thing I noticed was the smell, the smell of intoxicating liquor.  At that point I could not pinpoint if all or one or two [were intoxicated], I could not make that observation.
One of the ladies indicated that the male in the group was causing a disturbance.  She was saying he was drunk and being silly.  
… The male in the group is like while we were talking, has wandered off over, I do not know if he ran, he walked, I don’t know, I did not see.  But yeah basically I was concentrating on the other two and then I have noticed that he has gone and then the female in the group said, yeah, he has gone over the road.  
I think that we stayed, I can’t recall exactly but we did stay for maybe another thirty seconds, forty seconds or so, and we have proceeded to go back to the police van.  We have driven down across through the service station, the BP at Fannie Bay there and proceeded to head up Ross Smith Avenue.  
[As we headed up Ross Smith Avenue] there were a number of people in their yards and all that and they were basically – we have stopped a couple of times and I’ve got out and the guy said, oh, are you looking for an Aboriginal fella, and I said yeah and he goes yeah he has just ran through my yard and he has gone in like he pointed in direction of travel.  
Basically we have continued up Ross Smith Avenue and I cannot tell you the name of the street but it is one of the side streets that run off Ross Smith Avenue.  The houses were on the left hand side of Ross Smith Avenue, so the first street we have come to we have turned down there, continued to drive down the street which has come to another T intersection and we have turned right onto another street.  I cannot give you the name but and then we have pulled up again and then we have both got out of the car and we have sort of we are looking straight ahead.  I have turned around and I have noticed that there was an Aboriginal fellow in the – like hiding in the bush just around the corner.  And once he saw that I saw him he has like taken off.
At that point I ran back down the road that we came and turned back onto the road that runs off Ross Smith and I observed the male run into another person’s yard and I followed him into that yard.  I have gone into the yard.  There was no fencing or any gates or anything like that.  So I have gone around the side of the house and located the male underneath a large overhanging tree.  He was in the corner of the property.
I have asked him to like lie down on the ground because I was on my own.  Basically I wanted to search him to make sure that he did not have anything that would jeopardise my safety.  So I have asked him to get on the ground and I have proceeded to come in and search him while he was on the ground.  Basically I have escorted him back out of the yard that he was in to the police van that was at that time – Wayne had managed to drive around out the front of the property and we have placed him in the rear of the cage.
[Constable Fitzell was asked the following question – during the time where you located him under the tree and escorted him out into the police van where you placed him into the back, did you notice anything about the individual?]  Constable Fitzell stated I could smell that he had obviously been consuming liquor.  It was a – like I could definitely confirm that it was a smell of intoxicating liquor on his person.  I could say he’s really got bloodshot eyes at the time.  
[Constable Fitzell was then asked – at that point when he was placed in the back of the vehicle did you have an opportunity to speak with the officer there, Senior Constable Miller?]  Constable Fitzell stated well, we – after the cage, we try and get them into the cage just for safety reasons and then we can liaise with one another after that.  Basically I just said that we were placing him in protective custody and he was going to be conveyed back to the Darwin Watch House.  
[Constable Fitzell was then asked – when you said earlier that we’d placed him in protective custody who’s decision was that to do so?]  Constable Fitzell answered okay, well, I originally found him so I say it was my decision to place him in protective custody and the observations that I made at the time of the search.  It was not an issue that was discussed just between me and Senior Constable Miller.  
[If I can just take you back a little bit further to when you have found the defendant under the tree.  What did you say to the defendant at that point?  Can you recall what you said if anything to him?]  Constable Fitzell answered the only thing I said to him was basically like get on the ground I’m going to search you on the ground and that is all I have said to the [appellant].  Like I have searched him and I said righto now you can stand up and we are going to go out the front.  
Basically we have put him in the back of the cage there, the cuffs have been taken off and we’ve got back into the van, both myself, the Senior Constable and proceeded to convey the male back to the Darwin Watch House.  
The [appellant] was placed in a holding cell.  It would not have been for any longer than five minutes.
We go inside, we fill out the protective custody sheet that we are required to fill out just the details on where we have located him and wait for – lodge that with the watch house staff.  They do it up on the computer and basically when they give the go ahead there is one watch house staff behind the counter and one ready to search him.  So, once they are all in agreeance we will unlock the holding cell and process, like another search is done. 
[Constable Fitzell was asked – do you recall anything being said between the time the [appellant] was taken out of the holding cell and when you heard the spitting incident?]  Constable Fitzell stated he was very agitated saying that I am going to like I’m going to take you to Court.  I do remember that clearly but he said that a number of times that is why I can remember that clearly but that is all I can remember.
[28]	During his cross examination Constable Fitzell gave the following evidence.
COUNSEL:	You have given evidence today that he was you said you could smell alcohol and you have also given evidence today of bloodshot eyes but there’s no reference to either of those in your statement.
A J FITZELL:	Yeah, that is correct.
COUNSEL:	You have given evidence that Mr Majindi was followed by the police in the police van.
A J FITZELL:	I would not say followed.  I would say we were looking.  We basically went in his last known direction of travel.  Like we were not following him because we did not know exactly where he had gone.  I mean we did not even check inside the service station, like we just basically went up Ross Smith Avenue.
COUNSEL:		And you say that you wanted to speak to him further.
A J FITZELL:	Yes that is correct.
COUNSEL:		What did you want to speak to him about?
A J FITZELL:	Just about the complaint and basically make an assessment whether he was – at a level such to take into protective custody.
COUNSEL:		So you are saying at that point you had not had an ability to make that assessment.
A J FITZELL:	No, not properly.
COUNSEL:		You had not at the point you were still wanting to speak to him you had not had an opportunity to make an assessment of intoxication.
A J FITZELL:	Yeah that’s correct. That’s me like I cannot speak for the Senior Constable. 
COUNSEL:		When you did ultimately apprehend Mr Majindi what power did you apprehend him under?
A J FITZELL:	Protective custody, s 128 of the Police Administration Act.
COUNSEL:		And you ultimately, you say you found him and apprehended him in a yard.
A J FITZELL:	That is correct yes.
COUNSEL:		And the first thing that you said to him was to get 				down on the ground I’m going to search you.
A J FITZELL:	That is correct.
COUNSEL:		I take it that you did search him.
A J FITZELL:	Yes.
COUNSEL:		And any assessment of his intoxication would have been made after that time, after that search.
A J FITZELL:	Well I did not exactly understand what you were saying.
COUNSEL:		What I am interested in is your assessment of Mr Majindi’s intoxication, his state of intoxication.
A J FITZELL:	Yes.
COUNSEL:		And what I’m saying given the sequence of events the first opportunity you did have to observe him in any sort of close proximity in making an assessment as to his intoxication was after you searched him.
A J FITZELL:	Maybe – probably a bit beforehand because we were in close proximity.  We were not like right up to each other but we were at a level where I could see him and like communicate with him while looking in his eyes and telling him to get down on the ground, I am going to search you.
COUNSEL:		And I suppose through the search as well.
A J FITZELL:	Yes that is correct.
COUNSEL:		If I can take you back to your statement, please Constable.  Paragraph four you are saying Miller and I located Majindi.  My observations were that he was intoxicated to such an extent that he was conveyed to Darwin Watch House under protective custody.
A J FITZELL:	Yes.  
COUNSEL:		There was no acknowledgment there in your statement that Mr Majindi was seriously intoxicated.
A J FITZELL:	The reason I have left that – the statement that I wrote was purely made at the assault of police.  I did not think that the protective custody was an issue.  Like I thought that we – that protective custody was done correctly so I – basically the statement was for an assault of police matter, so I concentrated the statement on the assault of police.
COUNSEL:		And what was it about the apprehension that made you – that satisfied you that it had been done correctly?
A J FITZELL:	Well, the level his level of intoxication.  He was trespassing on private land.  
COUNSEL:		You say that his level of intoxication – I mean you have given evidence that he smelled of alcohol and had bloodshot eyes.
A J FITZELL:	That is correct.
COUNSEL:		Are you saying that you formed the view he was seriously intoxicated based on those factors?
A J FITZELL:	Well, they are the only factors that I observed [emphasis added].
COUNSEL:		Do you say that his level of intoxication was the same at the watch	house as it was when you had apprehended him?	
A J FITZELL:	Well, the – like I cannot say if it was the same or not, I can say that I made the same observations back at the watch house.  Like his – to me, his observations were that his condition had not changed, like intoxication I am talking about.
COUNSEL:		Do you remember him saying he would report you?
A J FITZELL:	Yes, his words were I am going to take you to Court while he was in the holding cell.  He said that a number of times.  
The evidence of Snr Auxiliary Shervill
[29]	During his cross examination Snr Auxiliary Brendon Shervill gave the following evidence.
COUNSEL:		If I can take you back to when Mr Majindi arrived at the watch house.  You observed him get out of the police van and move to the holding cell.  
B SHERVILL:	Yes.
COUNSEL:		And can you describe what you observed?
B SHERVILL:	As he was getting out he – one of the physical observations we do in the watch house is a staggering or they fall over or are unsteady on their feet.  As he was walking out of the back of the cage here I think he either stumbled into the cage door or he sort of shifted or swayed to the right, I think.  But yes, he was just sort of swaying as he was walking.
COUNSEL:		You saw him shifting or swaying as he was walking.
B SHERVILL:	Yes.
COUNSEL:		And did you observe anything else about him as he was moving from the police van to the holding cell?
B SHERVILL:	No he just sat in the holding cell until he was processed and then we do – as he is walking through we are doing further observations like bloodshot eyes.  And on the footage there he was just reeking of alcohol as I – when I was searching the top of his shirt, I just leaned back and went phew because he just stunk of grog.
The evidence contained on the DVD
[30]	A DVD showing the arrival of the two police officers and the appellant at the Darwin watch house was tendered in evidence.  The DVD shows the appellant get out of the police van unaided and walk to the holding cell unaided.  He was well behaved in the sally port.  While he was in the holding cell he stood against the speak hole and he said he was going to take Snr Constable Miller and Constable Fitzell to court because he had not done anything wrong.  He also complained of being assaulted.  When he came out of the holding cell to be processed at the counter he pointed to Snr Constable Miller and Constable Fitzell and to the injuries on his face.
[31]	The DVD was an important piece of evidence.  It demonstrates that the appellant was not seriously affected by alcohol when he arrived at the Darwin watch house.
Ground one – the finding as to the execution of duty
[32]	As to ground one, the trial Magistrate found that on the evidence before him he was satisfied that the assault on Snr Constable Miller was unlawful and that it was an assault where a police officer was in the execution of his duty.  He came to this conclusion despite having found the following.  (1) On the evidence before him, the apprehension of the appellant under s 128 of the Police Administration Act was somewhat questionable.  (2) He could not be satisfied beyond reasonable doubt that the appellant was seriously affected by alcohol to the stage where he needed to be taken into protective custody.  His Honour stated, “He is certainly affected by alcohol but I agree with Mr Bellach that the deprivation, or taking, of someone’s liberty is something that needs to be done somewhat cautiously and only in those circumstances where it is reasonably clear.  I am not satisfied that this was necessarily such a case.”  (3) The appellant was not seriously affected by alcohol.
[33]	Having made the findings referred to in par [32] above, the trial Magistrate asked himself what followed from them.  Rather than considering whether Snr Constable Miller and Constable Fitzell had acted in accordance with the authority granted to them under s 128 of the Police Administration Act, his Honour resolved the issue of whether Snr Constable Miller was acting in the execution of his duty by considering whether the appellant objected to being in protective custody because he was not seriously affected by alcohol and whether the police believed they were entitled to apprehend the appellant.  He erred in doing so.  
[34]	The trial Magistrate misdirected himself about the elements of the offence charged against the appellant. In order for the appellant to be convicted of the charge against s 189A of the Criminal Code it was necessary for the prosecution to prove that Snr  Constable Miller and Constable Fitzell acted in accordance with the authority granted to them under s 128 of the Police Administration Act.  The prosecution had to prove that there were reasonable grounds for believing that the appellant was seriously affected by alcohol.  His Honour did not deal with the issue of whether the police officers involved in this matter had reasonable grounds for believing that the appellant was seriously affected by alcohol.  Nor did his Honour deal with the question of whether Snr Constable Miller could be in the execution of his duty if the appellant had been unlawfully apprehended.
[35]	I would allow the appeal on this ground.
Ground 2 – the verdict is unreasonable or cannot be supported by the evidence
[36]	As to ground 2, I am of the opinion that the verdict of guilty cannot be supported by the evidence.  It was not open to the trial Magistrate to be satisfied beyond reasonable doubt that Snr Constable Miller was in the execution of his duty when he was assaulted.  The evidence before the trial Magistrate was insufficient to establish beyond reasonable doubt that there were reasonable grounds for either Snr Constable Miller or Constable Fitzell to believe that the appellant’s physical and mental faculties were seriously impaired in the conduct of the ordinary affairs or acts of daily life as a result of his consumption of alcohol when he was apprehended by them and taken into custody.  Rather, in all of the circumstances, it must have been apparent to both Snr Constable Miller and Constable Fitzell that the appellant was not seriously affected by alcohol.  He was not very drunk.  The appellant responded to police when they first spoke to him.  He denied any wrong doing.  He then avoided them for a significant period of time by running away, climbing over fences and hiding in back yards.  After he was apprehended he complied with the directions that he was given.  He was capable of getting out of the police van in the sally port and walking to the holding cell without any difficulty.  He sat upright in the holding cell before complaining about his treatment.  He spoke in a coherent manner and he walked to the reception desk in a normal manner. 
[37]	The highest Snr Constable Miller’s evidence came to was as follows.  The complainant told him and Constable Fitzell that the appellant had been following her and humbugging her. She said he was trying to start fights and she wanted him taken into custody.  However, it was Snr Constable Miller’s opinion that she was highly intoxicated.  The appellant’s eyes were bloodshot, there was alcohol on his breath, he smelled highly of alcohol and he was a little unsteady on his feet.  The appellant was incoherent because Snr Constable Miller and Constable Fitzell had to repeat themselves to explain their presence to the appellant.  
[38]	Snr Constable Miller also gave evidence which suggests that the appellant’s physical and mental capacities were only slightly affected by the consumption of alcohol. I consider it to be of some significance that Snr Constable Miller was not asked by the prosecution during his examination in chief if he believed the appellant was seriously affected by alcohol and, if so, what were the grounds for his belief.  He said that he did not see the appellant behaving in a disorderly manner. The appellant tried to avoid Constable Fitzell and him by walking around them.  He told them that they had the wrong person, it was not him. He did not do anything.  He was not involved.  When the police had another conversation with the complainant, the appellant walked off across the road to where the BP Service Station is and then he started to run.  The appellant ran down one of the side streets and along Ross Smith Street.  In an attempt to avoid police he jumped a number of fences around nearby premises. He avoided police for about 20 to 30 minutes.  Ultimately the appellant was apprehended and placed in the back of the police van.  He was then driven to the Watch House and placed in a holding cell and processed.  Snr Constable Miller noted in his note book that he and Constable Fitzell were dispatched to the disturbance at the Fannie bay shops at 17:44 hours, the appellant was taken into custody at 18:20 hours and they arrived at the watch house at 18:35 hours.  
[39]	According to Snr Constable Miller the appellant’s level of intoxication when he arrived at the watch house was the same as when he was apprehended.  As I have said the DVD of the appellant arriving at the watch house shows the appellant get out of the police van unaided and walk to the holding cell unaided.  He was well behaved in the sally port.  While he was in the holding cell he stood against the speak hole and he said he was going to take Snr Constable Miller and Constable Fitzell to court because he had not done anything wrong.  He also complained of being assaulted.  When he came out of the holding cell to be processed at the counter he pointed to Snr Constable Miller and Constable Fitzell and to the injuries on his face.
[40]	The highest Constable Fitzell’s evidence came to was as follows.  While he and Snr Constable Miller were on patrol they received a complaint that there was a male who was at the Fannie bay shops who was getting drunk and acting silly.  While on patrol they were waved down by a female.  She was in the company of another female and a male.  They all appeared to be at a level of intoxication.  Constable Fitzell could smell liquor.  One of the ladies said that the male in the group was causing a disturbance.  She said he was drunk and being silly.  The man then walked away from the group and he was pursued by Constable Fitzell and Snr Constable Miller.  Constable Fitzell said that soon after he apprehended the appellant, he could smell that he had been consuming liquor and he could see that the appellant had really bloodshot eyes.  These were the only factors that he observed and it was on the basis of these observations that he concluded that the appellant was affected by alcohol.  
[41]	Constable Fitzell also gave evidence which suggests that the appellant’s physical and mental capacities were only slightly affected by the consumption of alcohol. He too was not asked by the prosecution during his examination in chief if he believed the appellant was seriously affected by alcohol and, if so, what were the grounds for his belief.  According to his evidence the appellant walked away while the women were being spoken to by police.  Before the appellant walked away Snr Constable Miller and Constable Fitzell did not have time to properly assess his level of intoxication.  After they finished speaking to the women, Snr Constable Miller and Constable Fitzell drove off in the general direction that the appellant had walked so they could speak to him some more about the complaint that they had received and assess his level of intoxication. As they went along they were given directions about where the appellant had gone.  At some point Constable Fitzell saw the appellant hiding in the bushes.  When the appellant saw that Constable Fitzell had seen him in the bushes he just took off.  He saw him run into another person’s yard and he followed him and saw the appellant underneath a large overhanging tree in the corner of the property.  Constable Fitzell asked the appellant to lie down on the ground so that he could search him and the appellant did so.  The appellant was searched without incident while he was on the ground and Constable Fitzell then asked him to stand up and go out the front of the premises and the appellant did as he was asked.  Constable Fitzell then escorted the appellant back to the police van and he was placed in the rear cage.  The appellant was then taken to the Darwin watch house.  The appellant’s level of intoxication did not change while he was in the watch house.  While the appellant was in the watch house he said that he was going to take Constable Fitzell to court.
[42]	There is a difference between the evidence of Snr Constable Miller and Constable Fitzell about the circumstances in which the appellant was apprehended.  Constable Fitzell gave evidence that when the appellant was placed in the cage at the rear of the police van he told him that he was placing him in protective custody and he was going to be conveyed back to the police station.  It was his decision to place the appellant in protective custody based on the observations he made while he searched the appellant.  It was not an issue that he and Snr Constable Miller discussed.
[43]	The highest that Snr Auxiliary Shervill’s evidence about the intoxication of the appellant reached was as follows.  He watched the appellant walk from the van.  As the appellant was walking out the back of the cage he either stumbled into the cage door or sort of shifted or swayed to the right.  He was just sort of swaying as he was walking.  None of this is shown on the DVD.  Further, before the appellant was processed, Snr Auxiliary Shervill observed that the appellant had bloodshot eyes and he reeked of alcohol.  He also gave evidence that while the appellant was in the holding cell he was sitting down and he was quite calm.  He said that when he walked from the holding cell towards the processing counter he was pretty steady.
[44]	The reality of the situation seems to be that Snr Constable Miller and Constable Fitzell were concerned because the appellant ran from them and there was a suggestion he was causing problems to the complainant.  They wanted to speak to him about the information they had received from the complainant and that is when the appellant ran away from them.  That gave them reason to pursue the matter further.  Snr Constable Miller and Constable Fitzell considered arresting the appellant for trespass and when no one in the neighbourhood wanted to make a complaint they decided to take him into custody under s 128 of the Police Administration Act because the people in the neighbourhood wanted him removed from the area, he was an Evil Warrior who came from Port Keats and he had nowhere else to go.  The decision to take the appellant into protective custody under s 128 of the Police Administration Act was only taken at the back of the police van after the appellant had been apprehended and after the police had spoken to people in the neighbourhood.  It was a fall back position.  However, in order to make such an apprehension they had to believe the appellant was seriously affected by alcohol and there had to be reasonable grounds for such a conclusion.  In my opinion, given all that had transpired, simply observing and noting that the appellant reeked of alcohol and his eyes were bloodshot was an insufficient basis for such a conclusion.  It must have been apparent to both Snr Constable Miller and Constable Fitzell that the appellant was not very drunk. 
[45]	Having reviewed the whole of the evidence, I entertain a reasonable doubt about whether the prosecution has proven that there were reasonable grounds for believing that the appellant was seriously affected by alcohol when he was apprehended.  In all the circumstances it would be dangerous to allow the verdict to stand.  The prosecution did not prove that Snr Constable Miller and Constable Fitzell were acting in accordance with the authority granted to them under s 128 of the Police Administration Act.  The appeal should be allowed, the verdict of guilty should be quashed and a verdict of not guilty should be entered.  
[46]	In the circumstances it is unnecessary to consider ground 3 of the appeal.
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