Annual Report 2017-2018 OmbudsmanNT
Tabled paper 934
Tabled Papers for 13th Assembly 2016 - 2020; Tabled Papers; ParliamentNT
2018-10-31
Deemed
Made available by the Legislative Assembly of the Northern Territory under Standing Order 240. Where copyright subsists with a third party it remains with the original owner and permission may be required to reuse the material.
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https://www.legislation.gov.au/Details/C2019C00042
https://hdl.handle.net/10070/304663
https://hdl.handle.net/10070/363371
71 The officers drove around the corner and encountered the complainant on another street. They stated that the complainant was continuing to shout and was chasing a relative and waving her arms around. They said that her behaviour worsened when they approached her. A decision was made to arrest the complainant for disorderly behaviour. Police stated the complainant resisted arrest and was ultimately sprayed with ASR (pepper spray). Two of the complainants family members were also hit with spray. In a subsequent Local Court hearing, the complainant was convicted of Disorderly behaviour in a public place but all evidence obtained after that event (which might have supported charges of resist police and assault police) was excluded by the Judge under section 138 of the Evidence (National Uniform Legislation) Act. In the course of considering the matter, His Honour made the following comments: The confrontation escalated resulting in the complaint before the court. General orders of the police are set out in [case law cited] they make good sense and ought to carefully observed but they do not have the force of law and are for guidance only. Okay. They cannot affect the lawfulness of an arrest its true the General Orders are the distillation of the best Police practice and it is wise and prudent for police to notice and comply with it however the experience of a court is that sometimes for good reason and good faith the General Orders are not complied with and that in those instances does not affect the lawfulness of the police conduct most usually. However in this instance, this was a scenario where a police officer was too quick to jump to the conclusion that he would arrest a person for a minor offence. A person who had reacted to the lawful conduct of the police in an anti-social but understandable fashion. General Order 2.2 sets out the arrest of a person should be an action of last resort and police should arrest only to prevent the continuation or repetition of an offence as Ive outlined this was not a scenario where there was likely to be a repetition of this person swearing at Police and interfering with traffic. That happened as a result of the alcohol being tipped out and her being moved along. She had desisted and had de-escalated. The balance also of that guideline does not apply and in this instance its not a serious offence. We dont know if a summons to appear in court was likely or unlikely to be complied with as no enquiries were made and we simply dont know on the evidence if this person was intoxicated or indeed intoxicated to the extent that they would not understand the consequences of their actions in the process of being summonsed. the first Police officer had said initially that he could smell alcohol on quote them ah when he tipped out the alcohol and that her behaviour suggested to him that she may have been intoxicated. That is not enough and does not meet the threshold to prove for intoxication. Count three resist Police in the execution of their duties. Four and five assault the police in the execution of their duty. As Ive remarked its not the standing of good faith and decency of the police officers in question doing their difficult job. It would seem to me that the clear non-compliance and use of the power of arrest as a first resort rather than a last resort is an impropriety. Not only in the sense of misconduct or bullying or harassment or anything of that nature. It is an impropriety of non-compliance with the General Orders and I do have close regard to the authorities that inform me and I have already remarked upon what a difficult job it is that the Police do ... The NT Police investigating officer was not prepared to find the decision to arrest unreasonable but did recommend that the officers be provided remedial advice on policy regarding arrest being an action of last resort.