Unreviewable Police Powers? The Reliance on Past Policing Experience in Prior v Mole [2017] HCA 10

Murphy, Julian R. ‘Unreviewable police powers? The reliance on past policing experience in Prior v Mole [2017] HCA 10.’ Indigenous Law Bulletin 8.29 (2017): 18-21.

4 Pages Posted: 17 Mar 2018 Last revised: 2 Jun 2019

See all articles by Julian R. Murphy

Julian R. Murphy

University of Melbourne, School of Law

Date Written: April 1, 2017

Abstract

Picture this: An Aboriginal man drinking on a suburban street in Darwin has his alcohol poured out by police and then is arrested because the police believe that the man is likely to procure more alcohol and commit a further public drinking offence. The arresting police officer claims that his belief that the Aboriginal man was likely to continue drinking is based, in part, on his past policing experience. This is a common occurrence in Darwin, indeed in towns across the Northern Territory. In 'Prior v Mole', the arrest of an Aboriginal man for public drinking became a-typical because in the subsequent criminal proceedings against him, the lawfulness of the arrest was put in issue by the defense. What level of detail must the police officer provide before a court can accept that the past experience constituted a reasonable ground for the belief that the Aboriginal man was likely to continue drinking? This is the question that split the High Court in Prior v Mole [2017] HCA 10. On one view, the majority judgments would permit police officers to shield their powers from effective judicial review by simply testifying that the arrest was based on their unparticularized and unexaminable past policing experience. A better view, and that proposed by this paper, is that the ratio decided of Prior v Mole is much more limited.

Keywords: Police Powers, Arrest, Reasonable Grounds to Believe, Indigenous Australians

Suggested Citation

Murphy, Julian, Unreviewable Police Powers? The Reliance on Past Policing Experience in Prior v Mole [2017] HCA 10 (April 1, 2017). Murphy, Julian R. ‘Unreviewable police powers? The reliance on past policing experience in Prior v Mole [2017] HCA 10.’ Indigenous Law Bulletin 8.29 (2017): 18-21., Available at SSRN: https://ssrn.com/abstract=3142391

Julian Murphy (Contact Author)

University of Melbourne, School of Law ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria
Australia

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