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Drinking in a Public Place


Drinking in a public place can be an extremely difficult area of the law.

All states and territories have different legislation.

Their police forces, and different individuals within them, can adopt different approaches to those laws.

What allows someone to remain out with an alcoholic drink in hand or while intoxicated?

What leads another to be arrested and held in the cells overnight?

It can be a very fine line, depending on many, many factors.

One recent case (Prior v Mole [2017] HCA 10) went all the way to the High Court, which has given some guidance on the issue, specifically for the Northern Territory, where the issue is highly charged (in every sense), but also for the rest of the nation.

Questions wrestled with by the High Court (and previously by a Magistrate, a single Supreme Court judge and a full Court of Criminal Appeal) included:

  • When do police have a belief on reasonable grounds that someone can be detained?
  • What consideration need be given to the detention leading to other offences? In this case, the gentleman detained was also charged with assaulting a police officer, behaving in a disorderly fashion in a public place and behaving in an indecent manner in a public place. Could those other offences be ascribed wholly to the police action of detention and, without that intervention, might they not have occurred at all?
  • Was it open to the police to simply say, “Stop drinking” and leave the matter there? It was common ground that the gentleman was intoxicated in a public place and that police had a power to detain someone who was intoxicated in a public place, but that alone was not enough:
    • The person had to also be unable to adequately care for himself and it was not practicable for him to be cared for by someone else, or
    • He had to be thought to be going to harm himself or someone else, or
    • That he may intimidate, alarm or cause substantial annoyance to people, or
    • He was likely to commit an offence.
  • While it might have been accepted that police had a reasonable belief as to apprehending someone, could the apprehension have been “for a disproportionate and illegitimate purpose”. Could it have been because the gentleman in this case had initially made an abusive gesture to police? He gave evidence that police had previously made such a gesture to him.
  • Was it enough that the policeman involved thought it reasonable to apprehend the gentleman, or did the standard have be the belief of a hypothetical reasonable member of the public in the same circumstance?
  • Was it proper for the policeman to draw on his experiences of other people in a similar situation? Was it reasonable to ascribe broad beliefs about certain groups of people and reasonably put those beliefs on to the one individual, without any direct knowledge of that particular individual’s background? Had the gentleman been stereotyped?
  • Could police have proceeded by way of an infringement notice for consuming liquor in a public place or proceeding by summons for causing nuisance while consuming liquor in a public place (a fine-only offence)?
  • If the gentleman’s apprehension was found to be illegal, should the further charges against him be thrown out because the evidence supporting them had been illegally obtained?
  • If the decision to apprehend was made for the gentleman’s own protection, had police believed that that was the only option left to them (ie the last resort)?
  • Was the gentleman likely to commit further offences only because of his intoxication or for other reasons?

The High Court split 4-1, with Justices Keifel and Bell in a joint judgment and Justices Gordon and Nettle in separate judgments forming the majority, with their three judgments showing a very broad discussion and a great variety of reasoning.

Justice Gageler was the dissenter. His judgment began, quoting two previous High Court cases: “Personal liberty is ‘the most elementary and important of all common law rights’.”

And so it is, but the legislative and common-law hoops and fetters that can be placed on it are many, as this case showed on its long journey from the streets of Darwin on the afternoon of New Year’s Eve 2013, through the NT Local, Supreme and Appeal courts to a 25-page High Court judgment in March 2017.

Knowing your rights when confronted by police is exceedingly important.

So much can turn on how you react and anything you might say.

If arrested, you should always be offered a telephone call to a lawyer.

Take up the offer.

Image Credit – Akz © 123RF.com

Written by Andrew Fraser on August 22, 2017

Andrew represents clients in the ACT Supreme and Magistrates Courts as well as the NSW Local and District Courts of the Canberra region. He appears also before the ACT Civil and Administrative Tribunal in licensing, mental-health and other matters. His breadth of experience allows him to tailor his advice and submissions to ensure the best possible results for his clients. View Andrew's profile


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