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Chapter 52: Drunkenness

Table Of Contents  

[52.0] Introduction 

This chapter will examine the offences of: 

·                     'Drunk & Incapable', as provided for by section 179 of the Penal Code (Ch. 26); and 

·                     'Drunk & Disorderly', as provided for by section 175(d) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Criminal Justice Act 1967 (UK), section 91.

[52.1] Drunk & Incapable

[52.1.1] Offence 

Section 179 of the Penal Code (Ch. 26) states: 

'Any person found in a public place drunk so as to be incapable of taking care of himself is guilty of an offence […].'

[52.1.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] was found in a public place to wit [specify the public place] drunk so as to be incapable of taking care of [himself/herself].'

[52.1.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Found 

E. Public Place 

F. Drunk So As To Be Incapable Of Taking Care Of Himself/Herself

[52.1.4] Found 

The term 'Found' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Sheehan v Piddington, Ex parte Piddington [1955] StRQd 574 Macrossan CJ stated at page 581: 

'I think the phrase "found drunk in a public place" means no more than the appellant was in a public place and was drunk and that he was seen in that condition in that place by the constable who arrested him contemporaneously [ie., at that time].' (emphasis added) [words in brackets added]

[52.1.5] Public Place 

The term 'Public Place' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court.' (emphasis added) 

The term 'Public Way' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any highway, market place, square, street, bridge or other way which is lawfully used by the public.' 

Whether or not a place is a 'public place' is a question of fact for the magistrate, to determine upon the circumstances of the particular case. To proceed to conviction, the magistrate must be satisfied 'beyond reasonable doubt' that the place in question is a 'public place', see McAneny v Kearney, Ex Parte Kearney [1966] QdR 306, per Stable J at page 313. 

See also: Williams v Director of Public Prosecutions (1992) 95 CrAppR 415 & In The Appeal of Camp [1975] 1 NSWLR 452.

[52.1.6] Drunk 

The term 'Drunk is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The prosecution must prove 'beyond reasonable doubt' that the defendant was 'drunk so as to be incapable of taking care of himself/herself'. 

Whether or not a defendant was 'drunk so as to be incapable of taking care of himself/herself' is a question of fact for the magistrate to determine upon the circumstances of the particular case. 

It is not necessary to prove absolute incapacity, but being drunk requires more than proof of being under the influence and a substantial degree of incapacity must be proved, see Brown v Bowden (1901) 19 NZLR 98 & R v Ormsey [1945] NZLR 109. 

A police officer may give 'opinion evidence' as regards the indicia of the defendant. 

In Himson Mulus v R [1969 – 70] PNGLR 82 Frost J stated at page 99 that 'no expert qualification is required for a witness to give evidence as to the effect of alcohol upon a person'. 

In R v Aldridge (1990) 20 NSWLR 737 the Court held at page 744: 

'The third ground of appeal complains of admission into evidence of the police officer's opinion that Mrs Ryan was affected by intoxicating liquor at the time when the police were called to her house. Unassisted by authority, and ignoring what has always been permitted in charges of driving under the influence and in personal injury claims, I would have said that a police officer could give evidence of only the usual indicia upon which an opinion may be founded – smelling of liquor, slurred speech, inability to walk in a straight line, etc – leaving it to the jury (or other tribunal of fact) to draw its own conclusions from their own experience […]. 

The police officer's opinion was therefore admissible, although it should not have been permitted without first obtaining the factual basis for that purpose.' (emphasis added) 

See also: Kennedy v Prestwood (1988) 7 MVR 561; Himson Mulas v R [1970 – 71] PNGLR 82 at page 99; Blackie v Police [1966] NZLR 910; Thomas v Snow [1962] QWN 7; Warning v O'Sullivan [1962] SASR 287 at page 289; R v Kelly [1958] VR 412; R v McKimmie [1957] VR 93 & R v Whitby (1957) 74 WN(NSW) 441. 

Therefore, for such 'opinion evidence' to be admissible police officers must give the basis of their opinion based on their own experience in dealing with persons affected by liquor both at work and socially. 

Refer also to the subsection which examines 'Opinion Evidence – Lay Persons' commencing on page 205.

[52.1.7] Power To Arrest 

Section 179 of the Penal Code (Ch. 26) provides the power to arrest without warrant. 

Refer also to the Chapter which examines the 'Power To Arrest Generally' commencing on page 242.

[52.1.8] Sentencing 

The jurisdiction of the Courts in respect of this offence is examined commencing on page 14. 

Section 179 of the Penal Code (Ch. 26) provides that upon a defendant being found guilty under that section he/she is 'liable to a fine of twenty dollars'. 

The law relating to 'Sentencing Generally' is examined commencing on page 918.

[52.2] Drunk & Disorderly

[52.2.1] Offence 

Section 175(c) of the Penal Code (Ch. 26) states: 

'The following persons – 

[…] 

(a)                any person who is drunk and disorderly in any public place […], 

[… is] deemed idle and disorderly persons […].' [word in brackets added]

[52.2.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] was drunk and disorderly in a public place to wit [specify the public place].'

[52.2.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Drunk 

E. Disorderly 

F. Public Place

[52.2.4] Drunk 

The element 'Drunk' is examined commencing on page 873.

[52.2.5] Disorderly 

The term 'Disorderly' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Police v Christie [1962] NZLR 1109] Henry J said at page 1113: 

'To behave in a disorderly manner, is accordingly, to act in a manner which contravenes good conduct or proper conduct. The behaviour in respect of which the section speaks is behaviour in a public place, so it becomes simply a question whether or not the behaviour in a public place seriously offends against those values of orderly conduct which are recognised by right – thinking members of the public. 

There are certain manifestations of conduct in a public place which are an affront to and an attack upon recognised public standards of orderly behaviour which well – disposed persons would stigmatise and condemn as deserving of punishment. The standard fixed ought to be reasonable and such as not unduly to limit freedom of movement or speech or to impose conditions or restrictions that are too narrow. The conduct must be serious enough to incur the sanction of a criminal statute. A conviction ought not to be entered unless the conduct or behaviour is such that it constitutes an attack upon public values that ought to be preserved. […].' (emphasis added)

In Melser v Police [1967] NZLR 437 McCarthy J commented in relation to the offence of 'Disorderly Conduct' at page 446: 

'I agree that an offence against good manner, a failure of good taste, a breach of morality, even though these may be contrary to the general order of public opinion, is not enough to establish this offence. There must be conduct which not only can fairly be characterized as disorderly, but also is likely to cause a disturbance or to annoy others considerably. 

[…] 

Moreover it seems to me that the test for determining whether or not behaviour is "disorderly" is objective, albeit the conduct in question must, of course, be looked at in all of the circumstances of the case.' (emphasis added) 

See also: King (1996) 88 ACrimR 150 at pages 155 – 157 & Austin & others [1939] SASR 130.

[52.2.6] Public Place 

The element 'Public Place' is examined commencing on page 873.

[52.2.7] Sentencing 

The jurisdiction of the Courts in respect of this offence is examined commencing on page 14. 

Section 175 of the Penal Code (Ch. 26) provides that upon a defendant being found guilty under that section is 'liable to imprisonment for two months or to a fine of twenty dollars.' 

Refer also to the law relating to 'Residence Orders' commencing on page 947. 

The law relating to 'Sentencing Generally' is examined commencing on page 918.

[52.3] Related Offences 

The following are offences which are related to the offence of 'Drunkenness': 

·                     'Riotous Or Disorderly Manner', section 175(d) of the Penal Code (Ch. 26) which is examined commencing on page 880; 

·                     'Using Threatening, Abusive, Insulting Words Or Behaviour', section 178(n) of the Penal Code (Ch. 26) which is examined commencing on page 886; 

·                     'Threatening Violence', section 89 of the Penal Code (Ch. 26) which is examined commencing on page 906; 

·                     'Criminal Trespass', section 189(1) of the Penal Code (Ch. 26) which is examined commencing on page 502; 

·                     'Carry Firearm Whilst Drunk Or Disorderly', section 41 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 859; and 

·                     'Affray', section 87 of the Penal Code (Ch. 26).