Page 4843 - Week 15 - Thursday, 8 December 1994
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The amendments effectively make provisions dealing with having liquor open in a public place easier to administer. The legislation presently provides that it is an offence to consume the liquor in a public place. The amendment that Mr Connolly has proposed to the Act provides, in effect, that a person must not have an opened can of liquor in a public place. I take it that the reason for this is that very often police are finding people in public places with liquor opened, obviously half-way through consuming it. Because the police cannot prove that what is in the can of Tooheys actually is alcoholic and because the police do not actually see them drinking it when they are around, they cannot proceed.
The amendments that Mr Connolly has proposed do two things. Firstly, they make a presumption that the thing that looks like, smells like and is in a container that looks like it contains alcohol is in fact alcohol. That presumption can be rebutted, of course. Secondly, they provide that simply having the opened container of beverage in your hand in a public place constitutes the offence. We seek to add the words "with the intention of consuming the liquor in that place". It seems to be fairly obvious that, if those words are there in that form, the onus falls on the prosecution to prove that the person concerned with the opened can of liquor actually had that intention. Since we know that they will not have been seen drinking it - if they were seen, they would have been prosecuted under subsection (1) - all we have is a person holding a can of liquor in a public place. How is the prosecution to prove the intention of consuming; how is that to happen? I am sure that a very successful prosecutor like Mr Stefaniak would have had no trouble proving that, but he is now here and cannot do so. He could. He could have a part-time job. We have allowed that.
Madam Speaker, we need a realistic way for police and prosecution to deal with these matters. What my amendment does is say that we take away the intention requirement there, so that it is not up to the prosecution to prove intention, which is obviously very difficult to do. Instead, it allows a person charged with this offence to defend it by adducing evidence that they did not intend to consume the liquor in the prescribed place. They do not have to prove beyond reasonable doubt or even on the balance of probabilities that they were not going to drink it; they have only to adduce evidence of that fact. That is a fairly small onus to have to discharge. Without it, I would submit that it is going to be very hard to get convictions under this provision.
MR CONNOLLY (Attorney-General and Minister for Health) (5.04): Madam Speaker, it was something of a lineball decision for the Government whether to adopt the approach that Mr Humphries is now urging, which is, in effect, to make it an absolute offence; or to adopt the approach that the Government has adopted, which is to make part of the offence an offence with an intent, generally speaking, as a matter of principle. Mr Humphries would agree with us that criminal offences should contain an element of intent; we should not have absolute offences. There was a view from police that rather reflects what Mr Humphries has said, namely, that it would be easier if you did not have the intent requirement.
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