This week I learned some stuff about intoxicated people. Given the popular national penchant for a cold beer on a hot day, perhaps it’s unsurprising that it happened on a trip to the sweltering tropics.

The whole saga started more than a year ago when the Liquor and Gaming regulators decided to raid a Far North Queensland pub to make sure everyone up there was conducting themselves with all appropriate decorum and discretion. As it turned out, they concluded to their shock and horror that they weren’t.

The Queensland Liquor Act stipulates thou shalt not serve liquor to a person who is “unduly intoxicated”, and in this case the investigators convinced themselves my client’s pub was honouring the rule more by breach than by adherence. In particular, they came across a local yokel allegedly leering, lurching and leaning his way around the hotel, occasionally walking like he’d just slipped on a wobbly boot, and from time to time displaying animated and demonstrative expressions of excitement and exuberance. The investigators promptly called for the hotel’s CCTV footage and, after studying it at length and in great detail, they decided the culprit in question was unduly intoxicated, and therefore should have been refused service by the bar staff, which he clearly wasn’t.

But when the staff were questioned they all responded with the same reply; yes, the man’s behaviour, as shown on the TV footage, was certainly untidy, ill-disciplined and arguably unusual, but that wasn’t because he was intoxicated, it was just the way he was. He was a valued regular, a hard-working, harmless old bushy who mumbled and stumbled his way around the hotel from the moment he walked in until the moment he walked out, every day, year after year.

But the regulators weren’t to be deterred. Regardless of what the hotel staff might say, they were relying on provisions of the Act that said a person may be taken to be unduly intoxicated if their behaviour is “noticeably affected” by liquor.

The behaviour of the patron in question was, they asserted, very noticeably and obviously “affected,” in that he could be seen on the video stumbling and staggering around the hotel, fumbling and struggling to retrieve his wallet from his pocket, waving his arms around erratically and dancing a dainty little jig as he gleefully awaited his next drink. So they charged my client, a bar manager who had served the crumpled customer his last nip of liquor just prior to closing time, with supplying liquor to an unduly intoxicated person. The hotelier disagreed, and the courtroom battle-lines were drawn.

The prosecution argued my client’s liability was absolute – once it was clear her customer’s behaviour was noticeably affected –  as in odd and unusual – as the CCTV footage clearly demonstrated it was, he must not be supplied with any liquor. It seemed a harsh interpretation of the law. After all, what is odd and unusual for one may be everyday behaviour for another.

Unfortunately the Liquor Act doesn’t define the term “noticeably affected,” and there was no published case law on the point.  But it seemed to me when the Act spoke of a person’s behaviour being noticeably affected it must mean noticeably different to their usual behaviour. Her Honour agreed. To prove the customer was noticeably affected by alcohol, the prosecution had to show his colourful antics were noticeably different to his usual behaviour.

The witnesses unanimously agreed this customer routinely stumbled, staggered and fumbled all around the place, and the only thing unusual for him about the behaviour he displayed that night was the dainty little jig of joy he’d danced. But that was eminently understandable, given that he’d just won a meat-tray in the pub raffle. So how could her Honour possibly be satisfied, beyond reasonable doubt, his behaviour was noticeably affected by alcohol?

The magistrate acquitted my client, and ordered that the prosecution pay her costs. It wasn’t quite the meat-tray, but a win’s a win, and she seemed “noticeably affected” by her victory. So much so I’m sure I saw her do a sneaky little jig as she walked out of the courthouse.

Chris Nyst, Lawyer, Novelist and Film Maker

Chris Nyst - Criminal Lawyer