Environmental / Resource Management

Intoxication Offences - Sale and Supply of Alcohol

Sections 248, 249 and 252 of Sale and Supply of Alcohol Act 2012 (SSAA) deal with the sale and supply of alcohol to intoxicated people, allowing people to become intoxicated and allowing intoxication on licensed premises.

An offence under any of these sections is serious and will most likely lead to an application for a suspension/cancellation of the licence. Offences under ss 248 and 249 also constitute a negative holding under s 281 of the SSAA.

The Act introduced a definition of intoxication that was not part of the Sale of Liquor Act 1989 (SOLA). The introduction seems to clarify or formalise how intoxication is to be assessed. Whether this will be achieved is a matter for debate.

Definition

Intoxication is defined in the SSAA (by reference to "intoxicated") as follows:

intoxicated means observably affected by alcohol, other drugs, or other substances (or a combination of 2 or all of those things) to such a degree that 2 or more of the following are evident:

(a) appearance is affected:
(b) behavior is impaired:
(c) co-ordination is impaired:
(d) speech is impaired.

The four elements of this definition are commonly referred to as the SCAB tool and have been used for some time.

The definition may go some way to avoiding the difficulty in defining and subsequently assessing intoxication under the SOLA. The Court of Appeal and Supreme Court have previously distinguished "intoxication" from "under the influence" on the basis that it "carries a reasonably advanced degree of drunkenness".

More recently in General Distributors v De'Ath, the High Court referred to the definition of intoxicated as formulated in Brown v Bowden, where the Supreme Court defined the state of intoxication as a loss of "normal control of bodily and mental faculties".

Interestingly, the Authority in Thirsty Whale Bar & Restaurant Ltd held that the definition in the SSAA supersedes the definition as developed by case law. However, to an extent, the definition strongly reflects the earlier approach. A person can be "under the influence" (if less than two of the SCAB elements are evident), but not intoxicated as they are yet to reach an "advanced degree of drunkenness" (when two or more of the SCAB elements are evident).

Assessing Intoxication

An assessment of intoxication is a subjective test. However the assessment is not limited to the elements of the SCAB tool. In General Distributors Limited v Police, the High Court confirmed that the assessment of whether a person is intoxicated encompasses a variety of sources and assessments in addition to the SCAB tool. This forms part of the "pool of evidence" to be taken into consideration by the Authority.

With this view in mind, we note that the definition of intoxication is not limited to alcohol and includes "other drugs or substances". This means that behavior other than the orthodox signs of intoxication (slurred speech, drowsiness, boisterous attitude) become relevant considerations when conducting an intoxication assessment. A person in an "altered state" may display symptoms of irritability, a heightened sense of alertness, overly talkative, anxiety or euphoria (the opposite to signs of alcohol intoxication). This begs the interesting question of whether a person clearly displaying symptoms related to drug or substance abuse, but who has not consumed any alcohol, will be "intoxicated" for the purpose of the SSAA when the purview of the SSAA is specifically confined to the sale, supply and consumption of alcohol.

In Hepburn v Clary 2002 Ltd, the Authority identified a "best practice" procedure when assessing intoxication. In evaluating the evidence and intoxication assessments undertaken by the Police, the Authority concluded that an intoxicated patron found on premises should be spoken to, taken outside, and assessed by the Police and another person such as the duty manager or licensee. In our view, complying with the "best practice" approach is even more important now given the specific definition of intoxication in the SSAA.

Comment

Although the definition of intoxication in the SSAA largely reflects the approach in earlier case law, it nonetheless provides greater certainty and guidance when undertaking subjective intoxication assessments and determining whether a person is "intoxicated" to a level that invokes the offence provisions in ss 248,249 & 252 of the Act.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

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