Chapters

There are numerous provisions in the Police Offences Act 1935 (Tas) which regulate behaviour in public. Such matters almost always relate to conduct in public places or, sometimes, to behaviour visible from public places (provided that there is actually someone in the public place at the time to witness it).

The concept of the ‘public place’ is very wide and includes parks, wharves and jetties, passenger vessels and taxis, churches, theatres and meeting halls, markets and auctions, licensed premises, sports grounds and race-courses, police stations and courts, public toilets, schools, banks and shops.

This list is not exhaustive. Public streets are ‘public places’. That definition includes much more than is popularly considered to be a street, and includes car parks, petrol station forecourts and the like. In short, a public place can be considered to be any place to which the public has access, whether or not the place is otherwise private property.

Loitering

Loitering may be an offence even though the person accused is doing absolutely nothing, except loitering. However the circumstances of where the person is loitering and who the person is can lead to a suspicion which then may be prosecuted as an offence. A person must be a ‘suspected person or reputed thief’, which means their history of convictions can be produced in court to help the police to prove the case against them. The person’s ‘known character’ is a factor in persuading the court that they intended to commit a crime (s7, POA).

A person found loitering, and in possession of any housebreaking implements or any other implements in their possession ‘with intent to commit a crime’ can be convicted and jailed. It is not necessary for the police to prove any particular act demonstrating that intent, nor is it necessary to specify what particular crime the suspect intended to commit.

It is an offence under the Police Offences Act to loiter near a school or in a number of specified places where children are present such as a public toilet, a playground, a games arcade or swimming pool (s7A, POA). The Act states that a person who has been guilty of a sexual offence must not, without reasonable excuse, loiter near children. The penalty is up to 50 penalty units or up to 2 years in jail.

All of these procedures are contrary to the customary approach of the criminal law that neither an accused person's previous offences nor their character can be used by the prosecution to prove an offence except in very strictly defined circumstances. Similarly, in general it is for the prosecutor to prove all parts of a charge beyond reasonable doubt and an accused does not have to prove their innocence.

Drunkenness

The Police Offences Act contains offences of drunkenness, that is, being discovered in a public place intoxicated and 'behaving in a manner likely to cause injury to himself, herself or another person, or damage to any property; or incapable of protecting himself or herself from physical harm' (s4A). There are also offences of drunkenness when in charge of a vehicle, or in possession of a dangerous weapon’ (s4). 

In prosecuting those charges it is usual for a police officer to give evidence of the smell of the person's breath, and their appearance and demeanour from which the police officer formed the opinion that the defendant was drunk.

Public Annoyances/Public peace

Persons affected by alcohol will also often find themselves facing charges of causing public annoyance. (s13, POA). The most common of these are ‘committing a nuisance’ and ‘disturbing the peace’. A ‘nuisance’ is just what the word suggests: something which is annoying, obnoxious or unpleasant, such as urinating in the street. There is almost no limit to the range of annoyances which can amount to a nuisance. The nuisance must be a public nuisance, that is, it must occur in a public place and affect members of the public.

‘Disturbing the public peace’ is to engage in conduct which is likely to result in a ‘breach of the peace’. Usually, this means fighting in a public place. Disturbing the peace does not relate to rowdy behaviour, nor does ‘peace’ mean ‘peace and quiet’. The ‘public peace’ is the traditional right of citizens, guaranteed by the Crown, to go about their business without fear of violence.

Public annoyances include among others ‘offensive behaviour’, ‘throwing fireworks’ and ‘recklessly throwing a missile to the danger or damage of another person’. ‘Missiles’ usually turn out to be rocks or beer cans. ‘Recklessly’ means throwing an object with an intention to hit a person or property, or realising that it was likely that a person or property would be endangered or hit, and not caring whether or not this happens.

Indecent Language

This charge (s12, POA) is less common than it used to be, principally because a significant number of complaints are being dismissed by magistrates as community attitudes to what is ‘indecent’ change. The Full Court of the South Australian Supreme Court has held that the measure of what is indecent is not the standards of judges or magistrates, but rather that of average citizens of average age and outlook. For this reason the police may lay other charges of either ‘swearing’ or using ‘improper language to a police officer’, depending on the circumstances.

Begging and Other Street Offences

It is an offence to beg in a public place or to induce or solicit alms (s8, POA). This carries a penalty of up to 5 penalty units or imprisonment up to 6 months. Begging is not the same as busking. However where a busker is asked by the occupier of a house or premises to stop performing in the vicinity, it is an offence to continue to sing or play (s16).

It is an offence for a common prostitute in a public place to solicit, importune or accost any person for immoral purposes (s8). It is also an offence to keep a disorderly house which ‘harbours prostitutes’ (s9) and for a man to live off the earnings of prostitutes (s8). But prostitution per se is not an offence, which is why so many sex workers advertise through the newspaper advertising pages, as this is not in a public place, or a ‘disorderly house’.

It is an offence to drink in a public street or public place (including being inside a car) (s25) or have an opened container of liquor without reasonable excuse (the proof lying with the person) where this is proscribed by regulations. It is not an offence where the person is within 50 metres of a public house and using furniture or other facilities lawfully provided by the pub. Nor is it an offence where a permit has been issued under the Liquor Licensing Act 1990 (Tas).

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