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Law > Public drunkenness > Flashcards

Public drunkenness Flashcards

1
Q

Graffiti

A

any illegal writing, drawing or scratching that defaces (i.e. damages) public property and cannot be removed with a dry cloth

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2
Q

Graffiti Prevention Act 2007 (Vic)

Section 5 - Marking graffiti

A

A person must not mark graffiti on property if the graffiti is visible from a public place unless the person has first obtained the express consent of the owner, or an agent of the owner, of the property to do so.
Penalty: Level 7 imprisonment.

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3
Q

For a person to be convicted of this offence, the prosecution must prove the following elements:

A
  • the accused marked publicly visible graffiti

* the accused did so without the owner’s consent

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4
Q

Marking’ graffiti means

A

‘Marking’ graffiti means to write, draw, scratch or deface property in ways that cannot be removed with a dry cloth.

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5
Q

Element 1 – The accused marked publicly visible graffiti

A
  • The crime of marking graffiti can occur if the graffiti is done in a public place or any place where ] it can be seen from a public place.
  • A public place is defined in the Summary Offences Act. It includes places like the street, sporting grounds, shopping centres, railway stations and government schools, and any place that is open to the public. Courts have defined ‘a public place’ to be anywhere where the ordinary person would think the public has a right to go.
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6
Q

Element 2 – The accused did so without the owner’s consent

A
  • The offence can only be committed if no express consent has been given by the property owner. Given many public places in Victoria are owned by the State of Victoria, then express consent must be given by the state (through a person who is authorised to give that consent). A lack of consent will mean the marking is illegal.
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7
Q

Proving the elements to be wrong

A
  • the accused had the property owner’s permission
  • the graffiti could be removed with a dry cloth
  • the graffiti is not visible from a public place.
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8
Q

Possible defences to graffiti offences

A

Defence 1 – Mental impairment
Defence 2 – Duress
Defence 3 – Honest and reasonable mistake

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9
Q

POSSIBLE IMPACTS OF GRAFFITI

IMPACTS ON THE OFFENDER

A

Legal costs
• Compensation
• Risk of serious injury

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10
Q

POSSIBLE IMPACTS OF GRAFFITI

IMPACTS ON SOCIETY

A 
•	Increased need for police 
•	Loss of workplace productivity 
•	Damage to community property 
•	Loss of trust in law and order and 
community values 
•	Cost of removal 
•	Increased council rates due to cost of removal 
•	Reduced feelings of safety 
•	Frustration 
•	Lowering of property prices 
•	Lowering of feelings of community pride
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11
Q

Offensive behaviour

A

Definition: Conduct that is calculated to wound feelings or arouse anger, resentment, disgust, or outrage in the mind of a reasonable person

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12
Q

This behaviour is prohibited under Section

A

under Section 17 of the Summary Offences Act 1966 (Vic).

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13
Q

Offensive behaviour ; Common law

A

Criminal law provisions concerned with obscenity fall into a category of laws which must necessarily keep pace with prevailing views of society and changing circumstances … The application of a societal standard may be seen in the use … of the objective standard of the reasonable person.’

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14
Q

Offensive behaviour; Statue law

A

insulting to be ‘language calculated to hurt the personal feelings of individuals’ or ‘scornful abuse of a person or the offering of any personal indignity or affront’ and ‘something provocative, something that would be offensive to some person to whose hearing the words would come’.

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15
Q

17 Obscene, indecent, threatening language and behaviour etc. in public

A

(1) Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon—
(a) sings an obscene song or ballad;
(b) writes or draws exhibits or displays an indecent or obscene word figure or representation; (c) uses profane indecent or obscene language or threatening abusive or insulting words; or (d) behaves in a riotous indecent offensive or insulting manner—
shall be guilty of an offence.

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16
Q

Element 1 – The accused’s conduct was obscene or offensive

What is offensive to other people can be something you enjoy doing yourself but should not inflict on others who have no choice.

A
  • using profane, indecent or obscene language
  • using threatening, abusive or insulting words
  • singing an obscene song or ballad
  • writing or drawing, exhibiting or displaying an indecent or obscene word or image
  • behaving in a riotous, indecent, offensive or insulting manner.
17
Q

Element 2 – The accused’s conduct occurred in a public place

A
  • This offence is committed if a person behaves offensively in or near a public place or can be seen or heard by people passing in a public place.
18
Q

Section 17 of the Summary Offences Act 1966 (Vic)

The offence must occur in ONE of the following circumstances

A

In a public place
- A person swears while standing on the footpath or road outside his or her house

Near a public place
- A person swears while standing just inside the fence line of his or her house

Within view or hearing
of a person passing in a public place
- A person swears while standing in his or her backyard but can be heard by people walking by

19
Q

Proving the elements wrong - offensive behaviour

A
  • the behaviour was an exercise of a political or human right
  • mental impairment
  • sudden or extraordinary emergency
  • involuntary actions.
20
Q

Possible defences - offensive behaviour

A
  • Defence 1 – The behaviour was an exercise of a political or human right
  • Defence 2 – Mental impairment
  • Defence 3 – Sudden or extraordinary emergency
  • Defence 4 – Involuntary actions
21
Q

POSSIBLE IMPACTS OF OFFENSIVE BEHAVIOUR

IMPACTS ON THE OFFENDER

A
  • Medical treatment and costs (if injured)
  • Guilt or shame
  • Legal costs
22
Q

POSSIBLE IMPACTS OF OFFENSIVE BEHAVIOUR

IMPACTS ON VICTIMS AND THEIR FAMILY

A 
•	Disruption to family life 
•	Trauma, grief or fear 
•	Continuing psychological issues 
•	Loss of trust in law and order and 
community values
23
Q

POSSIBLE IMPACTS OF OFFENSIVE BEHAVIOUR

IMPACTS ON SOCIETY

A
  • Loss of trust in law and order and community values

* Decreasing percentage of levels of community wellbeing

24
Q

Elements of public drunkenness

A

For a person to be convicted of public drunkenness, the prosecution must prove the following elements:
• the accused was drunk or appeared to be drunk
• the accused was in a public place.

25
Q

Element 1 – The accused was drunk or appeared to be drunk

A
  • Courts will consider the amount of alcohol consumed and the person’s behaviour, appearance and demeanour at the time.
  • Being drunk is more than being under the influence of alcohol or being ‘tipsy’. It requires a substantial lack of capacity or control.
26
Q

Possible indicators of drunkenness include being:

A
  • unable to stay awake or maintain consciousness
  • unable to speak clearly or make oneself understood
  • unable to do ordinary or everyday activities like open a door or pay for items.
27
Q

Element 2 – The accused was in a public place - Public Drunkenness

A
  • The list is both specific and broad in nature.
  • These broad descriptors in the definition of a public place mean a public place can be any place which is, at the time, open and accessible to the public.
  • Whether the courts consider an area a public place will depend on the context or circumstances of the case, and may mean that an area is considered a public place on one occasion but not on another.
28
Q

Possible defences The accused was not drunk

A
  • For example, a person with a medical condition or physical disability might display what appear to be the physical characteristics of drunkenness, when in fact they are the symptoms of their condition, as outlined in the following case study.
29
Q

Possible defences The accused was not in a public place - Public drunkenness

A
  • In some cases, a person may be accused of public drunkenness when they are not in a public place
30
Q

Possible impacts of public drunkenness

A
  • Public drunkenness has hidden costs. Members of the public do not feel safe on the streets and police resources are diverted to deal with drunk and disorderly people.
31
Q

Statute law - Public Drunkeness

A
  • The Act also provides a definition of what is meant by the term ‘public place’, though the courts still need to interpret the meaning of that term to decide on cases before them.

Law (23 decks)

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