Liquor defined
Queensland Police Service v Murray
Woorabinda is a relatively small indigenous community about 170 kilometres south west of Rockhampton. It is situated on the traditional lands of the Wadja Wadja/Yungulu Aboriginal people.
[2] The residents of Woorabinda have endured, and continue to endure, significant social disadvantage and exposure to violence, particularly in the context of alcohol abuse. Consequently, in 2003 the Liquor Regulation 2002was amended so that Woorabinda was declared a restricted area: since that time, pursuant to s 168B (1) of the Liquor Act 1992 it has been an offence to possess liquor in that area.
[3] The amendments to the Liquor Act 1992 by s 66 of the Indigenous Communities Liquor Licence Act 2002 had followed the Cape York Justice Study Report, which in part stated: “alcohol abuse and associated violence are so prevalent and damaging that they threaten the communities’ existence and obstruct their development.” The purpose of the legislative response, as stated in s 173F of the Liquor Act 1992, is to minimise harm caused by alcohol abuse and associated violence and alcohol-related disturbances or public disorder. The legislative intent of these amendments has been confirmed by the Court of Appeal and the High Court.[1]
[4] Mr Murray is charged that contrary to s 168B, he possessed liquor namely methylated spirits, at Woorabinda on 2 November 2015. Mr Murray admitted at the time of the search to being in possession of an open bottle of methylated spirits, which he was drinking to get drunk, and to which he had added water, to make it easier to drink.
[5] It is contended on Mr Murray’s behalf that methylated spirits does not come within the definition of liquor in s4B of the Act, because it is not a substance intended for human consumption, and accordingly, he has no case to answer. The prosecution argue that on a proper construction of the definition, particularly having regard to Mr Murray’s stated intention at the time of arrest, methylated spirits can be defined as liquor. The prosecution also point to the purpose of the legislation in submitting the application should be dismissed.
What is liquor?
[6] Methylated spirits is ethanol (ethyl alcohol – 95%) which has been mixed with additives (methyl alcohol – 5%) to make it unpalatable and poisonous. It is primarily intended for use as a solvent or as an ignitable fuel for burners or cookers. Accordingly, it is relatively cheaper than commercially available alcoholic beverages, not being subject to the tax placed on alcohol.
[7] Liquor is defined in the Act in the following terms:
4B Meaning of liquor
(1) Liquor is a spirituous or fermented fluid of an intoxicating nature intended for human consumption.
(2) Liquor also includes any other substance intended for human consumption in which the level of ethyl alcohol (ethanol) is more than 5mL/L (0.5%) at 20ºC.
Examples of other substances—
ice confections, jellies and aerosol sprays.
(3) Liquor also includes any other substance containing ethyl alcohol (ethanol), which substance is prescribed under a regulation as liquor.
(4) However, liquor does not include a fluid, that would otherwise be liquor, if it is used merely as a preservative or medium in which fruit is offered for sale to the public in sealed containers and with the contents visible.
Does Mr Murray have a case to answer?
[8] Taking the prosecution case at its highest, as I am required to do on a submission of no case to answer[2], I am satisfied the prosecution could provide evidence to confirm methylated spirits is a ‘spirituous or fermented fluid of an intoxicating nature’. In fact, in the defence submissions in reply, it was confirmed no issue was taken with that finding, nor could there be. Not being prescribed under a regulation as liquor, and not being used as a preservative, the live issue for determination is whether it is ‘intended for human consumption’.
[9] The decision for determination is simply whether methylated spirits comes within the definition of liquor in the Act. The determination depends entirely upon the statutory construction of that definition.
[10] Clearly, the substance is designed so that it is not suitable, or indeed intended, for human consumption. That is the thrust of the argument on Mr Murray’s behalf. On the other hand, the prosecution submission is whilst that may not have been the intention of the manufacturer of the substance, or of the retailer of the substance, Mr Murray unequivocally stated his intention in possessing and consuming it. Further, he had altered the substance so that he could drink it to become intoxicated.
[11] The main purposes of the Liquor Act 1992 is to regulate the sale and supply (and possession) of liquor to minimise the harm caused by alcohol abuse and misuse. Following s 14A of the Acts Interpretation Act 1954 the interpretation of a provision that best achieves the purpose of an Act is to be preferred to any other construction.
[12] It is a well settled principle of statutory interpretation the words in a provision are assumed to mean what they say, and the correct approach is to use the text itself to understand what is meant to be conveyed by the provision.[3] In the event of ambiguity or uncertainty, there may be need for reference to the extrinsic material.
[13] I accept the submission that it is not the courts function to ‘fill gaps’ disclosed in legislation.[3] It is clear courts should not strive to achieve a particular or desired result, by interpreting a poorly worded statutory provision, in a particular way.
[14] The argument advanced on Mr Murray’s behalf is because the word ‘intended’ is used in the past tense, it could only apply to the manufacturer or designer of the substance, and not to any subsequent individual handler. With respect, I do not find that argument persuasive, when the obvious purpose of the Liquor Act 1992 is to regulate licensees and people possessing, supplying and consuming liquor.
[15] In my view, the term ‘intended for human consumption’ should be construed as applying to the intention of the person then possessing the fluid or substance, consistently with achieving the objects of the Act. I do not find the definition ambiguous. In my view, the definition is sufficiently wide. I do not consider it is a narrow definition, which specifically excludes methylated spirits, as submitted.
[16] I consider the definition to be sufficiently wide to include a substance not originally designed for human consumption, but nonetheless intended to be consumed.
[17] In view of that finding, it does not necessarily follow there should be reference to the extrinsic material. However, I have also been directed to the passage in the Explanatory Note to the Liquor Amendment Bill (No 2) 1994. The amendment was the first review of the Act, after one year of operation. The definition of liquor was subject of amendment. Prior to the amendment, the definition relevantly read: ‘…any spirituous or fermented fluid of an intoxicating nature, and includes any beverage or substance intended for human consumption in which the level of ethyl alcohol (ethanol) is greater than 5mL/L (0.5%) at 20’C, but does not include liquor used merely as a preservative or medium in which fruit is offered for sale to the public in sealed containers if the contents are visible.’
[18] It was stated in the Explanatory Note the definition had been amended to clarify that substances such as methylated spirits are not included in the definition. However, in any event, I regard that statement as referring to its use for its designed purpose, as a solvent or fuel. That is, when being used for its originally intended purpose, it would not constitute liquor.
[19] In further submissions in reply, I was also directed to the decision of Rockland & Ors v Queensland Police Service [2103] QDC 61, where Judge Irwin determined the possession of yeast at Mornington Island, to be used to make home brew alcohol, did not come within the definition of ‘home-brew concentrate’ in a provision of a different Act. The definition under consideration there was a narrow one, only relating to ‘a substance that includes malt and hops, ordinarily used to brew beer’. Because yeast does not include malt and hops, it obviously could not come within that exclusionary definition, whether or not it was intended to be so used. Accordingly, no assistance is derived from that decision.
[20] The defence also contend it is relevant that methylated spirits is not specifically included as liquor in other Acts, the police having power to:
(a) Seize and dispose of liquor or methylated spirits under s 53 Police Powers and Responsibilities Act 1992; and
(b) Prosecute a person pursuant to s 23 Summary Offences Act 2005 for selling a potentially harmful thing, which specifically includes methylated spirits.
[21] It is perhaps not surprising that methylated spirits is also deemed a potentially harmful thing. Basic research confirms medical advice: once consumed, methylated spirits can cause paralysis of the optic nerve leading to blindness, and depression of the central nervous system. Chronic effects include skin conditions and degenerative changes to the liver, kidney, gastrointestinal tract and heart muscle, leading to death.
[22] Although greater assistance would be gained from uniform terminology in all relevant legislation, the different terms and definitions in other Acts is not determinative of the proper construction of s 4B Liquor Act 1992. I note the definition of liquor in
s 4B was again recently amended by the Tackling Alcohol-Fuelled Violence Legislation Amendment Act 2016. That amendment took effect from the date of assent on 4 March 2016 and so did not apply at the time of Mr Murray’s arrest. The definition was not substantially amended, in any event
[23] I find Mr Murray does have a case to answer. The application is dismissed.