Intoxication Defence

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In some circumstances, the fact that the defendant was intoxicated during the commission of an offence might play a role in determining guilty. These situations include:

  • Voluntariness - intoxication only taken into consideration for determining voluntariness if not self-induced: s 428G Crimes Act 1900 (NSW).
    • 'Self-induced' intoxication is any intoxication which is not (:s 428A) :
      • (a) involuntary; or
      • (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
      • (c) done according to medical needs (prescribed by a registered practitioner etc).
  • Specific intent offences - intoxication to be taken into consideration for determining specific intent regardless of self-induced or not: s 428C.
    • Specific intent is an intent to cause a particular consequence (ie, intent to kill/cause grievous bodily harm): s 428B
    • Non-exhaustive list of specific intent offences can be found in s 428B.
  • Basic intent offences - intoxication only taken into consideration for determining basic intent if not self-induced: s 428D.
    • Basic intent is an intent to perform an act.
  • Reasonable person test - reasonable person in the position of the defendant is not intoxicated: s 428F.
    • Exception: if the relevant offence is manslaughter, intoxication is taken into consideration in applying the reasonable person test: s 428E.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 559-565.

Introduction

[1] The issue of the effect of intoxication on criminal responsibility has a long history in criminal law. Today, is it dealt with by Part 11A of the Crimes Act 1900 (NSW). Some of the relevant provisions are summarised below:

  • s 428G - deals with whether intoxication affects the actus reus element of voluntariness:
    • (a) self-induced intoxication (explained below) - no.
    • (b) non self-induced intoxication - yes.
  • s 428C - deals with whether intoxication affects the determination of mens rea in offences of specific intent (explained below).
    • (1) intoxication (regardless of self-induced or not) does affect mens rea for specific intent.
    • (2) intoxication does not affect mens rea if the accused:
      • (a) already decided to perform the act before intoxication; or
      • (b) used intoxication in order to strengthen his resolve.
  • s 428D - deals with whether intoxication affects the determination of mens rea in offences of basic intent.
    • (a) self-induced intoxication - no.
    • (b) non self-induced intoxication - yes.

Self-Induced Intoxication

[2] s 428A makes a distinction between self-induced intoxication and non-self induced intoxication. In basic terms, self-induced intoxication is any intoxication which is not:

  • (a) involuntary; or
  • (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
  • (c) done according to medical needs (prescribed by a registered practitioner etc).

In other words, intoxication resulting from the reasons above is considered non self-induced. Non self-induced intoxication was considered in R v Kingston (note: from the House of Lords):[3]

  • Facts: the accused and another person (P) were charged with indecent assault upon a young boy. There was clear photographic evidence, but the accused alleged that his drink had been laced by P before and that he had no recollection of events.
  • Held: evidence of involuntary intoxication which did not negate the presence of mens rea but merely reduced the accused's ability to control himself will not be sufficient (ie the evidence was considered, but wasn't enough to negate mens rea).

Note that the provisions in NSW which deal with intoxication and voluntariness (s 428G) would probably mean a different result in a similar case to Kingston (since the accused could rely on non self-induced intoxication to deny his voluntariness).

Basic v Specific Intent

There is a distinction between offences of basic and specific intent mentioned in s 428B. Basically, specific intent offences are one where a consequence is involved:

  • Basic intent offences are offences which require an intention to merely perform an act (eg, assault).
  • Specific intent offences are offences which require an intention to bring about a particular consequence (eg, grievous bodily harm, murder).

Accordingly, in specific intent offences, it must be shown that the accused had 'specific intent', ie, the intent to bring about the consequence.

  • According to the provisions mentioned above, intoxication, whether self-induced or not, may be taken into consideration when determining whether the accused had the relevant specific intent (to bring about the consequence).

s 428B also provides (non-exhaustive) tables which list some specific intent offences.

Intoxication and Murder

[4] Murder is obviously a specific intent offence, and therefore the determination of mens rea will be affected by intoxication. An argument arose that when the prosecution attempts prosecute under the mens rea head of reckless indifference to human life (which does not require a specific intent in the classic way that the heads of 'intent to kill' or 'intent to cause greivous bodily harm' do), murder is to be treated as a basic intent offence for the purposes of intoxication (meaning self-induced intoxication does not come into consideration).

This was discussed in Grant:[5]

  • Reckless indifference to human life still requires some awareness or foresight that there are probable consequences etc, which therefore still classifies it as requiring specific intent.
  • Accordingly, intoxication (whether self-induced or otherwise) is still relevant to the determination of the mens rea.

Direction to the Jury in Regards to Specific Intent

[6] It is very important that the judge directs the jury correctly as to the operation of intoxication on specific intent.

This issue was discussed in Makisi:[7]

  • Facts: the accused was convicted of assault with intent to rob and wounding, which he committed whilst drunk. Trial judge directed the jury that they are to consider whether intoxication has affected the accused's 'necessary capacity to act intentionally', which might mean that he did not have the sufficient mens rea.
  • Held: the trial judge's direction is confusing - it is not about the 'capacity' to form specific intent (ie, whether he was able to intend causing wounds etc), but simply whether specific intent was formed (simply, whether he intended to cause wounds).
    • In this specific case, the trial judge's direction didn't affect the jury to justify allowing the appeal so it didn't matter.

Availability of Lesser Offence

[8] An self-induced intoxicated accused who has escaped a conviction of a specific intent offence because of his intoxication might then be convicted of a lesser offence which only requires basic intent (and therefore self-induced intoxication is not taken into consideration, so it won't protect him).

  • The most common example of this is murder (specific intent) and manslaughter (basic intent).
  • s 428E specifies that a person who was acquitted of murder by reason of intoxication can still be charged for manslaughter, and if that intoxication was self-induced, than the intoxication cannot be considered in the determination of the mens rea.
    • Non-self induced intoxication can still be considered.

Intoxication and the Reasonable Person

[9] According to s 428F, intoxication is not taken into account when conducting a 'reasonable person' test.

  • That means that when determining how the reasonable person in the position of the accused would have acted, the reasonable person is taken not to be intoxicated.
  • The only exception to this is non self-induced intoxication in the case of the manslaughter, since s 428E (see above) allows non self-induced intoxication to be taken into account in the determination of mens rea.

The Criminal Code

[10]

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Intoxication in Other Jurisdictions

[11]

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End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 559-60.
  2. Textbook, p. 560.
  3. [1994] 4 All ER 373.
  4. Textbook, pp. 560-1.
  5. [2002] NSWCCA 243.
  6. Textbook, pp. 561-2.
  7. [2004] NSWCCA 333.
  8. Textbook, p. 562.
  9. Textbook, p. 562.
  10. Textbook, pp. 563-5.
  11. Textbook, p. 565.
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