Intoxication

· Intoxication is not a defence to a criminal charge, but may negate certain elements of an offence where it creates a condition inconsistent with criminal responsibility

· Intoxication may form the basis of a:

i) plea of automatism (in relation to the actus reus in which the accused’s actions were involuntary)

ii) defence of insanity (where an intoxicant has triggered an underlying disease of the mind)

iii) denial that the accused had the requisite mens rea in relation to certain offences

· Voluntary intoxication cannot form the basis of a defence against a crime of strict liability (where no mens rea is required) or a charge of negligent manslaughter (where neither foresight nor intention is required)

NSW Statutory Position

Part 11A of Crimes Act introduced in 1996 (s 428A to 428I) to enshrine distinction between self induced intoxication in respect of crimes of specific intent (where intoxication can be taken into account in respect of mens rea) and crimes of basic intent (where intoxication cannot be taken into account in respect of mens rea) – Overturns O’Conner Vase (below).

* Specific intent: Crime of specific intent is defined in Section 428B as “an offence which an intention to cause a specific result is an element”.

* Crimes of specific intent listed in Section 428B (murder, assault with intent to have sexual intercourse, obtaining property by false pretences etc).

* Self induced intoxication CANNOT be taken into account for ANY CRIME in respect of whether the action of the Defendant was voluntary (Section 428G(1)).

* Non self induced intoxication (e.g. drink spiked by another) can be taken into account in respect of whether the actions of the Defendant were voluntary (Section 428G(2))

Common Law position

England

DPP v Majewski (1976)

Facts: The defendant had been on a drinking binge for two days and had taken drugs in that time. He was asked to leave a pub and a brawl broke out. He assaulted police. At the trial he claimed that he had no recollection and the trial judge advised the jury that self-induced intoxication was not to be taken into account. He was convicted and appealed. Held: The House of Lords held that there are crimes of basic intent and specific intent.

Specific intent is when a crime is done to bring about a specific result. The issue is only whether the act is voluntary. Self-induced intoxication is relevant to crimes of specific intent, but not crimes of basic intent (where the mens rea of the crime is
merely the intention/recklessness to perform an act).

Australia

O’Conner (1980) - Note that this has been overturned by statute provision (above)

Facts: The defendant was stealing items from a parked police car. The officer chased and caught the defendant before the defendant stabbed the officer and wounded him. Expert evidence showed that the amount of drugs and alcohol, which had been consumed by the defendant was so high that it was probable that he would not have been capable of forming the requisite intent for the crimes charged. (Assault, Resisting Arrest & Unlawful wounding)
Held: There is no distinction between crimes of basic or specific intent. Self induced intoxication is relevant to both actus reus and mens rea of all crimes.

Statutory Offences of Strict Liability and Defence of Honest and Reasonable Mistake of Fact

[Statutory Interpretation - to determine whether parliament intended to remove mens rea]

3 types of offences:

- Requires proof of mens rea.  Presumption is that offence requires proof of mens rea, unless displaced by the words of the statute.
- Strict liability (defence of honest and reasonable mistake of fact applies)
- Absolute liability (only requires actus reus, and no defence of honest and reasonable mistake of fact)

He Kaw Teh (1985) (importing drugs) à Statutory Interpretation

Test of statutory interpretation as to whether statutory offence requires proof of mens rea, is absolute liability, or strict liability.

Indicia Include: (Gibbs)
    * Words of the statute (words such as “knowingly” or “willingly” indicate requisite mens rea)
    * Subject matter of the statute (what conduct is the act trying to achieve?)
    * Will putting D under strict liability assist in the enforcement of the regulations?
    * Potential consequences for D if convicted (the higher he penalty, the more likely mens rea required)

Gibbs: - You presume that mens rea is required, then you look for words that remove the mens rea requirement.

Jiminez (1992) à Offence of Strict Liability

Quick Facts: dangerous driving occasioning death, where D sleeps at wheel and crashed into a tree, killing the passenger sitting in the passenger seat

* Offence is one of strict liability, and defence of honest and reasonable (objective test) mistake of fact applies
* Time whether driver’s mistake was honest and reasonable (objective test) is just before he or she fell asleep.  What is the evidence of tiredness?

S52A was made for driving offences.

Defence of Strict Liability: is the defence of ‘honest and reasonable mistake of fact’, known as the Proudman v Dayman defence.

Mayer v Marchant (1973) àActs of a stranger over which D has no control is a defence to offences of strict liability.

Allen v United Carpet Mills Pty Ltd (1989) (environmental pollution) à Absolute liability
After applying test in He Kaw Teh Court found that offence was one of absolute liability.