Intoxication, Substantial Impairment by Abnormality of the Mind, Law Reform and revision of defences
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)
· Under NSW law, it is no use for a person being charged with a crime not requiring specific intent, who claims he did not have the requisite mens rea, to support the defence of intoxication with evidence that he had been drinking or had taken drugs. By doing so he relieves the crown of the duty of proving beyond reasonable doubt that he had the required mental state (Mens Rea ceases to be relevant).
· Where a defendant raises intoxication in relation to a defence of automatism or lack of mens rea, the defendant bears an evidentiary burden, & the prosecution is then required to prove voluntariness or mens rea beyond reasonable doubt
· Where a defendant raises intoxication in relation to a defence of insanity, the defendant must prove insanity on the balance of probabilities
Crimes Act s428
· s428A - Definitions
· s428B - Offences of specific intent to which Part applies
An offence of specific intent is an offence of which an intention to cause a specific result is an element
· s428C - Intoxication in relation to offences of specific intent
Evidence that a person was intoxicated at the time of the offence may be relevant to crimes of specific intent, unless the person
i) has resolved to do the conduct before becoming intoxicated
ii) became intoxicated in order to strengthen his or her resolve to do the relevant conduct
· s428D - Intoxication in relation to other offences
In determining whether a person had the mens rea for an offence other than an offence of specific intent, intoxication may only be taken into account if it was not self-induced
· s428E - Intoxication in relation to murder and manslaughter
If evidence of intoxication results in a person being acquitted of murder, evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter, unless the intoxication was not self-induced
· s428F - Intoxication in relation to the reasonable person test
When determining criminal liability, it is necessary to compare the conduct & state of mind of the defendant with that of a reasonable person who is not intoxicated (Coleman)
· s428G - Intoxication and the actus reus of an offence
When determining criminal liability, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary
· s428H - Abolition of the common law relating to self-induced intoxication
Legislation appears to reflect the Majewski position and reject O’Connor. Seems to be that self-induced intoxication is a defence only if it causes such a diseases of the mind as to bring the M’Naghten rules into play or in an offence where specific intent is a requirement, the accused lacks such specific intent because of intoxication.
If accused’s incapacitating condition is caused by some prior fault he cannot escape liability on grounds of automatism or some other involuntary conduct.
Lipman [1970] QB
Facts: Lipman took LSD, went to bed and suffocated a woman by shoving bed sheets down her throat under the drug-induced belief that she was a snake.
Decision: He declared he had no knowledge of what he had done and had not wished to harm the woman. The Court of Appeal said that evidence of the drug taking was relevant to the question of intention for offences requiring specific intent. The state of intoxication may be incompatible with the actual offence charged and therefore negative the commission of the said offence. Use of LSD recreated the mens rea.
Majewski [1977] (House of Lords)
Facts: Majewski was charged with four counts of assault occasioning actual bodily harm & three counts of assaulting police in the exercise of their duty, resulting from a pub brawl. He pleaded that these offences were committed while he was suffering from the effects of alcohol & drugs.
Decision: His appeal was dismissed.
Evidence of self-induced intoxication negativing mens rea is a defence to a crime requiring specific intent, but not to a charge of any other crime. The only justifications that stood were based on public policy. Recklessness in taking the intoxicants was sufficient to establish mens rea for assault. (Reiterates the obscurely stated rule in English case Beard [1920]).
Beard [1920] – House of Lords (Intoxication and insanity)
Facts: Raped his female victim and suffocated her claiming he was drunk at the time.
Decision – per Lord Birkenhead: Allowed appeal against acquittal. Intoxication only a defence if it rendered the defendant incapable of forming the necessary mens rea. No defence where accused gives way to some violent passion, or did not know that what he was doing was wrong. Constructive malice existed at time and the felony/murder rule substituted a sufficient mens rea for rape for the mens rea required for murder.
On assertion that intoxication was an arguable cause of insanity, court took view that once disease of mind is proved to result in insanity, the court does not distinguish as to how the insanity was caused. If actual insanity supervenes, as the result of alcohol excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. If, however, evidence of intoxication does not imply a disease of the mind, or falls short of incapacity to form the necessary intent, then the question of whether the accused knew what he was doing was wrong is irrelevant.
AG for N.I. v Gallagher [1963] (House of Lords)
Facts: The defendant suffered from a psychotic condition which could be induced by alcohol. He formed an intent to kill his wife while he was sane & sober, & committed the offence while he was drunk. He raised both exceptions to the presumption of volitionà that he was insane and that drunkenness prohibited him from having the necessary intent.
Decision: A person who forms the intent to commit a crime, & takes drink or other drugs to acquire Dutch courage & then commits the offence, cannot rely on intoxication as a defence.
If accused suffering a disease of mind insufficient to bring him under the M’Naghten rules, the fact that the disease was exacerbated by intoxication at the time would not have made defence of insanity available to him. If the psychopathy had been caused by the drink, he may have had a sufficient disease of the mind to come under M’Naghten
O’Connor (1980) (High Court)
Facts: The defendant was convicted of unlawful wounding when he stabbed a police officer in the course of his arrest. There was evidence that the accused had been taking a hallucinatory drug & had consumed alcohol during the day of the offence. There was also expert evidence that the drug in association with alcohol could have rendered the accused incapable of reasoning & forming any relevant intent.
Decision: Intoxication will give rise to a defence only in the exceptional case where it has rendered the defendant’s conduct involuntary, so that he was not aware of the physical nature of the acts he was performing, or did not form the requisite mens rea for the crimes charged.
Decision criticised for being a drunk’s charter.
Current law rejects the O’Connor position. (legislators do not trust juries)
Criticised Majewski for treating the wantonness of being intoxicated as a form of recklessness which satisfies mens rea.
· Where the drunkenness is not self-induced or where it results from the taking of a bona fide prescribed drug, the Majewski test will not apply
· An accused who is involuntarily drunk has the defence of sane automatism or simply that his drunkenness prevented him from having the necessary mens rea of the offence
R v Grant [2002] NSWCCA
Facts: Accused had been drinking alcoholic cider all day with only half-hour break. He had altercation with people outside caravan park where he lived. He went and got a gun and killed someone
Decision: Intoxication available to any charge of murder, even constructive murder where no specific intent is required at all. Any mental state for murder will be considered specific intent (even reckless indifference). There are no separate charges to murder arising from separate issues of mental state (i.e. the statute is interpreted literally).
Diminished Responsibility
Diminished responsibility – an abnormality of the mind that substantially impairs the mental responsibility of an accused for acts or omissions that caused the death of a person, arising from a condition of arrested or retarded development of the mind or any other inherent cause, or induced by disease or injury –Byrne [1960]
Now the abnormality of the mind must arise from an underlying condition (s23A(1)(a))
Partial defence to murder, reducing liability to manslaughter
Onus of proof lies on the accused to establish the defence on the balance of probabilities
Crimes Act s23A - Substantial Impairment by abnormality of the mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, judge right from wrong, or control himself was substantially impaired by an abnormality of the mind arising from an underlying condition, &
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter
(2) Evidence of an opinion that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible
(3) If a person was intoxicated & that intoxication was self-induced, that person cannot rely on this section
(4) Onus of proof lies on the accused
(8) An underlying condition is a pre-existing mental or psychological condition, other than a condition of a transitory kind
Byrne [1960] (English CCA)
Facts: Byrne admitted strangling a young woman & mutilating her dead body. He pleaded diminished responsibility, & there was evidence he was a “sexual psychopath” occasionally suffering “violent perverted sexual desires”, although at other times “he may be normal”. He was not insane according to the M’Naghten rules, but his sexual psychopathy could be properly described as partial insanity.
Decision: His appeal was allowed & he was given a verdict for manslaughter.
Abnormality of the mind means a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. Aetiology determined by experts.
Desouza (1997) (Supreme Court of NSW)
Decision: Abnormal behaviour arising from the use of steroids was not within the scope of the section. Limits way in which an expert can be introduced regarding evidence of the cause of the abnormality and the reaction.
Tandy (1989)
Decision: An abnormality of the mind induced by alcohol is relevant to diminished responsibility only if there was such brain damage as to render the accused’s use of drink involuntary, because his or her judgement was grossly impaired and the person was no longer able to resist the impulse to drink.