Intoxication Article 08 JAN 2024

Can Intoxication be used as a Defence?

The concept of intoxication as a defence in criminal law has been subject to ongoing debate and contention. In early English law, intoxication was not a defence to any crime, as being intoxicated was not considered an excuse for one’s actions. However, over time, greater nuance has been afforded to this topic.

Actus Reus

Regarding the ‘actus reus’, which refers to the guilty act of the accused, historical debate was centred on the issue of whether the accused was so intoxicated at the time of committing the offence that their acts were not the product of their conscious will.

Today, evidence of self-induced intoxication cannot be considered when determining whether the acts of the accused were voluntary, pursuant to section 428G(1) of the Crimes Act 1900 (NSW). Section 428A defines intoxication to be under the influence of alcohol, a drug, or any other substance.

However, under section 428G(2) of the Crimes Act 1900 (NSW), a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. This includes intoxication that is involuntary, such as a spiked drink or intoxication under duress or by force. In deciding whether the intoxication was self-induced or involuntary, it was found in the case of Habda v R (2004) 182 FLR 472 that the jury must exercise common sense and consider if it is self-induced and what caused the intoxication specifically.

Mens Rea

Regarding the ‘mens rea’, which refers to the guilty mind of the accused, self-induced intoxication may be taken into account. However, evidence of intoxication, both self-induced or involuntary, cannot be considered if the accused resolved to perform the conduct before becoming intoxicated or became intoxicated to strengthen that resolve pursuant to section 428C of the Crimes Act 1900 (NSW). Additionally, self-induced intoxication can only be a defence to negate intent for ‘specific intent’ offences.

Specific Intent

A ‘specific intent’ offence is an offence of which an intention to cause a specific result is an element. For example, murder is a specific intent offence because an essential element required to be proven is the intention to cause a specific result, such as to kill or to inflict grievous bodily harm (‘GBH’). Thus, a person may be acquitted of a specific intent offence if their level of intoxication was such that they were incapable of forming the requisite intent.

In the case of DPP v Majewski [1976] UKHL 2, it was found that when the offender is totally blank as to what has happened, and has no memory whatsoever about the relevant events, then it is likely that they failed to form the requisite intent due to their self-induced intoxication. This presents a relatively high bar, as it requires that the defendant had no recollection whatsoever and could not cognitively process the events unfolding.

In the case of Sullivan v R [2011] NSWCCA 270, the accused killed the victim whilst he was high on marijuana. The Court found that despite this self-induced intoxicated state, the accused still possessed a clear memory of the events, and therefore did not establish a reasonable possibility that he was so intoxicated at the time of the relevant conduct that he did not form the requisite intent to kill or inflict GBH.

Basic Intent

In circumstances where the offence is not a specific intent offence, then self-induced intoxication cannot be taken into account for determining the guilty mind of the accused. This is commonly referred to as ‘basic intent’ offences, which are offences that can be committed other than intentionally, or require proof of intention, but only as to an act and not as to its purpose.

How Does this Come Together?

An accused’s level of intoxication can lead to an acquittal of a specific intent offence, but conviction for an alternative offence of a similar nature. For example, wounding or GBH with intent under section 33 of the Crimes Act 1900 (NSW) is a specific intent offence as the accused must intend to cause GBH or wound. In this circumstance, evidence of intoxication at the time of the offending conduct may be considered in determining whether the accused had the requisite intention.

If the specific intent to cause GBH or wound cannot be proven beyond reasonable doubt given the accused’s level of intoxication, but the jury is satisfied that the accused assaulted the victim and caused some injury, they may find the accused guilty of an alternative offence of recklessly cause GBH or wound, or even the basic intent offence of assault occasioning actual bodily harm pursuant to section 59 of the Crimes Act 1900 (NSW).

Should you find yourself charged with an offence committed while you were under the influence, reach out to our experienced team at Jackson John Defence Lawyers. We will help you navigate this complex area of law and ensure you receive the best result.