Intoxication 

Intoxication is not a defence. It is evidence — evidence bearing on whether the accused actually formed the state of mind the offence requires. Framing it as a defence is the most common error in this area and it leads to the wrong analysis, because a defence excuses conduct that is otherwise criminal whereas intoxication, where it operates at all, means the prosecution has failed to prove an element.

The common law position

In R v O'Connor (1980) 146 CLR 64 the High Court declined to follow the English approach that confined intoxication evidence to offences of specific intent.¹ The Australian common law position was that the prosecution must prove the fault element in fact, and evidence that the accused was so intoxicated as not to have formed it is admissible whatever the offence.

That position is now largely of historical and comparative interest, because almost every jurisdiction has legislated to restrict it. It remains important for understanding what the statutes changed.

In New South Wales the common law position has been abolished for offences committed after Part 11A of the Crimes Act 1900 (NSW) commenced (s 428I). Section 428H of the Crimes Act 1900 (NSW) provides that "The common law relating to the effect of intoxication on criminal liability is abolished."² Part 11A then provides that evidence of intoxication may be taken into account on whether the intention to cause the specific result for an offence of specific intent was formed (s 428C); that for other offences self-induced intoxication cannot be taken into account on mens rea, while intoxication that was not self-induced may be (s 428D); and that self-induced intoxication cannot be taken into account on whether conduct was voluntary (s 428G(1)). In Harkins v R [2015] NSWCCA 263 Macfarlan JA (R A Hulme and Wilson JJ agreeing) said that s 428H indicates that recourse cannot be had to the common law principle stated in O'Connor. That is the New South Wales position only; the other jurisdictions legislate separately and this article does not state their provisions.

Specific and basic intent

The distinction the statutes generally adopt is between:

• Specific intent offences, requiring proof of an intention to bring about a particular result — murder, wounding with intent, theft. Evidence of intoxication may be considered on whether that intention was formed.
• Basic intent offences, where the fault element is satisfied by intention as to the act itself or by recklessness — assault, manslaughter, criminal damage. Here self-induced intoxication is generally disregarded, and the accused is judged as if sober.

The rationale for the split is policy rather than logic: a person who becomes intoxicated voluntarily and then commits a violent act should not gain an advantage from having done so.

Self-induced and involuntary intoxication

The statutory restrictions attach to self-induced intoxication. Intoxication is not self-induced where it results from fraud, force, or the reasonable use of a prescribed drug taken in accordance with directions — and in those cases the evidence may be considered generally, including for basic intent offences.

Where intoxication is self-induced, most statutes also provide that:

• it is to be disregarded in determining whether conduct was voluntary, or is confined in that role;
• the standard of the reasonable person for offences of negligence is that of a reasonable sober person; and
• it cannot be relied on to support a mistaken belief where the mistake was the product of the intoxication.

The Code jurisdictions

The Griffith Code states approach the question through their own provisions rather than the common law categories. Intoxication is generally relevant where an intention to cause a specific result is an element, and is otherwise disregarded — a structure that reaches similar outcomes by different reasoning. Do not import specific/basic intent terminology into a Code answer without checking that the Code uses it.

Intoxication and voluntariness

Every offence requires that the conduct be voluntary — a willed act. Extreme intoxication can theoretically produce a state in which conduct is not willed at all, and that is a different argument from the absence of a fault element.

Most statutes close this off for self-induced intoxication, providing that it is to be disregarded in determining whether conduct was voluntary, or confining the argument to cases where the intoxication was not self-induced. Where the intoxication was involuntary and produced a state of automatism, the ordinary automatism principles apply and the conduct element itself is not established.

Keep this separate from the fault-element argument. Conflating them produces the common error of asserting that a very drunk accused "could not form an intention" when what is really being described is an absence of voluntary conduct.

Intoxication and the defences

Intoxication also affects defences that turn on the accused's belief or perception:

• Self-defence requires that the accused believed the conduct was necessary, and that it was a reasonable response in the circumstances as the accused perceived them. The belief limb is subjective, so an intoxicated misperception may be relevant — but most statutes provide that the reasonableness of the response is assessed by reference to a sober person, or exclude intoxicated mistakes altogether.
• Duress and necessity likewise involve a belief about the threat, and the same statutory restrictions generally apply.
• Mistake of fact, where it operates, cannot be founded on a mistake that was the product of self-induced intoxication.

The pattern across the statutes is consistent: a subjective belief limb may accommodate intoxication, while any objective or reasonableness limb is judged sober (the response is assessed in the circumstances as the accused perceived them, but against the standard of a sober person).

Intoxication as an aggravating or mitigating factor

At sentence, intoxication cuts both ways and the direction depends on the jurisdiction and the offence. Several sentencing statutes provide that self-induced intoxication is not a mitigating factor, and some treat it as aggravating for offences of violence committed in public places.

Where intoxication is the product of an underlying dependence being addressed through treatment, it may be relevant to prospects of rehabilitation rather than to culpability for the offence. The distinction is between the intoxication at the time — which is generally not mitigating — and the condition behind it, which may be.

Applying this in a problem question

1. Say at the outset that intoxication goes to proof of the fault element, not to excuse.
2. Identify the jurisdiction and locate the governing provision before applying any distinction.
3. Classify the offence as one of specific or basic intent, where the jurisdiction uses that distinction, and justify the classification.
4. Establish whether the intoxication was self-induced, since that determines whether the restrictions apply at all.
5. Address voluntariness and any mistaken belief separately, because the statutes treat them separately.

Where the argument actually gets made

In practice, intoxication rarely produces an acquittal. Its real work is at the margins of two questions: whether a specific intent was formed on the particular facts, and whether the accused should be convicted of the offence charged or of a lesser alternative — most often murder reduced to manslaughter, or wounding with intent reduced to a lesser wounding offence.

Framing the argument that way is more accurate than presenting intoxication as a route to acquittal, and it is how the point is put in a real trial.

Self-check

• Have I avoided describing intoxication as a defence?
• Have I checked the statute rather than applying O'Connor as if it were still the general rule?
• Have I classified the offence before deciding whether the evidence is admissible?
• Have I asked whether the intoxication was self-induced?