R v O'Connor
High Court of Australia · 1980
R v O'Connor (1980) 146 CLR 64
After drinking and taking a drug said to be hallucinatory, a man stabbed a police officer and said he remembered none of it. The jury was told to weigh his intoxication on two charges and ignore it on the third. Was that Australian law?
Part 11A of the Crimes Act 1900 (NSW) deals with the effect of intoxication on criminal liability in New South Wales. In the current consolidated Act, s 428H provides: "The common law relating to the effect of intoxication on criminal liability is abolished." Section 428C(1) allows evidence of intoxication to be taken into account in determining "whether the person had the intention to cause the specific result necessary for an offence of specific intent", subject to s 428C(2) (no such evidence where the person had resolved before becoming intoxicated to do the relevant conduct, or became intoxicated to strengthen his or her resolve to do it); s 428D provides that, for an offence other than one of specific intent, intoxication that was self-induced "cannot be taken into account" in determining mens rea, while intoxication that was not self-induced may be; and s 428G(1) bars self-induced intoxication from the question whether conduct was voluntary. In Harkins v R [2015] NSWCCA 263, which set out the same text of Part 11A, 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, which his Honour described as being "that evidence of self-induced intoxication is relevant in determining whether a person accused of a criminal offence had the mental element prescribed in respect of that offence". Sections 428A and 428B define self-induced intoxication and offences of specific intent, which decide which rule applies, and under s 428I the Part applies to an offence committed after its commencement. On Macfarlan JA's reading, for an offence within the Part the common law rule in this case cannot be used to decide a New South Wales problem. Whether and how another jurisdiction has legislated is a question for its own provisions.
In Miller v The Queen (2016) 259 CLR 380, French CJ, Kiefel, Bell, Nettle and Gordon JJ said, of an unreasonable-verdict ground in appeals about a joint criminal enterprise, that it was necessary to consider "whether the prosecution had excluded the reasonable possibility that, by reason of his intoxication, the appellant had not in fact come to an understanding or arrangement with the others" (at [78]); a footnote to that sentence cites O'Connor. The same paragraph asks whether the prosecution had excluded the reasonable possibility that, by reason of intoxication, the appellant did not in fact foresee that a co-venturer might kill or inflict grievous bodily harm. The joint reasons applied the approach to what an accused in fact agreed to and foresaw; they do not discuss the division of opinion in O'Connor.
What happened?
A neighbour saw O'Connor pilfering a car belonging to a Victoria Police officer, which stood outside the block of flats where the officer lived. By the time the officer reached the car, O'Connor had taken a map holder and a knife from it. During the officer's attempt to arrest him he opened the blade of the knife and, "seemingly in an endeavour to resist arrest", stabbed the officer (Barwick CJ, at 68).
At his trial O'Connor said he had been taking a particular drug and drinking alcohol during a substantial part of the day and had no recollection of what happened with the officer or the car (at 68). Medical evidence called for him was that the drug he said he had taken was hallucinatory and, in association with alcohol, "could have rendered the respondent incapable of reasoning and of forming an intent to steal or to wound" (at 68).
He was charged with stealing and with wounding with intent to resist arrest. The jury acquitted him of both but found him guilty of the alternative offence of unlawful wounding that s 423 of the Crimes Act 1958 (Vict) made available (at 67). The trial judge had told the jury that they could take his intoxication into account on the two charges but not on the alternative, a direction founded on the House of Lords' decision in Director of Public Prosecutions v Majewski (at 68). The Full Court of the Supreme Court of Victoria allowed his appeal and entered a verdict of acquittal on the alternative charge (Barwick CJ, at 68; Wilson J, at 127). The Crown applied to the High Court for special leave to appeal, and the Solicitor-General for Victoria argued that evidence of self-induced intoxication was inadmissible on a charge of a crime that is not one of "specific intent" (at 69).
What did the Court decide?
The seven Justices each wrote separately, and there are no joint reasons. Barwick CJ, Stephen J and Aickin J would grant special leave and dismiss the appeal (at 89, 105, 126). Murphy J would refuse special leave, because in his Honour's opinion, contrary to earlier decisions of the Court, s 73 of the Constitution does not authorise an appeal from an acquittal, and "if granted, the appeal should be dismissed" (at 117). Gibbs, Mason and Wilson JJ would grant special leave and allow the appeal (at 94, 112, 140); Gibbs J would set aside the Full Court's judgment and restore the conviction and sentence, and Wilson J would restore the verdict and sentence. On those stated conclusions the Crown's appeal failed by four to three, and the Full Court's acquittal on the alternative charge stood.
Proposition
What is the principle?
Four of the seven Justices -- Barwick CJ, Stephen J, Aickin J and Murphy J -- declined to follow the House of Lords in Majewski, holding that evidence of self-induced intoxication was not to be shut out of the jury's consideration of an offence of unlawful and malicious wounding merely because that offence is not one of specific intent. They did not share one formula. Barwick CJ held that evidence tendered to raise a doubt about whether the physical act was voluntary is admissible on the trial of any criminal offence, and that evidence tendered to raise a doubt about the actual intention with which it was done is admissible on offences other than the statutory offences that need no actual intent (at 88), the least intent required being an intent to do the physical act (at 77). Stephen J addressed intoxication sufficient to deny the mental element, setting aside "relatively mild states of intoxication, which do no more than suppress inhibitions" (at 95), and held that the evidence should have gone to the jury (at 105). Aickin J treated the test as whether the intention was in fact formed rather than whether the accused was capable of forming it (at 118). Murphy J held that evidence of intoxication which tends to prove or disprove mens rea is admissible (at 114). Gibbs J (at 94), Mason J (at 106) and Wilson J (at 139) would have followed Majewski.
Why does this case matter?
Intoxication questions are often answered with a single sentence beginning "the High Court held". Here that sentence is the usual source of error, because an examiner is looking for whose reasoning the answer relies on and how far that reasoning goes. A second common error is to apply the case in a jurisdiction where a statute governs, instead of starting from the statute.
Exam and application relevance
Cite the case for the result the four Justices share, and name the Justice where the argument depends on one formulation's wording or limit.
Barwick CJ described intoxication as "so far from constituting itself a matter of defence or excuse", at most "part of the totality of the evidence which may raise a reasonable doubt" (at 71); he treated intoxication that changed the accused's personality or weakened his self-control, but destroyed neither his will nor the formation of an intent, as irrelevant to culpability on an offence that does not require a further purpose (at 71-72). An answer in these terms frames the issue as proof of the mental element, with the Crown still bearing the onus.
Check your understanding
1. Which Justices would have allowed the Crown's appeal, and which Justice would have refused special leave altogether? 2. A student writes that the High Court held evidence of intoxication to be admissible for every offence. Compare Barwick CJ's formulation (at 88) with Stephen J's description of the intoxication he addresses (at 95). Where do they differ in scope? 3. What does Barwick CJ say about whether intoxication is a "defence"?