LLB180 Lecture Notes - Lecture 9: Lists Of Landmark Court Decisions, Halfway House, Homicide
Week 9 – Intoxication and Self Defence
Intoxication
• Evidence of intoxication allowed to challenge elements (AR or MR)
• Majewski (1977) – HL places limits on intoxication evidence
• O’Connor (1977)- HCA declines to do so
• Drunks Charter ??.... but rarely successful
• NSW Parliament intervenes (1996)
- Limits imposed (following Majewski)
DPP v Majewski [1977] AC 443 (House of Lords)
Lord Elwyn-Jones:
If a a of his o olitio takes a sustae hih auses hi to ast off the estaits of
reason and conscience, no wrong is done to him by holding him answerable criminally for
any injury he may do while in that condition. His course of conduct in reducing himself by
drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty
mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and
eklessess is eough to ostitute the eessa es ea i assault ases.
• i.e. the fact that a person is getting intoxicated in the first place means they should
be morally culpable
R v O’Connor (1980) 146 CLR 64 (High Court of Australia)
• Majority – ot pepaed to depat fo stit otio of legal iial esposiilit
- Therefore, anything relevant to whether D had the requisite AR & MR (including
intoxication) must be admissible
- Minority – prepared to compromise doctrine on policy grounds
Barwick CJ (majority):
The it is said that the potetio of the ouit fo iolee, eig a pupose of the
criminal law, requires the conclusion to which the House came in Majewski's Case ... It may
readily be granted that the frequency with which intoxicated persons act violently poses a
distinct threat to our social order and, indeed, at times, to personal safety. Further, the use
of drugs to produce intoxicated situations has become rife. It has added a new dimension to
the possibility of violent and unsocial conduct on the part of those who have become
intoxicated. That the society needs protection against violence by such persons can readily
be conceded. But so it does in relation to armed robbery and, indeed, to housebreaking
which is not infrequently accompanied by violence to the person. So it does in relation to
many crimes of so-called specific intent.
The question, it seems to me, which is posed for this Court is whether it is consonant with
the common law to make such an exception in the case of self-induced intoxication as has
ee held to e the ase the House of Lods.
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Does the situation created by the use of drugs arising or which may arise from what I
might call intoxicated violence warrant a radical departure from those principles of the
common law evolved over a period of time, but particularly elucidated in the last fifty or
so years? These principles have been established bearing in mind and not disregarding the
need of the society for protection from violent and unsocial behaviour.
These principles, on the one hand, provide the society with a protection against violent and
unsocial conduct, whilst on the other hand, maintain a just balance between the Crown and
the citizen who is charged with having broken the criminal law. That Majewski's Case is a
departure from such principles can scarce be gainsaid. It seems to me to be completely
inconsistent with the principles of the common law that a man should be conclusively
presumed to have an intent which, in fact, he does not have, or to have done an act
which, in truth, he did not do.
Mason J (minority)
The oo la gies epessio to a poli hih is a opoise etee aious
considerations. On the one hand, there are two strands of thought whose thrust is to deny
that drunkenness is an excuse for the commission of crime. One is essentially a moral
judgment — that it is wrong that a person should escape responsibility for his actions
merely because he is so intoxicated by drink or drugs that his act is not willed when by his
own voluntary choice he embarked on the course which led to his intoxication. The other
is a social judgment — that society legitimately expects for its protection that the law will
not allow to go unpunished an act which would be adjudged to be a serious criminal offence
but for the fact that the perpetrator is grossly intoxicated.
On the other hand, there is the force of the general principle of criminal responsibility that a
criminal act needs to be voluntary. The law as declared by Beard and explained by Majewski
reflects a compromise between these factors. Although the law which results from this
compromise is lacking in logic and symmetry, the suggested price to be paid for a remedy
— the adoption of a universal rule that the act must be willed at the time when it is done
— is the abandonment of two very important values on which the existing law is based. In
my view it is an exorbitant price to pay”
Parliamentary Intervention in NSW
• Crimes Legislation Amendment Act 1996 (NSW)
- added Part 11A to the Crimes Act 1900 (NSW)
• 2nd Reading Speech:
The pefeee fo the Majeski appoah is ased o ipotat puli poli
consideration. The Standing Committee of Attorneys-General, in particular, took the
view that to excuse otherwise criminal conduct in relation to simple offences of basic
intent – such as assault – because the accused is intoxicated to such an extent, is
totally unacceptable at a time when alcohol and drug abuse are such significant
social problems. The standing committee considered that if a person voluntarily
takes a risk of getting intoxicated then he or she should be responsible for his or her
actions. This Government agrees with and strogl suppots this appoah.
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Intoxication
Burden of Proof:
• Evidentiary burden – D
• Legal burden – P (Stokes and Difford)
Important Distinctions
• Distitio etee self-idued ad non-self-induced intoxication (s 428A)
• Distinction between offences of specific intent and other offences (see s 428B)
• Cotested aguig that the at as ot oitted olutail o the didt hae
the necessary intent
Self-Induced Intoxication in NSW
• Decision in O’Connor followed by outageous editoials aout it eig a duks
charter
• Ainsworth A Ci ‘ : it is the epeiee i this “tate that, hee
someone has been killed, it is rare for juries to regard the consumption of alcohol by
the person responsible for killing as a atte of euse
itoiatio a go to uestios of itet… [hee] a ju ill egad the
consumption of alcohol, not as an excuse for what occurred, but simply as an
explanation of how it might come about than an otherwise apparently decent
perso ould kill soeod
• 1966 → Pt 11A Crimes Act introduced and overrode common law relating to the
effect of self-induced intoxication on criminal liability (s 428H)
• Part 11A:
- S 428B Offences of specific intent
- S 428C Intoxication in relation to offences of specific intent
- S 428D Intoxication in relation to other offences
- S 428G Intoxication and the actus reus of an offence
• S 428B(2) contains a long list of crimes that are identified as specific intent
Defiitio of Specific Itet
• Section 428 (1): A offee of speifi itet is a offee of hih a itetio to
ause a speifi esult is a eleet
• See Table in s 428(2)
• Examples:
- Murder (but not Manslaughter)
- GBH with intent to cause GBH (but not assault occasioning ABH)
- Larceny
• NOTE: sexual assault is NOT specific intent because there is no mens rea
requirement directed to the achievement of a result beyond the act of intercourse)
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Document Summary
Intoxication: evidence of intoxication allowed to challenge elements (ar or mr, majewski (1977) hl places limits on intoxication evidence, o"connor (1977)- hca declines to do so, drunks charter ?? but rarely successful, nsw parliament intervenes (1996) Dpp v majewski [1977] ac 443 (house of lords) His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. R v o"connor (1980) 146 clr 64 (high court of australia: majority (cid:374)ot p(cid:396)epa(cid:396)ed to depa(cid:396)t f(cid:396)o(cid:373) st(cid:396)i(cid:272)t (cid:374)otio(cid:374) of (cid:858)legal (cid:272)(cid:396)i(cid:373)i(cid:374)al (cid:396)espo(cid:374)si(cid:271)ilit(cid:455)(cid:859) Therefore, anything relevant to whether d had the requisite ar & mr (including intoxication) must be admissible. Minority prepared to compromise doctrine on policy grounds. Barwick cj (majority): (cid:862)the(cid:374) it is said that the p(cid:396)ote(cid:272)tio(cid:374) of the (cid:272)o(cid:373)(cid:373)u(cid:374)it(cid:455) f(cid:396)o(cid:373) (cid:448)iole(cid:374)(cid:272)e, (cid:271)ei(cid:374)g a pu(cid:396)pose of the criminal law, requires the conclusion to which the house came in majewski"s case
