LLB180 Chapter Notes - Chapter 10.6; 10.8: Homicide, Deadly Force, William Deane
WEEK 9 – DEFENCES III (INTOXICATION AND SELF DEFENCE):
10.6 – INTOXICATION:
Factual Issue – whether the accused did form the necessary intention? Rather than could they have.
10.6.1 – Self-induced Intoxication in NSW:
High Court decision of O’Connor (1980) was followed by outrage
Majority found that if intoxication was relevant
Estimates about use varied from 2% to 20%
Respondents said it was rarely successful
Ainsworth (1994):
‘It is the experience of courts in this State that, where someone has been killed, it
is rare for juries to regard the consumption of alcohol by the person responsible
for the killing as a matter of excuse. … The great risk for trial counsel who rely on
intoxication, however, is that a jury will regard the consumption of alcohol, not as
an excuse for what occurred, but simply as an explanation of how it might come
about that an apparently decent person would kill somebody. Reliance on alcohol,
therefore, is tactically dangerous.’
1996 – Pt 11a of Crimes Act overrode the common law (Section 428A – 428G)
Essentially resurrects the distinction in Majewski [1977]
Distinguishes between offences of specific and general intent
Legislation in Schedule
Offences of specific and general intent do not distinguish between seriousness
No meaningful definition of intoxication
‘drug, a drug or any other substance’
No attempt to define the magnitude of intoxication necessary for the defence of
intoxication
Sullivan [2012] NSWCCA 41:
Facts:
Convicted of murder in the Supreme Court
Stabbed and killed the victim during a fight
Sullivan argued that the Trial judge erred in not leaving the question of intoxication to the jury
Issue: whether there was sufficient evidence of intoxication to leave the question to the jury?
RULE:
‘The authorities clearly establish the need to alert the jury to all relevant legal considerations even
if they are not relied on by the defence because sometimes there may be tactical reasons to
explain the omission by the defence. On the other hand if the evidence is not capable of raising a
doubt it is permissible for the judge to decline to put the issue before a jury even when asked by
counsel to do so.’
o10.6.1.1 – Intoxication and Murder:
Specific intent includes murder
Relevance of self-induced intoxication to murder by reckless indifference was
considered in Grant [2002] NSWCCA 243
‘In relation to reckless indifference there is a significant element of intent involved
in a state of mind which requires first an awareness or foresight that the probable
consequence of one’s act is death, and secondly, a conscious decision to proceed
regardless. Why that should be regarded as significantly different, or less
deserving of punishment, that an act which is done with intent to cause serious
bodily harm, but which results in death, is clearly debateable.’
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‘For murder, and for more serious wounding offences involving special intent, it
appears to have been of some relevance that an accused would remain criminally
responsible for some lesser offence of basic intent, in the event of the effects of
intoxication being permissibly taken into account as negating specific intent,
where that is an essential element of the more serious charged.’
‘I have reached the conclusion that the legislature should be taken as having
intended that murder, in all its forms, should come within the operation of s 428C.’
o10.6.1.2 – Direction to the Jury for Offences of Specific Intent:
Makisi [2004] NSWCCA 333:
Facts:
oConvicted of assault with intent to rob and wounding, and two counts of
robbery
oAssault with intent to rob and wounding – directions given by Trial judge:
‘You will have to consider both their evidence carefully and work out,
beyond reasonable doubt, whether the accused had, in relation to
charge number one, the necessary capacity to act intentionally. If the
accused lacked capacity, through the ingestion of alcohol, to act
intentionally, then he did not act intentionally.’
Appeal:
oBarr J (Spigelmen CJ and Hoeben J agreeing):
‘The Crown had to prove that the appellant intended to rob. Evidence of
the effect on him of alcohol was relevant to that question. As Hunt J said
in R v Coleman, reference to the effect of alcohol on the accused’s
capacity to form the requisite intent in unnecessary and confusing. Of
course, a conclusion that an accused lacked the capacity to form an
intent would mean that he did not form the intent. But if the Crown
proved that the accused did not lack capacity to form the intent that
would not be proof that he formed the intent. … From a practical
standpoint, a jury might think that drunkenness would be less likely to
remove the capacity to form intent than to inhibit the formation of that
intent.’
Dismissed the appeal
o10.6.1.3 – Availability of a Lesser Offence:
Self-induced intoxication may be relevant to the issue of whether the defendant
intended to cause GBH
Lesser offence of recklessly inflicting GBH (s 35) is still available
Not an offence of specific intent – Brady [2012]
Murder can be downgraded to manslaughter or assault causing death
o10.6.1.4 – Relationship between Intoxication and other Defences:
Section 428F – reasonable person test
Compared with a reasonable, sober person
Objective test
10.6.2 – Intoxication which is not Self-Induced:
oPart 11A creates a distinction
o‘Self-induced intoxication’ excludes involuntary intoxication resulting from ‘fraud, sudden or
extraordinary emergency, accident, reasonable mistake, duress or force’ and intoxication
resulting from medicinal purposes
oConsidered in the actus reus (s 428G(2)) and mens rea (ss 428C(1), 428D(b), 428E(b))
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10.8 – SELF-DEFENCE:
oComplete defence – to act in self-defence is to act lawfully
oOnus on Prosecution to negative self-defence
oExtends to defence of other persons, defence of property and the prevention of a serious
crime, and effecting a lawful arrest
oLimited to situations where:
Defendant is faced with a threat which makes the use of force NECESSARY
Amount of force used is NOT EXCESSIVE in the CIRCUMSTANCES
10.8.1 – Recent History of Self-Defence:
oHowe (1958) 100 CLR 448:
High Court
RULE: where an accused was entitled to use a measure of force in self-defence, but
used an excessive amount resulting in death, the accused was only entitled to a partial
defence – ‘excessive self-defence’
Rejected by the Privy Council in Palmer [1971]
Proportionality was an essential element of the defence
oViro (1978):
High Court
Declined to follow Palmer [1971]
Confirmed the partial defence and created a 6-step test for the jury – Mason J:
Step 1:
oa) It is for the jury to consider whether the accused reasonably believed that
an unlawful attack which threatened him with death or serious bodily harm
was being made, or was about to be made
ob) The expression ‘reasonably believed’ is meant to involve the belief of the
accused man in the situation, not the reasonable persons belief
Step 2: If the jury is satisfied BRD that there was no reasonable belief held by the
accused, self-defence fails
Step 3: If the jury is not satisfied BRD that there was no such belief held, it must
then consider whether the force used was reasonably proportionate
Step 4: If the jury is not satisfied BRD that the force used was more than
proportionate, the jury should acquit the accused
Step 5: If the jury is satisfied BRD that more force than is reasonably necessary
was used, the verdict should be murder or manslaughter, the jury must consider
whether the force used was reasonably proportionate to the danger believed to
be faced?
Step 6: If satisfied BRD that there was no such belief – Murder. If not satisfied that
there was no belief – Manslaughter.
Emerged as the ratio from the case, among conflicting judges
Wilson, Dawson and Toohey JJ followed Palmer – abolished excessive self-defence and
created a new test:
‘It is whether the accused believed upon reasonable grounds that it was necessary
in self-defence to do what he did. If he had that belief and there were reasonable
grounds for it, or if the jury is left in reasonable doubt about the matter, then he is
entitled to an acquittal. Stated in that form, the question is one of general
application and is not limited to cases of homicide.’
oZecevic v DPP (Vic) (1987):
High Court
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Document Summary
Week 9 defences iii (intoxication and self defence): High court decision of o"connor (1980) was followed by outrage. Majority found that if intoxication was relevant. Estimates about use varied from 2% to 20% It is the experience of courts in this state that, where someone has been killed, it is rare for juries to regard the consumption of alcohol by the person responsible for the killing as a matter of excuse. 1996 pt 11a of crimes act overrode the common law (section 428a 428g) Distinguishes between offences of specific and general intent. Offences of specific and general intent do not distinguish between seriousness. No attempt to define the magnitude of intoxication necessary for the defence of intoxication. Convicted of murder in the supreme court. Stabbed and killed the victim during a fight. Sullivan argued that the trial judge erred in not leaving the question of intoxication to the jury.
