Intoxication has long been a contentious issue in criminal law, with debates surrounding the extent to which it should be considered a mitigating factor in determining criminal responsibility. In New South Wales (NSW), the legal landscape has evolved over time, moving from a strict stance where intoxication was not a defence to any crime, to a more nuanced approach that considers the specific circumstances of each case.

This article delves into the complexities of intoxication as a factor in NSW criminal cases, exploring the different types of intoxication recognised under the law, its impact on criminal liability, and the limitations of using intoxication as a defence. By understanding the legal implications of intoxication, readers will gain a clearer picture of how the criminal justice system in NSW approaches this challenging issue.

Understanding Types of Intoxication Under NSW Law

Under NSW law, intoxication can be classified as either voluntary or involuntary. The distinction between these two types is crucial in determining how intoxication may impact criminal liability and potential defences.

Voluntary Intoxication

Voluntary intoxication occurs when a person consumes alcohol or drugs of their own free will, fully aware of the potential effects on their mental state and behaviour. This includes situations where an individual deliberately becomes intoxicated, even if they did not intend to commit a crime while in that state.

For example, consider a scenario where a person decides to binge drink at a party, knowing the risks associated with excessive alcohol consumption. If they later engage in criminal conduct while heavily intoxicated, their intoxication would be considered voluntary.

The law generally holds individuals responsible for their actions while voluntarily intoxicated, as they made the conscious choice to consume the substance that impaired their judgment and decision-making abilities.

Involuntary Intoxication

In contrast, involuntary intoxication refers to situations where a person becomes intoxicated without their knowledge or consent. This can occur through various means, such as:

• Being unknowingly drugged or “spiked” with alcohol or other substances
• Consuming a drink or food item without realising it contains an intoxicating substance
• Being forced or coerced into consuming drugs or alcohol against one’s will

Involuntary intoxication may also result from taking prescribed medication that unexpectedly causes intoxicating side effects, provided the person was not properly warned of these potential consequences.

To illustrate, imagine a person attending a party where someone secretly slips a drug into their drink without their knowledge. If the person then experiences intoxicating effects and engages in criminal behaviour as a result, their intoxication would be considered involuntary.

The law tends to view involuntary intoxication more favourably than voluntary intoxication when considering criminal liability, as the individual did not make a conscious choice to become intoxicated and impair their faculties.

Impact of Intoxication on Criminal Liability

Intoxication can have a significant impact on criminal liability, particularly in relation to the elements of actus reus (the physical act) and mens rea (the mental element) that must be proven for an offence.

Effect on Actus Reus (Physical Act)

Under section 428G(1) of the Crimes Act 1900 (NSW), evidence of self-induced intoxication cannot be taken into account when determining whether the relevant conduct of the accused was voluntary. This means that even if a person was heavily intoxicated at the time of committing an offence, they cannot argue that their actions were involuntary due to their intoxicated state.

However, section 428G(2) provides an exception for intoxication that was not self-induced. If the relevant conduct resulted from involuntary intoxication, such as being drugged or forced to consume alcohol against one’s will, then the person may not be criminally responsible for the offence.

Effect on Mens Rea (Mental Element)

While self-induced intoxication cannot negate the voluntariness of conduct, it may be relevant to determining whether the accused had the requisite mens rea or mental state for the offence, particularly for crimes of specific intent.

Evidence of intoxication, both voluntary and involuntary, can be taken into account when assessing if the accused formed the specific intent required for the offence. However, this is subject to limitations under section 428C. Intoxication cannot be considered if the accused had resolved to commit the offence before becoming intoxicated or became intoxicated in order to strengthen their resolve to commit the crime.

Importantly, the impact of intoxication on mens rea only applies to crimes of specific intent. For offences that do not require proof of a particular mental state, known as offences of basic intent, evidence of self-induced intoxication is not relevant. The distinction between specific and basic intent offences is crucial in determining the extent to which intoxication can affect criminal liability.

In summary, while self-induced intoxication does not excuse the physical element of an offence, it may be considered in assessing whether the accused had the mental element for crimes of specific intent, subject to certain restrictions. The nuances of how intoxication impacts criminal responsibility highlight the importance of understanding the specific elements of each offence and the circumstances in which intoxication evidence may be relevant.

Specific Intent vs Basic Intent Offences

In NSW criminal law, offences are categorised as either specific intent or basic intent offences. This distinction is crucial when considering the defence of intoxication, as it determines whether evidence of the accused’s intoxication can be taken into account.

Offences of Specific Intent

Specific intent offences require the prosecution to prove that the accused intended to cause a specific result or consequence. In other words, the accused must have had a particular state of mind or purpose when committing the relevant conduct.

Some examples of specific intent offences include:

• Murder: The accused intended to kill the victim or inflict grievous bodily harm.
• Wounding with intent: The accused wounded the victim with the intention of causing grievous bodily harm.
• Assault with intent to rob: The accused assaulted the victim with the specific intent to rob them.

For offences of specific intent, evidence of the accused’s intoxication may be considered in determining whether they formed the requisite intent. If the accused was so intoxicated that they were incapable of forming the specific intent required for the offence, they may be acquitted of that charge.

However, section 428C of the Crimes Act 1900 (NSW) places some limitations on this. Evidence of self-induced intoxication cannot be taken into account if the accused had resolved to commit the offence before becoming intoxicated, or if they became intoxicated in order to strengthen their resolve to commit the offence.

Basic Intent Offences

Basic intent offences, on the other hand, do not require proof of any specific intention or state of mind. The prosecution only needs to establish that the accused committed the relevant conduct voluntarily, without considering their purpose or the result they intended to bring about.

Examples of basic intent offences include:

• Common assault: The intentional or reckless application of force to another person without their consent.
• Assault occasioning actual bodily harm: An assault that results in actual bodily harm to the victim, regardless of whether the accused intended to cause that harm.
• Sexual assault: Sexual intercourse with another person without their consent, irrespective of the accused’s intentions.

For basic intent offences, self-induced intoxication cannot be considered as a factor in determining the accused’s guilt. The law treats the accused as if they were sober, and holds them fully responsible for their actions while intoxicated.

This approach is based on the principle that individuals who choose to become intoxicated should not be able to rely on their intoxication to escape criminal liability for their conduct. It also reflects the policy goal of deterring people from committing offences while under the influence of alcohol or drugs.

Limitations of the Intoxication Defence

While intoxication can be a factor in assessing criminal liability, there are significant limitations on its use as a defence. These restrictions aim to balance the rights of the accused with the need to hold individuals accountable for their actions, even when intoxicated.

Pre-existing Intent

One key limitation is outlined in Section 428C of the Crimes Act 1900 (NSW). This section states that evidence of intoxication cannot be taken into account if the accused person:

1. Had resolved to commit the offence before becoming intoxicated; or
2. Became intoxicated in order to strengthen their resolve to commit the offence.

In other words, if a person forms the intent to commit a crime and then becomes intoxicated, or if they intentionally get drunk or high to “psych themselves up” to offend, they cannot rely on that intoxication to negate criminal responsibility.

For example, imagine a man decides to assault his neighbour over a long-standing dispute. He consumes several beers to build up “liquid courage” before confronting the neighbour and punching him. In this scenario, the man’s intoxication would not be a valid defence, as he had pre-existing intent to commit the assault and used alcohol to bolster that intent.

The Reasonable Person Test

Another limitation relates to the “reasonable person” standard often applied in criminal law. When considering defences like self-defence or provocation, the court will assess the accused’s actions against those of an “ordinary person” in the same situation.

Critically, this hypothetical “reasonable person” is not intoxicated. So even if the accused was drunk or high at the time of the alleged offence, their actions will be compared to a sober person’s hypothetical response.

To illustrate, consider a drunk man who gets into a bar fight and claims self-defence. The court will ask: would a reasonable and sober person in the same situation have considered the force used to be necessary and proportionate? The man’s intoxication does not lower the standard of behaviour expected.

This approach aims to avoid a situation where people could escape liability simply by getting intoxicated and then committing crimes. The law expects individuals to regulate their behaviour whether sober or intoxicated.

While intoxication can be relevant in assessing the mens rea for specific intent offences, its utility as a defence is significantly constrained. The law disregards self-induced intoxication where there was pre-existing intent to offend, and the “reasonable person” test applies an objective standard of behaviour regardless of the accused’s intoxication. Understanding these limitations is crucial for anyone considering intoxication as a potential defence strategy.

Conclusion

In summary, intoxication is a complex factor in criminal cases under NSW law. While it is not a standalone defence, it can be relevant in assessing an accused person’s criminal liability, particularly in relation to their intent.

The impact of intoxication depends on whether it was self-induced or involuntary, and whether the offence is one of specific or basic intent. For crimes of specific intent like murder, evidence of self-induced intoxication may be considered in determining whether the accused formed the requisite intention. However, for crimes of basic intent, voluntary intoxication cannot be taken into account.

It’s important to note the limitations of the intoxication defence. If the accused became intoxicated to strengthen their resolve to commit the offence or had already formed the intent before becoming intoxicated, then intoxication will not be a mitigating factor. Additionally, the reasonable person test applies regardless of the accused’s intoxication.

Ultimately, while intoxication can be a relevant consideration in criminal proceedings, it is not a complete defence. The specific circumstances of each case must be carefully examined to determine the extent to which intoxication may impact criminal liability.

Frequently Asked Questions