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8.7 - Common Law Intoxication

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Scope

  1. Prior to 2005, in Victoria the issue of intoxication was governed solely by the common law. This situation has been altered by the passage of the Crimes (Homicide) Act 2005 and the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which introduced s9AJ (now repealed) and s322T respectively into the Crimes Act 1958.
  2. Section 9AJ applies to cases in which:
  3. Section 322T applies to cases in which:
  4. Consequently, the common law concerning intoxication continues to apply when:
  5. Both sections 9AJ and 322T address the effect of intoxication on the question of "reasonableness".[1] Thus, even where they apply, the common law concerning intoxication remains relevant to other issues (e.g., the effect of intoxication on the voluntariness of the accused’s behaviour, or on his or her mental state).
  6. This topic solely addresses the common law concerning intoxication. For information concerning the statutory provisions, see Statutory Intoxication (From 1/11/14) and Statutory Intoxication (23/11/05 - 31/10/14).

    Overview: Relevance of Intoxication

  7. The fact that a person acted under the influence of drugs or alcohol does not give rise to any specific defence or excuse (Viro v R (1978) 141 CLR 88; R v O’Connor (1979) 146 CLR 64).
  8. This is the case even if the accused’s intoxication was involuntary (R v O’Connor (1979) 146 CLR 64; R v Kingston [1995] 2 AC 355).[2]
  9. However, evidence that the accused was intoxicated at the time the offence was committed may be used for the following purposes:
  10. Other matters that may be affected by intoxication (but which are not addressed here) include:

    Using Evidence of Intoxication to Negate an Element

  11. Evidence of intoxication is part of the totality of evidence which may raise a reasonable doubt about the existence of one or more of the elements of an offence (R v O’Connor (1979) 146 CLR 64).
  12. If the prosecution cannot eliminate that doubt, the accused should be acquitted – not because he or she was intoxicated, but because the charge has not been proved beyond reasonable doubt (R v O’Connor (1979) 146 CLR 64).
  13. No distinction is drawn between intoxication that is induced by alcohol, drugs or a combination of both (R v Haywood [1971] VR 755; Viro v R (1978) 141 CLR 88; R v O’Connor (1979) 146 CLR 64).

    Voluntariness

  14. The existence of a voluntary act is an essential element of every offence. The accused must not be convicted for an act which was independent of his or her will (Ryan v R (1967) 121 CLR 205; R v O’Connor (1979) 146 CLR 64; R v Marijancevic (2009) 22 VR 576).
  15. Consequently, if the accused did not commit the relevant act voluntarily due to intoxication, he or she must be acquitted (R v O’Connor (1979) 146 CLR 64; R v Martin (1983) 32 SASR 419; R v Faure [1999] 2 VR 537; R v Kumar [2006] VSCA 182).[3]
  16. In Victoria, this applies to all offences, not just offences of specific intent (R v O’Connor (1979) 146 CLR 64; R v Martin (1984) 51 ALR 540. Cf DPP v Majewski [1977] AC 443).
  17. It is for the prosecution to prove that the accused acted voluntarily despite his or her level of intoxication (R v O’Connor (1979) 146 CLR 64; R v Coleman (1990) 19 NSWLR 467).
  18. The issue is whether the accused in fact acted voluntarily, not whether he or she was capable of acting voluntarily (Viro v R (1978) 141 CLR 88; R v O’Connor (1979) 146 CLR 64; R v Martin (1983) 32 SASR 419; R v Costa Vic CCA 2/4/96).
  19. It will be rare that a person’s state of intoxication will have been so extreme that his or her acts were involuntary. Intoxication is more likely to be relevant to the issue of intention (R v O’Connor (1979) 146 CLR 64 per Barwick CJ).
  20. See Voluntariness for information concerning the meaning of "voluntariness", and guidance about which act the accused must have committed voluntarily.

    Intention

  21. The accused must be acquitted if, due to intoxication, he or she:
  22. It is for the prosecution to prove that the accused acted with the requisite intention, despite his or her level of intoxication (R v O’Connor (1979) 146 CLR 64; R v Coleman (1990) 19 NSWLR 467).
  23. The issue is whether the accused in fact formed the requisite intention, not whether he or she was capable of doing so (Ryan v R (1967) 121 CLR 205; R v Haywood [1971] VR 755; Viro v R (1978) 141 CLR 88).
  24. The mere fact that the accused acted differently than he or she would have behaved when sober is irrelevant. A drunken intent is, nevertheless, an intent (R v Sheehan [1975] 2 All ER 960; R v O’Connor (1979) 146 CLR 64 per Barwick CJ, Aickin J).
  25. The accused does not need to have appreciated the wrongfulness of his or her conduct to have acted with the requisite intention (R v Morrison (2007) 171 A Crim R 361).
  26. It does not matter that the accused was unable to reason with a sufficient degree of composure, as long as he or she acted voluntarily and with the requisite intent (R v Collins [2004] ACTSC 48).

    Knowledge or awareness of circumstances

  27. Evidence of intoxication may be used to show that the accused had no knowledge or awareness of a particular circumstance (R v Coleman (1990) 19 NSWLR 467; Bedi v R (1993) 61 SASR 269; R v Costa Vic CCA 2/4/96; R v MC [2009] VSCA 122).
  28. For example, evidence of intoxication may be used:

    Foresight of consequences ("recklessness")

  29. Evidence of intoxication may be used to show that the accused did not foresee the consequences of his or her actions (R v O’Connor (1979) 146 CLR 64; R v Coleman (1990) 19 NSWLR 467; Bedi v R (1993) 61 SASR 269; R v Grant (2002) 55 NSWLR 80).
  30. Consequently, where the accused is charged with an offence of recklessness,[6] the prosecution will be required to prove that the accused knew that a particular consequence would probably result from his or her conduct, despite his or her level of intoxication (R v O’Connor (1979) 146 CLR 64; R v Coleman (1990) 19 NSWLR 467; Bedi v R (1993) 61 SASR 269; R v Grant (2002) 55 NSWLR 80).

    Negligence

  31. Offences of gross negligence (e.g., manslaughter) require proof:
    1. That the accused acted with criminal negligence; and
    2. That the relevant act was committed voluntarily.
  32. Evidence of intoxication will generally not be relevant to the first issue, as the test for criminal negligence is objective (see, e.g., R v Richards & Gregory [1998] 2 VR 1; R v Lavender (2005) 222 CLR 67; R v Sam [2009] NSWSC 803. See also AG’s Reference (No 1 of 1996) (1998) 7 Tas R 293).[7]
  33. However, evidence of intoxication may cast doubt on the prosecution’s contention that the relevant act was committed voluntarily (R v Martin (1983) 9 A Crim R 376; R v Tajber (1986) 13 FCR 524).

    Relevance of the level of intoxication

  34. Different levels of intoxication affect the mind in different ways (He Kaw Teh v R (1985) 157 CLR 523 per Brennan J).
  35. Intoxication to a particular degree may be relevant to the existence of one mental state but not the existence of another. For example, the level of intoxication required to negate voluntariness is far greater than the level of intoxication required to negate specific intention (He Kaw Teh v R (1985) 157 CLR 523 per Brennan J).
  36. It does not matter that the accused was intoxicated to a substantial degree, or acted in a way he or she would not have acted had he or she not been intoxicated, so long as he or she acted voluntarily and with the requisite mental state (R v O’Connor (1979) 146 CLR 64; South Tweed Heads Rugby Football Club Ltd v Cole (2002) 55 NSWLR 113; Russell v Edwards (2006) 65 NSWLR 373).
  37. Thus, even if the intoxication led to a change in personality, a warping of will, an alteration in disposition and a weakening in self-control, the accused will be criminally responsible for his or her acts unless the intoxication was so great that he or she had no will to act or did not form the necessary intention (R v O’Connor (1979) 146 CLR 64; South Tweed Heads Rugby Football Club Ltd v Cole (2002) 55 NSWLR 113; Russell v Edwards (2006) 65 NSWLR 373).
  38. The accused may have acted voluntarily and intentionally despite the fact that the intoxication rendered him or her less aware of what he or she was doing, or of the quality, significance or consequence of his or her actions (R v O’Connor (1979) 146 CLR 64 per Barwick CJ).
  39. However, the level of the accused’s awareness and understanding of his or her actions at the relevant time will be a factor to be taken into account in determining whether he or she acted voluntarily and with the requisite intent (R v Morrison (2007) 171 A Crim R 361).

    Prior criminal intent ("Dutch courage")

  40. A difficulty can arise where the accused became intoxicated specifically for the purpose of gaining sufficient courage to commit the offence in question ("Dutch courage"), but at the time he or she committed the offence acted involuntarily or without the requisite mental state due to being intoxicated:
  41. Although this issue has not been directly addressed in Australia,[8]the High Court has indicated that an accused may still be convicted for such offences, not because of any exception to the requirement of voluntariness and intention, but by virtue of those requirements being met (by the accused having voluntarily becoming intoxicated in order to commit the crime) (R v O’Connor (1979) 146 CLR 64).[9]
  42. One problem with this approach is that the elements of voluntariness and intention (which existed at the time of becoming intoxicated) do not seem to be contemporaneous with the commission of the physical acts constituting the offence (which occurred at a later time) (see R v O’Connor (1979) 146 CLR 64 per Aickin J).
  43. This problem may be overcome by viewing the accused’s conduct in becoming intoxicated and committing the physical act that constitutes the offence as part of the same transaction (see, e.g., Meli v R [1954] 1 WLR 228; R v Church [1966] 1 QB 59; Royall v R (1991) 172 CLR 378 per Mason CJ).

    Intoxication may affect the inferences that can be drawn

  44. In most cases, the accused’s mental state at the time of the offence will need to be inferred from his or her actions (R v Foster [2001] SASC 20).
  45. The fact that the accused was intoxicated at that time may make it more difficult than it would otherwise be to infer from his or her actions that he or she had the requisite mental state (R v Perks (1986) 41 SASR 335; R v Wingfield [2001] SASC 20; R v Foster [2001] SASC 20; Spencer v R (2003) 137 A Crim R 444).[10]
  46. For example, while a jury might readily infer from the serious nature of injuries caused by a sober person that he or she had an intention to cause serious injury, such an inference might not be as readily drawn if the person was drunk or drugged at the relevant time (R v Wingfield [2001] SASC 20; R v Foster [2001] SASC 20; Spencer v R (2003) 137 A Crim R 444).[11]

    Loss of memory

  47. The fact that the accused cannot remember the relevant events due to his or her state of intoxication does not mean that he or she acted involuntarily or without the requisite intention (R v O’Connor (1979) 146 CLR 64 per Barwick CJ; R v Stockdale [2002] VSCA 202).
  48. See "Loss of Memory" in Automatism for further information about this issue.

    Using Evidence of Intoxication to Prove a Defence

  49. Evidence of intoxication may be relevant to the defences raised by the evidence (Bedi v R (1993) 61 SASR 269; R v Baltensperger (2004) 90 SASR 129).
  50. This section provides a brief overview of how evidence of intoxication may be relevant to self-defence, provocation and mental impairment. However, this list is not exhaustive. For example, evidence of intoxication may also be relevant to the following defences:

    Self-Defence

  51. Self-defence contains a subjective and an objective element:
  52. It is clear that evidence of intoxication may be relevant to the subjective element. If the accused was intoxicated at the time he or she committed the relevant acts, the jury can take this into account when determining whether he or she believed:
  53. It is unclear whether evidence of intoxication is also relevant to the objective element (in the absence of any statutory modifications).[13] Courts in other Australian jurisdictions have divided on the issue of whether the jury, in determining whether the accused’s belief was based on "reasonable grounds", must take into account any personal characteristics of the accused (including his or her state of intoxication) which might have affected:

    Provocation

  54. The partial defence of provocation (repealed for offences committed on or after 23 November 2005) also contains a subjective and an objective element. See Provocation for information on those elements.
  55. Evidence of intoxication may be relevant to the subjective element:
  56. In most cases, evidence of intoxication will not be relevant to the objective element:

    Mental impairment

  57. The defence of mental impairment requires the accused to have been suffering from a mental impairment (or "disease of the mind") that had the effect that he or she either:
  58. A temporary state of intoxication does not constitute a "disease of the mind". Consequently, even if the effects of intoxication were so strong that the accused did not know the nature and quality of what he or she was doing, or did not know that his or her conduct was wrong, the requirements of this defence will not be met (R v Davis (1881) 14 Cox CC 563; Dearnley v R [1947] St R Qd 51; R v O’Connor (1979) 146 CLR 64; Falconer (1990) 171 CLR 30).[14]
  59. However, the requirements of the defence may be met if:
  60. If the accused intentionally became intoxicated in order to trigger a pre-existing mental illness, knowing that he or she was likely to commit an offence when ill, he or she may be guilty of that offence (AG for Northern Ireland v Gallagher [1963] AC 349). See "Prior Criminal Intent (‘Dutch Courage’)" above for further information.
  61. See Automatism for further information concerning the meaning of "disease of the mind".

    Using Evidence of Intoxication to Prove an Offence

    Intoxication as an element of an offence

  62. In some cases, one of the elements of the offence in question will require proof that the accused was intoxicated to a certain extent (see, e.g., Road Safety Act 1986 (Vic) s49).
  63. Care must be taken when directing the jury about intoxication in such cases, as there may be a statutory definition of "intoxication" that varies from the definition at common law (see, e.g., Liquor Control Reform Act 1998 (Vic) s3AB).

    Negligence, recklessness and dangerousness

  64. Evidence of intoxication may be used to prove that the accused acted negligently, recklessly or dangerously. For example:

    Using evidence of intoxication to explain behaviour

  65. The prosecution may use evidence of intoxication to explain the accused’s behaviour (R v O’Connor (1979) 146 CLR 64; R v Perks (1986) 41 SASR 335; R v Leaf-Milham (1987) 47 SASR 499; R v Stokes (1990) 51 A Crim R 25; R v Costa Vic CCA 2/4/96).
  66. For example, as alcohol tends to remove inhibitions and self-restraints, and may induce a sense of self-confidence and aggressiveness, the prosecution might use the fact that the accused was drunk to explain how he or she came to commit the offence in question, when ordinarily he or she is a person of good character (R v O’Connor (1979) 146 CLR 64 per Barwick CJ. See also R v Leaf-Milham (1987) 47 SASR 499; R v Stokes (1990) 51 A Crim R 25; R v Coleman (1990) 19 NSWLR 467; R v Le Broc (2000) 2 VR 43).
  67. In relation to sexual offences, evidence of intoxication may be used to explain why the accused pressed on with the act, despite the absence of consent (R v Egan (1985) 15 A Crim R 20; R v Costa Vic CCA 2/4/96).
  68. In some cases the fact that the accused was intoxicated may provide a motive for committing the offence in question (see, e.g., O’Leary v Daire (1984) 13 A Crim R 404; R v Perks (1986) 41 SASR 335).[15]

    When to Direct the Jury About Intoxication

    When to direct about intoxication negating an element

  69. A direction about intoxication is not required simply because there is evidence showing that the accused was affected by alcohol or drugs at the relevant time. A direction only needs to be given if a direction is requested under Part 3 of the Jury Directions Act 2015, or if there are substantial and compelling reasons for giving a direction in the absence of a request. The judge must give a requested direction unless there are good reasons for not doing so (Jury Directions Act 2015 ss14 - 16). See Directions under Jury Directions Act 2015.
  70. At common law, judges only needed to give directions on intoxication if there was evidence is capable of raising a reasonable doubt that the accused acted voluntarily, with the requisite intention, or with any required knowledge or foresight (Viro v R (1978) 141 CLR 88; R v O’Connor (1979) 146 CLR 64; R v Le Broc (2000) 2 VR 43).
  71. The accused bore an evidentiary burden to point to or to produce evidence which, taken at its highest, is capable of raising a reasonable doubt that the relevant elements have been met (Braysich v R (2011) 243 CLR 434. See also R v Youssef (1990) 50 A Crim R 1; R v Stokes (1990) 51 A Crim R 25).[16]
  72. At common law, it was for the judge to determine whether the evidence was capable of raising a doubt about any of the elements. If he or she was unsure whether there is sufficient evidence to raise a particular issue, the common law stated that the issue should be left to the jury (Viro v R (1978) 141 CLR 88; R v Stokes (1990) 51 A Crim R 25; R v Rose (1996) 87 A Crim R 109).
  73. Each case turns on the actual evidence of intoxication and the identity of the element to which that evidence may relate (R v Le Broc (2000) 2 VR 43).
  74. The mere fact that the accused has made a credible assertion of a lack of memory is not sufficient. Evidence of the accused’s state of intoxication is required (R v O’Connor (1980) 146 CLR 64 per Barwick CJ).
  75. A direction may be required where witnesses have described the accused as being "affected by alcohol", and there is evidence that the accused was acting strangely (e.g., he or she was seen abusively yelling at a non-existent person) (R v Rose (1996) 87 A Crim R 109).
  76. Where there was sufficient evidence of intoxication, the judge was required at common law to direct the jury about its relevance to the case, even if such a direction was not sought by either party or defence counsel requested that no direction be given. The nature of obligation must now be read in light of Jury Directions Act 2015 sections 14 and 16 (compare Pemble v R (1971) 124 CLR 109; R v Stokes (1990) 51 A Crim R 25; R v Rose (1996) 87 A Crim R 107; R v Khouzame (1999) 108 A Crim R 170; R v Challoner [2000] VSCA 32; R v Costa Vic CCA 2/4/96; R v TC (2008) 21 VR 596).
  77. At common law, the judge was required to give the direction even if it gave an air of unreality to the case sought to be made by the accused in relation to some other issue (R v Stokes (1990) 51 A Crim R 25). Under the Jury Directions Act 2015, this may be a factor that provides ‘good reasons’ for not giving a requested direction (see Jury Directions Act 2015 s14).
  78. Where there is no evidence that the consumption of alcohol or drugs was capable of affecting the accused’s volition or powers of reasoning, a direction should not be given. Giving a direction in such a case would confuse and mislead the jury, and invite a verdict which is contrary to the evidence (R v Sullivan (1981) 6 A Crim R 259; R v Wilson (1986) 42 SASR 203; R v Challoner (1993) 115 ALR 654).
  79. If the evidence of intoxication is imprecise, vague and uncertain, the judge may decline to direct the jury about the matter, even if the defence requests a direction (Jury Directions Act 2015 s14; R v O’Connor (1979) 146 CLR 64; R v Le Broc (2000) 2 VR 43).

    When to direct about other issues (e.g., defences, reliability)

  80. If evidence of intoxication is capable of having a bearing on any other issues in the case, such as the accused’s defence or the reliability of a witness, the judge may need to identify the relevant evidence and relate it to the pertinent issue (Bedi v R (1993) 61 SASR 269; R v Baltensperger (2004) 90 SASR 129).
  81. At common law, the fact that defence counsel did not wish to rely on the evidence of intoxication did not relieve the judge of the duty to give appropriate directions (Bedi v R (1993) 61 SASR 269; R v Baltensperger (2004) 90 SASR 129). Under the Jury Directions Act 2015, the position of defence counsel is a significant factor that the trial judge must consider (see Jury Directions Act 2015 s16).

    Content of the Charge

    Charging about intoxication negating an element

    Give a specific legal direction about intoxication

  82. Where evidence of intoxication is capable of raising a doubt as to voluntariness, intention, recklessness or knowledge, the jury must be specifically directed about the relevant issue. It is not sufficient to simply tell the jury that they must be satisfied that the accused acted voluntarily, with the requisite mental state (Viro v R (1978) 141 CLR 88; R v O’Connor (1979) 146 CLR 64 per Barwick CJ; R v Rose (1996) 87 A Crim R 109; R v McCullagh [2002] VSCA 163).
  83. The direction should be framed as a direction on the law, rather than a reminder of counsel’s arguments (Williams v DPP [1999] SASC 531).

    Direct about any issues that "truly arise" on the facts

  84. The judge must direct the jury about whichever issues "truly arise on the facts", and refrain from giving a direction which introduces an issue that does not arise (R v TC (2008) 21 VR 596).
  85. At common law, it was held that this could require a judge to direct the jury about the relevance of intoxication to both voluntariness and intention. A failure to direct the jury about voluntariness when it was in issue could, at common law, give rise to a miscarriage of justice (even if the jury has been directed about intoxication and intention) (see, e.g., R v TC (2008) 21 VR 596. C.f. R v Tucker (1984) 36 SASR 135; R v Williamson (1996) 67 SASR 428).[17]
  86. Under the Jury Directions Act 2015, the judge will need to determine whether a direction is requested on each issue or whether there are substantial and compelling reasons for directing on each issue in the absence of a request (Jury Directions Act 2015 ss14 - 16).

    Explain relevant elements and the effects of intoxication

  87. Where voluntariness is in issue, the jury must be directed about the meaning of that term (R v O’Connor (1979) 146 CLR 64). See Voluntariness for assistance.
  88. Where both voluntariness and intention are in issue, judges must make sure to clearly differentiate them (R v TC (2008) 21 VR 596).
  89. Where recklessness is in issue, the jury may be directed that the intoxication may have affected the accused’s foresight of the probable consequences of his or her actions (R v Williamson (1996) 67 SASR 428).
  90. Where intoxication is relevant to the accused’s awareness of a certain fact (e.g., that he had a knife in his hand) as well as his or her intention to commit an act or cause a result (e.g., to kill or cause really serious injury), the jury must be separately directed about each matter (R v Williamson (1996) 67 SASR 428).
  91. In a sexual offence case, where intoxication may have affected the accused’s belief in consent, a specific direction about that issue must be given (R v MC [2009] VSCA 122; R v Tappe Vic CCA 18/11/86).

    Explain the onus of proof

  92. Judges should direct the jury that it is for the prosecution to remove any reasonable doubt raised by the evidence of intoxication. The jury may only convict the accused if they are satisfied, beyond reasonable doubt, that he or she:
  93. The jury should be told that it therefore is not for the accused to prove that he or she was too intoxicated to act voluntarily or with the relevant mental state. The onus is on the prosecution to prove that, notwithstanding the ingestion of drugs or alcohol, the accused acted voluntarily and with the requisite mental state (R v Coleman (1990) 19 NSWLR 467).
  94. Judges may tell the jury that if the evidence of intoxication does not raise a doubt about the relevant elements, they may put it out of their minds when considering the accused's guilt or innocence (R v O’Connor (1979) 146 CLR 64 per Barwick CJ).[18]

    Direct the jury about intoxication and inferences

  95. The jury may be directed to take into account the accused’s intoxication when determining what inferences to draw from all of the evidence in the case (R v Sheehan and Moore [1975] 2 All ER 960; Cutter v R (1997) 143 ALR 498; R v Stockdale [2002] VSCA 202).
  96. In some cases, the prosecution will have argued that the accused’s intention can be inferred from the nature of the injuries he or she caused to the victim. In such cases, the jury may need to be told that inferences about intention which might readily be drawn from the nature of injuries inflicted by a sober person might not be inferred as readily where the perpetrator is intoxicated (R v Wingfield [2001] SASC 20; Williams v DPP [1999] SASC 531; Spencer v R (2003) 137 A Crim R 444. See also R v Hill [2007] VSCA 261).
  97. For example, if a sober person stabs someone in the heart, the jury may infer that the person intended to kill or cause really serious injury. In such a case, a significant part of the jury’s reasoning process would depend upon acceptance of the inference that the accused intended to stab the victim in what is known to be a vital organ. By contrast, if the accused is intoxicated, there might be a doubt about whether or not the knife was aimed at the heart, or whether the accused intended to wound in a vital area of the body. In such circumstances, the jury should be told that it may not be as easy to infer that the accused intended to kill or cause really serious injury as it might have been had the accused been sober (Spencer v R (2003) 137 A Crim R 444).
  98. The critical issue for the jury’s consideration in such cases is whether, by reason of his or her intoxication, the accused might have inflicted the injuries without the requisite intention (R v Wingfield [2001] SASC 20; Williams v DPP [1999] SASC 531; Spencer v R (2003) 137 A Crim R 444. See also R v Hill [2007] VSCA 261).
  99. It has been suggested that a judicial direction on this issue may not always be necessary, given that the effects of the consumption of alcohol are well appreciated and easily recognised by virtually every adult member of our society. It is thus reasonable to assume that, even without such a direction, the members of a jury would recognise that individuals, under the influence of alcohol, may:

    Identify relevant evidence

  100. Judges should highlight the evidence and factual circumstances which bear on the extent of the accused's intoxication (Bedi v R (1993) 61 SASR 269; R v Williamson (1996) 67 SASR 428; Spencer v R (2003) 137 A Crim R 444; R v TC (2008) 21 VR 596).
  101. For example, judges should highlight evidence about the amount of alcohol or drugs consumed, the general behaviour of the accused, the specific nature of the conduct constituting the offence, and any other evidence going to the degree of intoxication (R v TC (2008) 21 VR 596).

    Other directions

  102. Depending on the circumstances and the nature of any request from the parties, it may also be appropriate to:
  103. The jury should be directed that it is for them to determine the extent to which the accused was intoxicated, and the effects the intoxication had on him or her, based on their own experience and judgment (R v Gill (2005) 159 A Crim R 243).
  104. Where it is alleged that the accused’s conduct was affected by both intoxication and another factor (e.g., concussion), the jury should be directed to consider all of the factors collectively. The intoxication should not be viewed in isolation (see, e.g., R v Martin (1983) 32 SASR 419).
  105. If the evidence of intoxication is insignificant, the judge may tell the jury to ignore it (R v O’Connor (1979) 146 CLR 64).

    Do not tell the jury the issue is one of capacity

  106. The judge must not tell the jury that the issue is whether the accused was capable of acting voluntarily or forming the required mental state. While the jury can consider the question of whether or not the accused had the relevant capacity, the ultimate question is whether he or she in fact acted voluntarily with the requisite mental state (Viro v R (1978) 141 CLR 88; Herbert v R (1982) 42 ALR 631; R v Coleman (1990) 19 NSWLR 467; R v McLeod (1991) 56 A Crim R 320; R v Makisi (2004) 151 A Crim R 245).
  107. Where the issue of capacity is raised, the jury must be directed that it is not sufficient for them to find that the accused was capable of acting voluntarily or forming the requisite mental state. They must also be satisfied that the accused did in fact act voluntarily with that mental state (Viro v R (1978) 141 CLR 88; Herbert v R (1982) 42 ALR 631).

    Charging about other matters (e.g., defences, reliability)

  108. If evidence of intoxication is capable of having a bearing on any other issues in the case, such as the accused’s defence or the reliability of a witness, the judge must identify the relevant evidence and relate it to the pertinent issue (Bedi v R (1993) 61 SASR 269; R v Baltensperger (2004) 90 SASR 129).

     

    Notes

[1] For example, whether a belief was reasonable, whether there were reasonable grounds for a belief, or whether a response to a situation was reasonable.

[2] The fact that the accused’s intoxication was involuntary may be relevant to whether or not he or she acted negligently: see "Negligence" below.

[3] In many jurisdictions there are now statutory provisions specifying that self-induced intoxication cannot be taken into account in determining whether the accused’s acts were voluntary. That is not the case in Victoria.

[4] Australian law differs from the law in the United Kingdom, which holds that self-induced intoxication is irrelevant to crimes of basic intent (DPP v Majewski [1977] AC 443).

[5] Even if this argument is accepted by the jury, it may not be sufficient to secure an acquittal on a charge of rape, as that offence can now also be established by proving that the accused did not give any thought to whether the complainant was not or might not be consenting (see Rape).

[6] See Recklessness.

[7] If the accused’s intoxication was involuntary, it is possible that it will be relevant to this issue: see, e.g., Flyger v Auckland City Council [1979] 1 NZLR 161; Rooke v Auckland City Council [1980] 1 NZLR 680; O'Neill v Ministry of Transport [1985] 2 NZLR 513.

[8] The issue has been addressed in the United Kingdom, where it was held that an accused who chooses to become intoxicated in order to commit an offence is precluded from denying that he or she acted involuntarily or lacked the requisite mental state (AG for Northern Ireland v Gallagher [1963] AC 349). This appears to be an exception to the general principles of criminal responsibility, rather than an application of those principles.

[9] Similarly, it is possible that a person who becomes intoxicated with an awareness that he or she will probably commit an offence (e.g., because he or she is prone to violence when intoxicated) may be held responsible for that offence on the grounds of recklessness (see R v O’Connor (1979) 146 CLR 64 per Stephen, Murphy and Aickin JJ, Barwick CJ dissenting).

[10] In this regard, evidence of intoxication is no different from any other evidence that may affect the inferences that can be drawn from the proved facts (R v Foster [2001] SASC 20; R v Wingfield [2001] SASC 20).

[11] See "Direct the jury about intoxication and inferences" below for further information about this issue.

[12] The onus is on the prosecution to disprove at least one of these elements beyond reasonable doubt.

[13] Crimes Act 1958 s9AJ modifies the common law position and, where it applies, requires the jury to ignore evidence of self-induced intoxication when determining whether the accused’s belief was based on reasonable grounds. See Statutory Intoxication and Statutory Intoxication (23/11/05 - 31/10/14).

[14] This degree of intoxication may, however, be relevant to whether the accused acted voluntarily and formed the necessary mental state. See Using Evidence of Intoxication to Negate an Element (above).

[15] For example, in O’Leary v Daire (1984) 13 A Crim R 404 it was held that the accused’s intoxication may have provided a motive for refusing to take a breath test or give the police his address.

[16] See "The Evidentiary Presumption of Voluntariness" in Voluntariness for information concerning the nature of this evidentiary burden in the context of voluntariness.

[17] In South Australia, it has been held that as the existence of intent implies the existence of volition, it is only necessary to direct about both voluntariness and intention in the rare case where there can be criminal liability for an unintended act, and the evidence of intoxication could raise a doubt about whether the act was accompanied by the will (R v Tucker (1984) 36 SASR 135). This does not appear to be the law in Victoria.

[18] Such a direction will only be appropriate if the evidence is not relevant to any other matters, such as the accused’s defence.

Last updated: 29 June 2015

In This Section

8.7.1 - Charge: Intoxication and Voluntariness

8.7.2 - Charge: Intoxication and Intention

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings