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8.7.1 - Charge: Intoxication and Voluntariness

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When to use this charge

This charge may be used where the evidence is capable of raising a reasonable doubt that the accused acted involuntarily due to intoxication.

If the accused may have acted unintentionally or recklessly due to intoxication, use Charge: Intoxication and Intention.

If intoxication may have affected both the voluntariness of the accused’s actions and the issue of intention/recklessness, both charges should be given. In such circumstances, the charge on intention/recklessness will need be modified to avoid repetition.

How to use this charge

The charge has been designed to be given as part of the judge’s charge on voluntariness. If Charge: Voluntariness is used, it should be inserted where indicated.

 

Intoxication and Voluntariness

In this case, the defence has argued that NOA was so intoxicated that his/her act of [describe act, e.g., "driving"] was not voluntary. I must therefore give you some directions about intoxication.

The fact that a person acted under the influence of alcohol[1] does not give rise to any specific defence or excuse. This means that a person cannot avoid responsibility for his/her acts simply by providing evidence that s/he was intoxicated at the time s/he committed those acts.

However, as I have just mentioned, a person must not be convicted for acts which were committed involuntarily. You may take evidence of intoxication into account in determining whether the accused acted voluntarily.

You will appreciate that alcohol can affect people to different extents. Sometimes it simply diminishes a person’s inhibitions, or creates a sense of self-confidence or aggressiveness. In more extreme cases it can affect the voluntariness of a person’s actions. However, the mere fact that, due to intoxication, a person does something which s/he would not have done when sober does not mean that act was done involuntarily. As I have explained, an act is only involuntary if it is not subject to the control or direction of the person’s will.

It is important to note that it is not for the defence to prove that NOA was so intoxicated that s/he acted involuntarily. It is for the prosecution to prove that NOA acted voluntarily, despite his/her level of intoxication. If you are not satisfied that this was the case, then you must find him/her not guilty of [identify offence].

If you are satisfied that the accused acted voluntarily, you may take the effects of alcohol into account when determining whether the accused committed the offence s/he is charged with. For example, you might find that his/her behaviour can be explained by the fact that his/her inhibitions were diminished by the influence of alcohol, or by the extra sense of self-confidence that alcohol sometimes gives people.

[Summarise relevant evidence and arguments. Judges should highlight evidence about the amount of alcohol 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.]

[If it is alleged that the accused has no memory of events due to intoxication, add the following shaded section]

In this case you have heard evidence that NOA has no memory of [identify act]. While you may take this evidence into account in determining the extent of his/her intoxication, you should keep in mind the fact that the issue is not whether NOA remembers the relevant events, but whether s/he acted voluntarily when s/he [describe relevant act].

It is for you to determine, based on all the evidence in the case, the extent to which the accused was intoxicated, and the effects the intoxication had on him/her. If you are not satisfied that the prosecution has proven, beyond reasonable doubt, that NOA [identify act] voluntarily despite being intoxicated, then you must find him/her not guilty of [identify offence].

 

Notes

[1] This charge has been designed for cases involving alcohol intoxication. It will need to be modified for cases involving drugs.

Last updated: 26 September 2011

See Also

8.7 - Common Law Intoxication

8.7.2 - Charge: Intoxication and Intention