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8.7.2 - Charge: Intoxication and Intention

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This charge may be used where the evidence is capable of raising a reasonable doubt that the accused acted intentionally due to intoxication. It may be adapted for use in cases where evidence of intoxication may affect the issue of recklessness.

If the accused may have acted involuntarily due to intoxication, use Charge: Intoxication and Voluntariness.

If intoxication may have affected both the voluntariness of the accused’s actions and the issue of intention, both charges should be given. However, this charge should 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 the element relating to intention. It should be given after the judge has explained the requirements of that element.

Intoxication and Intention

In this case, you have heard evidence that NOA was intoxicated when s/he [identify act, e.g., "hit NOV"]. 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, evidence of intoxication may be taken into account when considering what a person intended when s/he committed a particular act.

On the one hand, the fact that a person was intoxicated when he or she committed an act may make it more likely that he or she acted with a certain intention, by providing an explanation or motive for his or her behaviour. This may be the case, for example, where the intoxication diminishes a person’s ordinary inhibitions, or creates a sense of self-confidence or aggressiveness.

On the other hand, the fact that a person was intoxicated may make it less likely that he or she acted with a particular intent. This may be the case, for example, where because of the effects of alcohol, a person doesn’t realise that his or her actions will produce a certain result. Consequently, it may not be as easy to draw inferences from the actions of an intoxicated person as it is to draw inferences from the actions of a sober person. You will recall what I have told you about inferences.

You can see from these examples that the relevance of intoxication may vary, depending on the extent of the intoxication and the circumstances. While in some cases it may affect a person’s intentions, in others it will simply reduce his or her inhibitions. The mere fact that, due to intoxication, a person does something which s/he would not have done when sober does not mean it was done unintentionally.

It is important to note that it is not for the defence to prove that NOA was so intoxicated that s/he acted without the necessary intention. It is for the prosecution to prove that NOA acted intentionally, despite his/her level of intoxication.

[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 with the necessary intention.

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 despite being intoxicated NOA [identify act] intentionally, 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

8.7.1 - Charge: Intoxication and Voluntariness