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

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Introduction

  1. Prior to 2005, the issue of intoxication in Victoria was governed solely by the common law. This situation has been altered by 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(Homicide) Act 2005 and the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which introduced s9AJ (now repealed) and s322T respectively into the Crimes Act 1958.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. This topic covers the issue of intoxication under s 322T of the Crimes Act 1958 and applies to all offences committed on or after 1 November 2014.
  3. Section 322T applies to defences, which is defined to include self-defence, duress and sudden or extraordinary emergency.
  4. Section 9AJ of the Crimes Act 1958 applies to homicide offences committed on or after 23 November 2005 and before 1 November 2014 and the defences to those offences. See Statutory Intoxication (23/11/05 – 31/10/14).
  5. The common law on intoxication remains relevant in respect of non-homicide offences committed before 1 November 2014 and the defences to those offences, and to all offences committed before 23 November 2005 and the defences to those offences. See Common Law Intoxication.
  6. As s322T of the Crimes Act 1958 applies only to defences, the common law in relation to intoxication also continues to apply to all offences, committed on or after 1 November 2014, for the purposes of negating an element of the offence (e.g., voluntariness or intention), or to prove that the accused committed the offence (e.g., by explaining the accused’s behaviour). See Common Law Intoxication.

    Relevant Defences

  7. The intoxication provision in s322T defines defences to include self-defence (s322K), duress (s322O) and sudden and extraordinary emergency (s322R).
  8. In particular, it applies to the elements of those defences that refer to either a ‘reasonable belief’ or a ‘reasonable response’ of the accused (Crimes Act 1958 ss322T(2)-(4)).
  9. Courts have not yet identified whether s322T applies to any common law defences, or to statutory defences which contain elements of reasonable belief or reasonable response. One defence which s322T might apply to is the belief in consent defence in Crimes Act 1958 s45(4) (as in force before 1 July 2016), under which the accused must first prove that he or she had reasonable grounds for believing that the complainant was aged 16 or older at the time of the alleged offence. As a matter of prudence, for the purpose of this Charge Book, we have assumed that s322T does not apply to this defence.

    Onus of Proof

  10. The onus of proof regarding whether the accused’s intoxication was self-induced is not clear on the wording of s322T, and Victorian courts have not considered the issue.
  11. On one hand, s322T(5) states that intoxication ‘is self-induced unless’ one of a number of circumstances set out in s322T(5)(a)-(d) exists. This may indicate a presumption that the intoxication is self-induced unless the accused proves that at least one of those circumstances exists.
  12. On the other hand, it seems unlikely that s322T would be interpreted as requiring the accused to prove an aspect of his/her defence, inconsistently with the presumption of innocence, without clear language to that effect (see, eg, Slaveski v Smith (2012) 34 VR 206 [24], [45]; WBM v Chief Commissioner of Police (2012) 43 VR 446 [97] (Warren CJ); Nigro v Secretary to the Department of Justice (2013) 41 VR 359 [73]; Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 [192] (Tate JA); Carolan v The Queen (2015) 48 VR 87 [46]).
  13. Section 322I of the Crimes Act 1958 states that an accused has only an evidential onus to raise the defence of self-defence, duress or sudden and extraordinary emergency, while the prosecution has the legal onus of negating the defence raised beyond reasonable doubt. Section 322I falls within Part IC of the Crimes Act, which includes the statutory defences of self-defence, duress and sudden and extraordinary emergency as well as s322T on intoxication in the context of those defences.
  14. Even though the fact that the accused’s intoxication was not self-induced does not, on its own, constitute one of these defences, it is an aspect of each of them. Therefore s 322I provides additional support for the view that the prosecution has the onus of proof in respect of whether the intoxication was self-induced.
  15. As a matter of prudence, this charge book adopts the approach that the accused is required only to introduce evidence to the effect that his/her intoxication was not self-induced and that, once such evidence is raised by the defence, the onus is on the prosecution to prove beyond reasonable doubt that the accused’s intoxication was not self-induced.

    Meaning of intoxication

  16. Intoxication for the purposes of s322T is not defined, but expressly includes ‘intoxication because of the influence of alcohol, a drug or any other substance’ (Crimes Act 1958 s322T(1)). Other substances causing intoxication might include, for example, glue or petrol.

    Self-Induced Intoxication

  17. The intoxication provision in s322T operates differently depending on whether the accused’s intoxication was self-induced. If there is evidence that the accused’s intoxication was not self-induced, it will be important for the jury to determine this question.
  18. Intoxication will not be self-induced if it came about involuntarily or because of ‘fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force’ (Crimes Act 1958 ss322T(5)(a)-(b)).
  19. Intoxication will also not be self-induced if it came about from using a prescription drug in accordance with the directions of the person who prescribed it, from using a non-prescription drug for a purpose and at the dosage level recommended by the manufacturer or from using a medicinal cannabis product in accordance with a patient medicinal cannabis access authorisation. However, if a person using the prescription or non-prescription drug knew or had reason to believe, when taking the drug, that it would significantly impair his/her judgment or control, then the resultant intoxication will be self-induced (Crimes Act 1958 ss322T(5)(c), (5)(ca), (5)(d),(6)).

    ‘Reasonable belief’ elements of a defence

  20. In determining whether a person had a reasonable belief, as an element of the defence of self-defence, duress or sudden and extraordinary emergency, the relevant standard is generally that of reasonable person who is not intoxicated (Crimes Act 1958 s322T(2)).
  21. The operation of s322T(2) can be illustrated using an example. In determining whether an accused’s belief was reasonable under the duress provisions of the Crimes Act 1958, the jury ordinarily uses the standard of ‘a reasonable person possessing the personal characteristics of the accused that might have affect the accused’s appreciation of the circumstances’ (DPP v Parker [2016] VSCA 101 [8]).
  22. However, s322T means that where the accused was under the effect of self-induced intoxication at the time of his or her offending, that particular characteristic of the accused – his or her level of intoxication – must not be taken into account (see DPP v Parker [2016] VSCA 101 [46]). The jury should consider what a reasonable sober person (with the other relevant characteristics of the accused) might have believed.
  23. The exception to the general rule in s322T(2) is where the accused’s intoxication at the time he or she committed the offence was not self-induced. Then the relevant standard is a reasonable person intoxicated to the same extent as the accused (Crimes Act 1958 s322T(4)).
  24. Section 322T does not affect the determination of the accused’s subjective beliefs. For example, in determining whether an accused believed his or her actions were necessary in self-defence, his or level of intoxication must be taken into account. Section 322T is relevant only in determining whether an accused’s beliefs were reasonable.

    ‘Reasonable response’ elements of a defence

  25. In determining whether a person’s response was reasonable, as an element of the defence of self-defence, duress or sudden and extraordinary emergency, the relevant standard is generally that of reasonable person who is not intoxicated (Crimes Act 1958 s322T(3)).
  26. The operation of s322T(3) can be illustrated using an example. In determining the reasonableness of an accused’s response to the circumstances under the self-defence provisions, the jury may take into account personal characteristics of the accused such his or her age, gender or health. However, s322T(3) means that the jury must not take into account any self-induced intoxication of the accused. The jury should consider how a reasonable sober person (with the other relevant characteristics of the accused) might have responded to the threat.
  27. The exception to the general rule in s322T(2) is where the accused’s intoxication at the time he or she committed the offence was not self-induced. Then the relevant standard is a reasonable person intoxicated to the same extent as the accused (Crimes Act 1958 s322T(4)).

Last updated: 19 March 2018

In This Section

8.5.1 - Charge: Statutory Intoxication (self-induced)

8.5.2 - Charge: Statutory Intoxication (self-induced contested)

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

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

8.7 - Common Law Intoxication

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