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

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When to use this charge

This charge should be given where:

Caution should be exercised in giving this direction. Victorian courts have not considered which party has the onus of proof when self-induced intoxication is in issue. See ‘Onus of Proof’ in Statutory Intoxication.

If it is not contested that the accused’s intoxication was self-induced, see Charge: Statutory Intoxication (Self-induced).

The relevant aspects of this charge should be inserted into directions on the defence in issue: self-defence, duress, or sudden and extraordinary emergency.

For other matters involving intoxication, see below:

However:

[If any elements of the defence relate to whether the accused had a reasonable belief OR to whether the accused’s response was reasonable, add the following shaded section to the directions on that element. If more than one such element is relevant to a particular defence, you need only add the following shaded section to the first of those elements:]

In this case you have heard evidence that NOA was intoxicated at the time that s/he [insert relevant act]. If you find that NOA was intoxicated, you must decide whether the intoxication was self-induced, which means whether NOA was responsible for the intoxication himself/herself.

How do you decide whether NOA was responsible for his/her intoxication? The law says that a person is responsible for his/her intoxication unless it:

[Insert relevant direction]

  1. Occurred involuntarily;
  2. Occurred because of fraud, such as trickery or deception;
  3. Occurred because of a sudden or extraordinary emergency;
  4. Occurred because of an accident;
  5. Occurred because of a reasonable mistake;
  6. Occurred because s/he became intoxicated under duress or force, for example, by threats or coercion;
  7. Occurred because s/he took a prescription drug while following the prescribed directions and did not know or have reason to believe that it would significantly impair his/her judgment or control;
  8. Occurred because s/he took a non-prescription drug for its recommended purpose and at its recommended dosage and did not know or have reason to believe that it would significantly impair his/her judgment or control.

The defence argued that [summarise defence argument and evidence]. The prosecution ask you to reject this [summarise prosecution argument and evidence].

‘Reasonable belief’ element of a defence

[If any element of the defence relates to whether the accused had a reasonable belief, add the following shaded section to the directions on that element:]

As part of deciding whether the prosecution has proved that the accused’s belief was not reasonable, you must consider the evidence that NOA was intoxicated.

The first question you must consider is whether NOA’s intoxication was self-induced, which means whether NOA was responsible for his/her intoxication.

If you find NOA was responsible for his/her intoxication, then you must not take his/her intoxication into account when assessing whether his/her belief about [insert relevant reasonable belief element] was reasonable. In other words, you must consider what the beliefs of a reasonable person who was sober might have been.

If you do not find NOA was responsible for his/her intoxication, then you must take his/her intoxication into account when assessing whether his/her belief about [insert relevant reasonable belief element] was reasonable. In other words, you must consider what the beliefs of a reasonable person might have been if he/she was intoxicated to the same extent as NOA.

Remember, the defence does not have to prove anything. Therefore, you must take intoxication into account for this element unless the prosecution proves that NOA was responsible for his/her intoxication.

‘Reasonable response’ element of a defence

[If any element of the defence relates to whether the accused’s response was reasonable, add the following shaded section to the directions on that element:]

 As part of deciding whether the prosecution has proved that the accused’s response was not reasonable, you must consider the evidence that NOA was intoxicated.

The first question you must consider is whether NOA’s intoxication was self-induced, which means whether NOA was responsible for his/her intoxication.

If you find NOA was responsible for his/her intoxication, then you must not take his/her intoxication into account when assessing whether his/her response to [insert relevant reasonable response element] was reasonable. In other words, you must consider what the response of a reasonable person who was sober might have been.

If you do not find NOA was responsible for his/her intoxication, then you must take his/her intoxication into account when assessing whether his/her response to [insert relevant reasonable response element] was reasonable. In other words, you must consider what the response of a reasonable person might have been if he/she was intoxicated to the same extent as NOA.

Remember, the defence does not have to prove anything. Therefore, you must take intoxication into account for this element unless the prosecution proves that NOA was responsible for his/her intoxication.

Last updated: 27 September 2016

See Also

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

8.5.1 - Charge: Statutory Intoxication (self-induced)