Is Intoxication a Legal Defence in Victoria?
Intoxication means that the accused was under the influence of alcohol, drugs or any other substances at the time of the alleged offence. This alone does not give rise to a specific legal defence (Viro v R (1978)).
However, proving that the accused was intoxicated at the time of offending may:
Intoxication in Victorian Common Law
In Victoria, the rules regarding intoxication arise from both statute and common law.
The common law on intoxication is applicable to all criminal offences (except homicide offences committed on or between the dates of 23 November 2005 and 1 November 2014, and from 1 November 2014, self-defence, duress, and sudden and extraordinary emergency).
Under the common law, intoxication may negate an element of a crime. Specifically, it may raise a reasonable doubt to whether the accused acted:
- With intent; or
Every criminal offence in Victoria requires that the act was voluntary. The accused cannot be convicted of an act that is independent of their will (Ryan v R (1967)). As such, if intoxication means that the accused did not commit the offending act voluntarily, they must be acquitted (R v O’Connor (1979). When assessing voluntariness, the issue is whether the accused in fact acted voluntarily, not whether they were capable of acting voluntarily (Viro v R (1978)). The prosecution carries the burden of proving that the accused acted voluntarily despite their level of intoxication. However, it is quite rare that a person’s state of intoxication is so extreme that they act involuntarily (He Kaw Teh v R (1985)). This is why many defence cases instead raise intoxication in regard to intention.
The common law (R v O’Connor (1979)) also states that a person must be acquitted if, due to intoxication, they committed an offence without:
- Basic intent: meaning that the accused did not intend to do the physical act involved in the offence; or
- Specific intent: meaning that the accused did not intend to attain the result of the offence.
The prosecution must prove that the accused acted with both basic intent and specific intent despite their level of intoxication. When assessing intent, the issue is whether the accused in fact formed basic and specific intent, not whether they were capable of doing so (Ryan v R (1967)). It is irrelevant to claim that the accused was acting differently than they would have behaved when sober. A drunken intent is still ‘intent’ regardless (R v Sheehan ). It is also irrelevant whether or not the accused appreciated the wrongfulness of their conduct (R v Morrison (2007). However, if the accused failed to foresee the likely consequences of their conduct due to intoxication, this may negate criminal recklessness (R v Morrison (2007)).
Victorian common law also states that intoxication may be used as evidence to prove a legal defence in certain circumstances (Bedi v R (1993)), including:
- Claim of right (R v Williams );
- Mistaken belief (Jaggard v Dickinson );
- Provocation (for offences committed prior to 23 November 2005) (R v McCullagh (No 3) (2007)); and
- Mental impairment ( R v Stones (1955); R v Connolly (1958)).
Intoxication in Victorian Statute
In Victoria, the statute law regarding intoxication works in unison with the common law.
Section 322T of the Crimes Act 1958 (Vic) legislates the effect that intoxication has in relation to specific statutory defences, being:
- Self-defence (s322K);
- Duress (s322O); and
- Sudden or extraordinary emergency (s322R).
However, it should be noted that this section only applies to any offence committed on or after 1 November 2014.
In particular, section 322T(2)-(4) applies to the ‘reasonable belief’ or ‘reasonable response’ elements of those defences. That is:
- If any part of the defence requires the accused to have had a ‘reasonable belief’, in determining whether the ‘reasonable belief’ existed, the court must have regard to the standard of a reasonable person who is not intoxicated; and
- If any part of the defence requires the accused to have had a ‘reasonable response, in determining whether the response was reasonable, the court must have regard to the standard of a reasonable person who is not intoxicated.
However, if the accused’s intoxication was not self-induced, the court must have regard to the standard of a reasonable person intoxicated to the same extent, when determining whether a reasonable belief existed or whether the response was reasonable.
Essentially, this means that when assessing the ‘reasonable belief’ or ‘reasonable response’ of the accused in a case of self-induced intoxication, the accused’s level of intoxication must not be taken into account by the trier of fact (the Magistrate, Judge or Jury). Instead, the trier of fact must consider what a reasonable sober person might have believed and/or how they would have responded, were they in the position of the accused. The only exception to this is when the accused’s intoxication was not self-induced; in which case, the relevant standard is a reasonable person intoxicated to the same extent as the accused.
Note that section 322T does not affect the court’s assessment of the accused’s subjective beliefs. For example, intoxication must be taken into account when assessing whether or not the accused believed their actions were necessary in self-defence. The section is only relevant in determining whether or not the accused’s belief and response was reasonable.
Under the Act, intoxication may be because of alcohol, a drug or any other substance (e.g. glue or petrol). Section 322T(5) states that intoxication is considered self-induced unless it came about:
- Because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force;
- From the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or
- From the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.
It is the responsibility of the defendant to raise evidence which proves that the accused’s intoxication was not self-induced. Once such evidence is raised, the prosecution carries the onus of proving beyond a reasonable doubt that the accused’s intoxication was not self-induced. If the prosecution fails to do so, the standard when assessing the ‘reasonable belief’ and ‘reasonable response’ of the accused must be that of a reasonable person intoxicated to the same extent as the accused.