Intoxication

The Defence of Intoxication

In Victoria the defence of intoxication is governed by both statute and the common law. More specifically intoxication can operate to either negate an element of a crime under the common law or play a role in relation to defences as prescribed under section 322T of the Crimes Act. Being intoxicated itself will not provide a full defence to a criminal offence, but it can assist the trier of fact in deciding whether the charge is made out.

Evidence that the accused was intoxicated can be relevant:

• To negate an element of an offence (e.g., voluntariness, under the common law)
• To assist in a supporting a statutory defence (see self-defence and intoxication)

Common Law Intoxication Defence

The common law on intoxication remains relevant in respect to non-homicide offences committed before 1 November 2014 and to all offences committed before 23 November 2005. Section 322T of the Crimes Act 1958 (Vic) codifies the defence of intoxication with references to specific statutory defences but the common law in relation to intoxication also continues to apply to all offences, committed on or after 1 November 2014. So in a nutshell, the common law defence of intoxication and the statutory application of intoxication continue to work in unison in Victoria. 

Under the common law, intoxication can rebut either the voluntariness element or the mental element of an offence or both. Evidence of intoxication may demonstrate that the accused’s conduct was not voluntary at the time of the alleged offence, or that the accused did not act with the requisite mens rea; see R v O’Connor (1980). Concerning the actus reus component of an offence, evidence of intoxication is relevant only insofar as the accused may claim that his or her conduct was involuntary. The accused could also argue that s/ he may have been acting voluntarily, but the level of intoxication was so significant that s/he failed to consider the likely consequences of the conduct (s/he was reckless): see (R v Morrison (2007). More broadly, the accused will be refuting the existence of the mens rea required by the crime charged: intention, recklessness, knowledge, belief, or a combination of these factors.

Evidence of intoxication may also be relevant to the following defences:

• Claim of right (e.g., if the accused believed, due to intoxication, that he or she had a right to possession or ownership of the property in question: see R v Williams [1988];
• Duress (e.g., if the accused feared, due to intoxication of another, that a threat would be carried out);
• Mistaken belief (e.g., if the accused believed, due to intoxication, that s/he had permission to enter a property: see Jaggard v Dickinson [1981]).

Crimes Act 1958 Intoxication Defence

Whilst the common law approach still applies in Victoria, since 2005 with the introduction of the Crimes (Homicide) Act and then in 2014 with the introduction of the Crimes Amendment (Abolition of Defensive Homicide) Act, it has been subject to statutory limitations in certain circumstances. The Victorian statutory provisions differentiate intoxication that is self- induced (or voluntary) from that which is not (involuntary). The Victorian legislation is very specific. The key provisions relate to defences and some sexual offences (see section 36B of the Crimes Act 1958 and consent). The current statutory provisions relating to intoxication are found in section 322T of the Crimes Act 1958. This section has not altered the common law position concerning intoxication, voluntariness, and the formation of mens rea. Here we will focus on section 322T of the Crimes Act 1958 which applies for offences committed on or after 1 November 2014.

Section 322T of the Crimes Act 1958 does not define intoxication but does explain it as being under the influence of alcohol, drugs or any other substance. The section applies to defences that include self-defence, duress and sudden or extraordinary emergency.

Intoxication will be considered self-induced unless it came about –

• involuntarily; or
• because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
• 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

Intoxication is considered to be self-induced in circumstances where the person using the intoxicating substance knew or had reason to believe, taking the intoxicant would significantly impair the person’s judgment or control. If intoxication came about involuntarily it can be used as a defence. If intoxication came about voluntarily, then section 322T prohibits an accused’s intoxicated state being taken into account in relation to the prescribed defences.

Where intoxication is not self-induced, in determining the test for ‘reasonable belief’ or ‘reasonable response’, consideration is given to the standard of a ‘reasonable person’, intoxicated to the same extent as the accused person (Crimes Act 1958 – s322T(3)).

In circumstances where intoxication is self-induced if any part of a defence relies on reasonable belief or reasonable response per s322T, consideration is given to the standard of a reasonable person who is not intoxicated. The court will consider what a reasonable sober person (with the other relevant characteristics of the accused) might have believed or done: see DPP v Parker [2016]. The ‘reasonable person’ is a person who possesses the faculty of reason and engages in conduct in line with the community’s standards, the comparison between the accused’s conduct and this ‘person’ is referred to as the ‘reasonable person test’. This is often relevant in relation  sex offences when considering consent (see at the bottom of the linked page, just above the title “Consent as a Defence to Other Offences”)

Evidentiary Burden in relation to Intoxication

The defence bears the evidentiary burden of establishing intoxication whether it be to negate an element or in terms of establishing it as being relevant to a defence. The prosecution still must prove all other elements beyond a reasonable doubt.

Conclusion

Intoxication is not a full defence to a criminal charge (see Viro v R (1978) 141 CLR 88; R v O’Connor (1979)) but may exclude certain elements of a crime or be relevant to establishing a defence depending on how it is being relied upon. As is always the case, this document is not legal advice. If you have been charged with an offence where you say intoxication maybe relevant, you should seek advice from one of our specialist criminal lawyers. Call our office to make an appointment today.