We’re probably not suggesting anything too controversial when we write that Australians like a drink or two. Generally speaking, the majority of people will have a few drinks and behave themselves. However, for a small minority, getting drunk (or high on drugs) can sometimes lead to a situation where the person may find themselves in trouble with the law. Sure, someone who is in an intoxicated state may not be in complete control of all their faculties, but if they happen to be accused of committing a criminal offence while intoxicated, the question that needs to be asked is: Can drunkenness be used as a defence?
Drunkenness as a defence
Let’s get the answer to the most pertinent question out of the way. Intoxication due to alcohol or drugs is usually not a defence to a crime.
When discussion revolves around intoxication and the committing of a criminal offence, the key question that needs to be answered is whether or not the person had the specific intent during the act, rather than a loss of capacity in forming the intent.
Getting drunk (or high) is usually a voluntary action, therefore, if intoxication is an issue, the courts may look to the wider circumstances surrounding the action, and when intoxication occurred.
How am I able to remember committing the offence? I was drunk!
Case law regarding the issue of intoxication and the committing of the criminal act still revolves around the issue of actual intent. The court will look at whether the person voluntarily committed the criminal act, and whether they did so with actual intent. One of the things to be aware of is just because a person has no recollection of committing an offence because of being intoxicated, still does not negate the fact that he or she had the will, or actual intent in committing the criminal act.
Can intoxication ever become an issue at trial?
We should reemphasise the fact that intoxication is for the most part, not treated as a defence. However, if the defence of intoxication is an issue, we can look to the judgment of Barwick CJ in R v O’Connor (1980) 146 CLR 64; 29 ALR 449; 4 A Crim R 348 for some guidance, where his Honour said:
“[I]f the evidence is capable of raising a doubt either as to voluntariness or the existence of an actual intent, the jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charged requires. It would be proper in these cases to tell the jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intent.”