What happens to liability if a valid and complete defence exists?
D will not be criminally liable
What is a general defence?
A defence available to almost any crime
What happens if D does not form the necessary MR due to intoxication?
D entitled to a full acquittal under certain circumstances
I.e. was so intoxicated they did not know what they were doing
What if D forms the MR even though intoxicated?
Drunken intent is still intent, so D will be liable - if prosecution establishes this intoxication cannot assist D
Same for Dutch courage
Kingston - if D had still formed MR in intoxicated state, it is no defence to plead he would not have committed offence when sober
When can intoxication operate to negate MR?
And what is the role of D and prosecution here?
- Where intoxication caused involuntarily (spiking, lacing)
- Where intoxication caused voluntarily in bona fide pursuit of medical treatment
- Where intoxication caused by non-dangerous drugs taken voluntarily (dangerous = illegal or alcohol)
- Where specific intent is required (generally where offence cannot be committed recklessly)
Evidential burden on D to raise intoxication, then P’s job to prove BRD that D formed necessary MR
What 3 questions should be asked when addressing whether intoxication will negate MR of alleged offence?
- Is D voluntarily or involuntarily intoxicated?
- Is intoxicant a dangerous or non-dangerous alcohol/drug?
- Is it a crime of basic or specific intent?
What type of crimes will the defence of intoxication be available for involuntary intoxication?
Both specific and basic intent crimes
Still must ask if D formed necessary MR despite intoxication
Will mistaking the strength of alcohol a D is aware they are drinking count as involuntary intoxication?
No
What is the distinction for basic intent and specific intent offences?
- Basic intent = no foresight of consequences required/could be convicted on basis of recklessness e.g. battery as D must intend or be reckless
- Specific intent = intention only form of MR available e.g. murder as D must intend to kill or cause GBH
- Specific = murder, s18 (wounding or GBH with intent), theft, robbery, all burglary, attemps
- Basic = involuntary manslaughter, s20 and s40, battery and assault, basic criminal damage and aggravated criminal damage
In a case of voluntary intoxication, what is the test for intoxication as a defence for 1. specific and 2. basic intent crimes?
- Specific = defence may be available if the D did/was not able to form MR due to intoxication
- Basic = would D have seen the risk/formed MR had they not been intoxicated? (Most likely will and) if so, will be deemed reckless and criminally liable (so MR will not negate MR)
Less likely to be able to rely on it for basic intent
What is the difference between dangerous and non-dangerous drugs ?
- Dangerous (alcohol and illegal drugs) = known that a drug can cause taker to become aggressive or unpredictable
- Non-dangerous (sedatives) = no such common knowledge
Hardie - D took valium and started a fire and denied having MR
What is the difference between dangerous and non-dangerous drugs in terms of availability of intoxication defence?
- Dangerous drugs = look at rules on basic and specifc intent
- Non-dangerous drugs = defence might be available - did D still form necessary MR?
Summary of intoxication as a way to negate MR
Is it a defence to have only formed the MR because they were intoxicated?
No - question is whether they actually formed the MR
* If a basic intent offence, very likely intoxication cannot be used as offence (as would have formed the MR if sober)
* For specific intent offence, question is as above
Will intoxication enable a D to rely on another legal defence?
Generally, no
What is the effect of intoxication on using self-defence?
If D makes a drunken mistake as to the need to use self-defence, they cannot rely on that mistake
I.e. can basically be drunk and make the same mistake you would sober but because you are drunk it negates the defence
What is the effect on intoxication of LOC and DR?
Does not bar a plea to either
Where in murder is intoxication considered?
MR - even though intoxicated, did D form MR of intention to kill/cause GBH? Drunken intent still intent
Where is intoxication considered in LOC?
- Addiction can be taken into account in assessing magnitude of qualifying anger trigger if taunted about addiction
- Characteristic of intoxication can be given to normal person but normal person will still have normal levels of tolerance and self-restraint
Where is intoxication considered in DR?
- If AMF arises from ADS = extent and severity considered, AMF must arise from it, and substantially impaired ability to do thing
- Other AMF = Alcohol can be an additional reason to explanation of D’s conduct than AMF
What is the rule on intoxication and consent?
E.g. how the intoxicated perceive consent
Richardson and Irwin - drunken uni students drop V over balcony and claim they had consented
D can have a defence if jury satisfied that V consented to accidental infliction of injury or D (wrongly) believed that V consented (due to intoxication)
What is the effect on intoxication and a statutory defence that allows for honest belief?
E.g. owner would consent to damage or appropriation of property
D can use this defence even if their belief is due to voluntary intoxication
What are the 2 requirements for the defence of consent?
- V consented
- D honestly believed V was consenting
What must the prosecution prove regarding consent?
- Victim did not consent; and
- D did not believe in victim’s consent
BOTH
