8.1 Definition - self-induced intoxication

Commonwealth Criminal Code: Guide for practitioners 

8.1 Definition—self-induced intoxication

For the purposes of this Division, intoxication is self-induced unless it came about:

  1. (a) involuntarily; or
  2. (b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.

Overview

The Code distinguishes between self-induced intoxication and “involuntary” intoxication.158   The distinction provides the essential foundation for a set   of rules which require courts either to exclude evidence of intoxication or impose standards of reasonable and sober conduct when determining criminal liability. So, for example, liability for negligence is determined by reference  to the standard of a “reasonable person who is not intoxicated”: s8.3(1). These privative rules and objective standards only apply, however, to self- induced intoxication. The distinction between self-induced and involuntary intoxication also provides the basis for a defence, which has no common law counterpart: s8.5 Involuntary intoxication.

See note159.  The catalogue of conditions which can defeat an attribution of self induced intoxication is exhaustive but generous in its amplitude. Apart from the reference to involuntary intoxication, the catalogue bears an obvious resemblance to some of the defences in Part 2.3 - Circumstances in which there is no criminal liability. It would be unwise to make too much of the resemblance. It is probably safe to conclude that the reference to “involuntary” intoxication, in s8.1, can be elucidated by reference to the criteria for “voluntary” action in s4.2. It is quite clear, however, that the question whether intoxication was induced by duress or sudden and extraordinary emergency will be governed by quite different criteria from those which determine the application of the defences of duress and sudden or extraordinary emergency in ss10.3 and 10.4. The question at issue here is  not whether an accused was compelled to commit an offence. It is whether duress or an emergency compelled or induced the defendant to become intoxicated. For similar reasons, the complexities of the s9.2 Reasonable mistake of fact (strict liability), are unlikely to find application when the question is whether intoxication was self-induced or the result of “reasonable mistake”. Legislation which creates offences of strict liability requires individuals to exercise reasonable forethought in order to avoid inadvertent criminality.  Though s8.1 declares that intoxication is self-induced if it is   the product of an unreasonable mistake, the precautions required to avoid intoxication are very different from those required to avoid committing a criminal offence. In any event, the inclusion of accidental intoxication provides a supplementary ground for denial that intoxication was self-induced. The criteria which govern the availability of defences can provide no more than distant analogies when the question is whether or not a state of intoxication was self induced. Intoxication resulting from the use of force against the defendant is self-explanatory. Case law drawn from the related provision in s28 of the Queensland Criminal Code, which permits a defence of insanity to be based on “unintentional” intoxication, may be persuasive, but no more than persuasive, in determining whether intoxication was involuntary or self-induced under the Code.160

  1. Section 8.5 refers to intoxication which is not self induced as “involuntary”. In this context, how- ever, involuntariness does not correspond in meaning to the s4.1 definition of conduct which is “not voluntary.” With this a caveat, the commentary will follow Chapter 2 and refer to intoxication which is not self induced as “involuntary intoxication”.

  2. The definition of self induced intoxication is repeated twice in Chapter 2, in ss4.2(7) and 8.1

  3. On the concept of intentional intoxication, see RS O’Regan, Essays on the Australian Criminal Codes (1979) 71-72; Corbett [1903] St R Qd 246, 249, per Griffith CJ; Parker (1915) 17 WAR 96; Nosworthy (1983) 8 A Crim R 270 at 274, per Wickham J. The decision in Bromage (1990) 48 A Crim R 79 suggests the possibility of involuntary intoxication resulting from a synergy of environmental pollutants combined with moderate alcohol consumption to produce an immoderate degree of intoxi- cation. Section 28 of the Queensland Code was amended in 1997 to ensure that the defence of unintentional intoxication was barred to a defendant like Bromage, who “to any extent intentionally caused himself or herself to become intoxicated or stupefied”: see Carter’s Criminal Law of Queensland (12ed 2001), Edited: MJ Shanahan, MP Irwin, PE Smith) 236-237. Compare generally, PE Hassman, “Annotation: When Intoxication Deemed Involuntary so as to Constitute a Defence to a Criminal Charge” (1973) 73 ALR 3d 195.