8.3 Intoxication (negligence as fault element)

Commonwealth Criminal Code: Guide for practitioners 

8.3 Intoxication (negligence as fault element)

(1) If negligence is a fault element for a particular physical element of an offence, in determining whether that fault element existed in relation to a person who is intoxicated, regard must be had  to the standard of a reasonable person who is not intoxicated.

(2) However, if intoxication is not self-induced, regard must be  had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

Overview

Negligence requires proof of a “great falling short” of the standard of care expected of a reasonable person in circumstances where there is a “high risk” of incriminating circumstances or results: 5.5 Negligence. The standard against which the offender is judged is that of a reasonable person who is   not intoxicated. The rule is obvious and conforms to general common law principle, which declines to vary the standard in negligence according to the offender’s capacity to take care.169 Variation of the standard is permitted, however, when intoxication is involuntary rather than self induced. In that case, the Code requires an allegation of negligence to be measured by the standard of a reasonable but intoxicated individual.

Since intoxication tends to diminish awareness of risks, concern that risks might eventuate and the capacity to avoid harmful outcomes, evidence that an accused was intoxicated will tend to establish the gross deviation from standards of reasonable care required for negligence.

If there is evidence of involuntary intoxication, the defendant must be judged by the standard of a “reasonable person intoxicated to the same extent as the person concerned”. Though evidence of the intoxicating effects of alcohol is generally not admissible, expert evidence would almost certainly be admissible to inform the court of the likely effects of involuntary intoxication. These effects are not a matter of general community knowledge. The defendant’s performance will be measured against that of a reasonable person in a similar state of involuntary intoxication. Since proof of negligence still requires “a great falling short” of the required standard, evidence of involuntary intoxication will defeat an allegation of negligence in cases where the capacities of the reasonable person would have been seriously impaired, if intoxicated  to the same extent. There is obvious difficulty in measuring the degree to which the defendant’s conduct might be said to depart from such a compromised standard of reasonable behaviour. It is likely,  however, that  the need to use the reasonable drunk as a measure will rarely arise, even if there is cogent evidence of involuntary intoxication. A reasonable person  who is intoxicated and aware of that state of intoxication will simply desist from activities which require care, if it is possible to do so.170 The offender who blunders on, when a reasonable drunk would desist, breaches the standard. The really difficult issue is only likely to arise if there is cogent evidence that a reasonable person, intoxicated to the same extent as the defendant, might have been unaware of their state or unable to avoid the necessity for engaging in the conduct.

  1. Richards & Gregory [1988] 2 VR 1.

  2. The issues are the subject of exhaustive discussion in Barker v Bourke [1970] VR 884.