8.4 Intoxication (relevance to defences)

Commonwealth Criminal Code: Guide for practitioners 

8.4 Intoxication (relevance to defences)

(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.

(2) If any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.

(3) If a person’s intoxication is not self-induced, in determining whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

(4) If, in relation to an offence:

  1. (a) each physical element has a fault element of basic intent; and
  2. (b) any part of a defence is based on actual knowledge or belief; evidence of self-induced intoxication cannot be considered in determining whether that knowledge or belief existed.

(5) A fault element of basic intent is a fault element of intention  for a physical element that consists only of conduct.

Note: A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent.

Overview

Many of the defences in Part 2.3 - Circumstances in which there is no criminal liability, require evidence of the beliefs which prompted the defendant to engage in the conduct which provides the basis for the charge. Reasonable mistake of fact, self defence, duress and sudden or extraordinary emergency are typical in this respect. Most of the defences require, in addition, that the belief be true  or, if mistaken, that the mistake be reasonable in the circumstances: 9.5 Claim of right and 10.4 Self defence are exceptions which allow an acquittal to be based on unreasonable belief.171 With one exception, Chapter 2 does not exclude reliance on evidence of self induced intoxication by the defendant or the prosecution, when defences are in issue. In particular, Chapter 2 permits reliance on evidence of self induced intoxication to support a claim that the defendant’s action was prompted by a mistaken belief about the circumstances. If, however, the defence is one that requires reasonable grounds for a mistaken belief, a defendant who was voluntarily intoxicated will be held to the standard of a reasonable and sober person. Evidence of self induced intoxication which can serve the defendant’s cause in the first leg of the defence will usually strengthen the prosecution case when the second issue, whether the belief was reasonable, is reached. The requirement of reasonable grounds will be relaxed if the defendant’s state of intoxication was not self induced.

The provisions were intended to exclude consideration of self-induced intoxication when a defendant relies on evidence of self defence in answer to certain minor offences.  They make use of the distinction, often encountered   in Chapter 2, between the conduct elements of the offence and elements that can be characterised as circumstances or results: 3.1 Elements. The extent of this exclusion is likely to involve debate.  To  elucidate the exclusionary effects  of the provisions it is necessary to begin with the cases in which  evidence  of self induced intoxication canbe considered when defences are in issue.

Most defences to criminal liability are based on the defendant’s belief that  the conduct constituting the offence was necessary, justified or permissible.172 Evidence that the defendant was intoxicated will be irrelevant if the defendant’s belief was true. However, if the defence is founded on a claim of mistaken belief, evidence of intoxication is usually relevant, for it will tend  to enhance the credibility of the defendant’s story, particularly if the mistaken belief was stupid and unreasonable.173

The following defences are available only if the defendant held a reasonable belief in the existence of facts which provide a basis for the defence: 9.2 Reasonable mistake of fact; 10.2 Duress; 10.3 Sudden or extraordinary emergency. The exceptions, which permit a defence to be based on an unreasonable mistake, are 9.5 Claim of right and 10.4 Self-defence. Whenever reasonable belief is required for a defence, sober and intoxicated defendants are held to the same standard of reasonableness, so long as the state of intoxication was self induced: see below 8.4-D. The first of the two exceptions, which permit a defence to be based on an unreasonable belief, is claim of right, which can be based on an unreasonable belief in the existence of a right to possession   or ownership of property: see 9.5 Claim of right. A plea of self defence can also be based on an unreasonable and mistaken belief.  Self defensive action  is excused if it is a reasonable response to the threat which the defendant perceived, no matter how unreasonable that perception. Evidence that the defendant was intoxicated can lend credibility to the claim that force was used against another in the mistaken belief that harm was threatened.

The measure of reasonableness in cases of involuntary intoxication is that of  a reasonable person intoxicated to the same extent as the defendant. The  rule is similar in effect and intention to the variation of standard when offences of negligence are charged and the defendant pleads involuntary intoxication: see above 8.3-B.

Section 8.4(4) is an exception to the general rule, in s8.4(1), that evidence   of intoxication is generally admissible and relevant when a defence depends on the defendant’s beliefs. The exception was intended as a symmetrical counterpart to s8.2(1), which bars consideration of self-induced intoxication when a fault element of “basic intent” is in issue. Section 8.4(4) excludes evidence of self-induced intoxication from consideration when defences to “crimes of basic intent” are in issue. The intended effect of the provision is more easily explained with the aid of an example which compares the effect of these parallel exclusionary rules on a plea of self defence.174 Consider the case of two defendants, each charged with violation of a simple prohibition against making a threat to harm another person. In such an offence, the  Code would require proof that the conduct of the defendant was intended as a threat: s5.6(1). This is a fault requirement of basic intent and s8.2(1)  would apply:

  • Defendant A denies that there was any intention to threaten: A says that the apparent threat was really only a joke, and intended as such. Section 8.2(1) applies and A cannot rely on evidence of intoxication to bolster the credibility of the denial that the conduct was meant to threaten.
  • Defendant B claims that the threat was made in the mistaken belief that it was necessary for self defence: Here the threat was made intentionally. But self defence will provide an excuse, if the threat was a reasonable response to the threat perceived by B. The defence is still available, even if B’s perception of the threat was utterly unreasonable. Section 8.4(2) merely denies recourse to evidence of intoxication which might be expected to make that claim more credible.  If it is otherwise apparent that D acted on   a mistaken apprehension of danger, exclusion of evidence of intoxication may make very little difference to the outcome.

The potential applications of the exception are extremely limited: it can  only apply to offences where “each physical element has a fault element of basic intent”. It appears, indeed, that it may have no application in Commonwealth offences. If the exception is given its literal meaning, it has no application in offences which include among their physical elements, circumstances or results.175 Since almost all offences under the Code do include circumstances, and some include results among their elements, evidence of intoxication is almost always admissible to support a claim of mistaken belief which might otherwise have been rejected as unbelievable.

Intoxication, delusions of self defence and obstruction of a Commonwealth Official

The limited effect of s8.4(4) can be illustrated by a hypothetical based on s149.1 Obstruction of Commonwealth public officials. It is an offence to obstruct, hinder, intimidate, or resist Commonwealth officials in the performance of their duties. For brevity and simplicity, discussion can be limited to a hypothetical in which an official is obstructed by the defendant, who acted in the drunken belief that obstruction was necessary for self defence. The offence requires proof that the person obstructed was known to be a public official.176 Since no other fault element is specified, the prosecution must prove an intentional act of obstruction: see s5.6(1). In this offence, obstruction of an official is a  “physical element that consists only of conduct”:  see s8.2(2). The intention to obstruct required by s5.6(1) is therefore “a fault element of basic intent”. Suppose the case in which a Customs official, acting in the course of duty, attempted to search Donald Defendant for contraband drugs.  Donald, who was quite innocent   of any involvement with drugs, was intoxicated. He misunderstood the official’s purpose and took the attempt to conduct a search as an unwelcome sexual advance, under colour of official action. He clenched his fists and threatened the officer with violence if he came any closer. In this offence, s8.2 Intoxication (offences involving basic intent), requires the court to disregard evidence of Donald’s intoxication on the question whether he intended to obstruct the officer. Since the obstruction took the form of an obviously intentional threat, this particular exclusion is of little moment. It appears, however, that Donald can  rely on evidence of his state of intoxication in support of his plea of self defence. Alone among the provisions of Division 10 - Circumstances involving external factors, s10.4 permits self defence to be based on an honest though unreasonable belief in threatened harm. Donald must be acquitted if his threatened attack on the official was a reasonable response to the peril which he perceived, however unreasonable that perception of threatened peril. Evidence that Donald was intoxicated lends credibility to his claim that he misunderstood the official’s purpose and believed that he was threatened with harm. Section 8.4(1) permits the evidence to be considered on that question, unless the exception in s8.4(4) applies. The exception has no application, however, for this offence includes the circumstantial element that the person obstructed is an official.

  1. Note, however, 7.3 Mental impairment. In cases of delusion caused by mental impairment, the delusion cannot provide the basis for a plea of self defence, or any other of the defences.

  2. Ch 2, s10.5 Lawful authority is the exception.

  3. Compare Ch 2, s9.1(2) on fault elements, which reiterates commonsense in its declaration that the more unreasonable the tale of mistake, the less likely it is that the person is telling the truth.

  4. The exception is potentially relevant as well in certain applications of 9.5 Claim of right which, like self defence, can be based on an unreasonably mistaken belief. For reasons given in the text, it is unlikely that the exception will have any practical application to Commonwealth offences.

  5. The conclusion follows as a consequence of the definition of terms: s 8.4(4) limits the exception to offences in which “each physical element has a fault element of basic intent”. (1) Hence the exception cannot apply to offences which include physical elements for which basic intent is not a fault element; (2) But “basic intent”, as defined under s8.4(5), can only apply to an act, omission or state of affairs - “conduct”; (3) Hence offences which include circumstances or results among their elements are not affected by the exception.

  6. See CC Dictionary defining “public official” The category includes officers, employees and independent contractors employed by Commonwealth, state and territorial governments.