8.5 Involuntary intoxication

Commonwealth Criminal Code: Guide for practitioners 

8.5 Involuntary intoxication

A person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self-induced.

Overview

The defence of involuntary intoxication has no counterpart at common law.177    In England, the Court of Appeal recognised the defence in Kingston,178 in 1994, but the House of Lords rejected the decision as an innovation without precedent.179 The Code provision is based in part on the Court of Appeal decision in Kingston, which had its supporters and opponents among English legal commentators.180 Of more significance, perhaps, for the development of the Codedefence, is the example provided by the involuntary intoxication defence in s28 of the Queensland Criminal Code and its counterparts in other Griffith Code jurisdictions.181 Involuntary intoxication is a true defence, like duress or self defence, which excuses a defendant though the prosecution proves voluntary commission of the physical elements of the offence and the fault elements,  if any, required for conviction. In practice, the defence is restricted in its applications to cases involving impulsive acts of violence and destruction or appropriation of property. The Queensland decision in Walsh<182 provides an example. A young man celebrated a win by his football team with his mates. In the course of the celebration he drank from a glass which may have been laced with a hallucinogenic drug. After the celebration he returned to his home in the early hours of the morning, took a knife from the kitchen and went to a neighbour’s house.  He told the occupant, a woman who had known him since he was a child, that he had locked himself out of his own house and did not want to wake his parents. When she began to take linen from a cupboard, to make a bed for him, he attacked her with the knife and inflicted multiple stab wounds. He was acquitted of attempted murder, and lesser offences, on the ground that his state of involuntary intoxication left him unable either to control his conduct or appreciate that he was doing wrong.183

Self induced intoxication is defined in s8.1 Definition-self induced intoxication.

The critical issue is the requirement that intoxication cause the conduct which constitutes the offence. In this respect, the defence follows the Court of Appeal in Kingston,184 rather than the Queensland Criminal Code, in which the defences of intoxication and insanity share the same criteria for determining the effect of mental incapacity on criminal responsibility.185 Chapter 2 provides no definition or criterion for determination of the causal issue. It is possible that the test of causation employed at various points in  the Code when causation provides a ground for liability, will be adopted here.186 Involuntary intoxication might be said to result in criminal conduct if it substantially contributed to the commission of the offence in question.

Since involuntary intoxication is a defence, a plea of involuntary intoxication will be withheld from the jury unless it has an adequate foundation in the evidence before the court: 13.3 Evidential burden of proof - defence. The effects of involuntary intoxication and the potential for that state to cause uncharacteristic conduct are well outside the bounds of common knowledge. In practice, expert testimony will almost certainly be required in all cases to lay an evidentiary basis for the defence.  The claim that criminal conduct  was caused by involuntary intoxication involves, as a necessary corollary, an implied claim that the conduct is not characteristic of the accused and would not have occurred, but for the state of intoxication. To that extent, a defendant who relies on the defence places their character in issue.187   The necessity    for reliance on expert evidence can be expected to encourage courts to take a broad view of the evidence and make the fate of the defendant depend, to some extent at least, on their past record.

  1.  See Barker v Bourke [1970] VR 884 at 890.

  2. [1994] QB 81.

  3. [1995] 2 AC 355.

  4. Critics include Sir John Smith in “Case and Comment: R v. Kingston” [1993] Crim LR 784 (Ct App); “Case and Comment: R v. Kingston” [1994] Crim LR 846 (HL). Among those who welcomed the defence, see: Gardiner, “Uncontrollable Intention in Criminal Law” (1994) 110 LQR 8; Sullivan, “Current Topic: Involuntary Intoxication and Beyond” [1994] Crim LR 273.

  5. The Queensland Code defence is discussed in Leader-Elliott, “Intoxication Defences: The Austral- ian Perspective” in S Yeo, Partial Defences to Murder (1990) 216-244.

  6. Peter Walsh, 1984 unreported decision of the Queensland Supreme Court. The case is recounted in The Courier Mail, 3, 4, 7 & 18 July 1984, 15 January 1985. Discussed, Leader-Elliott, ibid.

  7. Amendments to the Queensland Criminal Code since 1985 would probably deprive a latter-day Walsh of his defence: see MJ Shanahan, MP Irwin, PE Smith, Carter’s Criminal Law of Queensland (12 ed, 2001) 236-237 on the intended effect of s27(2).

  8. [1994] QB 81.

  9. Queensland Criminal Code s28(1). Compare American Model Penal Code - Proposed Official Draft ALI 1962, s2.08 Intoxication, which adopts essentially the same criteria.

  10. See, for example, CC s146.2 Causing harm, which defines causation in offences involving harms to Commonwealth public officials. It is arguable that the mere fact that intoxication substantially contributed to the crime is not sufficient to provide a complete defence.

  11. See Sullivan, Current Topic: Involuntary Intoxication and Beyond” [1994] Crim LR 273; Compare Leader-Elliott, “Intoxication Defences: The Australian Perspective” in S Yeo, Partial Defences to Murder (1990) 237.