8.2 Intoxication (offences involving basic intent)

The physical elements of an offence are conduct, circumstances or results. The Code provisions on intoxication require a distinction to be drawn between conduct elements of an offence and circumstantial or result elements. When evidence of intoxication would have a rational bearing on proof of intention, knowledge, recklessness, negligence or any other fault element relating to    an incriminating circumstance or result of conduct, the court must give consideration to that evidence. The fact that the defendant was intoxicated can lend credibility to a denial of intention, knowledge or recklessness. Drunks are ill co-ordinated, lack judgement and make mistakes. Depending on the circumstances, these decrements in performance can displace the usual inference that anyone of normal intelligence must have known what they were doing or must have intended the consequences of their actions: s9.1(2). Evidence of intoxication may, in a similar fashion, lend support to  an assertion that an incriminating consequence or circumstance was accidental rather than intended or consciously risked. When negligence, rather than recklessness or intentional wrongdoing is in issue, evidence of self induced intoxication will, for obvious reasons, almost invariably favour the prosecution case.

This is the effect of the rule that evidence of self induced intoxication must be disregarded when “basic intent” is in issue. Basic intent is merely the familiar fault element of intention in its application to the conduct constituting an offence.¹⁶² Liability under the Code is always based on proscribed conduct - on proof of one or more acts, omissions or on a state of affairs. In most offences, the prohibition of conduct will usually require proof of accompanying circumstances or results in order to constitute the offence. In some offences, the fault element required for conduct elements of the offence will be specified. In s.270.3 Slavery offences, for example, a person who “intentionally…possesses a slave” or who “intentionally…enters any transaction involving a slave” is guilty of slavery. In many offences, however, the fault elements for conduct are not specified. In the absence of any provision in the law which creates the offence, Chapter 2 requires proof that the act, omission or state of affairs was intentional: s5.6(1). It is this requirement of intention with respect to conduct, whether the requirement is express or implied, which is the subject of the exclusionary rule that evidence of intoxication must be disregarded when “basic intent” is in issue. So, for example, the offence in 147.1 Causing harm to a Commonwealth public official requires proof both of an intentional act¹⁶³ which results in harm to the official and an intention to cause that harm. Defendant A, when charged with the offence, might deny guilt on the ground that the act  which caused the harm was not intentional but the result of a stumble, twitch or spasm. Evidence of intoxication  cannot be considered  in support of Defendant A’s claim that the act was not intentional, for this is a denial of basic intent. It is otherwise, however, when Defendant B denies an intention to cause harm. Suppose, for example, that Defendant B’s act, which caused the harm, was meant as a drunken practical joke. Defendant B does not deny that the act was intentional. The claim is rather that it was never intended to have serious consequences. Since this is a denial of intention with respect to a result, rather than conduct, evidence of Defendant B’s intoxication can be considered by the court. To that extent at least, the effect of the provision is reasonably apparent. On further consideration, however, the distinction between Defendant A and Defendant B evaporates. Defendant A, who says that the act causing harm was a mere stumble, twitch or spasm can equally well deny that there was any intention to cause harm.  Once  the denial is reformulated in this way, there is no impediment to reliance on evidence of intoxication. The same conclusion follows in all offences which require proof of fault with respect to a result. If the act causing the result was not intentional, the result is not intentional either.

The practical effect of s8.2(1) appears to be confined to offences which do not require proof of fault with respect to a result of conduct. Even here, however, further qualifications are necessary for offences which require proof of an ulterior intention.

Earlier in these Guidelines, in the discussion of the concept of intention, reference was made to offences which require proof of ulterior intentions:  see 5.2-D. In these offences:

• liability requires proof that the offender engaged in the proscribed conduct with the intention of achieving some further objective;
• the object of the offender’s intention is neither a result nor a circumstance specified in the definition of the offence.

The most familiar examples, though offences of this nature are not uncommon, are theft and related offences, which require proof of intent to deprive permanently.¹⁶⁴ If property is appropriated with that intention, liability does not depend on proof that anyone suffered deprivation or even a risk of deprivation: the intention to deprive is sufficient for guilt. Can evidence of intoxication, though self-induced, be taken into account when ulterior intention is in issue?  An example makes the nature of the issue plain. A person apparently caught shoplifting in a government publications outlet might concede that the publication was appropriated intentionally but deny that the appropriation was done with intent to deprive permanently. That denial of the ulterior intention might gain in credibility if accompanied by evidence that the defendant was fuddled from taking too many pills and simply forgot to pay for the publication. That conclusion that evidence of intoxication can be considered depends, however, on the proposition that ulterior intentions are not a variety of basic intent. It is immediately apparent that the definition of basic intent  in s8.2(2)  casts doubt on that conclusion.  The definition declares that basic intent is a “fault element  of intention for a physical element that consists only of conduct”. Ulterior intentions are, of necessity, fault elements “for a physical element that consists only of conduct”. In the shoplifting example, the intention to deprive permanently must relate to the act of appropriation: 5.2-D.  There  is nothing else to which it could apply, for there is no circumstance or result involving loss or deprivation of the property. Theft extends to cases where there is not even a risk of loss or deprivation.

Though the problem is immediately apparent, it is equally apparent that s8.2(1) cannot have been intended to deny recourse to evidence of intoxication when ulterior intentions are in issue.   That would run counter to the House   of Lords decision in DPP v Majewski¹⁶⁵ and every other common law authority on intoxication and criminal liability. No common law court has ever barred reliance on self-induced intoxication when liability depended on proof of ulterior intent. Though Parliament certainly meant the Code to change the common law, it is highly unlikely that it meant to turn it upside down.

Resolution of this apparent contradiction can be achieved by insisting that “intention” in the definition of “basic intent” is identical to “intention with respect to conduct” in s5.2(1): “A person has intention with respect to conduct if he or she means to engage in that conduct”.^166a The shoplifter cannot rely on evidence of intoxication to support a denial of intention to appropriate the publication. That evidence can be considered, however, when the court comes to consider whether the publication was appropriated with intent to deprive permanently. The privative rule in s8.2(1) is limited  in its applications to intention as defined in 5.2 Intention. That definition, as we have seen, is not complete and does not include the ulterior intention with which the act was done: 5.2-D.

Section 8.1(3) is an exception to the general rule that evidence of self induced intoxication has no part to play when the defendant denies that conduct   was intended. There is no defence of accident in the Code: a defendant’s claim that conduct was accidental is no more than a denial that the conduct was intended. The provision merely permits a defendant to introduce evidence of intoxication in support of a claim that the conduct was not intended because it was really an accident. It is obvious that the concept of “accident” must bear a limited meaning if the exception is not to swallow  the rule.^166b  The subsection draws an implicit distinction between a denial    of intention based on a claim of mistake or ignorance of fact and a denial based on a claim of accident,¹⁶⁷ permitting reliance on evidence of intoxication to support a claim of accident but not a claim of mistake or ignorance.  There is no doubt that a distinction can be drawn. There is a difference, for example, between hitting a Commonwealth official by mistake and hitting the official by accident: one who hits another by accident doesn’t really intend to do anything at all. The distinction is nonetheless fine – more dependent on considerations of linguistic nicety than differences in blameworthiness or responsibility. It is important to remember that the provision for accident is an exception to the rule excluding reliance on evidence of intoxication: the exception is likely to be narrowly construed. Any attempt to determine how such a distinction between mistake and accident would work in practice would be premature. Opportunities for elucidation in caselaw are likely to be rare.  Conduct which provides the  basis for most Commonwealth offences is rarely the result of accident. If one is careful to distinguish between things done by mistake and things done by accident there will be few occasions when it will be possible to say, for example, that a document was signed by accident, or a false statement  was made by accident or property appropriated by accident. Accident is a more characteristic excuse in offences which involve the gross physicality of damage or injury.

Section 8.2(4) has no bearing on proof of basic intent. The provision is limited in its effects, applying only to the defence of reasonable mistake of fact in offences which impose strict liability: 6.1 Strict liability. A defence of reasonable mistake of fact will fail, of course, if the mistake is not reasonable and evidence of self induced intoxication will usually tend to destroy any prospect of successful reliance on  the  defence.¹⁶⁸ It is nonetheless possible for an intoxicated person to make a reasonable mistake and in such a case, however unlikely, to gain an acquittal. Subsection 8.2(4), together with the attendant qualifications in ss(5), is meant to preserve the possibility of acquittal in such a case. The provision was inserted from motives of extreme caution, to avoid any suggestion that a defendant who relies on a defence of reasonable mistake must fall at the first hurdle if they seek to rely on evidence of intoxication to support the claim that a mistake was made.  Of course,   the prosecution is equally entitled to rely on evidence of the defendant’s intoxication to defeat the defence at the second hurdle, by proving the mistake to have been unreasonable.

161. [1977] AC 480.

162. Code s5.2(1): “A person has intention with respect to conduct if he or she means to engage in that conduct”.

163. No provision is made for liability based on omission: 4.3 Omissions.

164. Though familiar, theft is not entirely typical of offences which require proof of ulterior intention. The concept of “permanent deprivation’ and, by extension, the concept of intent to deprive permanently has acquired a technical meaning in the Code. See CC s131.10 Intention of permanently depriving a person of property.

165. [1977] AC 442.

166. 166a. - Invoking Criminal Code Act (1995), s4(1) “Expressions used in the Code…that are defined in the Dictionary …have the meanings given to them in the Dictionary.” The Dictionary defines “inten- tion” by reference to 5.2 Intention.
     166b. - Little or no assistance can be derived from consideration of the defence of accident in s23 of the Queens- land Criminal Code and its counterparts in other Australian jurisdictions: see Kapronovski (1973) 133 CLR 209 at 231 per Gibbs J. Authorities on the defence are collected in Carter’s Criminal Law of Queensland, op cit, 216-219. The Queensland Code distinguishes between accident, which provides an excuse for an incriminating eventand a denial that the act which caused those consequences was willed. It is quite impossible to map this structure onto the Commonwealth Criminal Code.

167. Consider, for example, the relationship between the defences of reasonable mistake of fact and accident in ss23 and 24 of the Queensland Criminal Code. This complex distinction rests on an equally complex distinction between accident and mistake in ordinary language: see J Austin, “A Plea for Excuses”, in Philosophical Papers (1961, eds Jo Urmson and G J Warnock 123, 132-133). Dictionaries are of little help here: The Macquarie Dictionary (3rd ed, 1997) defines “accident” as

     • an undesirable or unfortunate happening; casualty, mishap (2) anything that happens unexpect- edly, without design or by chance (3) the operation of chance…”

168. CC s8.4(2) makes special provision for cases involving involuntary intoxication.