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Alcohol and crime: should extreme drunkenness be a legal defence for criminal acts?


Echo Issue Outline 1997 / 43: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney

What they said ...
`You can't just be normally drunk but so blotto that you can't even walk properly. You must be paralytic' Mr David Grace, QC

`Women, in particular, have expressed concern at the use of this defence and I share that concern'
Federal Attorney-General, Daryl Williams
On October 22, 1997, an Australian Capital Territory magistrate cleared a Canberra Raiders ruby league player on two charges of assault, both against young women whom he did not know. The man had also assaulted his wife, but she had not pressed charges. The magistrate cleared the man on the basis of what is commonly referred to as the `drunk's defence'.
The accused admitted to having drunk more than 14 litres of beer and wine and the magistrate judged him to have been too intoxicated to have known what he was doing.
The ruling and more particularly the `drunk's defence' on which it was based have met with opposition from a number of quarters. Only days after the ruling was brought down, the federal Attorney-General, Mr Daryl Williams, indicated that he would speak with the attorneys-general in all those Australian states and territories which still allowed such a defence and ask them to reform the relevant laws.

Background
A note on intent
The so-called `drunk's defence' centres on intent. In law there are said to be two dimensions to every offence. One element of the crime is the act itself, the actus reus; the other element of the crime is the intention to commit the crime, the mens rea.
This element of intent is regarded as critically important - if a reasonable doubt can be cast as to whether a person intended to commit a crime or could reasonably have been expected to foresee that his or her actions would harm another, then either no offence or a lesser offence may be considered to have occurred.
Extreme drunkenness as a defence in Australia and elsewhere
The issue currently being debated in Australia, has raised similar difficulties in other countries.
In Britain, in 1978, the House of Lords, in the case of Reg v Majewski, held, on public policy grounds, that intoxication should not be admissible as evidence on the question of a defendant's intent. The House of Lords acknowledged at the time that this contradicted orthodox legal principles on the issue of intent.
This decision set up two categories of intent, basic or general intent and specific intent.
An example of a basic intent is an assault where the intent is simple to commit the offence; a specific intent would be the desire to cause a high level of injury or harm to the person assaulted. The House of Lords determined that extreme intoxication could be a defence for crimes of specific intent but not for crimes of basic intent.
A similar decision was arrived at in Canada as recently as September, 1995, when a law came into effect disallowing the use of extreme drunkenness as a defence to violent crimes.
Critics noted that the law was in conflict with provisions of the Canadian Charter of Rights and Freedoms. However, there was extensive support for the removal of drunkenness as a defence.
In September, 1994, the Supreme Court in Canada ruled in the Daviault Case that the previous conviction of a man who had pulled a 65-year-old woman from her wheelchair and raped her was invalid because the accused, who did not dispute the offence, had consumed a very large amount of alcohol.
There was a large outcry at this ruling and the result was the decision to largely remove or further limit extreme intoxication as a defence.
In Australia, the High Court decided in 1980, in O'Connor v The Queen, that evidence of intoxication could raise a doubt as to whether the defendant had formed an intent. The High Court of Australia rejected the view of the House of Lords in Reg v Majewski, as it held that this ruling violated fundamental legal principles.
However, in 1995, the Standing Committee of the Attorneys-General, completed a model criminal code. This code rejected the O'Connor ruling on intoxication as a defence and accepted the Majewski. This chapter of the model criminal code has been enacted as the Criminal Code Act 1995 (Commonwealth).
In 1996, NSW amended its Crimes Act 1995, to bring it into line with the Criminal Code Act 1995 (Commonwealth).
However, the `drunk's defence' still exists in the Australian Capital Territory, Victoria and South Australia.




Click the links you wish to go to.

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There are a number of useful Internet sites dealing with this issue, especially as it has been treated in Canada.
There is a full module titled, Defences - Capacity - Intoxication (LINK ONE) from the law faculty of the University of Alberta. This is 47 pages long and makes challenging reading, however, it examines all elements of the issue, including the validity of the distinction between specific and general intent in exhaustive detail.
There is also a reproduction of a report from the Edmonton Journal, titled, Law ending defence of drunkenness takes effect in September (LINK TWO) and dated, August 10, 1995
Finally, there is a reproduction of a document from the United Nation's Division for the Advancement of Women, titled Violence Against Women (LINK THREE). It looks at the question of violence against women from a number of points of view but includes a consideration of domestic violence and the effect of drunkenness. It makes specific reference to the Daviault Case in Canada.

Arguments supporting extreme drunkenness as a defence for criminal acts
Those who argue that extreme drunkenness should remain a legal defence stress that this line of defence is based on the principal of intent.
The question of intent is generally regarded as important in legal terms. It relates to the extent to which a person is considered to have deliberately and willingly committed a criminal act.
If the criminal act is not held to have been deliberately and voluntarily committed or if the person who has committed the act is considered to have been unlikely to have recognised what its probable consequences would be, then the degree of guilt is lessened.
In law, if it is judged that a person either has not or was not able to form the intent to commit a particular crime then he or she will either be found not guilty or will be convicted of a lesser offence.
Mr Lex Lasry, QC, the vice-chairman of the Criminal Bar Association, has noted that intent is a fundamental element of criminal law. `If the actions are not voluntary then the provisions of the law change,' Mr Lasry has explained.
The same point has been made by Mr David Grace, QC, who has claimed, `Once we do away with the requirements of intent, we are cutting away one of the cornerstones of the criminal law. It is a fundamental issue.'
Extreme drunkenness is one of a range of conditions which in some jurisdictions are held to reduce or remove a person's capacity deliberately to commit certain sorts of crime.
Defenders of the intent provisions of the law as they apply to extreme drunkenness, note that the same provisions protect those suffering concussion or other states of disassociation which may result in criminal behaviour.
It is argued that in all criminal cases it needs to be established that the person charged could reasonably be expected to anticipate that a particular action of theirs would have a particular effect. In other words, the prosecuting counsel has to be able to demonstrate that the accused person intended to commit the crime with which he or she has been charged.
If a lawyer can prove the crime was committed without criminal intent because of extreme drunkenness, then, it is argued, the nature of the crime and the level of culpability attached to it should change.
It has also been noted that continuing to allow the defence of drunkenness would not be an invitation for any potential offender to use his or her intoxication as a means of either avoiding punishment or being charged with a lesser offence.
Supporters of the defence of drunkenness remaining available note that it would be able to be used very infrequently.
Dr Bernadette McSherry, a senior lecturer in law at Monash University, has claimed, `Acquittals on the basis of intoxication or other states of mental impairment are rare. There is a well-established legal rule that an accused will be held liable if he or she deliberately became intoxicated in order to carry out an offence.
In assault or homicide cases, it is only when there is evidence that the accused was virtually paralytic that evidence of intoxication may be raised to show that he or she was unaware of the acts being performed or did not intend to cause or foresee the likelihood of injury or death.'
This point has also been made by Mr David Grace, QC, who has suggested that the controversy surrounding the Nadruku case was an over-reaction because the defence of drunkenness is rarely available.
`You can't just be normally drunk but so blotto that you can't even walk properly. You must be paralytic,' Mr Grace has concluded.
Another criticism made of those who would have anyone who becomes extremely intoxicated punished for whatever crimes he or she commits in that state is that the person is effectively being punished for the behaviour that lead up to the crime and not for the actual crime.
This point has been made by Dr Bernadette McSherry, who has noted, `The problem from a legal viewpoint is that the preceding behaviour is being punished, rather than the crime itself.'
Dr McSherry goes on to ask, `Do we then punish the person who sleepwalks for falling asleep before committing a crime?'
Though there are those who would argue that the comparison between sleepwalking and self-induced intoxication is not an appropriate one, supporters of the extreme drunkenness defence note that the penalties attached to extreme drunkenness that does not then lead to a further crime are much lighter than for offences such as assault.
According to this line of argument, while it might be appropriate to make extreme drunkenness an offence, it is not then appropriate to punish a person for any subsequent offence as though they had not been in a state of severe intoxication.
Further, defenders of the current provisions in Victoria, the Australian Capital Territory and South Australia note, one of the key recommendations of the Black Deaths in Custody Royal Commission was that public drunkenness cease to be an offence as the risks faced by Aboriginal people imprisoned on this charge were felt to be too high.
Supporters of the defence of extreme drunkenness generally do not advocate that the person simply be released to go and offend again. Rather, it is suggested that agreeing to undergo an appropriate course of treatment be one of the conditions under which the defendant is released.
Those who support this position argue that extreme drunkenness would then be treated in a manner similar to other forms of general mental impairment. Currently, it is claimed, in a number of Australian jurisdictions a person suffering from a psychiatric disorder is not found criminally liable for any action they commit while not in control of him- or herself. However, that person can be compulsorily hospitalised and is required to gain the necessary treatment to help prevent a recurrence of similar incidents.
Dr McSherry has suggested that the same approach should be adopted with regard to those who commit an offence while in a state of extreme drunkenness. `That way,' Dr McSherry observes, `we may be assured that in the rare instances when a person commits a crime in an alcoholic blackout, he or she may be found not guilty, but detained in order to have treatment.'
Finally, it has been claimed, the reaction to the recent application of the `drunk's defence' in the ACT has been exaggerated.
It has been suggested that the public, political and legal response has been shaped by the fact that the man charged with the assaults was a well-known rugby player and the case has received a high level of media attention. It has even been suggested that the fact that the defendant comes from Fiji may have contributed an element of racial prejudice to the generally unfavourable reception his acquittal has received. It has also been noted that the popular criticism of the judgement has ignored the fact that the accused apparently has a record of responsible behaviour and is not usually a heavy drinker. (References to the defendant's pervious drinking history have been inconsistent. Some reports have claimed that he was an habitual heavy drinker, others have claimed the opposite.)

Arguments opposing extreme drunkenness as a defence for criminal acts
The basic argument offered in support of the removal of the so-called `drunk's defence' in all Australian states and territories is that such a defence is inappropriate.
According to this argument, having drunk alcohol to the point of virtual paralysis should not absolve a person from responsibility for his or her actions. Those who hold this view maintain that the reasonable person should drink responsibly and where he or she chooses not to do so then extreme inebriation should not remove the person's responsibility for his or her subsequent actions.
It is claimed that this is especially the case where the crime committed while in a drunken state is assault, as aggression and physical violence, it is argued, are likely outcomes of becoming extremely intoxicated and should have been recognised as a probability by the person who allowed him- or herself to become very drunk.
This position has been explained by Grant Hattam and Adrian Anderson, both lawyers. They write, `A person who knows when they are drunk that they are likely to be violent and reckless is not entitled to be treated as blameless as they have voluntarily put themselves in a position where they can harm others.'
Those who hold this view, argue that if the intoxicated person has chosen to become drunk, then he or she is responsible both for his or her intoxication and for any offence that might reasonably be expected to be committed by an extremely drunk person.
This position has been put by the Federal Minister for the Status of Women, Ms Judi Moylan, who has stated, `People who voluntarily get drunk and assault others should have to take responsibility for their actions. The recent acquittal of a man charged with assault after he voluntarily got drunk then punched three women only undermines the confidence people have in their protection by the law.
The Commonwealth has adopted the model criminal code which does not allow the so-called `drunk's defence' for basic offences such as assault ... Alcohol and drug abuse cause many social problems. The drunk's defence is totally unacceptable in assault cases.'
Another major criticism made of the `drunk's defence' is the impact it has on women in terms of both the likelihood of their being assaulted and their feelings of personal security.
According to this line of argument, drunken assault is most likely to be an offence committed by men against women, and alcohol is a major contributory factor in many cases of domestic violence. It has been claimed that were it to appear likely that a highly intoxicated man might actually have his guilt diminished by his drunken state then this could be seen by both men and women as an encouragement to commit assault, particularly within the home.
This position has been put by the federal Attorney-General, Mr Daryl Williams, who has claimed, `Women, in particular, have expressed concern at the use of this defence and I share that concern.
Nobody should be subject to violence and it must be especially disconcerting for women, as the most frequent victims of domestic violence, to have any such trauma exacerbated by outmoded legal considerations.'
It has also been suggested that the acceptance in some states and territories of extreme drunkenness as a defence may be seen by some individuals as both an encouragement to drink irresponsible and to commit other crimes.
It has also been suggested that such a defence would appear to contradict the Howard Government's recent drugs strategy which adopts an approach of zero tolerance towards illicit drugs.
According to this line of argument, the `drunk's defence' does not send an appropriate message into the general community and may actually seem to promote the irresponsible use of alcohol and other mood-altering substances.
The federal Attorney-General, Mr Williams, has stated, `The use of this defence has sent a disturbing message to those who get drunk and engage in violent behaviour.'
The same point has been made by lawyer, Grant Hattam, who asked, `Are some people going to conclude ... that the drunker they get, the less likely they are to be found guilty of a crime?'
It has also been contended that the law can be rerquired to spearhead or lead social change. For example, the law-makers of Australia have been praised by spokespeople for women's organisations for helping to raise community awareness that domestic violence is as much assault as were the victim attacked by a stranger outside her own home.
It has been further argued that lawmakers in the ACT, Victoria and South Australia have to continue this work of promoting a change in social attitudes by challenging the perception among some that excessive alcohol consumption can be a legitimate defence for certain sorts of criminal action.
Social analyst, Eva Cox asks, `How often have many of us heard the defence, "But I was drunk; I had to much to drink; I didn't mean it"?'
Ms Cox maintains that the law needs to play a leading role in educating all australians that such a defence is not acceptable.

Further implications
At least so far as Victoria is concerned, it seems unlikely that the `drunk's defence' will be readily removed from the statute books.
The Victorian Attorney-General, Mrs Jan Wade, appeared to regard Mr Williams' request that the defence should be abolished as a knee-jerk reaction on the part of the Federal Attorney-General and an unwarranted intrusion in Victoria's legal affairs.
Mrs Wade stated, `I find it quite inconceivable, actually, that a Commonwealth Attorney-General should have such a knee-jerk reaction to a case in a magistrate's court.
`To threaten state attorneys-general that they have to change as a result of this particular case, I think, is carrying things too far.
`It disturbs me to have people trying to bully me and the government.'
Mrs Wade also defended the `drunk's defence' on the basis of the importance of intent in any attempt to determine guilt.
`The issue of intent goes to the very heart of the commission of a criminal offence ... The proposal being put by (Mr Williams) is that intent should be irrelevant in some cases, where a person is so drunk as to be an automaton or virtually insane ... However, in other cases ... the defence will still be available,' Mrs Wade remarked.
On a more general basis the fate of the defence seems less certain. It was removed in Canada after a notorious case in which it was applied attracted a large measure of adverse public reaction. The impetus for the current discussion of this form of defence in those Australian states and territories where it still applies has again been a publicity-attracting case. A number of other such cases might well result in a sufficient ground-swell of opinion to challenge this defence in those jurisdictions where it is available.
It is notable that recent surveys indicate a high level of intolerance of drunkenness among all major age groups in the Australian population.
Mrs Wade's point, that it appears inappropriate to discount the issue of intent where crimes are committed by the extremely intoxicated but not in any other circumstances, appears valid. However, it needs to be noted that the Australian Capital Territory, South Australia and Victoria are the only remaining Australian states or territories which still allow this defence.
In Canada there are those who maintain that the whole issue of intent and the categorising of intent as either specific or general needs to be reviewed. It seems likely that in Australia we also will have abolished the `drunk's defence' in all states and territories before an endeavour as daunting as a review of all provisions of the law dealing with intent is considered.
It is also interesting to consider what action should be taken against hoteliers who continue to serve alcohol to intoxicated customers and also if it should be possible to apportion any blame to a persons drinking companions if they allow that person to become highly intoxicated without having attempted to prevent this occurring.
The ACT Government has called for an inquiry into the acquittal, including the question of whether those who sold the rugby league player alcohol while he was visibly drunk should have their liquor licences suspended or cancelled.
Finally, there are likely to be some immediate repercussions with regard to the particular case which precipitated the current debate. The rugby league player involved was subsequently banned by his club because of his drunken behaviour. It is believed that he proposes to take legal action against the club over the matter.
It is also possible that the two women who initially laid criminal charges against the man may now begin civil proceedings, claiming damages against him. The laws of evidence and the provisions surrounding intent are different in civil actions and the `drunk's defence' is unlikely to apply.

Sources
The Age
1/9/97 page 2 news item by Belinda parsons, `Drunks behaving badly, survey finds'
24/10/97 page 1 news item by Paul Chamberlin, `Push for ban on "drunk's defence"'
31/10/97 page 15 comment by Bernadette McSherry, `Doing the crime, but not the time'

The Australian
23/10/97 page 3 news item, `Drunk footballer acquitted'
24/10/97 page 14 editorial, `And another thing'
24/10/97 page 3 news item by Stephen Lunn and Matthew Abraham, `Licensees who served drunk footballer face liquor bans'
24/10/97 page 3 news item by David Nason and Trudy Harris, `Attack victim called police in vain'
25/10/97 page 3 news item by Graeme Leech, `Fyn line between drinker and drunk'
28/10/97 page 15 comment by Kumar Amirthalingam, `When drunkenness means disorderly law'
28/10/97 page 15 comment by Eva Cox, `When drunkenness means disorderly law'
30/10/97 page 5 news item by John Kerin and Chip Le Grand, `Attorney-General urges ban on "drunk's defence"'

The Herald Sun
23/10/97 page 5 news item, `"Drunken thug" acquitted'
25/10/97 page 10 news item by Matthew Horan, `Nadruku booted out'
28/10/97 page 19 comment by Grant Hattam, `Time to change drunk defence'
29/10/97 page 18 comment by Robert Stary and Judi Moylan, `Should acute drunkenness be an excuse for crimes?'
30/10/97 page 25 news item by Andrew Cummins and Michelle Edmunds, `Row over drunk's defence'

Internet
NOTE: It appears that the English Board of Studies may be refining its guidelines on the use of Internet sources for CAT I.
Currently it is probably preferable for students to restrict their use of Internet sources to Part 2 of CAT I.
Please consult your teacher for direction on this matter.

There are a number of useful Internet sites dealing with this issue, (see the links panel) especially as it has been treated in Canada.
There is a full module titled Defences - Capacity - Intoxication from the law faculty of the University of Alberta. This is 47 pages long and makes challenging reading, however, it examines all elements of the issue, including the validity of the distinction between specific and general intent in exhaustive detail.
This module can be found at http://www.law.ualberta.ca/courses/crim/mods/mod31.html
There is also a reproduction of a report from the Edmonton Journal, titled, Law ending defence of drunkenness takes effect in September and dated, August 10, 1995. This report can be found at http://www.southam.com/edmontonjournal/archives/drunkd.html
Finally, there is a reproduction of a document from the United Nation's Division for the Advancement of Women, titled Violence Against Women. It looks at the question of violence against women from a number of points of view but includes a consideration of domestic violence and the effect of drunkenness. It makes specific reference to the Daviault Case in Canada. The document can be found at http://www.fhb.org/violence.html