Inquiry into Criminal Liability for Actions Performed in a State of Self-induced Intoxication

Media Releases

Media Release - Wednesday, 26 May 1999

Self-Induced Intoxication A Decision for the Jury Only

The all party Victorian Law Reform Committee, today released its final report on its inquiry into criminal liability for self-induced intoxication - the so-called "Drunk's Defence". The Committee has found that the 'defence' is not the main problem - public acceptance of heavy alcohol consumption and the strong link between alcohol and violence needs to be addressed as a matter of urgency.

The Committee which is made up of Liberal, Labour and National Party members was unanimous in its conclusions which achieve a careful balance, on the one hand preserving fundamental legal principles which lie at the heart of the criminal justice system and on the other hand addressing community concern about the acquittal of intoxicated offenders.

The Committee has recommended that the High Court's decision in O'Connor's case continue to state the law in Victoria. That is, evidence of self-induced intoxication can be used in determining questions of criminal intent and "voluntariness". However where indictable offences are concerned, 'the defence' of self-induced intoxication will be required to be heard before a judge and jury. To assist the jury in reaching a decision, evidence of prior conduct may be considered by the jury.

The report is available for free download on the committee’s internet website - www.parliament.vic.gov.au/lawreform.

The Committee examined the law throughout Australia and found that the law concerning intoxication is different in every State. The Committee was particularly struck by the differences between the criminal law culture in Victoria, New South Wales and the Northern Territory. Of particular interest is the strong emphasis on 'law and order politics' in other states while Victoria has the lowest rate of crime in Australia.

The Chairman of the Intoxication Subcommittee, Mr Andrighetto said: "The Committee has recommended that the High Court's decision in O'Connor's case continue to state the law in Victoria, but has also come up with novel and innovative procedural changes which will, if accepted, prevent the Nadruku decision from occurring in Victoria in the future".

Mr Andrighetto said: "The Committee has recommended that any person relying on the defence of self-induced intoxication will be forced to convince a jury of his or her peers and will not be able to run the case in the Magistrates' court. To assist the jury in reaching its decision, the Committee has also recommended that evidence of prior conduct be allowed to be considered by the jury. The overwhelming evidence received by the Committee revealed that a few magistrates have been inappropriately prepared to accept the 'drunk's defence', despite prior inconsistent behaviour. A properly instructed jury is very unlikely to accept the argument that a person was so drunk that he did not know what he was doing."

Mr Victor Perton, MLA, the Chairman of the Law Reform Committee said: "I am delighted in the unanimity of the Committee - Liberal, Labor and National. Considered bipartisan deliberations have developed a formula which will help guide our criminal justice system into the new millennium. In recommending that the O’Connor principles should continue to be relevant in criminal trials in Victoria, the Committee has concluded that it is of absolute importance for the Victorian criminal system to continue to be based on sound, legal principles."

Mr Perton, said: "The Committee members were shocked to learn that up to 90% of those involved in violence were effected to some extent by alcohol or drugs. Bearing this in mind the Committee has recommended not only a greater use of rehabilitation and treatment programs but also a much greater emphasis on anger management training".

Mr Perton said: "It is absolutely crucial that intoxicated offenders who behave violently learn how to deal with that anger in a more appropriate manner".

Mr Andrighetto noted that the Committee's investigations indicated that cases involving self-induced intoxication sometimes resulted in unnecessary and time-wasting appeals, particularly in South Australia. To overcome this problem the Committee has adopted the recent South Australian amendment, recommending changes to the grounds of appeal, which will, if accepted, prevent any future costly and unnecessary appeals.

Mr Andrighetto said: "The Committee members have found this inquiry challenging and rewarding. The Committee is satisfied that its recommendations resolve a controversial and difficult problem, through innovative procedural changes, without eroding fundamental legal principles which are at the heart of the criminal justice system and which allow those who come within its bounds to be treated fairly and justly".

Mr Florian Andrighetto, MLA, Chairman, Intoxication Subcommittee; Mr Tony Robinson, MLA, ALP member, Intoxication Subcommittee and Mr Victor Perton, MLA, Chairman, Law Reform Committee are available for media comment.

A press brief is available and a media briefing will be held at 11.00 am in Meeting Room 2, Ground Floor, Parliament House, Spring Street, Melbourne.

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Criminal Liability and Self-Induced Intoxication by Florian Andrighetto, MP

Chairman, Self-Induced Intoxication and Criminal Liability Subcommittee, Victorian Law Reform Committee

In 1997, the Canberra Raiders rugby player, Noa Nadruku violently struck and injured two women in a Canberra bar. Nadruku was acquitted in the ACT Magistrates' Court on the basis that he was so drunk that he did not intend to commit the assaults – he didn't know what he was doing. The decision was controversial and there was public outcry at the Magistrate's decision. On 29 October 1997, the Federal Attorney-General urged the Victorian, South Australian and ACT Attorneys-General to "do something" about the 'defence' of self-induced intoxication.

In a Report entitled, Criminal Liability for Self-Induced Intoxication, the Victorian Law Reform Committee has unanimously recommended that the High Court's 1980 decision in O'Connor's case continue to state the law in Victoria. That is, evidence of self-induced intoxication can be used in determining questions of criminal intent and "voluntariness".

The issue of how the law should treat self-induced intoxicated offenders has been with us for hundreds of years. The law concerning intoxication and criminal liability varies dramatically not only in the Australian States but in the US States and in other common law countries. The Victorian Committee was faced with the choice of enacting legislation adopting an English approach which distinguishes between offences of "specific intent" and "basic intent" (the approach adopted by New South Wales and the Commonwealth) or retaining the O'Connor principles. The distinction between offences of specific and basic intent is confusing, artificial and arbitrary - for example, there is no general agreement as to whether rape is an offence of specific or basic intent.

Almost all the Victorian witnesses (and most interstate witnesses) supported the view that the O'Connor principles correctly interprets our longstanding common law traditions and safeguards. They were also of the view that the magistrate's decision in Nadruku was wrong. How can a magistrate say 'The two young ladies were unsuspecting victims of drunken thuggery' and then dismiss the charge? It's small wonder that the public thinks that the law is an ass.

The problem was not one of law but one of poor decision-making. Witnesses, including prosecutors and defenders urged the Committee not to confuse Victorians with silly and artificial distinctions between "basic" and "specific" intent but to reduce aberrant decision-making as far as possible. In my opinion the reason why self-induced intoxication has become an issue is because of confusion about the law. Sometimes the law is its own worst enemy by making simple issues sound so difficult. What the community wants is to be able to have confidence in the courts to administer sensible and practical judgments. The Nadruku decision was not unique. The Committee heard evidence of a similar acquittal in the Portland Magistrates' Court. Action has to be taken but not at the expense of fundamental principles of criminal law.

The Committee's solution to this question of public confidence in legal decision making is to require that in serious offences, 'the defence' of self-induced intoxication must be heard before a judge and jury. If the Committee's recommendations are accepted, any person who wants to plead not guilty on the basis that he or she had consumed too much alcohol will be forced to convince a jury of his or her peers. To assist future juries in determining the guilt of an intoxicated defendant, we have recommended that evidence of prior conduct be allowed to be put to the jury. However this should only occur where a person bases his defence on self-induced intoxication and where there is evidence of prior conduct. Evidence of prior conduct sometimes involves complex legal issues. The judges of the County and Supreme Courts are well equipped to direct juries in the relevant law.

The Committee heard that evidence of intoxication was often used as a basis for unnecessary and technical appeals. A recent South Australian example involved a police officer who was charged with rape and who had consumed approximately five beers. Intoxication was not argued as an issue during the trial. The defendant was convicted but subsequently appealed on the basis that the Judge should have directed the jury on the issue of intoxication even though his defence had taken a different course. To overcome this problem the Committee has adopted a recent South Australian amendment, which precludes an appeal on this basis if the Defendant's Counsel failed to argue the issue at trial.

The Committee's recommendations represent a practical solution to a problem that the courts have been unable to deal with adequately. Instead of a knee-jerk reaction as occurred in New South Wales and the Commonwealth, the Committee decided to make recommendations which support the existing law as enunciated in O'Connor's case but to alter procedures to prevent a Nadruku-type decision from occurring in Victoria in the future.

Of greater concern to the community is the widespread reality that up to 90% of those involved in violent behaviour generally were effected to some degree by alcohol. In other words, most violent offenders who are imprisoned were intoxicated at the time of their offence. We need an increase in alcohol and drug rehabilitation programs and a greater use of anger management training. The Committee was particularly struck by the differences between the criminal law culture in Victoria, New South Wales, Queensland and the Northern Territory. Despite the strong 'law and order politics' in other States, Victoria still has the lowest rate of crime and incarceration in Australia.

The Committee's recommendations achieve a careful balance, on the one hand preserving fundamental legal principles which lie at the heart of the criminal justice system and on the other hand addressing community concern about the acquittal of intoxicated offenders. I hope that the Committee's bipartisan recommendations shall be warmly welcomed and take the criminal justice system into the 21st century.

(The full report can be downloaded from www.parliament.vic.gov.au/lawreform)

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Last Updated on Tuesday, 13 September 2011