Intoxication

Question 1

Introduction

Answer 1

In the past intoxication was considered to be no defence to a criminal charge
and, indeed, an aggravating rather than mitigating factor. The general rule
has been that intoxication may be a defence to the commission of an offence:

• where the intoxication causes a disease of the mind so as to bring s23
  (Insanity) of the Crimes Act 1961 into effect
• if intent is required as an essential element of the offence and the
  drunkenness is such that the defence can plead a lack of intent to commit
  the offence
• where the intoxication causes a state of automatism (complete acquittal).

Question 2

Crown must prove intent required

Answer 2

The New Zealand Court of Appeal case, R v Kamipeli31, makes it clear that,
for intoxication to succeed as a defence, all you need to establish is
reasonable doubt about the defendant’s required state of mind at the time of
the offence.

It does not have to be shown that the defendant was incapable of forming the
mens rea, merely that, because of their drunken state, they did not have the
proper state of mind to be guilty.

Whether it be a general or particular intent the burden is the same: the
Crown must prove the intent required by the crime alleged.

Question 3

Intoxication available as a defence to any crime requiring intent

Answer 3

Intoxication can be used as a defence in New Zealand to any crime that
requires intent. Any offence that does not require an intent is called a strict
liability offence and the only way a defendant can escape liability for such
an offence is to prove a total absence of fault.

In cases of homicide and other crimes, evidence that a person formed an
intent to commit a crime and then took drink or drugs as part of the method
of committing the crime (gaining Dutch courage) will disqualify a defence
of drunkenness or automatism.

Question 4

Defence to establish lack of intent

Answer 4

As a very general guideline most offences in the Crimes Act will require an
intent (mens rea) of some kind and would not be classed as strict liability
offences. Therefore the defence of intoxication will be available to the
defence to establish that the defendant did not have the requisite intent (mens
rea) to carry out the offence.

Question 5

Ignorance of the law

Answer 5

If intoxication is used to try to establish ignorance of the law, it will not
establish a defence.

Question 6

Defence of intoxication unlikely to succeed

Answer 6

In New Zealand, intoxication caused by alcohol or drugs may be a defence
to all charges where their effect raises a reasonable doubt as to whether the
offender had formed the requisite intent for the offence. With regard to strict
liability offences (like excess breath/blood alcohol) the defence of
intoxication is unlikely to be very successful because the intent element
required by the offence is so simple or basic that the person is not able to
establish they had no intent to commit the offence.

Example:
1. Apply force to another person (assault), and
2. Fight with a person in a public place (fighting in a public place).

It is unlikely the person will not realise they are in fact striking another
person rather than a lamp-post or a brick wall. The defence of intoxication is
a defence where the intent required is very simple or basic and will not
normally succeed. It will only be used by way of mitigation of penalty. In
other words the defendant may claim “I wouldn’t normally punch a citizen,
the demon drink made me do it!”

Such claims in mitigation are not permitted in cases where the offence is one
involving violence or danger to any person and the alcohol or drugs were
voluntarily consumed.