Intoxication (Mens Rea) Flashcards
Intoxication:
Should being intoxicated at the time of the offending affect the defendant’s criminal liability?
Intoxication → because it is relevant to mens rea
Intoxication → is sometimes referred to as a defence
But its not really a defence
It is really just evidence → that can be let in when you trying to prove or disprove certain things
Intoxication (2):
•An evidentiary “defence”
What we might call an evidentiary defence.
Intoxication is not a formal defence:
Intoxication is a subjectively altered state of mind which is just one of a number of factors to be considered in deciding whether the accused actually performed the actus reus whilst possessing the mens rea for a particular crime or were able to meet the particular standards of a relevant defence.
Position in NZ → that intoxication is an altered state of mind → on the part of the accused that must be considered if its relevant →
when deciding whether the accused did the actus reus voluntarily with the required mens rea → and whether they satisfied the criteria for any defence → that was available to them
So in other words → evidence that goes in that is relevant to proving for example → mens rea
And the reason for that is that intoxication does affect how people think
So if you know someone is drunk → you might draw different inferences as to what was going in their head from what you might do if they weren’t drunk
Sentencing - Voluntary intoxication:
Is not relevant to penalty: section 9(3) of the Sentencing Act 2002
“despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or substance for bona fide medical purposes).”
The position in NZ → intoxication is not relevant to penalty
When it comes to sentencing we disregard intoxication
The authority for that is section 9 (3) of the Sentencing Act which says → that the Court must not take into account by way of mitigation…
So in other words → the fact that you are drunk is not an excuse to reduce sentence at sentencing
You will notice that → it is voluntary intoxication → so if someone slips something into your drunk that is involuntary intoxication → you haven’t made a choice about being intoxicated → may be able to argue that as mitigation at sentencing
Another point to note is → if you are taking things for medical purposes → that might be relevant as well
So we have got quite a restrictive approach to intoxication at sentencing
But quite a generous approach to intoxication at trial when you are trying to establish guilt
R v Kamipeli [1975] 2 NZLR 610:
•“Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry.”
A Lot of authority for how we approach intoxication → So we let it in → just like any other evidence
The Court said in R v Kamipeli → drunkenness is not a defence in and of itself → its true relevance by way of defence is that when a jury is deciding whether an accuse has the intentional recklessness…
Not asking did their drunkenness make them incapable of forming recklessness or intention → We are just arguing did they have recklessness or intention?
Can we infer that beyond reasonable doubt and part of the evidence that we’re going to weigh → is how intoxicated they were → If they were.
The rationale:
R v O’connor (1980) 146 CLR 64 (Aust):
•It’s a basic tenant of the criminal law that people are not criminally accountable unless they are also morally culpable in the sense that they possess the mens rea for a crime.
•Drinking is a socially acceptable activity. It is not uncommon for people to get drunk inadvertently.
The rationale for this position is set out in the case of R v O Connor
Which is a HC of Australia decision → and they came to the same position as the NZ position →
and it is just simply people either have the mens rea for criminal liability or they don’t
And if they don’t → then they are not culpable → whether they are drunk or not drunk
So it’s just evidence that goes into determining that → and we’re not going to penalise people for being drunk because it is an acceptable social activity
And people can get inadvertently very drunk for reasons that do not display any kind of moral fault.
Judge imagined himself sitting in a dinner party → someone keeps filling up his glass and he doesn’t realise how drunk they are getting.
Second lecture start:
Sometimes called a defence of intoxication but not really
Its really just a rule in NZ → that intoxication at trial is evidence that you can put in that the jury can take into account when they are deciding whether or not the defendant had the mens rea
Or satisfied one of the defences
It basically goes to subjective mens rea → because when people are drunk → they may not have thought of risks they may have thought when they were sober
So just evidence basically that can go into Court
And the same position in NZ is also the same position in Australia in the HC of Australia in R v O Connor → explained why we have this position
Position in England is quite different to NZ and Australia
We take this position because → it is socially acceptable to drink → people can accidentally drink too much
And it is a fundamental tenet of our criminal law that we dont convict people unless they do the actus reus with the mens rea in fact
And that is a fundamental principle → actus non facit reum nisi mens sit rea ⇒ without a guilty mind there isn’t guilt
Disproving mens rea:
The issue is whether the accused actually had the relevant mens rea - not whether they had the capacity to form the mens rea
The position is not whether the accused had the capacity to develop mens rea
When you look at older case law it suggests you have to bo so drunk that you couldn’t form the intention → that is not the case → the issue is did you in fact form the intention
And your intoxication is relevant to the inferences that the jury will make on the facts
NZ legal position is straightforward and simple
And no evidence that having this rule operates to produce unmerited acquittals
And in fact → evidence on the defendants intoxication may be a bit of a double edged sword for the defence
Instead of proving mens rea → this evidence might provide the jury with an explanation for the offending → that would otherwise be out of character or difficult to believe that the defendant had done
If you hear they are intoxicated → the jury might think that that explains it → because people lose inhibitions when intoxicated
Alcohol is widely understood as removing inhibitions, impairing judgement about what is right and wrong, producing aggression, and unexpected changes of mood → All of which can be quite consistent with having the mens rea for an offence
Sheehan (1975) (Eng.) (cited with approval in Kamipeli):
“A drunken intent is still an intent”:
•“the mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent. Secondly, and subject to this, a jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure at the material time the defendant had the requisite intent.”
The Courts have said —> that a drunken intention is STILL AN INTENTION
So if you put in the evidence of intoxication you may just provide a plausible explanation for why the defendant was prepared to be so stupid → without just proving mens rea
One of the things that can happen when people drink is → they can have alcoholic amnesia
They have alcoholic blackout → where they don’t remember what they did → and that does not mean that they didn’t have mens rea while they were acting it just means they haven’t laid down any memory → their short term memory is affected
And that defendant may be at a particular disadvantage in a criminal trial → because they can’t testify to the jury that they actually didn’t have the mens rea → they cant remember anything
But the mere fact that they had amnesia because of alcohol poisoning → doesn’t mean they didn’t have the mens rea when they were acting at the time.
So the jury may infer that they have the mens rea
Particularly if their behaviour looks deliberate or purposive → the jury may infer that they have the mens rea → they just dont remember what they did.
Disproving mens rea:
•The mere fact that a person does not remember doing something does not mean that they did not intend their behaviour at the time (alcoholic blackout – short term memory loss)
•Intoxication is only relevant to subjective states of mind (e.g. intention, recklessness, knowledge, belief)
•Intoxication is NOT relevant to objective states of mind - the reasonable or ordinary person is always sober (i.e it is not relevant to objective mens rea states)
When you look at the case law → many examples of the jury and judges being cynical about claims that the defendant did not have the mens rea because they were drunk →
so if the actions were deliberate for example → if the actions go on for a long period of time
So the accused is claiming that they didn’t have mens rea because they were so intoxicated → but they used violence over an extended period of time → that looks very deliberate
If the victim expressed non consent in very unambiguous terms →
If the offence is very serious
If the accused is a seasoned drinker → where you would expect them to be able to manage their alcohol consumption
If their account of their actions and knowledge of the circumstances is very detailed
If they take deliberate action to avoid detection after the crime → looks like they really knew what they were doing
Then the Courts are unlikely to accept the argument that they lacked mens rea because of intoxication
So intoxication is only relevant to SUBJECTIVE MENS REA STATES → so only relevant to intention, knowledge, or recklessness → because these are states of mind where we are interested in what the accused was actually thinking
It’s not relevant to objective states of mind → in other words → the reasonable person is never drunk
The reasonable person is always sober → so we disregard the defendants intoxication if we are applying a negligence test → its what is reasonable in the circumstances → not what is reasonable for a drunk person
Relevant to the subjective component of the defences:
•Self-defence
•Compulsion
•Insanity
Intoxication is also relevant to those parts of the defences which involve a subjective component
For example self defence in section 48 of the CA → the defendant has to use defensive force which is reasonable in the circumstances that they think they were in
So we are judging what is reasonable defensive force → that is an entirely objective judgement
But we judge it in the circumstances the defendant thought they were in → and if the defendant is drunk → that might affect the circumstances that they thought they were in.
And so we judge what is reasonable defensive force → as though they actually were in those circumstances
In other words → the defendants intoxication is relevant to what the circumstances were → it is not relevant to the appraisal of whether their force was reasonable.
England: DPP v Majewski [1977] AC 443:
◦Voluntary (self-induced) versus involuntary intoxication
◦
◦Evidence of voluntary intoxication is admissible to disprove mens rea or voluntariness in relation to crimes of specific intent but not basic intent.
◦For crimes of specific intent, evidence of voluntary intoxication can reduce culpability i.e. lessen but not avoid criminal liability (e.g. reduce murder to manslaughter)
•Specific intent offences include murder, wounding or causing grievous bodily harm with intent, theft, robbery, burglary, attempts and aiding and abetting.
•Basic intent offences include manslaughter, assault, assault occasioning actual bodily harm, indecent assault, rape, criminal damage and malicious wounding.
We have a couple of comments from the Supreme Court which are kind of an obiter → that judge is retired from the SC so it could mean that these comments are void
But you should know about the English position
English position draws a couple of distinctions → it draws a distinction between voluntary or self induced intoxication → versus → involuntary intoxication
Examples of voluntary intoxication → make the decision to drink, go to pub, go out to dinner and drink for example
Involuntary intoxication → includes situations where your drink is spiked, you think your drinking something non-alcoholic and someone puts something into your drink → or where you took prescription medicine in accordance with doctors instructions and it had an unexpected intoxicating effect.
And the second distinction is between crimes of specific and basic intent
Specific intent offences include → things like murder, wounding, or causing GBH with intent, theft, burgulry attempts, aiding and abetting any offence
Basic intent offences include → things like manslaughter, assault, assault occasioning actual bodily harm, indecent assault, rape, criminal damage, and malicious wounding
Difficult to come up with a definition to explain why some offences are offences of basic intent, and some are offences are offences of specific intent
One possible explanation is that offences of basic intent → just require the intent to do what you actually did → so the mens rea mirrors the actus reus
Whereas crimes of specific intent require some sort of mens rea that goes beyond what you did → so your trying to achieve something beyond your actions
But that doesn’t always work → some people say something is a crime of basic or specific if the case law categorises it one way or another
What the rule in England is → and set out in the famous case of DPP v Majewski → is that evidence of voluntary vs involuntary intoxication →
evidence of voluntary intoxication is admissible to try and disprove mens rea in relation to crimes of specific intent → but not crimes of basic intent
In other words → if using that distinction between mens rea that mirrors your actus reus vs something that goes beyond it →
its admissible to disprove mens rea in relation to abstract forms of mens rea where your trying to achieve something beyond what you did → but not admissible to prove mens rea in relation to offences that mirror
And there is a policy reason behind this →
Rationale: Majewski:
The desirability of deterring harmful drunken behaviour.
The defendant has the mens rea for liability when they make the decision to become dangerously drunk (doubtful):
•If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable for any injury he may do while in that condition. His course of conduct in reducing himself by drugs or drink to that condition in my view supplies the evidence of mens rea, of guilty mind, certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea….
There is no reason in principle for this
It’s just a policy decision
We don’t want people getting incredibly drunk and then getting off with not committing a crime
So if you get that drunk → we are not going to let you argue that you didn’t have the mens rea for things you actually did
We will allow to argue that you didn’t have the mens rea for more abstract things.
Outcomes that go beyond what you did
For example if you look at what is considered to be a crime of specific intent vs basic intent → you will see that → you can argue lack of mens rea for murder → but you can’t for manslaughter
So in other words as a matter of policy → if a person is so drunk they go into a situation → we are going to let them use their intoxication to argue that they weren’t guilty of murder → but going to convict them of something → manslaughter
Policy reason → they don’t want people getting acquitted just because they are dangerously drunk.
There is an attempt to provide a more principled rationale for it → and that is
That you have the mens rea by virtue of getting so dangerously drunk in the first place
Quote from Majewski → if a man of his own volition… → Argument isn’t very strong because mens rea is something that has to exist at the time you commit the action → and its specific to the particular offence → it is not supplied by getting dangerously drunk that is a totally different state of mind
And it wouldn’t meet the mens rea requirements of many offences
Not only that → most people when they get really really dangerously drunk are not choosing to get in that space a lot of the time → alcohol is an addictive substance → people are often not noticing that they are getting into that state
It’s hard to say that they have deliberately gotten dangerously drunk on most sets of facts
The best you can say is that it is a position of principle or policy → idea is not going to let people be completely acquitted for being dangerously drunk but they can argue lack of mens rea in relation to the more serious charges they might face
But they are still going to be convicted of something
Vitiation of mens rea due to involuntary intoxication?
◦R v Kingston [1994] QB 81 (CA); [1995] 2 AC 355 (HL) (Eng)
Caveat: Cameron v R [2021] NZCA 80:
◦In obiter, the Court of Appeal pointed out that the courts have not “squarely confronted the policy question whether self-induced intoxication is a permissible defence to crimes of basic intent.”
◦In other words, the New Zealand Court of Appeal has reserved for itself, the right to hear argument on whether, after all this time, it could still determine that the English approach in Director of Public Prosecutions v Majewski is the correct approach to apply in New Zealand.
The reason why you should still know about the English position is that in Cameron
Quite a conservative law and order judge → it was a NZ CA judge → pointed out in obiter that we don’t have a clear authority rejecting Majewski in NZ
So we do have these authorities taking a different position → but we haven’t really squarely fronted it at an appellate level → and so the NZCA in Cameron → reserved for itself the right to hear argument on whether after all this time it might still follow Majewski
That is just giving us a warning that even though we know what the position in NZ is it could change.
That we could have an appellate level court deciding differently. → it is also the case that it may not change.
