Policy v Logic

R v Daley [2007] SCC 53 (13 December 2007) calls to mind the different approaches that have been taken to the problems for criminal responsibility that are raised by the accused’s state of intoxication during the commission of what is alleged to be an offence.

The tension between policy and logic has been resolved differently in various jurisdictions.

The policy originating in English law has been adopted and developed in Canada. Fundamentally, this involves distinguishing (controversially) between offences of specific intent, and offences of basic intent. Intoxication is not, as a matter of policy, an impediment to liability for an offence of basic intent. It will, however, be relevant to whether the accused is liable for an offence of specific intent. This is discussed in Daley at paras 34 – 53.

In New Zealand the tension between policy and logic is resolved in favour of logic. The focus is on whether the mental element necessary for liability for the relevant offence was present. The position is summarised in Adams on Criminal Law, CA23.50:

“For the history of defences based on intoxication: see Singh (1933) 49 LQR 528; and for a review of the law in New Zealand: see the Criminal Law Reform Committee, Report on Intoxication as a Defence to a Criminal Charge (1984). The applicable principles are the same whether the defendant was affected by alcohol or by other drugs, or both: R v Lipman [1970] 1 QB 152; DPP v Majewski [1977] AC 443; [1976] 2 All ER 142 (HL); Viro v R (1978) 141 CLR 88; compare R v Hardie [1984] 3 All ER 848; CA23.52. The basic rule is that intoxication is never in itself a defence: R v Kamipeli [1975] 2 NZLR 610 (CA), at p 616; R v Munro (1986) 2 CRNZ 249 (CA); R v Doherty (1887) 16 Cox CC 306, at p 308; DPP v Beard [1920] AC 479, at p 499. It is not a defence that intoxication removed a defendant’s inhibitions and caused him or her to act in a way he or she would not have done when sober, or prevented the defendant knowing the act was wrong: A-G for Northern Ireland v Gallagher [1963] AC 349; [1961] 3 All ER 299 (HL), at p 380; p 313 per Lord Denning; R v Sheehan [1975] 1 WLR 739, at p 744. But there may be a defence if a mental element required for the offence was absent as a result of intoxication. In such a case the defence is the absence of the required mental element, not the intoxication, although the evidence which may support such a defence includes the fact of intoxication, as well as other relevant circumstances: Kamipeli (above), at p 616.”

It is not necessary, under this approach, to distinguish in law between states of intoxication such as advanced or extreme intoxication. Nor is it necessary to classify offences as involving specific or basic intent. Nor is it necessary to distort the concept of recklessness to accommodate liability for drunken lack of foresight.

Generalisations about the Australian jurisdictions must be treated with caution. Broadly, the common law jurisdictions generally take the same logical approach as in New Zealand: R v O’Connor (1980) 146 CLR 64 (HCA), although this may be modified by statute, as it is for example in South Australia by the Criminal Law Consolidation (Intoxication) Amendment Act 2004 (No 40 of 2004), s 5. This creates liability, notwithstanding absence of voluntariness or intention due to intoxication, for offences that do not require proof of foresight of consequences or awareness of surrounding circumstances. If death is caused, a different rule applies: the question becomes whether the accused was criminally negligent; if so, he may be convicted of manslaughter. In Queensland, a Code state, the logical approach is taken: see s 28 of the Criminal Code 1899.

If the logical approach may seem to offer little protection against the harm that may be caused by a person who deliberately removes himself from criminal liability by becoming intoxicated before embarking on his illegal purpose, the forensic realities may provide some reassurance. In practice, the prosecutor’s catch-phrase in such cases is, “A drunken intent is still an intent!” and this memorable formulation, usually repeated by the judge in summing up, is difficult to counter. “A drunken lack of intent is still lack of intent” is about as good a response as defence counsel can make. It may be that policy enters by the back door, through pragmatic fact-finding.