(08) 9278 2575Intoxication
The defence of Intoxication under section 28 of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) operates as a legal defence for any person charged with an offence under the criminal law in WA.
The following outlines when intoxication could constitute a defence, the important distinction between voluntary and involuntary intoxication as well as key limitations in raising this defence.
What is Intoxication?
Whilst not defined under the Code, intoxication generally refers to a state in which a person’s mind is disordered by intoxication or stupefaction caused without intention on his part by consumption of drugs, alcohol, or other substances.
Section 28 of the Code makes an important distinction between voluntary or involuntary intoxication and its relationship to criminal responsibility.
Voluntary intoxication occurs when a person intentionally consumes drugs or alcohol. If a person willingly intoxicates themselves, section 28(2) of the Code states that they cannot use this intoxication as a defence to escape criminal responsibility. However, intoxication can sometimes effect whether the accused had the required specific intention for certain offences.
Involuntary intoxication applies to situations where a person’s intoxication was caused without their intention, such as being drugged unknowingly or consuming intoxicants by accident. Under section 28(1) of the Code, involuntary intoxication may give rise to the defence of insanity under section 27 of the Code.
Voluntary Intoxication and Specific Intent
The general rule under Western Australian criminal law is that voluntary intoxication is not a defence.
However, section 28(3) of the Code provides that intoxication, whether voluntary or involuntary, may be considered in determining whether the accused had the necessary intention to cause a specific result in some criminal offences. This only applies to offences that require a specific intent called ‘specific intent offences’ and includes offences such as murder, assault with intent to cause grievous bodily harm, threat with intent to gain and any other offence that has an element of specific intent.
In offences where an intention to cause a particular result is an essential element, intoxication may be relevant to determining whether the accused actually formed that intent. For the offence of murder under section 279 of the Code, the prosecution must prove that the accused intended to cause the death or grievous bodily harm to another person. If the accused was intoxicated at the time, their intoxication can be considered in assessing whether they actually had the necessary intent.
The burden of proof regarding intoxication rests with the accused. If they wish to argue that they were not criminally responsible due to intoxication, they must present evidence to support their claim.
In contrast, voluntary intoxication cannot be raised within the context of offences that don’t require specific intent. For example, the offence of committing an indecent act in public under section 203 of the Code, merely requires a person to have performed an indecent act in a public place. As there is no specific intent element of the offence, intoxication could not be raised as a defence if a person was prosecuted for this offence.
Involuntary Intoxication and Defence of Insanity
In circumstances where a person has been drugged against their will or has become intoxicated accidentally, they may be able to put forward the defence of insanity in order to avoid criminal responsibility.
Section 27 of the Code states that the defence of insanity arises if at the time of doing the act or making the omission constituting the offence, a person is in such a state of mental impairment as to deprive them of the capacity to understand what he or she is doing, or of capacity to control their actions, or of capacity to know that they ought not to do the act or make the omission.
If established, a defence of insanity within the context of involuntary intoxication would likely result in a finding of not guilty and a judgment of acquittal.
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