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S 428 A provides that "intoxication" means intoxication because of the influence of

alcohol, a drug or any other substance. Intoxication is not a defence to a criminal
charge to a criminal charge, but may cancel out certain elements of a crime if it
causes a condition that is inconsistent with criminal responsibility.
Intoxication may form the basis of:
• A plea of automatism (if non-self induced): going to the actus reus, arguing
involuntariness;
• A defence of insanity: where an intoxicant his triggered an underlying disease of
the mind; or
• A denial that D had the necessary mens rea.

Burden of proof
• Where D raises the intoxication in relation to a defence (sane) automatism or
involuntariness, D will bear only the evidentiary burden. The prosecution will
then be required to prove voluntariness of mens rea beyond a reasonable
doubt;

Majewski (1977
Court faced with facts where accused consumed a considerable amount of alcohol and
assaulted a number of police officers. He was convicted of assault offences. On appeal he
argued that he was so intoxicated at the time of the commission of the offence that he
could not form the necessary mens rea – this should have been left for the jury to decide.
Landmark English decision. Importance: Posed the approach to the defence of
intoxication.
• First you must consider the type of intoxication, whether self-induced
(voluntary) or non-self-induced (involuntary).
• Then you must look at the offence, is it one of specific intent or basic intent?
Specific requires proof of that there was an ‘intention’ (eg property crimes
and s 33) Basic intent are the other crimes without the requirement of
specific intention (ss 61, 59, 35 and 61I, these have an acceptable mens rea
other than intention ie recklessness).
• The case established rules pertaining to the approach and it’s outcomes:
1. Self-induced Intoxication + Basic Intent Offence = Cannot put defence
forward.
2. Self-induced Intoxication + Specific Intent Offence = Can put defence
forward.
3. Non-Self-induced Intoxication + Basic Intent Offence = Can put
defence forward.
4. Non-Self-induced Intoxication + Specific Intent Offence = Can put
defence forward].
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In O’Connor (1980 (common law), The High Court rejected Majewski (1977) and
held that intoxication was relevant to any offence. Question to be asked was; how
intoxicated was D? and thus whether they had the capacity to form the adequate
mens rea. This was regardless of whether the intoxication was self-induced or non-self-
induced and the whether the offence was one of specific or basic intent They also
stated intoxication could be raised to deny any mens rea or actus reus element –
BUT this was reversed by s428G, whereby self-induced intoxication cannot be raised
in relation to automatism.

428G Intoxication and the actus reus of an offence

(1) In determining whether a person has committed an offence, evidence of self-induced

intoxication cannot be taken into account in determining whether the relevant conduct
was voluntary.

(2) However, a person is not criminally responsible for an offence if the relevant conduct
resulted from intoxication that was not self-induced.

Legislative provisions:
s 428A = The nature of the intoxication, distinguishes self-induced and non-self-induced
intoxication. (Intoxication is not self-induced when it was due to fraud, duress,
sudden emergency, accident, reasonable mistake, through force or was medically
prescribed).
s 428B = Relates to offences of specific intent.
s 428B(1) = Classifies larceny as an offence of specific intent.
s 428B (Table) = Classifies s 33 as an offence of specific intent.
 s 428C = Intoxication in relation to offences with a specific intent. (Can be argued for
both self-induced and non-self-induced intoxication as D is required to form a
specific intent and the intoxication may negate D’s capacity to form the adequate
mens rea). Thus:
s 428C(2) = Provides: ‘a person is not criminally responsible for an offence if the
relevant conduct resulted from intoxication that was not self-induced’ Which means
however, that intoxication cannot be relied on if D became intoxicated to procure
‘Dutch Courage’

⇒ Gallagher [Importance: Addressed notion of ‘Dutch Courage’(where D formulates

an intention to commit an offence and the voluntary intoxicates themselves before
they commit the crime. If it is proven that D has formed the intention prior to the
self-induced intoxication, then the defence would be precluded per s 428C].

s 428D = Intoxication in relation to offence with basic intent. (If self-induced then
intoxication cannot be argued as a defence, but if non-self-induced can be put
forward).
s 428E = Partial Defence of self-induced intoxication would reduce murder (specific
intent offence) to manslaughter (basic intent offence). This approach would be taken
in relation to reducing s 33 (specific intent offence) to s 35 (basic intent offence).
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s 428F = Intoxication in relation to the reasonable person. The reasonable person is not
taken to be intoxicated.
s 428G = Intoxication in relation to other defences.
s 428G(1) = Excludes automatism when the intoxication is self-induced.

⇒ Lipman [Facts: D consumed LSD before he and his girlfriend (V) went to bed.
The next morning V was dead with sheets wrapped around her throat and stuffed into her
mouth. D stated that he had no recollection of this, but did remember having a vivid
dream about a multi-headed serpent attacking him. D first pleaded Insanity then
Automatism and finally Intoxication, to the amended charge of manslaughter. D was
convicted and appealed, but the court of appeal deemed that the trial judge was right in
their direction to the jury. Insanity: LSD is an external factor → no disease of the
mind→ no insanity. Automatism: self-induced intoxication is excluded→ no
automatism. Intoxication: Self-induced intoxication + basic intent offence
(manslaughter) → intoxication not viable as a defence. Importance: Highlights the
approach to these three defences clearly].

s 428G(2) = When the intoxication is not self-induced but D is still criminally

responsible.

⇒ Kingston [Facts: UK case. D was a well known paedophile. A group of people

decided to set D up so that he could be caught. They told D they would provide him with
a young boy (V) in a hotel room. Before V arrived they slipped a substance into D’s
drink, they also drugged the boy. They then laid D and V on the bed naked and took
photographs. In the course of this D indecently assaulted V. D was charged and
argued non-self-induced intoxication (which was true). He was still convicted. The
House of Lords upheld the conviction considering the mens rea of the offence and
stated that drunken intention (even if non-self-induced) was still intent].
The approach is thus: But for the intoxication would D have committed the offence?
Yes, then D is guilty. In Kingston, But for the intoxication D would still have
indecently assaulted V, thus guilty. NB. Kingston has not yet been applied in
Australia.