intoxication

when insanity can be used

it is relevant only to mens rea, so cannot be used in strict liability offences. however, can be used in any offence that requires mens rea

can be capable of forming mens rea but not actually forming it

not a denial of the capacity to form mr

not a defence, just used to prove that mens rea element was not satisfied

r v cole

v had been removed from the pub. d followed v outside the pub, shouting racial slurs, later hitting him over the head with a bottle, and kicking him while he was unconscious. she claimed that she was intoxicated

at first instance question asked whether she was capable of forming the mens rea, rather than question that if she actually formed it, which was a misdirection. she was charged with the lower offence of s20 gbh as opposed to s18 gbh.

r v kingston

d knew he had homosexual pedophillic tendencies and worked to control it. d was in business dealings with x. x invited d over and spiked d’s drink and took d to a room where he had drugged a 15 year old boy and stripped him naked. d then assaulted him. he intended to take photographs of d assaulting the boy and blackmail him.

d was charged with sexual assault as he still formed the mens rea - intoxication not valid where it is an instance where mens rea wouldn’t have been formed had it not been for the intoxication. defence where only helps when it shows that d didn’t form the mens rea

involuntary intoxication

gives potential for complete acquittal

voluntary intoxication

can fall under recklessness, so d cannot be fully acquitted but rather charged of an offence with lesser mens rea (eg s20 instead of s18 gbh)

ross v advocate

d’s drink had been spiked, and he drank it all. he grabbed a knife and started trying to attack people. he claimed lack of mens rea due to intoxication. on these facts, he hadn’t intended to get so drunk that he couldn’t make the relevant mens rea. intoxication succeeded as it was involuntary, as the drugs put in his drink are significantly different compared to the beer he was drinking.

there is likelihood that if d accidentally orders a stronger drink that they were intending to, then defence may not succeed

the same principle applies to recreational and medicinal drugs

dpp v majewski

d recreationally took drugs and alcohol and started getting into fights in the bar, and later attacked police officers when they were called to the scene. he was charged with s18 offences, but actually convicted of s20 offence instead.

where d doesn’t form mr of an offence due to voluntary intoxication, d cannot be convicted of any crime requiring specific intent, but will instead be convicted of the corresponding crime of basic intent.

crimes with ulterior intent

distinction between specific and basic intent offences are mostly policy based

as a matter of policy, some crimes seen to be too serious to convict based on other peoples perception of mens rea (recklessness). these offences have a higher focus on mens rea than actus reus.

basic intent offences have the same/very similar actus reus as specific intent crimes, but with lower mens rea requirement

voluntary intoxication can fall under recklessness and therefore d can still be charged with basic intent offence

r v brady

d was intoxicated and leaning on the railing of the mezzanine floor of a club. he stumbled and fell over the railing onto the people dancing below. he falls onto a girl, breaking her neck and rendering her paralyzed. he is charged with s18 but actually convicted of s20.

he appealed as it was a complete accident and denied voluntary action, as he would’ve done the same thing (leaning on railing) if sober, and could’ve also fallen then. no conviction possible due to the argument presented by prosecution - could’ve been convicted if prosecution focused more on mens rea of recklessness rather than voluntary intoxication

challenges to defence

• should have some rule about supplementing voluntary action for idiotic action (recklessness)

• challenge of case of kingston - d trying to make things right but weakness was exploited