Intoxication as a Defence in Victorian Criminal Law

Prior to February 2005 intoxication in Victoria was dealt with entirely at common law.
- No statutory guidance; courts relied on precedent.
Reforms:
- Crimes (Homicide) Act 2005 (Vic)
- First major legislative incursion; began codifying defences linked to homicide.
- Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) (commenced 02 / 2014)
- Inserted s\,322T into the Crimes Act 1958 (Vic).
- Re-framed the way intoxication interacts with "reasonable belief" and "reasonable response" in self-defence–type excuses.
Overarching aim: clarify when (and how) evidence of intoxication can be used by an accused to:
- Deny the existence of the mental element (mens rea).
- Bolster a complete defence such as self-defence, duress or sudden / extraordinary emergency.

Key precedent: R v O’Connor (1980) 146 CLR 64.
- Confirmed that intoxication evidence can be used to challenge both:
- Actus reus (voluntariness of the physical act).
- Mens rea (intent, recklessness, etc.).
Contradicted earlier English approach that distinguished between “specific-intent” and “basic-intent” crimes (e.g. DPP v Majewski principle).
- High Court expressly rejected any rigid dichotomy; relevance of intoxication is an evidentiary question for every offence.

Accused (“D”): observed rummaging through an off-duty police officer’s vehicle.
Items removed: knife & map holder.
Confrontation: officer questioned D ⇒ D attempted to flee ⇒ officer gave chase ⇒ D allegedly attempted to stab the officer while resisting arrest.
Charges:
- Theft (stealing).
- Wounding with intent to resist arrest.
- Alternative count: unlawful wounding.
Defence evidence:
- D consumed an hallucinogenic drug + alcohol throughout the day.
- Medical expert: combination would render D “completely incapable of reasoning” and of forming any intent to steal or to wound.
Trial judge’s direction (based on English authority):
- Jury could consider intoxication for theft & wounding-with-intent.
- Jury could not consider intoxication for the alternative “unlawful wounding” (viewed as a basic-intent offence).
High Court ruling:
- Rejected the Majewski-type limitation.
- Held that "intoxication is relevant to any offence" whenever it raises a reasonable doubt that:
1. The acts were the product of the accused’s will (voluntariness).
2. The requisite intent (mens rea) existed.
- Directed that juries must evaluate whether the accused was so intoxicated that they lacked the mental element for each charge.

Governs the role of intoxication in relation to defensive doctrines (self-defence, duress, sudden or extraordinary emergency).
Focus for this lecture: subsections (2)–(4).
- Embed two objective questions:
1. Was the accused’s belief about the necessity of their conduct reasonable?
2. Was their response proportionate / reasonable?
- In answering either, the comparator is a reasonable person who is not intoxicated.

If the defence relies on the accused’s reasonable belief (e.g. fear of death/serious injury):
- Court/jury asks whether a sober reasonable person in the same circumstances would share that belief.
If the defence relies on a reasonable response (e.g. level of force used):
- Court/jury compares the accused’s actions with what a sober reasonable person would have done.
Practical upshot: evidence of intoxication cannot lower the objective standard; it may still be used on the subjective limb (what the accused actually believed) provided intoxication was not self-induced.

Presumption: intoxication is self-induced.
It is NOT self-induced when it arises from:
1. Involuntary act – mistake, duress, force, accident, etc.
2. Prescription medication – consumed in accordance with medical directions.
Subs (6): intoxication is treated as self-induced if the person knew or had reason to believe that the substance would "significantly impair judgment or control".
- Introduces a "reasonable suspicion" threshold.

Accused’s burden (evidential): must raise facts supporting self-defence, duress or sudden‐extraordinary emergency.
Prosecution’s burden (legal): must negate the raised defence beyond reasonable doubt.
Where intoxication is alleged to be non-self-induced, ambiguity exists as to who bears the onus; however, practice suggests:
- Accused must adduce some evidence that the intoxication falls into an exception.
- Once raised, prosecution must disprove non-self-induced status if it is essential to defeat the defence.

Rule emphasises public policy: individuals should not gain an advantage from their own voluntary intoxication when assessed against the community’s standard of reasonableness.
Protects victims by ensuring objective yardsticks are not diluted.
Provides a limited "safety-valve" for truly involuntary or medically unavoidable intoxication.
Continuity with earlier common-law view that intoxication may negate mens rea, but adds statutory clarity for defensive doctrines.

Similarity to the civil law’s "reasonable person" standard, except explicitly sober.
Contrast with the UK approach (specific v basic intent) shelved by the High Court in O’Connor.
Statutory language echoes provisions in other Australian jurisdictions (e.g. s\,428C Crimes Act 1900 (NSW)).
Ongoing debate: whether treating prescription-compliant drug users as potentially blameworthy (if they foresee impairment) strikes the right balance between autonomy & societal protection.

Memorise the legislative chronology: common law → 2005 Act → 2014 Act → s\,322T.
Quote the O’Connor ratio: intoxication is relevant to any offence where it raises doubt about voluntariness or intent.
Understand the twin objective limbs (reasonable belief / reasonable response) and that they reference a non-intoxicated reasonable person.
Be ready to apply the "self-induced" exceptions list in problem questions (mistake, duress, prescription drug, etc.).
Know the burden of proof split: accused raises → prosecution disproves beyond reasonable doubt.