Palmer v R [1985] TASSC 53

2 A convenient starting point is the following passage from the reasons for judgment of Windeyer J in Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 78:-

"Section 13(1) of the Code reads 'No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided for an event which occurs by chance'.

This occurs among provisions of the Code obviously intended to have general application and to state fundamental principles of criminal responsibility. This one sentence compresses and comprehends the common law doctrine concerning mens rea. It does more than that. It supplants it. So that now as Griffith CJ said of a similar provision in the Queensland Code, the aim of which he well understood, 'it is never necessary to have recourse to the old doctrine of mens rea': Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 at 981."

3 There has been much conflict in the common law world on the issue of which is to have primacy, the basic principle that no person shall be criminally responsible for an act unless it is voluntary and intentional or the principle that, generally speaking, self induced intoxication does not negative criminal responsibility. Indeed, it is true to say that it has split the common law world right down the middle. And that is not surprising. In a real sense truly involuntary activity may be characterised as not the act of the accused. On that characterisation, that the act should be voluntary to ground criminal liability is, at common law, part of the actus reus and not the mens rea. If proof of voluntariness is lacking, according to this notion, at common law, the Crown has failed to prove the actus reus let alone the mens rea. I believe that Barwick CJ inclined to this view and that influenced him in his decision to reject the decision in R v Majewski [1976] UKHL 2; [1977] AC 443 in O'Connor v The Queen (1979-80) [1980] HCA 17; 146 CLR 64. And see Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205. On that analysis, of course, it is difficult to justify the decision to treat the accused as a criminal. It can only be justified and, in the decision in Majewski's case, it is justified on the basis that, if the only explanation for the involuntary nature of the act is self induced intoxication, public policy insists that, generally speaking, that state is no excuse and that the act was voluntary and intentional is an irrebuttable presumption supplied by the law as an expression of the relevant public policy. Of course that presumption operates only for the purpose of denying exculpatory effect to the evidence of drink taken. The realisation that it is really that presumption which lies at the basis of the Majewski decision (and at the basis of our law in Tasmania) takes the mind of the informed Australian reader to the strong condemnation by the late Sir Owen Dixon of the notion propounded in Director of Public Prosecutions v Smith that a man is presumed to intend the natural and probable consequence of his acts (see Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 at 632 and Smyth v The Queen [1957] HCA 24; (1957) 98 CLR 163). The real vice which his Honour saw in that notion, I suggest, is that it imposed a view on the community's representatives, ie the members of the jury. (See what he said in Thomas v The King [1937] HCA 83; (1937) 59 CLR 279 at 309). If in Smith's case the court had said that as a matter of fact in the great majority of cases the jury could safely infer that the accused intended the natural and probable consequences of his act, the statement would have been one to which no valid objection could be taken. In fact, such a statement is a valid and useful intellectual tool (see Stapleton v The Queen (1952) 86 CLR at p365; The Queen v O'Connor (1979-80) [1980] HCA 17; 146 CLR 64 at 146 per Murphy J and R v Moloney [985] 1 All ER 1025 at 1038-9. However, it does not follow that the presumption underpinning the Majewski decision should be condemned because of the condemnation of the presumption asserted in Smith's case. The presumption in Majewski is properly imposed on the jury because it is in truth a rule of law expressing basic public policy; as such it is binding on the jury like any other rule of law. But I have sought to show that it is a presumption operating to displace for certain cases what is, in the general run of cases, regarded as essential and basic notions of justice. It is thus a very sensitive area and that it has split the common law world comes as no surprise.

4 The decision to displace the common law with a statute codifying the criminal law necessarily means that we lack the flexibility to respond to the serious debates about the appropriate way to reconcile these competing principles. For us the task is more mundane and yet more certain; we must confine ourselves to interpreting the statute. But it helps to face up to the underlying realities.

5 The maxim "generalia specialibus non derogant" applies to the relationship between s13 and s17. Section 13 is a general provision dealing with the effect of involuntariness on criminal responsibility. Section 17 is a special provision dealing with the circumstances in which self induced intoxication may negative criminal responsibility. The maxim operates to give s17 primacy over s13 with the result that involuntariness brought about by self induced intoxication is excepted from the operation of s13.

6 I am satisfied that s17 states the law in accordance with the explanation in Majewski of the decision in DPP v Beard [1920] AC 479. There are three rules contained in s17. The first is that disease of the mind caused by intoxication is to be dealt with under s16. The second rule is that enacted by subsection (2) which provides as follows:-

"(2) Evidence of such intoxication as would render the accused incapable of forming the specific intent essential to constitute the offence with which he is charged shall be taken into consideration with the other evidence in order to determine whether or not he had that intent."

7 That subsection enacts a rule which is confined in two ways. First, it is confined to crimes where the formation of a specific intent is part of the definition of the crime. And second, it is "a blind drunk" provision or, to speak accurately, it is confined to cases where there is "evidence of such intoxication as would render the accused incapable of forming the specific intent" (see Attorney General for Northern Ireland v Gallagher [1963] AC 349 at 380-381 per Lord Denning and Bratty v Attorney General for Northern Ireland [1963] AC 386, at 409-410 per Lord Denning). With respect, I agree with the way the learned trial judge formulated that rule in the memorandum he gave the jury. He said "Intoxication may only provide the basis of a defence for the accused if it reached such a stage (either alone or in combination with other factors) as to render the accused incapable of forming any specific intent essential to the commission of murder ...". Section 17(2) is not an "under the influence" provision or a "drink taken" provision but a "blind drunk" provision. Or, in other words, it necessarily contemplates an advanced stage of intoxication, so advanced as to bring about, either alone or in combination with other factors, the incapacity referred to in the subsection.

8 The third rule is that contained in subsection (3) which provides as follows:-

"(3) Evidence of intoxication not amounting to any such incapacity as aforesaid shall not rebut the presumption that a person intends the natural and probable consequences of his acts."

9 Section 17(3) contains a reference to the presumption referred to above. As to that, in R v Moloney (supra) at p1038 Lord Bridge said this:-

"A rule of evidence which judges for more than a century found of the utmost utility in directing juries was expressed in the maxim 'A man is presumed to intend the natural and probable consequences of his acts'. In DPP v Smith [1960] 3 All ER 161 your Lordships' House, by treating this rule of evidence as creating an irrebuttable presumption and thus elevating it, in effect, to the status of a rule of substantive law, predictably provoked the intervention of Parliament by s8 of the Criminal Justice Act 1967 to put the issue of intention back where it belonged[1], ie in the hands of the jury ..." (My emphasis).

That passage explains the problems which Dixon CJ felt. It also explains the source of part of s17(3). There can be no doubt that as a rule of evidence that presumption was part of the common law at the time of the enactment of our Code (see O'Connor's case (supra) for recognition of that fact). The words in s17(3) "Evidence of intoxication not amounting to any such incapacity as aforesaid" cover, of course, all degrees of insobriety other than what is sufficient to produce the incapacity referred to in subs(2).

10 Section 17(3) is a very wide provision. Parliament intended that, subject to the rules enacted by subs(1) and subs(2), evidence of self induced intoxication is not a defence to a criminal charge. Of course, a person cannot intend the consequences of an act without intending to do that act. And, if he intends to do the act, the act must also be a voluntary one. In other words, subs(3) adopts and enacts the presumption which underpins the decision in Majewski (supra). But, I repeat, only for the purpose of denying exculpatory effect to the evidence of drink taken. Consequently it is right to direct a jury that, in cases other than those covered by s17(1) and s17(2), they can ignore the subject of drink or drugs as being in any way a defence. The direction which the learned trial judge gave the jury and which is adverted to in ground 3 of the notice of appeal, was correct and that attack on the verdict must fail.

11 The wording of s17(2) follows closely part of the speech of Lord Birkenhead in Beard (supra). His Lordship intended, disease of the mind always excepted, to confine the relevant rule to an advanced stage of intoxication sufficient to produce the incapacity referred to now in s17(2). His wording of the rule has been departed from in other jurisdictions, one reason given for the departure being that his Lordship's statement of the rule was said to be illogical. This attack was made in Broadhurst v The Queen [1964] AC 441 and adopted by the High Court in Viro v The Queen (1978) 141 CLR 38 and in O'Connor (supra). The attack was expressed as follows:-

"If an accused is rendered incapable of forming an intent, whatever the other facts in the case may be, he cannot have formed it; and it would not therefore be sensible to take the incapacity into consideration together with the other facts in order to determine whether he had the necessary intent."

Having regard to the wide acceptance of it, this criticism is capable of affecting day to day practice in this State. Therefore, with great respect, I suggest that one can observe a log in the eye of the critic but not a speck in the eye of Lord Birkenhead. His Lordship just followed a now somewhat old fashioned practice of deciding what exactly he was going to say before he started saying it. And what he was going to say was, it was only an advanced state of intoxication, sufficient to produce the relevant incapacity, which was to be significant. Unlike physical states, states of mind cannot be the subject of direct testimony except testimony by the person whose state of mind is in question and his testimony will often be suspect. Frequently the state of mind is a matter of inference and inferences are for the tribunal of fact and not the witnesses. The relevant incapacity will only be established, if established at all, by the verdict of the tribunal of fact at the end of the case or, exceptionally, by an agreed admission. His Lordship spoke of evidence of incapacity realising, of course, that evidence, particularly of this type, may always be rejected by the tribunal of fact. But the words he chose are an appropriately disciplined statement of the degree of intoxication to be looked for. And, in the end, the critical thing is whether the Crown has satisfied the jury that the accused had the necessary specific intent. Far from being illogical, the challenged words are an essential part of the definition of the relevant rule.

12 With respect, we should accept and apply the statement in Masnec v The Queen [1962] Tas SR 254 at 264 to the effect that there is no specific intent required in s157(1)(c). There being no specific intent, there was no excuse in law that because of drink, taken knowingly and willingly, the appellant had deprived himself of the ability to exercise self control, to realise the possible consequences of what he was doing or even to be conscious that he was doing it. In effect, the learned trial judge gave the jury the same directions in relation to a crime of basic intent as the trial judge did in Majewski and he was right to do so.

13 With respect, there is plenty of authority as to the nature of specific intent to support the conclusion in Masnec concerning s157(1)(c). An intention to cause a particular result is not an element in the definition of the crime created by s157(1)(c) (see Viro (supra) p109). Nor does s157(1)(c) contain anything which will bring it within the principle as explained by Fauteux J in Reg v George (1960) 128 CCC 289, 301, which statement was adopted by Lord Simon in Majewski (supra) at pp478-9. The definition of the crime created by s157(1)(c) does not involve any specific intent because it does not involve an intention to achieve an object beyond the particular act proved to have been done by the accused (see O'Connor (supra) per Barwick CJ p78, Mason J p111, and Wilson J p136).

15 The unchallenged facts proved on the trial of the appellant were that he had struck the deceased approximately ten blows on the head with the back of an axe and that death was due to severe head injuries. There was considerable evidence to show that the appellant had been a frequent abuser of alcohol and had ingested a large quantity of alcohol on the day in question. Indeed the main thrust of the defence case was that the accused was, by reason of mental disease caused by intoxication, in substance deprived of any power to resist the impulse to strike the deceased in the way he did.

16 The learned trial judge left murder to the jury under paras(a), (b) and (c) of s157(1) of the Criminal Code and manslaughter under s156(2)(a), and explained the law in respect of insanity as applicable to each of the three mental states covered by s16. During the course of his Honour's summing up Crown counsel interrupted to make clear that the Crown did not contest that the appellant did suffer from a mental disease. What was contested was that it took the form of Korsakoff's syndrome as claimed by the defence and that it produced any one of those mental states at the relevant time. The jury's rejection of the defence of insanity can, in the light of this fact, be fairly taken to indicate that they were not persuaded on the probabilities that inter alia the appellant was so afflicted by the mental disease from which he did suffer as to be thereby rendered incapable of understanding the physical character of his acts.

17 The learned trial judge's directions to the jury on the relevance of intoxication to paras(a) and (b) of s157(1) are not challenged. They were encapsulated in this written direction which he incorporated as point 5 in a written memorandum to the jury:-

"Intoxication may only provide the basis of a defence for the accused if it reached such a stage (either alone or in combination with other factors) as to render the accused incapable of forming any specific intent essential to the commission of murder and manslaughter."

In respect of para(c) however his Honour told them that, as it did not involve a specific intent, the consumption of alcohol and becoming intoxicated thereby could provide no excuse from liability. Later his Honour said that what he intended to convey to the jury in respect of that paragraph was that drunkenness in itself was irrelevant to that, "irrelevant in the sense that it could not provide any excuse from responsibility in respect of voluntary and intentional striking of the blows".

18 The appellant complains firstly that his Honour was wrong in holding that the crime of murder as defined in para(c) of s157(1) was not a crime of specific intent and thus did not require a similar direction on intoxication to that given in respect of paras(a) and (b) and, secondly, that his Honour erred in directing the jury that evidence of intoxication was not relevant to para(c). As to the first submission the argument is that knowledge of the likely consequences of the fatal act as contemplated by para(c) should be equated with intention to expose some person to the risk of those consequences. In respect of the second submission the argument is that the appellant's degree of intoxication at the time the fatal blow was struck was a relevant circumstance to be taken into account in determining whether the act which caused death was one which he knew or ought to have known to be likely to cause death in the circumstances. In effect the submission is that drink taken is a circumstance which could properly create a doubt in the mind of the jury as to whether a voluntary and intentional act which was unlawful and which caused death was one which the defendant knew or ought to have known to be likely to cause death in the circumstances, for counsel for the appellant expressly conceded that he could not argue that the act was not voluntary and intentional and not unlawful

19 These submissions do not directly challenge the validity of the decision of this Court in Snow v The Queen [1962] Tas SR 271, where it was held in the joint judgment of Burbury CJ and Cox J that:-

"So far as the mental element in crime under s13(1) is concerned intoxication is irrelevant unless it has caused disease of the mind so as to bring the case within s16." (At 284).

Nor do the submissions seek to rely upon the view of those justices of the High Court in The Queen v O'Connor [1980] HCA 17; (1980) 146 CLR 64 who held that at common law as it applies in the non Code jurisdictions of this country evidence of intoxication is relevant to the question whether or not (insanity apart) the act in question was voluntary and intentional. They do however require us to consider whether the basic approach of the authors of the joint judgment in Snow should be modified in light of the view taken by the majority in O'Connor.

20 In Snow Burbury CJ and Cox J, in reliance upon Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 for the proposition that the act required by s13 to be voluntary and intentional is the physical act of the accused and not the whole actus reus (Snow at 278), concluded that the only mental element that s13(1) introduces into the crime of rape is that the accused's physical act of penetration must be voluntary and intentional (ibid., at 279), the crime requiring in addition only the absence of consent and of the marriage bond. Their Honours then considered s17 which is in these terms:-

"17 - (1) The provisions of section 16 shall apply to a person suffering from disease of the mind caused by intoxication.

(2) Evidence of such intoxication as would render the accused incapable of forming the specific intent essential to constitute the offence with which he is charged shall be taken into consideration with the other evidence in order to determine whether or not he had that intent.

(3) Evidence of intoxication not amounting to any such incapacity as aforesaid shall not rebut the presumption that a person intends the natural and probable consequences of his acts."

Their Honours observed that the draftsman of the Code had chosen to incorporate the general propositions laid down by the House of Lords in Beard's case [1920] AC 479, instead of following Sir Samuel Griffith's Code, and said (at p280):-

"The three propositions of law enunciated in the Lord Chancellor's judgment in Beard's Case which obviously constitute the archetype of s17 are:

"1 That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged.

2 That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

3 That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts."

"Since Vallance's Case it is we think clear that the expression 'specific intent essential to constitute the offence with which he is charged' in s17(2) must be interpreted as applying only to a case where intent to bring about a specific result is upon the true construction of the provisions of the Code or statute creating the offence an element of the charge. Examples of such cases are wounding with intent to bring about particular results (s170) and murder of the type in which intent to cause death or bodily harm is an element (s157(1)(a) (b) and (d)).

It follows that s17(2) has no application to the crime of rape. The 'specific intent' therein referred to is to be distinguished from the 'intentional' quality of the physical action of the accused as required by s13 ...

Section 17 must we think be taken to assume that the general principle of law as firmly established at the time the Code was passed is that drunkenness cannot be relied upon as an exculpatory factor and we think it must be interpreted as defining exhaustively the limited exceptions to this principle. Section 17 was unquestionably intended to declare the common law as expressed in Beard's Case. It (as in the case of other provisions of Chapter IV) must be taken to be intended to 'cover the field' as to drunkenness in relation to mens rea. No justification or excuse by reason of voluntary drunkenness is to be found in any principle of the common law not defined in s17 so as to form any basis for invoking s8 of the Criminal Code Act 1924."

"In a case where the crime does not involve a specific intent the jury should be told that drunkenness does not affect the accused's criminal responsibility (unless of course it produces legal insanity under s16)."

21 The effect of the decision of Burbury CJ and Cox J in Snow is that the exculpatory effect of intoxication of the mind of the offender is confined to the case where it precludes the formation of the specific intent essential to constitute that limited number of crimes which have as an element separate from the intent merely to do the physical act the existence of an intent to bring about a specific result. The premise which underlies this decision is that every person over the age of seven years is presumed to have the capacity to act voluntarily and intentionally and that this presumption is irrebuttable save in the case of a person who comes within the relevant insanity provisions. I venture to say that the presumption is of the existence of this capacity rather than that every act of such person is voluntary and intentional, because, sane or insane, sober or intoxicated every person may do an act which is not in fact voluntary and intentional. Thus as Murphy J observed in O'Connor (supra) at p113:-

" ... a person may, while intoxicated, do something without criminal intent which he might, while sober, also have done without intent."

and Griffith CJ in Corbett [1903] SR (Qld) 246, while directing a jury on the charge of manslaughter that "drunkenness is never a defence unless it amounts to unsoundness of mind', nonetheless added at p249:-

"If the discharging of the rifle which caused Gillespie's death was a pure accident, the prisoner is not responsible, whether he was intoxicated or not."

(See also the instances cited by Crawford J in Snow at p297). Such a hypothesis to require consideration by the jury must of course have some foundation in the evidence (cf Bratty v The Attorney-General for Northern Ireland [1963] AC 386 at 413). No such foundation for a doubt that an act was voluntary and intentional under s13 could derive only from evidence that the accused's mind was so deranged by intoxication as to have deprived him of the capacity to act in a voluntary and intentional manner. In the present case there was unquestionably no such foundation in the evidence.

22 The joint judgment in Snow is with respect clearly correct in asserting that the express provision relating to intoxication had as its archetype the propositions of law laid down by Lord Birkenhead LC in Beard's case (supra). As originally enacted s17(2) was more a paraphrase of some of his words and read as follows:-

"(2) Intoxication which renders the accused incapable of forming the specific intent essential to constitute the offence with which he is charged shall be taken into consideration with the other facts proved in order to determine whether or not he had that intent."

By an amendment to the Criminal Code in 1946 (10 Geo VI No 14) s2 provided:-

"2 Section seventeen of the Criminal Code is amended -

(a) by omitting the words 'Intoxication which renders' at the beginning of subsection (2) and substituting therefor the words 'Evidence of such intoxication as would render';

(b) by omitting the words 'facts proved' in the same subsection and substituting therefor the word 'evidence'."

This amendment would seem to have recognised that the words originally[1] used in the Code were illogical and justified the attack quoted by my brother Nettlefold and expressed as follows:-

"If an accused is rendered incapable of forming an intent, whatever the other facts in the case may be, he cannot have formed it; and it would not therefore be sensible to take the incapacity into consideration together with the other facts in order to determine whether he had the necessary intent."

But a substitution of the words used by the Lord Chancellor merely serves to emphasise that, as my brother says, "the relevant incapacity will only be established, if established at all, by the verdict of the tribunal of fact at the end of the case, or, exceptionally by an agreed admission". I respectfully agree that his Lordship's words are an appropriately disciplined statement of the degree of intoxication to be looked for. Furthermore, Parliament's return in 1946 to Beard's case for such a statement likewise serves to emphasise its acceptance of the common law as expressed in that case as the relevant law to be applied in this jurisdiction.

23 In O'Connor (supra) a majority of the justices rejected the view taken by the House of Lords in The Queen v Majewski, [1976] UKHL 2; [1977] AC 443, which, as Stephen J said at p95, was a decision by which "the law for England has now been unequivocably declared, what was perhaps thought to remain equivocal after Director of Public Prosecutions v Beard having been placed beyond all doubt". With the greatest respect, the only member of the majority who sought to read into Lord Birkenhead's speech support for the view that no distinction should be drawn between crimes of basic intent and those of specific intent and that his Lordship intended his words to apply to all cases requiring mens rea was Barwick CJ at 83ff. Neither Stephen J nor Murphy J dealt with it in any detail and Aickin J advanced reasons at p118 for not regarding it as authoritative. Whether or not in non Code jurisdictions it had by the time O'Connor was decided lost its original authority in my respectful view it was (in the respect under consideration) clearly regarded by the Tasmanian Parliament in 1924 as authoritatively expressing currently accepted common law principles which were worthy of emulation and enshrinement in the Code. As Wilson J said at p130:-

"The problem before us is relevant only to those States which continue to rely, at least in part, on the common law for the principles of criminal responsibility. For Queensland, Western Australia and Tasmania the question is determined by the Criminal Codes which have been enacted in those States."

24 In my view the majority decision in O'Connor does not require this Court to adopt any different view of the law in respect of intoxication to that expressed by Burbury CJ and Cox J in Snow. If it is thought that Chapter IV of the Code in this respect expresses outmoded considerations of social policy and that the view of the majority in O'Connor is a true expression of fundamental legal principle with which the Code should accord, it is for the legislature to provide the remedy. I note that in The Queen v Kusu (1980) 4 A Crim R 72, the Court of Criminal Appeal in Queensland held that the ruling in O'Connor was not applicable to the Criminal Code of that State which has similar provisions to our own in this regard.

25 To return to the first ground of appeal argued, it is my opinion that the crime created by s157(1)(c) is not a crime of specific intent within the meaning of s17(2). It has been so held by this Court in Masnec v The Queen [1962] Tas SR 254 at 264, and impliedly so by Snow (supra at p283 in the passage already cited). Although this Court has power to overrule its previous decisions, the Court has held in Arnol & Ors v The Queen (1981) 7 A Crim R 291, that before doing so it must be established that the decision is manifestly or plainly wrong. Even where actual knowledge that a given act was likely to cause death in the circumstances is to be treated in the same way as a specific intent to expose the victim to that risk (as to which I am quite unpersuaded) murder under para(c) will be established if it is proved that the offender ought to have known that the act was of this character and that can in no way be equated with such an intention. There is accordingly no substance to that ground and there was no occasion for the learned trial judge to adapt the provisions of s17(2) to para(c) of s157(1).

26 As to the remaining ground of appeal I find it impossible in the circumstances of this case to find any justification for saying that intoxication was a relevant consideration in determining whether the appellant's voluntary and intentional act was one which he knew or ought to have known to be likely to cause death in the circumstances.

27 Applying to this proposition the approach taken in Snow that s17 exhaustively states the law as to intoxication so far as it forms part of the general principles of criminal responsibility in Chapter IV of the Code, the appellant's intoxicated state of mind (no matter how advanced) can have no exculpatory effect unless it amounts to an incapacity to form an intent to attain some specific result. Though s17 (apart from the relationship of intoxication to insanity) is expressly concerned only with the effect of intoxication upon crimes of specific intent and is silent as to its effect upon crimes not requiring proof of such intent, the clear implication of expressing an exculpatory exception in respect of crimes of specific intent is to exclude the possibility that intoxication could have an exculpatory effect upon other crimes. Burbury CJ and Cox J in formulating their approach cited at p278 the words of Crisp J used in R v Vallance [1960] Tas SR 51 at p86 that Chapter IV of the Code comprising ss12 to 55 inclusive "is both by design and in expression comprehensive and authoritative so as to exclude competing or supplementary common law doctrine in relation both to the actus reus and the mens rea of every crime therein provided for". This tenet and their addendum to it "we think that ss12 to 17 inclusive must be taken to state exhaustively the general principles of criminal responsibility relating to the mental element in crime (including insanity and intoxication)" was re-affirmed by Neasey J in Arnol & Ors v The Queen (supra) at 298.

28 In any event it is interesting to compare the common law position in respect of crimes not requiring the existence of a specific intent where intoxication, as in this case, falls short of precluding the mind from willing and intending acts. Barwick CJ in O'Connor stated the position thus (at pp71 and 72):-

"The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened, so that whilst intoxicated to this degree he does act voluntarily and intentionally which in a sober state he would or might not have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged.

Intoxication to the stated degree might have rendered an accused less aware of what he was doing, or of its quality, significance or consequence. But, if voluntary, his acts remain his: and he intends to perform them. So long as will and intent are related at least to the physical act involved in the crime charged, and saving for the moment the case of a crime of so-called specific intent, the fact that the state of intoxication has prevented the accused from knowing or appreciating the nature and quality of the act which he is doing will not be relevant to the determination of guilt or innocence. Apart from provisions as to diminished responsibility where such provisions are available, it is only where the lack of appreciation of the nature and quality of what is voluntarily and intentionally done is due to a disease of the mind that such lack of appreciation bears on guilt: and then only for historical reasons on the nature of the verdict to be returned.

If the degree of intoxication produces only those results which I have so far described, that state of intoxication is clearly irrelevant to a consideration of the accused's criminal culpability, certainly if the offence charged does not require that the act charged be done to achieve or to attempt to achieve some specified result."

29 The common law does not accord intoxication any exculpatory effect in the circumstances postulated. Even if the silence of the Code does not preclude the appellant from relying on common law defences none is available to him. In my view the appeal should be dismissed.

30 I agree with the reasons for judgment as expressed by Nettlefold J and have nothing further to add.

tasInLaw edit: The paper copy has "bleonged"[.]

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