R v O'Connor

1. (1980) 146 C.L.R. 1. 2. (1978) 141 C.L.R. 88. 3. (1969) 117 C.L.R. 221; [1969] 1 A.C. 590.

With these views in mind I have approached the question whether evidence of self-induced intoxication may be relevant on the trial of an accused for an offence which does not require that the act charged should have been done in order to attain a specific purpose or to attempt to attain a specific purpose where the only reason for introduction of such evidence is to raise a doubt as to the voluntary or the intentional quality of the accused's relevant conduct.

In days before the common law fundamentals of criminal liability with which we are now familiar had been educed and declared, it was said that drunkenness was no defence to or excuse for the commission of crime: indeed, it might be an exacerbation of the offence. This formulation still retains some currency. The use of the words "defence" and "excuse" suggests that the saying is based on the idea that drunkenness might furnish a defence to or excuse for an offence otherwise established. But proof of a state of intoxication, whether self-induced or not, so far from constituting itself a matter of defence or excuse, is at most merely part of the totality of the evidence which may raise a reasonable doubt as to the existence of essential elements of criminal responsibility. Such a doubt, if not removed by the Crown to the satisfaction of the tribunal of fact, will warrant an acquittal, not because the accused was intoxicated but because the charge will not have been proved beyond reasonable doubt. The onus made clear by the decision in Woolmington v. Director of Public Prosecutions [5] will not have been discharged. Thus, the question raised in this case is really one as to the relevance of evidence as to the accused's state of body and mind in relation to the essentials of criminal responsibility if due to his own acts.

Before proceeding further, I should briefly discuss the need for some precision in the use of such terms as "drunkenness" or "intoxication".

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 socalled 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. There may remain a question whether, if a purpose to achieve such a result is required, his state of intoxication, whilst allowing the formation of an intent to do the physical act charged, may possibly be such as to preclude the formation of the relevant purpose. Whether it does so or not may need to be dealt with as a specific problem related to the particular degree of intoxication and to the nature of the relevant crime: and I do not pursue that question here. But the inclination of my mind is to think that no differentiation need be made in this respect.

What I have thus far written is, in my opinion, applicable whether the state of intoxication is self-induced or the result of the activity of another. The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability.

But the state of intoxication may, though perhaps only rarely, divorce the will from the movements of the body so that they are truly involuntary. Or, again, and perhaps more frequently, the state of intoxication, whilst not being so complete as to preclude the exercise of the will, is sufficient to prevent the formation of an intent to do the physical act involved in the crime charged. It is in connexion with these states of intoxication that the problem raised in this case arises.

It is proper here to remark that lack of recollection, attributable to a past state of intoxication, is not necessarily indicative of either of these states of intoxication. If no more is proved than a credible assertion of a lack of recollection, it is my opinion that an onus to establish the voluntary or intentional quality of what the accused is alleged to have done does not for that reason pass to the Crown. But probably such an assertion of amnesia will rarely stand alone: evidence of the actual state of the accused in relation to sobriety and the manner in which that state has been induced will be forthcoming.

Now, there can be little doubt that as of this time an accused in the state of intoxication which has rendered his acts involuntary or precluded the formation of a relevant intent and which has been brought about by the act of another could not be found guilty of any common law offence. What his body had done, he had not done, or what he had done had not been done with intent to do it. Nothing in the speeches in Majewski's Case suggests the contrary.

It is the fact that the state of intoxication results from the accused's own acts which is said to warrant the exclusion of evidence as to his physical and mental condition. It is this exclusion which gives rise to the fundamental question in this case. As will appear, the decision in Majewski's Case in reality is that the accused is to be denied the opportunity of proving or attempting to prove what was his physical and mental state vis a vis voluntariness or relevant intent at the time he is said to have committed the physical act charged, simply because he has contributed by his own act to that physical and mental state.

This may be an appropriate place to say something of the concept of self-induced intoxication. Of course, there can be the case of deliberate self-intoxication as a means of performing an intended act. The facts in Attorney-General (Northern Ireland) v. Gallagher [6] illustrate how an intent formed before intoxication to do an act whilst intoxicated may make the act when done in an intoxicated state a voluntary act: see also the instance suggested by Madden C.J. in Reg. v. Egan [7] . The formation before intoxication of the requisite intent and the deliberate induction of a state of intoxication for the performance of the charged act understandably makes that act when done in a desired state of intoxication both a voluntary act and an act done with the requisite intent. But where the intent to do the proscribed act was not formed before intoxication or at all, these cases have, in my opinion, no relevance.

However, quite apart from circumstances of the kind illustrated by Gallagher's Case, there are doubtless cases where a human sets out to become intoxicated, perhaps more likely in the administration of hallucinatory drugs than in the case of alcohol. But, I apprehend, many humans become intoxicated, certainly by alcohol, without any intention of so becoming. Of course, they voluntarily imbibe the liquor or take the drug but with no thought of the ultimate state they may reach, more particularly in the case of alcohol. The addictive quality of alcohol or other drug for some of them may possibly reduce the voluntary nature of their consumption of alcohol or other drug in the final stages of their intoxication. Their resultant state, however, may fairly be described as self-induced because of the deliberation with which they have commenced the course of drinking or drug taking.

But the state of intoxication may be reached by inadvertence, even though the drug, whether alcoholic or other, may be taken voluntarily. Perhaps this is less likely in the case of some drugs than in the case of alcohol itself: but the rule proposed in Majewski's Case is universal and not discriminatory as between intoxication by alcohol or by other drugs. An example which comes to mind is that of the person who at dinner does not observe the frequency with which the waiter tops up his glass. If in the result that person becomes intoxicated, is the approbrium present in the description "self-induced intoxication" as used in relation to criminal responsibility really warranted? Is the wickedness of mind which is thought to satisfy mens rea present in instances of this kind? Yet in the universality of the rule as to admissibility of evidence of self-induced intoxication, such an instance is included. It is no answer to the situation, in my view, to leave it to the judicial discretion in punishment to palliate the conviction for what is done by such a person.

Examples of wanton drinking of alcohol and perhaps more so of administration of other drugs are all too frequent. If the voluntary taking of the alcohol or other drug is to be a basis of criminal responsibility, it might well be thought that a distinction ought to be made between a deliberate or what I have called a wanton taking of alcohol or other drug with a view to becoming intoxicated or a taking with an indifference to becoming thereby intoxicated and instances of intoxication where these elements of deliberation, wantonness or indifference are absent. It seems to me unsatisfactory to place all instances of intoxication as the result of a voluntary imbibing of alcohol or a voluntary administration of another drug in one undifferentiated classification as self-induced.

Because it is basic to the Crown's submissions in this application, it is now necessary to examine the decision in Majewski's Case [8] and at least some of its implications.

Robert Stefan Majewski was convicted in a Crown Court of assaults occasioning actual bodily harm and of assaults of a police constable in the execution of his duty. The charges arose out of a drunken brawl in a public house and a subsequent incident at a police station. At his trial, the accused gave evidence that when the assaults were committed he had been taking a mixture of drugs and a fair amount of alcohol, none under medical advice. As a result, he said he did not know what he was doing on the evening in question and had no recollection of the incidents to which the charges related.

The learned trial judge directed the jury as follows:

Let us pass on to another matter which has been touched upon in this case, the question of drink and drugs. Now, the law upon this subject is clear that where an offence does not require a specific intent (any intention, for example, to cause grievous bodily harm as certain offences do or offences such as theft requiring an intention of dishonesty) - where no such intention is, as it were, a constituent part of the offence, then if a man has induced in himself a state in which he is under the influence of drink and drugs then that state is no defence. Indeed, in every single case in this indictment the allegation is one of assault. That does not require the proof by the prosecution of any specific intention and therefore the fact that [the defendant] may have taken drink and drugs is irrelevant provided that you are satisfied that the state which he was in as a result of those drink and drugs or a combination of both was self-induced because, so that you can understand this, what the law really says is that, if a person disables himself by his own conduct, by the taking of drink and drugs, from having powers of comprehension as to what is going on or his powers of self-control, he cannot then turn round and say: "I am not responsible for what I did" because he put himself into that position in the first place. That is the logic of it but the practical effect of it, members of the jury, is this, that upon my direction in law you can ignore the subject of drink and drugs as being in any way a defence to any one or more of the counts in this indictment.

The evidence in the case would not have supported the conclusion that the accused's acts were involuntary, acts unaccompanied by an exercise of will to do them. But a medical witness did say that it was possible but unlikely for a state of intoxication produced by a combination of certain drugs and alcohol to achieve a state of automatism. Further, such a combination could produce, but rarely, a state of unconsciousness. It was possible that, notwithstanding the state of intoxication produced by the combination of alcohol and other drugs, a person so intoxicated could form certain intentions and execute them.

An appeal was brought from the convictions to the Court of Appeal (Lawton and James L.JJ. and Milmo J.). Before that Court, counsel for the Crown said that he could not support the convictions, as the direction of the trial judge which I have quoted was in error. Subsequently, however, argument in support of the convictions was presented to the Court of Appeal by the Director of Public Prosecutions. After argument by both sides, the Court dismissed the appeal.

Subsequently, a certificate was granted under s. 33 (2) of the Criminal Appeal Act, 1968 that a point of law of general public importance was involved, namely: "Whether a defendant may properly be convicted of assault notwithstanding that, by reason of self-induced intoxication, he did not intend to do the act alleged to constitute the assault." Consequent on the grant of this certificate, leave to appeal was given by the House of Lords. It is clear from the form of this question that the voluntariness of Majewski's acts as distinct from their intentional nature was not formally involved in the question to be submitted to the House of Lords.

The question came for decision before the Lord Chancellor, Lord Elwyn-Jones, and Lord Diplock, Lord Simon of Glaisdale, Lord Kilbrandon, Lord Salmon, Lord Edmund-Davies and Lord Russell of Killowen. Their Lordships were unanimous in answering the question in the affirmative.

Whilst, as I have said, the question of voluntariness of the acts charged was not raised, the question posed assumes that the defendant did not in fact have an intent to do the act charged; that is to say, the question assumes that evidence of self-induced intoxication had established the lack of the requisite intent.

Further, the question distinguishes in relation to intent, between the physical act and its result as embodied in the indictment or charge: it speaks of the act constituting the assault. This precision in statement may, in my opinion, be important. In the present case, for example, the conviction is of unlawful wounding. But the physical act which supported it was the stabbing with a knife. Doubtless, such an act would be likely to wound. But in relation to intent, it is important, none the less, I think, to distinguish between an intent to use the knife and an intent to wound. In a sense, wounding as a result of the stabbing: perhaps an immediate result. In what follows, I have taken a minimal position in relation to intent and say that at the least an intent to do the physical act involved in the crime charged is indispensable to criminal responsibility. It thus becomes unnecessary for me to discuss in relation, for example, to a charge of unlawful wounding, whether or no there must be an actual intent to wound; that is to say, an intent to produce the described result of the physical act which is intended to be done. This is not to say that, in my opinion, an intent to produce a result is not included in the relevant mens rea. In relation to many charges of what are styled crimes of "basic intent" an intent to produce a result will be found to be necessary from the very description of the crime. It may be that such an intent is universally required. But, for the purpose of the present discussion, it seems to me to be unnecessary to explore that question. It suffices for my present purposes that at least an intention to do the physical act involved in the crime charged is indispensable to criminal responsibility.

I might mention in passing, however, that, in his speech in Director of Public Prosecutions v. Morgan [9] , Lord Simon treats an intent to assault, i.e. to produce the result of the physical act, as a necessary element in that crime. He treats, as it seems to me, the actus reus as consisting both of the physical act and its immediate consequence. The necessary intent is treated as involving both physical act and consequence. For my present purposes, as I have indicated, I have not done so.

But it is perhaps worth remarking at this point that the distinction between "basic" intent and "specific" intent becomes less logically attractive if the view is taken that the basic intent must extend both to the physical act and to its immediate consequence. To add an additional consequence to the actus reus scarce warrants a distinction between the two types of crime in relation to the quality and extent of the intent, the mens rea, required in the one and that required in the other. But some would not treat the purpose of a crime of specific intent as part of the actus reus: see, e.g., Lord Simon's use of the word "ulterior" in this connexion [10] .

By adopting for the purposes of discussion what I have called a minimal position, the distinction between an involuntary act and an unintended act may become fine: and, in some instances, fine perhaps to the point of disappearance. But, none the less, it must, it seems to me, be maintained: and in what follows I have done so. It was maintained in Reg. v. Kamipeli [11] .

It is now appropriate to return to express the result of the decision of their Lordships in Majewski's Case.

The House in substance decided that on the trial of an accused for a criminal offence which does not require that the proscribed act should be done to attain or to attempt to attain a specified result beyond the immediate consequence of the physical act involved, evidence as to the effect which self-induced intoxication has produced on the relationship of the accused's will or intent to the activity of his body is irrelevant and therefore inadmissible, if tendered solely to raise a doubt as to the voluntariness of, or as to presence of intention to do, the physical act involved in the crime charged. Although, as I have said, not formally involved in the question certified by the Court of Appeal, in my opinion, the reasoning favoured by their Lordships extends to all the consequences of the self-induced intoxication by any means and is not limited to those which affect only the presence of an intent to do the physical act involved in the charge. The effect of intoxication, as I have said, may be so extensive as to render the acts of the accused involuntary or it may preclude the formation of an intent to do that physical act. In substance, therefore, the decision in Majewski's Case is that in the case of such a charge the act of the accused is to be incontestably presumed to have been voluntary and to have been done with an intent to do the physical act involved in the crime charged. Evidence to call in question either position is irrelevant and inadmissible if the accused's condition resulted from his own acts.

The decision was in part built upon acceptance of the dichotomy of crimes into crimes of "specific" intent and crimes of "basic" intent. Although all of their Lordships did not specifically define the former, I think that they used the notion of a crime of specific intent in the sense in which I have used it in my summary of the substance of their decision. The purposive nature of the proscribed act is the indication of a crime of specific intent: hence the description I have used of what is involved in a crime of specific intent and by contrast what is not involved in a crime of so-called basic intent. My description is in line, I think, with Lord Simon's definition of specific intent. Having made this distinction, i.e. between crimes of basic intent and crimes of specific intent, their Lordships sought, as it seems to me, to bring their decision within the symmetry of the basic principles of criminal responsibility by treating the wantonness of becoming intoxicated as a form of recklessness or of wickedness of mind which satisfied the requirement of mens rea: see per the Lord Chancellor, at pp. 474-475, and Lord Simon, at p. 479.

Along with this attempt to accommodate the decision to the fundamentals of the common law as they have come to be understood, their Lordships appear to have based themselves on public policy, the policy of safeguarding the citizen and of maintaining social order. Indeed, such a policy was treated as paramount, even in the case of crimes of "basic intent" to the point of conclusively presuming voluntariness and the presence of intent.

A distrust of jurors and an anxiety that they may too readily be persuaded to an acquittal if evidence of the result of self-induced intoxication, particularly by drugs other than alcohol, were allowed, may have formed some part of the public policy on which the decision rests. I may say at once that I have, of course, no experience of English juries: but I have of juries in New South Wales. Starke J., a most experienced judge in the hearing of criminal charges in Victoria, having had as well a long and distinguished career as an advocate, expressed himself in the present case in relation to the impact of evidence of intoxication upon Victorian jurors. He said:

I, of course, have no knowledge of how English juries react. But over nearly forty years' experience in this State I have found juries to be very slow to accept a defence based on intoxication. I do not share the fear held by many in England that if intoxication is accepted as a defence as far as general intent is concerned the floodgates will open and hordes of guilty men will descend on the community. [12] . I share his views, as if they had been expressed about jurors in New South Wales. In my opinion, properly instructed jurors would be scrupulous and not indulgent in deciding an issue of voluntariness or of intention. Indeed, I am inclined to think that they may tend to think that an accused who had taken alcohol and particularly other drugs to the point of extreme intoxication had brought on himself what flowed from that state of intoxication. 1. [1980] V.R. 635, at p. 647.

But I do not doubt that admission of evidence of intoxication, including as most likely it will expert evidence, would call for careful direction by the presiding judge, a matter to which I shall later refer. But whatever the risks in a trial by jury, they do not justify, in my opinion, such a departure from fundamental principles of criminal responsibility as to my mind is involved in the decision of Majewski's Case.

It is clear, I think, that no common law offence is made out by proof of the actus reus alone. In the case of all such crimes, at least an actual intent to do the physical act involved in the crime charged must be established. In so phrasing this principle, I have laid on one side recklessness of the kind which is at times accounted as a substitute for, if not indeed, a satisfaction of the need for, an actual intent. It is not necessary, in my opinion, for the purposes of resolving the question raised in this case to explore the area in which recklessness may suffice; or to examine the parameters of the concept of recklessness in this connexion. In Pemble v. The Queen [13] , I discussed the sense in which recklessness is used in this area of discourse and indicated what is involved in it. In putting recklessness on one side, I am not unmindful of the use of recklessness by their Lordships in Majewski's Case, a use which, it seems to me, is outside the concept of recklessness as it is usually employed in relation to criminal responsibility. I shall say something later as to their Lordships' use of recklessness in that case. But I have confined my statement of principal for present purposes to the need for actual intent.

Stephen J. in Reg. v. Tolson [14] makes it clear that, whilst the requirement is not that the mental element in mens rea must always be of a like nature in all crime, there must be in every case an intent appropriate to the definition of the crime. I would prefer to avoid the use of mens rea in these reasons because of the sense of moral turpitude vestigial from an earlier time which the expression tends to carry: but it is a convenient expression to convey the indispensable need for actual intent in criminal responsibility. But, where possible, I will use intent rather than mens rea.

In Ryan's Case [15] I attempted a summary statement of the principle that in all crime, including statutory offences, the act charged must have been done voluntarily, i.e. accompanied by the will to do it. I find no need to qualify what I then wrote. I stated the principle as without qualification. Gallagher's Case [16] and Reg. v. Egan [17] are not instances of responsibility for involuntary acts for the reason I have already given and are not exceptions from the rule I expressed. The decision in Majewski's Case [18] would in substance engraft a qualification on that principle. The question in the present case is to determine both if and why that should be so, conformably to the understanding of the common law as to criminal responsibility which has resulted from the work of the courts in the last fifty years or so. I set that time because of the influence of Woolmington's Case [19] and more recent cases, and because of the influence Director of Public Prosecutions v. Beard [20] ought, in my opinion, to have had and which in some areas it has had: cf. Kamipeli's Case [21] .

1. (1967) 121 C.L.R. 205. 2. [1963] A.C. 349. 3. (1897) 23 V.L.R. 159. 4. [1977] A.C. 443. 5. [1935] A.C. 462. 6. [1920] A.C. 479. 7. [1975] 2 N.Z.L.R. 610.

In Ryan's Case [22] , which involved a charge of murder - oddly enough, a crime accounted to be a crime of specific intent - I had no need to consider the case of a voluntary act done without the requisite intent. Consequently, my summary was confined to a lack of voluntariness. Of course, if the act be involuntary, there can be no question as to the intent with which it was done. But even where there is a conjunction of will and deed, there remains, as I think, in every case of common law crime, and indeed in many cases of "statutory crime", the need for actual intent, at least an actual intent to do the physical act involved in the crime charged.

The intent to do the physical act which is required as part of an actus reus of a non-purposive kind has been called a "basic intent" (per Lord Simon in Morgan's Case [23] , although, as I have mentioned, his Lordship included in the necessary intent an intent to produce a result of the physical act. Such an intent is, of course, basic in the sense that it must always be present as one of the foundations of criminal responsibility. But, as I think, so is the intent to do the act required where the actus reus is of a purposive kind. Discussions such as have taken place in Hyam v. Director of Public Prosecutions [24] and other cases have emphasized that the intent must be actual and not constructive. See also the judgment of Sir Owen Dixon in Parker v. The Queen [25] , which so strongly emphasizes this feature of criminal culpability.

1. [1976] A.C., at p. 216. 2. [1975] A.C. 55. 3. (1963) 111 C.L.R. 610, at p. 632.

But the description "basic intent" has been used to distinguish the intent required in a crime in which the actus reus does not require the physical act involved in the charge to have been done to achieve a stated purpose from the intent required in crimes which do so require. The latter are then styled crimes of "specific intent".

With great respect to those who have favoured this terminology in a classification of crimes, it is to my mind not only inappropriate but it obscures more than it reveals. The purpose with which a proscribed act must be done in order to be relevantly criminal is, in my opinion, part of the description of the actus reus: cf. Lord Simon in Morgan's Case [26] . Assault to resist arrest specifies, in my opinion, the actus reus. Although described in terms of intent it connotes the purposive quality of the proscribed act. It does not refer, in my opinion, to the mens rea, or intention to commit the act in question, though of course if, for example, an accused intends to assault a constable in order to resist arrest, it can scarcely be said that he did not intend the physical act necessary to carry out that purpose. None the less, the purpose of resisting arrest is, in my opinion, part of the actus reus. In other words, the suggested basis for classification of crimes is not, in my opinion, on the footing of a distinction based on the nature and extent of the relevant mens rea but, rather, it is a distinction founded on the description of the actus reus.

The description "specific intent" gained its currency from Stephen J.'s judgment in Tolson's Case [27] . As an expression calling attention to the elements of the actus reus it has no doubt its uses. As the intent or mens rea is related to the content of the actus reus, the transference of the purpose of the actus reus to the mens rea is tempting, but it is preferable, in my opinion, not to effect that transference. In my respectful opinion, the distinction between basic and specific intent is unhelpful as a basis for distinction of crimes by reference to mens rea.

If I might for a moment turn to the requirements of a charge of wounding, the mens rea is at least an intent to do the physical act involved in the wounding. But if, conformably with Lord Simon's analysis in Morgan's Case, the requisite intent is to wound, i.e. it is an intent to produce a result, not merely to do a physical act, that result is, in my opinion, part of the description of the actus reus. The blow must have a purpose to wound. If the mens rea is to include an intent to produce the result it would seem to me to be difficult to distinguish in relation to the need for mens rea between such an offence and another offence which in prescribing the actus reus required the attempted attainment of a further result. Yet the one is sought to be distinguished from the other in the dichotomy of basic and specific intent.

This is a convenient place at which to refer to Lord Birkenhead's judgment in Beard's Case [28] . The case was decided in 1920 and the decision founded on the Lord Chancellor's reasons which had the approval of the other participating Law Lords. His Lordship's reasons must now be read in the light of subsequent decisions, but particularly in the light of Woolmington's Case [29] . The emphasis in Beard's Case on the capacity to form an intent must be displaced by the need to find an actual intent; though, of course, an incapacity to form an intent must deny the existence of the intent. Also the reference to proof by the accused must be deleted in favour of the onus on the Crown to which Woolmington's Case called attention. The passage round which controversy has centred is at p. 504 and is as follows:

In Meade's Case [30] , therefore, it was essential to prove the specific intent; in Beard's case it was only necessary to prove that the violent act causing death was done in furtherance of the felony of rape. I do not think that the proposition of law deduced from these earlier cases is an exceptional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime - e.g., wounding with intent to do grievous bodily harm or with intent to kill. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis, only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences), a person cannot be convicted of a crime unless the mens was rea. Drunkenness, rendering a person incapable of the intent, would be an answer, as it is for example in a charge of attempted suicide. In Reg. v. Moore [31] drunkenness was held to negative the intent in such a case, and Jervis C.J. said: "If the prisoner was so drunk as not to know what she was about, how can you say that she intended to destroy herself?" 1. [1920] A.C. 479. 2. [1935] A.C. 462. 3. [1909] 1 K.B. 895. 4. (1825) 3 C. & K. 319 [175 E.R. 571].

His Lordship had referred to cases where an inability due to intoxication to form a specific intent had been accepted as relevant to criminal responsibility. These cases had, of course, represented a change in the declaration of the common law reflecting in relation to a state of intoxication the sense of fairness and justice of the common law. In my opinion, his Lordship in the passage quoted meant exactly what his words convey. So far from erecting a distinction between so-called basic intent (an expression not then current) and specific intent, it seems to me that his Lordship was pointing out that the cases to which he had had occasion to refer did not really represent a departure from but were in truth no more than illustrative of fundamental principle, i.e. that a person could not be convicted of a crime unless "the mens was rea". I think his Lordship probably realised how anomalous it would be, as I think undoubtedly it is, that an accused could not be convicted of what is there called a graver offence if he lacks the requisite intent but could be convicted of a lesser offence without the requisite intent. Now, of course, under Majewski's Case an accused can be convicted without the opportunity of evidencing whether or not he had the necessary intent.

I may say that, in my opinion, Lord Birkenhead did appear to treat the specific intent as part of mens rea, and did not make the distinction I would make between the intent or purpose which is part of the actus reus and the intent which is the mens rea. But none the less, in my opinion, I cannot gainsay the effect of three elements in the passage quoted and one from the preceding pages, namely, first, that what was being decided was not by reason of an exceptional rule; second, that it was in line with fundamental principle, i.e. of the indispensable need for mens rea; third, the reference to Reg. v. Moore, and, lastly, the reference to a quotation from Meade's Case.

I am inclined to think that the difficulty which has been experienced with Lord Birkenhead's words has arisen because of the postulation of the dichotomy of basic and specific intent whereas, as I read his language, his Lordship gave no countenance to such a distinction, however expressed.

Left to myself, and with the utmost respect to Lord Russell's explanation of it, I would read the much debated passage as indicating a realization that the logic of the so-called relaxation for crimes of specific intent was applicable to all crime. Crimes of so-called specific intent are, generally speaking, graver crimes. I have difficulty in thinking that his Lordship, by graver crime, meant only crimes for which an alternative verdict was possible. If such a limited meaning was intended I cannot imagine it being sought to be conveyed by the language used, language which attracted the assent of the other members of the House. I agree entirely with the judgment of McCarthy P. in Kamipeli's Case [32] , and its use of Beard's Case [33] .

It is to my mind exceedingly strange that a person incapable of forming any intent may be found guilty of an offence which requires only an intent to do the physical act involved but may not be found guilty of doing an act to attain a specific result. If the cases to which Lord Birkenhead referred represented a movement in the common law, an amelioration in favour of the accused, there is no reason, it seems to me, why the movement had to stop at the point reached by these cases. That, it seems to me, is how the matter struck Lord Birkenhead and those who agreed with him: and, in my view, that is precisely the sense in which he expressed himself. Such cases were not exceptions from but examples of fundamental rules.

Thus, if the evidence of intoxication is sufficient to raise a doubt as to voluntariness or as to the presence of requisite intent, I can see no logical ground for determining its admissiblity upon a distinction between a crime which specifies only the immediate result of the proscribed act and a crime which in addition requires a further result dependent on purpose.

But it is in substance held that the voluntary taking or administration of alcohol or other drug producing an intoxicated state so infects that situation that what is done in that state must incontestably be accounted to be voluntary or, at the lowest, as having been done with the requisite intent. The view, that of Lord Elwyn-Jones to which their Lordships subscribed, is that to become intoxicated by your own act, is to supply an element of recklessness to the performance of any criminally proscribed act performed during that state: and thus to satisfy the requirement of mens rea. But this, in my respectful opinion, is a novel use of the word "reckless" and, in my opinion, a use heretofore not thought acceptable. If to take alcohol or drugs with at least the risk of becoming intoxicated is in one sense a reckless thing to do, yet that variety of recklessness can scarce be carried forward and attributed as a substitute for actual intent to do the proscribed act. The recklessness which may on occasion satisfy the requirement of mens rea involves an awareness of possible consequences of doing the act, i.e. the proscribed act charged, and at least a decision to disregard them and to act without caring for appreciated consequences. The recklessness or wantonness of the person taking alcohol or other drug with at least the chance of becoming intoxicated is surely of a quite different order. Further, it is, in my opinion, in a legal sense remote from the performance of the act charged. It is quite unlike the intent formed in Gallagher's Case [34] which was not remote from the act charged but in truth directly connected to it because of the intent formed before intoxication. To find an analogy in the field of recklessness to what occurred in Gallagher's Case, it would be necessary to find an appreciation before intoxication of the risks of acts of a criminal kind during intoxication and a decision before intoxication to take those risks or at least a conceived indifference to the possibility of their turning into reality. For my part, I am unable to accept that the voluntary nature of the taking of the alcohol or other drug, whether or not it be an act of a wanton or reckless kind, supplies the mens rea for the commission of a crime which in the case supposed may have been done involuntarily or without the requisite intent.

It is proper at this point to acknowledge that the reduction of murder to manslaughter by reason of a state of intoxication is so far an entrenched anomaly. In the first place, murder does not fit the definition of a crime of specific intent: but yet it is consistently so treated. Secondly, manslaughter for its part is very much affected by its definition as unjustifiable homicide. The anomaly has not been the subject of critical judicial examination. The wide discretion available in the punishment of manslaughter has no doubt contributed to its acceptability as an alternative to murder where that crime for any reason is not made out. In what I wrote in Viro's Case [35] , I discussed the use of manslaughter as an alternative to murder when self-defence is set up. The anomalous position of manslaughter ought not, in my opinion, to provide any justification for any further departure from fundamental principle where voluntariness or requisite intent is absent.

Then it is said that the protection of the community from violence, being a purpose of the criminal law, requires the conclusion to which the House came in Majewski's Case [36] . It may readily be granted that the frequency with which intoxicated persons act violently poses a distinct threat to our social order and, indeed, at times, to personal safety. Further, the use of drugs to produce intoxicated situations has become rife. It has added a new dimension to the possibility of violent and unsocial conduct on the part of those who have become intoxicated. That the society needs protection against violence by such persons can readily be conceded. But so it does in relation to armed robbery and, indeed, to housebreaking which is not infrequently accompanied by violence to the person. So it does in relation to many crimes of so-called specific intent. The question, it seems to me, which is posed for this Court is whether it is consonant with the common law to make such an exception in the case of self-induced intoxication as has been held to be the case by the House of Lords. Does the situation created by the use of drugs arising or which may arise from what I might call intoxicated violence warrant a radical departure from those principles of the common law evolved over a period of time, but particularly elucidated in the last fifty or so years? These principles have been established bearing in mind and not disregarding the need of the society for protection from violent and unsocial behaviour. These principles, on the one hand, provide the society with a protection against violent and unsocial conduct, whilst on the other hand, maintain a just balance between the Crown and the citizen who is charged with having broken the criminal law. That Majewski's Case is a departure from such principles can scarce be gainsaid. It seems to me to be completely inconsistent with the principles of the common law that a man should be conclusively presumed to have an intent which, in fact, he does not have, or to have done an act which, in truth, he did not do.

I can readily understand that a person who has taken alcohol or another drug to such an extent that he is intoxicated thereby to the point where he has no will to act or no capacity to form an intent to do an act is blameworthy and that his act of having ingested or administered the alcohol or other drug ought to be visited with severe consequences. The offence of being drunk and disorderly is not maintained these days in all systems of the common law. In any case it has not carried a sufficient penalty properly to express the public opprobium which should attach to one who, by the taking of alcohol or the use of drugs, has become intoxicated to the point where he is the vehicle for unsocial or violent behaviour. But, though blameworthy for becoming intoxicated, I can see no ground for presuming his acts to be voluntary and relevantly intentional. For what is blameworthy there should be an appropriate criminal offence. But it is not for the judges to create an offence appropriate in the circumstances: cf. Knuller (Publishing, Printing & Promotions) Ltd. v. Director of Public Prosecutions [37] . It must be for the Parliament.

There would be good sense, it seems to me, in a statutory provision which gave to a jury who were driven to the conclusion that an accused, due to the result of self-induced intoxication, was not culpable of the crime with which he is charged to be able to bring in an alternative verdict that he, by his own conduct, had brought himself to a state where he was not responsible for his acts. There should be a substantial penalty provided for his conviction of this alternative charge, a penalty of confinement which would include both an element of punishment and provide an opportunity for treatment for the tendency to take alcohol or drugs. It would, it seems to me, be quite just to make the accused responsible for his act of having taken alcohol or other drug to the point I have described.

In my opinion, evidence of the state of the body and mind of an accused tendered to assist in raising a doubt as to the voluntary character of the physical act involved in the crime charged is admissible on the trial of an accused for any criminal offence, whether an offence at common law or by statute. Further, in my opinion, such evidence tendered to raise a doubt as to the actual intention with which the physical act involved in the crime charged, if done, was done is admissible on the trial of an accused for any offence, whether at common law or by statute, with the exception of such statutory offences as do not require the existence of an actual intent, the so-called absolute offences.

As I earlier indicated, however, the jury needs careful and special instruction. If the evidence, if accepted, is not such as to be capable of raising a doubt as to either of the basic elements, voluntariness or actual intent, there being no other material to suggest a lack of voluntariness or actual intent, that evidence can be withdrawn from the jury's consideration. It will have had no more than a tendency to establish that though the accused acted voluntarily and with the requisite intent, he was influenced in what he did by a state of insobriety. They should be told that if the evidence does not raise in their minds a doubt as to voluntariness or actual intent they may put that evidence out of their minds in considering the accused's guilt or innocence. But if the evidence is capable of raising a doubt either as to voluntariness or the existence of an actual intent, the jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charged requires. It would be proper in these cases to tell a jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intent.

In my opinion, the Court of Criminal Appeal was justified in not accepting Majewski's Case [38] . It does not appear from their reasons that they attempted a detailed analysis of the evidence as to voluntariness or as to actual intent. But it is evident that they took the view that the jury in acquitting of the charges in the indictment could be taken under the trial judge's direction to have had a doubt at least as to intent, if not as to voluntariness. Consequently, there is no ground for disturbing the court's conclusion that the respondent should be acquitted of the alternative offence.

I would grant special leave to appeal and, for the reasons I have expressed, dismiss the appeal.

I have had the advantage of reading in draft the reasons for judgment prepared by my brother Wilson. He has dealt so fully with the questions involved that it is possible for me to express with comparative brevity my reasons for concurring in the conclusion which he has reached.

The accused was charged with wounding with intent to do grievous bodily harm or intent to resist lawful apprehension. The jury acquitted him on that count but convicted him of an alternative count of unlawful and malicious wounding. The learned trial judge directed the jury that self-induced intoxication was no defence to the alternative charge. In so doing he followed the decision of the House of Lords in Reg. v. Majewski [39] . We are now called upon to decide whether that decision should be followed in Australia.

Even the most severe of the many academic critics of Reg. v. Majewski do not, I think, suggest that the decision in that case involved a departure from established authority. The history of the rules of the common law as to the effect of voluntary intoxication on criminal responsibility was fully traced in Director of Public Prosecutions v. Beard [40] , and it reveals a gradual relaxation of the original principle that intoxication was regarded as an aggravation rather than as an excuse for criminal misbehaviour. Unfortunately the judgment of Lord Birkenhead L.C. in Director of Public Prosecutions v. Beard [40] is not expressed with his Lordship's usual clarity and has created considerable difficulties, some of which were discussed in Viro v. The Queen [41] . In Viro v. The Queen it was said that it would be contrary to fundamental principle to hold that evidence of intoxication not amounting to incapacity is irrelevant to criminal responsibility where the commission of the crime requires a special intent, and it was held that on a charge of such a crime the state of intoxication of the accused person is a matter to be considered by the jury in deciding whether they are satisfied that he had the requisite intent. However, neither in Director of Public Prosecutions v. Beard nor in any of the English cases that followed it was it held that an accused person who was so intoxicated that he was incapable of knowing what he was doing was entitled to be acquitted of a criminal charge not involving a special intent. One passage in the judgment in Director of Public Prosecutions v. Beard [43] , has been thought by some to suggest that the principle for which that case is authority was not confined to crimes in which it was necessary to prove a special (or specific) intent, but I respectfully accept the explanation of that passage given by Lord Russell of Killowen in Reg. v. Majewski [44] , and agree with the observation of Lord Simon of Glaisdale [45] , that the judgment in Director of Public Prosecutions v. Beard would be "broken-backed and inconsistent" if some explanation on the lines described by Lord Russell of Killowen were not accepted. The decision in Reg. v. Majewski is in my opinion consistent with that in Director of Public Prosecutions v. Beard and other English authority.

1. [1920] A.C. 479. 2. [1920] A.C. 479. 3. (1978) 141 C.L.R. 88, at pp. 109-113. 4. [1920] A.C., at p. 504. 5. [1977] A.C., at p. 499. 6. [1977] A.C., at p. 479.

The case does not conflict with any Australian authority, except for some decisions of judges sitting at first instance in the Supreme Court of Victoria. It was suggested that Reg. v. Majewski is inconsistent with some observations made in this Court by Barwick C.J. in Ryan v. The Queen [46] . That was a case of felony murder, and proof of a special intent was not necessary, but no question of intoxication arose - the defence was that the killing was accidental. Barwick C.J. said [47] , that "an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act", and went on [48] :

If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. I respectfully agree with these observations in so far as they state a general principle. However, the learned Chief Justice did not discuss the questions (which did not arise in that case) whether this general principle applies where the reason why the acts of the accused are said not to be his willed acts is that he was in a state of self-induced intoxication, and whether, assuming the acts of the intoxicated person to have been voluntary, they can be said to have been done with a guilty mind. 1. (1967) 121 C.L.R. 205. 2. (1967) 121 C.L.R., at p. 216. 3. (1967) 121 C.L.R., at p. 217.

The decision in Reg. v. Majewski [49] is attacked on the grounds that it did not carry far enough the relaxation of the strict rules of the common law which the earlier authorities had brought about, and that the result is illogical and contrary to principle. In the first place it is said that there is no clear criterion, or consistent principle, by which crimes of special intent may be distinguished from crimes of basic intent. With the greatest respect to Lord Simon of Glaisdale, who suggested the use of the expression "basic intent" in Reg. v. Morgan [50] , I do not find that expression altogether helpful. It suggests that intention is an essential ingredient of a crime, when one question to be decided is whether that is so. However, I find no difficulty in distinguishing crimes which involve a special intent from those which do not. A crime of special intent, as I indicated in Viro v. The Queen [51] , is a crime of which an intention to cause a particular result is an ingredient. Thus in the present case the learned trial judge without difficulty explained to the jury, and the jury appear to have understood and acted upon, the distinction between the charge of wounding with intent to do grievous bodily harm or intent to resist lawful apprehension, which was a crime of special intent, and the charge of unlawful and malicious wounding, of which the accused might properly be convicted although he acted without any intention to cause a particular result. In the case of some crimes - rape is one of them - confliciting opinions have been expressed on the question whether a special intent must be proved, but in most cases the distinction is clear and easily applied.

1. [1977] A.C. 443. 2. [1976] A.C. 182. 3. (1978) 141 C.L.R., at p. 111.

A second argument is that once it is conceded that the state of intoxication of the accused, even if self-induced, is relevant to the question whether he possessed the requisite special intent when that has to be proved, it should also be relevant to the question whether he possessed the necessary mens rea in the case of a crime which does not involve any special intent. This is perhaps another way of saying that proof of intention is necessary in all cases, and that there is no real distinction between crimes of special intent and other crimes. This argument was met in Reg. v. Majewski in a number of ways. Some of their Lordships accepted that the conduct of a person who voluntarily becomes intoxicated should be regarded as reckless, and as providing evidence of a guilty mind sufficient in cases in which no special intent is required to be proved (see per Lord Elwyn-Jones L.C. (with whom Lords Diplock and Kilbrandon agreed), at pp. 474-475, per Lord Edmund-Davies, at p. 496, and per Lord Russell of Killowen, at p. 498). The critics of the decision have raised objections to this view. It is said that if recklessness constitutes the mens rea, the question whether the accused in fact acted recklessly in becoming intoxicated ought logically to be left to the jury - a course which has not hitherto been adopted, and which might have practical disadvantages. Another objection is that the recklessness would be anterior to, not contemporaneous with, the commission of the act said to constitute the crime. These objections are, however, not well founded if their Lordships were, in substance, expressing a view similar to that suggested by Lord Simon of Glaisdale [52] - namely, that the mind of the person who is in a state of self-induced intoxication is treated by the law as a guilty mind. On that view the so-called recklessness of the offender in becoming intoxicated provides the ethical justification, rather than the legal basis, for holding him to have a guilty mind. An alternative approach is to accept that the principles laid down in Reg. v. Majewski are illogical, but nevertheless to regard them as satisfactory and to adopt them, remembering that the common law is founded on common sense and experience rather than on strict logic. This was the view of Lord Salmon [53] and it is in my opinion sufficient to support the decision.

1. [1977] A.C., at p. 478. 2. [1977] A.C., at pp. 482-484.

There is however sound practical justification for treating self-induced intoxication as capable of negating criminal responsibility in cases where the commission of the crime requires a special intent but not in other cases. Normally the crime of special intent will be the more serious, but that is not the reason for the distinction. In a crime of special intent, the intoxicated condition of the accused may show that one element of the offence as defined by the law - the intention to cause a particular result - was lacking; the fact of self-induced intoxication may be treated as establishing the existence of a guilty mind, but it cannot in itself establish the existence of the special intent. Nor is it, in my opinion, anomalous to distinguish between self-induced and unintentional intoxication. A person who has become intoxicated without any intention to consume anything intoxicating - for example, because his drink has been "surreptitiously laced", or because, against his will, a drug has been forcibly administered to him - is no more morally responsible for what he does than is a psychopath or a very young child, but a person who voluntarily gets drunk or high on drugs does not thereby cease to be morally responsible for his actions.

The argument which the appellant in Reg. v. Majewski [54] , and the respondent in this case, advanced was that a person who, though not insane, commits what would in ordinary circumstances be a crime when he is in such a mental state that he does not know what he is doing, lacks a guilty mind, and is therefore not criminally culpable, even if the mental state was self-induced by the voluntary taking of drink or drugs. If this argument were accepted, an accused person would be entirely exculpated if he was sufficiently drunk when he committed the acts which would otherwise have been criminal. For example, if he was charged with murder, his crime would not be reduced to manslaughter, but he would be entitled to be acquitted. This was recognized by Crockett J. in Reg. v. Haywood [55] . If this were the state of the law it would be gravely defective. I agree with the statement of Lord Salmon in Reg. v. Majewski [56] , that: "If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling." Crimes of violence committed by persons while intoxicated have never been uncommon, and the increase of drug-taking in the community today has made the problem even more serious. The law would afford quite inadequate protection to the individual, and would rightly be held in contempt, if persons completely under the influence of drink or drugs could commit crimes with impunity. There are therefore strong reasons of policy which support the rule of substantive law for which Reg. v. Majewski is authority, namely that in crimes which are not crimes of special intent, self-induced intoxication does not relieve the accused of criminal responsibility.

1. [1977] A.C. 443. 2. [1971] V.R. 755, at p. 758. 3. [1977] A.C., at p. 484.

However, it was argued on behalf of the present respondent that it would be wrong to depart from sound principle because of a fear that if intoxication is treated as relevant to the question of voluntariness, or to the wider question of mens rea, juries will fail to do their duty and there will be many wrongful acquittals. There are two answers to this submission. First, Reg. v. Majewski involved no departure from the settled rules of the common law - the effect of the decision was that the relaxation of the original common law principles should proceed no further. The criminal responsibility of persons who act in a state of self-induced intoxication is governed by a distinct principle - namely, that such intoxication in itself provides no ground for saying that the act done was involuntary or that the mind of the actor was not guilty. Secondly, the danger of the suggested principle, that intoxication should be considered in deciding whether a person charged with a crime which involved no special intent was criminally responsible, is not that juries may improperly acquit, but that they may properly apply an unsatisfactory principle. If the law were as the respondent submits, the duty of the jury, in a case in which evidence of intoxication was given, would be to acquit unless it had been satisfied beyond reasonable doubt that the accused, in spite of his intoxication, knew what he was doing and was able consciously to control his actions. Juries, doing their duty, might well give the benefit of the doubt to offenders who had committed serious crimes while in a state of intoxication.

Speaking generally, it seems to me in no way unjust to punish a person who commits a crime while in a state of self-induced intoxication. To do so would not, I think, offend the conscience of society or be contrary to ethical principles. Cases may be suggested in which it might appear harsh to punish a person for actions committed while in a state of advanced intoxication - for example, the case of an inexperienced child who became drunk or drugged to such a degree that he lost control of his actions - but those are the exceptions, and in general there would seem little merit in a rule that allowed a person to place himself beyond the law (deliberately or otherwise) by becoming intoxicated.

It does not follow from the decision in Reg. v. Majewski that evidence of the intoxicated condition of the accused must be rejected as irrelevant. That would be absurd; the evidence is admissible as one of the surrounding circumstances, and in some cases it will be relevant to other questions in issue.

Proposals have been made for the reform of the law with regard to intoxication, but our choice is not between the law as laid down in Reg. v. Majewski and some better principle which the law reformers may devise. The alternative to Reg. v. Majewski is that a person who commits what would otherwise be a crime, when so intoxicated that he is unable to know what he is doing, is entitled to be acquitted entirely. For the reasons I have given, I consider that to approve of that alternative principle would be to alter the law for the worse.

I consider that the decision in Reg. v. Majewski was correct, and that it should be followed in Australia.

I would grant special leave to appeal, and would allow the appeal. I would set aside the judgment of the Court of Criminal Appeal, and would restore the conviction and sentence.

The general question of principle which lies behind this appeal is whether evidence of an accused's mental state at the time he commits an offence, if grossly affected by self-induced intoxication, is relevant to his defence regardless of the nature of the offence, of whether or not it be a crime of specific intent.

Some preliminary definition of subject-matter and terms is necessary. With crimes of strict liability or involving no more than negligence I have no present concern. The words "grossly affected" and "self-induced", used to describe the extent and cause of the relevant state of intoxication, are, of course, imprecise: the former involves nice questions of degree, the latter may raise questions of actual knowledge, recklessness, duress, mistake, bona-fide use as medication and the like. Rather than be enmeshed at the very outset in complexities of definition, I accept relative imprecision. My subsequent references to intoxication are to be understood as restricted to the consequences of the voluntary taking of alcohol or drugs to a degree sufficient to deny the existence of the mental element necessary for the commission of the offence in question, although not involving a state of insanity; relatively mild states of intoxication, which do no more than suppress inhibitions, are excluded.

The law of England confines the relevance of such intoxication to those offences regarded as requiring for their commission what is described as a specific intent. The appellant Crown contends that this is also the law for Victoria and that the Victorian Court of Criminal Appeal has erred in extending it to those offences which do not involve any such specific intent.

It is by the decision of their Lordships in Director of Public Prosecutions v. Majewski [57] that the law for England has now been unequivocally declared, what was perhaps thought to remain equivocal after Director of Public Prosecutions v. Beard [58] having been placed beyond all doubt.

There are, one supposes, two views, one at each extreme, which the law might in this century take of the intoxicated law-breaker. It might treat his intoxicated state as altogether irrelevant, or on the other hand it might in certain circumstances treat it as involving complete exoneration. In between lie several possible intermediate positions: one of these Majewski takes, it treats it as exonerating, but only in the case of those offences said to involve a specific intent. In the case of all other offences intoxication is irrelevant, at least as it may bear upon the existence of the mental element necessary for the commission of the offence.

The unanimous decision in Majewski , arrived at after very full argument before a House comprised of seven of their Lordships of whom five gave detailed reasons for their conclusions, cannot fail to carry very great weight. The fact that it accords with prevailing views in the United States and was followed by a majority of the Canadian Supreme Court in Leary v. The Queen [59] emphasizes its authoritative position in the common law world.

In nevertheless coming, as I have, to a different conclusion I take some comfort from the fact that, as several of their Lordships make clear, considerations of a policy nature played no little part in the decision arrived at - per Lord Elwyn-Jones L.C., at p. 469F, Lord Simon of Glaisdale, at pp. 476G-477E, Lord Salmon, at pp. 483H-484F, Lord Edmund-Davies, at pp. 486D, 494G, 495E-G, Lord Russell of Killowen, at p. 498F. Cogent as those considerations are, their nature is necessarily such as not to confer upon the decision of a court in another legal system, however eminent, quite the same degree of persuasive authority as would reside in a decision founded exclusively upon legal principle.

Important legal principles are, I think, here involved, principles that constitute the foundation of our present notions of criminal responsibility. For criminal liability to be incurred (cases of strict liability and culpable negligence always apart) civilized penal systems have, in modern times, insisted that the accused should be shown to possess a blameworthy state of mind. As Stephen J. pointed out in Reg. v. Tolson [60] , "The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed ". (The reference to proof of absence must now, of course, be read in the light of Woolmington v. Director of Public Prosecutions [61] ). The mental element that must be present is a state of mind such as Lord Simon described, in Majewski , as "stigmatised as wrongful by the criminal law": it is that state of mind which, when compounded with prohibited conduct, constitutes the particular offence [62] . As Dickson J. said in Leary v. The Queen [63] , "Society and the law have moved away from the primitive response of punishment for the actus reus alone". Thus in Bratty v. Attorney-General (Northern Ireland) [64] the Lord Chancellor, in describing "the overriding principle, laid down by this House in Woolmington's Case " said, "that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused's state of mind; if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea - if indeed the actus reus - has not been proved beyond reasonable doubt".

1. (1889) 23 Q.B.D., at p. 187. 2. [1935] A.C. 462. 3. [1977] A.C., at p. 478. 4. (1977) 74 D.L.R. (3d), at p. 122. 5. [1963] A.C. 386, at p. 407.

In this Court Griffith C.J. said in Hardgrave v. The King [65] , "The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident". In Thomas v. The King [66] Dixon J. spoke of the mental element in crime as "the most fundamental element in a rational and humane criminal code" and Latham C.J. [67] accepted as a principle of English law that "ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent". In Ryan v. The Queen [68] Barwick C.J. said, "an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act".

1. (1906) 4 C.L.R. 232, at p. 237. 2. (1937) 59 C.L.R. 279, at p. 309. 3. (1937) 59 C.L.R., at p. 287. 4. (1967) 121 C.L.R. 205, at p. 216.

If the conventional division into actus reus and mens rea is to be adhered to, the relevant mental element in crime will not be found exclusively in the mens rea, since there will be no actus reus if the conduct of which it consists was involuntary: only voluntary conduct can constitute the actus reus. Then, superadded to this requirement that the conduct should be voluntary, is the requirement that there should be shown to exist that mental element which is involved in the concept of mens rea. Its precise content may differ from crime to crime. It has been described as the possession of a criminal intention or, as Sir Frederick Jordan put it in R. v. Turnbull [69] , knowledge on the part of the accused "that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing". Recklessness will also serve to supply it.

It is with the total mental element in crime, distributed between actus reus and mens rea in the conventional use of those terms, that Majewski [70] deals. With distinctions between voluntariness, with which Barwick C.J. was particularly concerned in Ryan v. The Queen, and the more general question of intention or recklessness I am not presently concerned. I understand Majewski's denial of the relevance of evidence of intoxication to extend to all aspects of the mental element in crime. In Majewski their Lordships concluded that in the case of crimes which did not involve any "specific intent" the fact that the accused was intoxicated would not deprive his conduct of its criminality, despite the consequences which his intoxication might have had upon his mental state at the time of commission of the offence. The proposition, as I understand it, is that in such a case a crime may be committed without proof of any mental element, unless indeed the earlier act of the accused in intoxicating himself can be thought of as supplying it. The proposition is clearly one of major significance: if there is to be this exception from the principle that penal consequences only attach to the guilty mind, it must, in a system in which it is not made mandatory either by the doctrine of precedent or by the command of the legislature, find its justification in compelling reasons of public policy.

In any consideration of the principle for which Majewski is now authority perhaps its two most notable features are that it is only in the case of self-induced intoxication that the mental element of an accused's crime is to be disregarded and then only when that crime does not involve a "specific intent". Some very special significance must be thought to attach to each of these features, determinative as they are of the operation of the principle.

In confining itself to self-induced intoxication there is, of course, no suggestion that the consequences upon a man's mind, significant as they may be upon his understanding, his intentions and his ability to be master of his own physical movements, will differ depending upon whether his state of intoxication is or is not self-induced. It is, rather, the very fact that intoxication has been self-induced that is made the discrimen, it is to the quality of the cause rather than to its effect that attention is directed.

The reasons for this approach emerge from the several judgments of their Lordships. The Lord Chancellor and Lord Simon each spoke of the very state of self-induced intoxication as a state of mind which, as the former put it [71] , itself supplied sufficient evidence of a guilty mind and constituted recklessness and which, as Lord Simon said [72] , was itself to be stigmatized as wrongful by the criminal law. The latter regarded such a state of mind, insensible to the nature of a prohibited act or its probable consequences, as as wrongful as is the fully conscious mind which contemplates that act and its consequences or is reckless as to them [73] . Lord Salmon rested largely upon "common sense and experience rather than strict logic", the former being that upon which the common law of England is founded [74] , and placed considerable weight upon the long-standing nature of the rule as to self-induced intoxication, which if departed from in the cause of strict logic would "shock the public, it would rightly bring the law into contempt" and imperil the safety of society [75] . Lord Edmund-Davies likewise had regard to the preservation of order [76] . He thought that the claims of logic must give way in face of the startling prospect of those who commit violent crime being exonerated by their gross intoxication [1] . His Lordship referred to the public outrage which such an outcome would produce [2] , and, like the Lord Chancellor, regarded a voluntary inebriate who does harm as acting recklessly "for he made himself dangerous in disregard of public safety" [3] . To Lord Russell of Killowen, like Lord Edmund-Davies, logic in criminal law "must not be allowed to run away with common sense, particularly when the preservation of the Queen's Peace is in question". He too would find the element of guilt or moral turpitude to lie "in the act of self intoxication reckless of possible consequences" [4] .

1. [1977] A.C., at pp. 474-475. 2. [1977] A.C., at p. 478. 3. [1977] A.C., at p. 479. 4. [1977] A.C., at p. 482. 5. [1977] A.C., at p. 484. 6. [1977] A.C., at p. 497. 7. [1977] A.C., at p. 494. 8. [1977] A.C., at p. 495. 9. [1977] A.C., at p. 496. 10. [1977] A.C., at p. 498.

These short extracts of course do far less than justice to their Lordships' expression of their views which, if I may say so with unfeigned respect, are of great persuasiveness and have the support of much English precedent and long practice. Nevertheless, after anxious consideration and free of the constraints which the unvaried practice of many years in England must necessarily impose upon any English tribunal, I find myself unpersuaded that for Australia the criminal law should be as their Lordships state it.

Considerations turning upon a concern for public order, coupled with forecasts of public outcry are, for me, answered by the experience of my own community in Victoria, which has, for some time now, lived with precisely that view of the law which is denied by Majewski . Since at least some time prior to 1964 some, perhaps many, Victorian judges have acted as did Monahan J. in Reg. v. Keogh [5] . There his Honour, founding himself upon what was, in fact, his own long experience as counsel in criminal cases in Victoria, upon his own experience on the Bench and upon his knowledge of the practice of other judges of his Court, said that he held "firmly to the view that a state of automatism, even that which has been brought about by drunkenness, precludes the forming of the guilty intent which is the fundamental concept in criminal wrong-doing". To this may be added references to Reg. v. Haywood [6] , to Reg. v. Bugg [7] , especially to its addendum at p. 252, and to what was said by Starke J. and by Gray J. in their judgments delivered in the Full Court in the case now under appeal. Starke J. said "In this State in my own experience, until Majewski's Case, intoxication has always been left to juries as evidence relevant to the issues of both general and specific intent" and Gray J. was "satisfied that for many years self-induced intoxication has been left for the jury's consideration in relation to all questions of intent" [8] .

1. [1964] V.R. 400. 2. [1971] V.R. 755. 3. [1978] V.R. 251. 4. [1980] V.R. 635, at pp. 647, 651.

I am aware of no evidence suggesting that the incidence of crime committed under the influence of intoxication has been affected by this longstanding approach of Victorian judges, that Victoria stands in this respect in any worse position than do those jurisdictions where the Majewski principle prevails, including, as I understand it, most jurisdictions in the United States. Neither am I aware of any public outcry on the question.

The view that intoxication in itself furnishes the necessary element of a guilty mind, whether by way of recklessness or otherwise, thereby satisfying not only basic principles of law but also more generalized notions of abstract justice, in my view presents considerable difficulties. Recent academic writings on the topic abound with criticism of it and those interested in the topic will therefore already be familiar with the nature of the debate, upon which I have no occasion to enter in any detail. It is enough that I should state, quite shortly, my reasons for this view which I have formed.

To convict an accused, who was at the time intoxicated, of such serious crimes as manslaughter, rape, malicious wounding or assaults of varying degrees of gravity, none of which are, it seems, crimes of "specific intent", may in some cases offend no general notions of what is fair and just. What may be called the "Dutch courage" cases provide instances. So too, no doubt, do those cases in which an accused, while not contemplating any particular crime or, for that matter, any particular victim, well knows from past experience that when he takes drugs or alcohol or both he may under their influence commit a crime. But these by no means comprise all cases to which Majewski [9] is applicable. Whether or not they represent more or less than a majority in any particular community is probably unknown, in the absence of statistical research.

Many and varied instances may be supposed (and one is necessarily very much in areas of supposition in this whole topic) in which ordinary notions of what is fair and just would be offended by such a conviction. Two instances will suffice: the young man or woman who under peer-group pressures, perhaps in the armed forces, perhaps after a sporting success, or at some reunion or initiation ceremony, for the first time drinks grossly to excess: again, the person who, under like pressures, is persuaded for the first time to sample an hallucinogenic drug or, perhaps, although no newcomer to so-called "soft" drugs, knowingly takes what he believes to be such a drug but which in fact proves to be one of great potency. In such instances, not, I think far-fetched, I would regard it as unfair and unjust that an accused, robbed of his faculties by resultant intoxication, should be deprived of the opportunity of having the evidence of the absence of the mental elements of the crime with which he is charged left to the jury.

So much for general notions of fairness and justice. That principle of the criminal law, that mens rea should accompany the actus reus, appears to me to be no less affronted by any rule which subtracts from the general requirement of a mental element in crime those cases which owe their origin to intoxication. No doubt even principles of the common law as fundamental as the insistence upon proof of mental element are subject to exceptions and criticism founded upon a lack of logic may readily enough be met by a principled exception. But a suggested exception which operates by means of uncertain criteria, in a manner not always rational and which serves an end which I regard as doubtful of attainment is one which I view with suspicion.

I regard the Majewski principle as suffering from just such defects. Of the uncertainty of the criterion by which it operates, the distinction between crimes of specific intent and all other crimes, I will say more later. Its lack of wholly rational operation seems to me to arise from the fact that it fails to ensure, as it might be hoped that it would, that the drunken criminal, although spared conviction of a major offence because of lack of specific intent, will nevertheless not go free but will instead suffer conviction of some lesser offence which does not call for proof of specific intent. For it to operate in that way, providing a suitable gradation of offence and punishment, would at least be rational; it could then always be said of it that while the drunken criminal may escape conviction on the more serious charge "there will be a lesser crime to which the intoxication - however mind stealing - will be no defence" (per Lord Russell in Majewski [10] ). His Lordship of course appreciated that it did not always so operate, hence the qualifying word "commonly" which precedes the passage which I have quoted. In some instances it will do so, especially so long as murder continues to be classified for this purpose as a crime of specific intent, despite the difficulties of definition which that appears to involve. But in a number of cases it will operate quite eccentrically, because of the particular category to which crimes are consigned by applying to them the test of specific intent. All attempts are apparently crimes of specific intent, yet if the actual crime be committed and not merely attempted it may very well not be; again, wounding or causing grievous bodily harm with intent requires a specific intent, not so manslaughter or rape; theft involves a specific intent but not assault or malicious wounding. These are instances where the facts of a particular criminal incident might seem to call for some gradation, but the gradation which in fact results may run the wrong way. In many other cases Majewski will result in no gradation at all; for example, rape and indecent assault are crimes of the same "grade", neither requiring a specific intent.

This is all, no doubt, attributable to the particular criterion, "specific intent", which has been adopted as determinative of the operation of the principle. Since the seriousness of the crime or its social consequences does not play any part in determining whether or not a crime is one of specific intent, it is hardly surprising that the operation of the principle may seem haphazard.

So far as the end sought to be attained is concerned this appears, in substance, to be that of the protection of the public from violence and the preservation of order. For that purpose the deterrent effect of the criminal law is invoked. Yet by the very nature of the case, concerned as it is with the grossly intoxicated, deterrence, if it operates at all, will only do so not at the time of the offence but at the earlier time when the drugs or alcohol are taken in excess. It would, in my view, require convincing evidence before one might conclude that, as a matter of human behaviour, the person who both becomes grossly intoxicated and also commits a crime while in that condition will be in any way discouraged from his initial act of becoming intoxicated by the knowledge that the fact of his intoxication will not be available for use in evidence at his trial to deny the presence of any mental element involved in his crime. Cases of "Dutch courage" and of a known tendency to be violent when intoxicated aside, the possibility of the commission of any crime will not normally be contemplated when the drink or drugs are taken. For this reason, if for no other, the particular state of the criminal law seems to me to be unlikely to be capable of either encouraging or deterring the eventual offence.

There may be a strong case for the creation of a new offence such as that suggested in recommendation 56 of the Butler Committee Report, a new offence which might indeed operate as some deterrent, but that is quite a different question.

It is for these reasons that I see no sufficient reason for distinguishing, as the Majewski principle does, between the self-induced and other states of intoxication. I have already twice referred to those cases which involve "Dutch courage", of which the facts of Attorney-General (Northern Ireland) v. Gallagher [11] provide an instance, or in which there is knowledge on the accused's part, when he takes excessive quantities of alcohol or drugs, that he is prone to violence when intoxicated. They are, no doubt, prime instances in which an accused should not be able to gain any advantage from his intoxication; nor does he seem likely to in a jurisdiction where the Majewski principle has no operation. In the case of the former the necessary mens rea would seem to be supplied by the act of consciously becoming intoxicated so as to be better fitted for the contemplated crime. In the latter case there is surely recklessness. An accused's tendency to violent crime when intoxicated, known to him when he takes the fatal drink or drugs, would be evidence of recklessness sufficient on conventional principles to involve mens rea. If lack of contemporaneity is thought to be a difficulty, the analogy of the innocent agent, represented by the drunken state, as the mere instrument of the guilty mind, represented by the previously sober state, may, as is suggested by Smith & Hogan, Criminal Law, 4th ed. (1978), p. 190, be thought to overcome it.

What I earlier described as the second notable feature of Majewski , the division of all crimes into two classes, those which do involve a specific intent and the rest, has probably occasioned as much controversy in journal articles and texts as any other feature of the case. That in itself supplies a reason for not adding to the volume of what has already been said about the various meanings which in the authorities, and notably in Majewski itself, have been proffered as definitive of "specific intent". I have also already remarked upon the consequences of adopting as the discrimen for the operation of Majewski this notion of "specific intent", not elsewhere encountered as a term of art in the law. To this I would only add that if the development of the criminal law is seen as moving from early emphasis upon the actus reus to an increasing concern with the mental element in crime - Majewski [12] - the point in that gradual process which Majewski selects at which to call a halt, the frontier between crimes of specific intent and other crimes, seems, with all due respect, to be unfortunate. It is a point neither clearly defined nor easily recognizable, the selection of which does not reflect or give effect to any coherent attitude either as to the relative wrongfulness of particular conduct or the degree of social mischief which that conduct is thought to involve; it seems an inappropriate response to natural concern lest intoxication be used as a device to escape punishment for crime.

In the Court below Young C.J. was assisted to his conclusion by Thomas v. The King [13] . The passage from the judgment of Dixon J. [14] , which Young C.J. cited in his judgment, merits repetition as particularly apposite:

The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code. Unless reliance be placed upon juries, properly instructed, to "estimate evidence of states of mind" relevant to that "most fundamental element in a rational and humane criminal code", the state of mind of the accused, the consequence will be that described by Lord Hailsham in Director of Public Prosecutions v. Morgan [15] , juries will "in effect be told to find an intent where none existed or where none was proved to have existed". His Lordship, in the different circumstances of the case then before him said that he could not in conscience bring himself to sanction such a view of the law. The conclusion arrived at by the Full Court of the Victorian Supreme Court in the present case avoids such a view and should be upheld. 1. (1937) 59 C.L.R. 279. 2. (1937) 59 C.L.R., at p. 309. 3. [1976] A.C. 182, at p. 213.

In the present case evidence of intoxication should in my view have been allowed to go to the jury. It, together with any other evidence, such as acts and words spoken by the accused, will form the material upon which a jury will then perform "its proper function of deciding on all the evidence, including that of intoxication, whether the Crown has in fact discharged its onus": Reg. v. Kamipeli [16] . It is upon the properly instructed jury that reliance should be placed to ensure that only when intoxication has truly deprived the accused of the mental element which the law has prescribed as requisite for commission of the particular crime will it avail the accused.

I would grant special leave and dismiss the appeal.

The issue here is whether we should follow Director of Public Prosecutions v. Majewski [17] and hold that voluntary intoxication is not an answer to an offence of unlawful and malicious wounding, an offence which does not involve a specific intent, or whether we should decline to follow Majewski and hold that evidence of voluntary intoxication is an answer to the charge if its effect is such that the act of the accused constituting the offence was not voluntary.

In my opinion we would be well advised to follow and apply Majewski . It was a unanimous decision of seven members of the House of Lords upholding a unanimous decision of the Court of Appeal. Majewski settled partly, though not wholly, a long-standing controversy by indorsing and elucidating one of the principles enunciated by Lord Birkenhead L.C. in Director of Public Prosecutions v. Beard [18] , his Lordship's speech in that case having attracted the concurrence of the six other members of the House of Lords who sat. Majewski itself was approved in this Court by Gibbs J. (with whom Murphy and Aickin JJ. agreed) in Viro v. The Queen [19] . Quite apart from the unanimity and the strength of the judicial opinion expressed in Beard , Majewski and Viro , the conclusion reached in Majewski may be sustained on a number of grounds.

1. [1920] A.C. 479. 2. (1978) 141 C.L.R., at pp. 109-112.

First, the decision itself accurately reflects the common law as it has developed in its application to the commission of offences by persons suffering from voluntary intoxication. The traditional approach to the commission of an offence by a person under the influence of intoxicating liquor or drugs, which prevailed until early in the nineteenth century, was that expressed in the maxim "Drunkenness is no defence", or, as Park J. said in Pearson's Case [20] , "Voluntary drunkenness is no excuse". In accordance with this approach the courts excluded evidence of voluntary intoxication because the condition arose through the accused's own fault. However, in the course of the nineteenth century the rigours of the old common law rule were gradually relaxed as attention came to be focused on the mental element in crime. Evidence was then admitted in order to show that the accused lacked a guilty mind, at least in cases in which the offence charged involved a specific intent. See Reg. v. Doherty [21] , per Stephen J. That the law as declared in Majewski is correct is, I think, supported by the comprehensive review of the nineteenth century decisions made by Lord Birkenhead in Beard [22] .

1. (1835) 2 Lewin 144 [168 E.R. 1108] 2. (1887) 16 Cox C.C. 306, at p. 308. 3. [1920] A.C. 479.

Secondly, though the formulation of the principles by Lord Birkenhead in Beard has been much criticized on the ground that it was ambiguous and confusing, that formulation has been explained by the speeches in Majewski and particularly by Gibbs J. in Viro [23] . There is very little to support the contention that Lord Birkenhead's speech in Beard provides authority for the proposition that drunkenness, which does not produce insanity, is an answer to crimes involving no specific intent. The second and third rules, as stated by the Lord Chancellor in Beard [1] , were:

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.

The two rules need to be read subject to some qualification to which I shall refer later. 1. (1978) 141 C.L.R. 88. 2. [1920] A.C., at pp. 501-502.

I do not read the Lord Chancellor's later remarks [2] as suggesting that drunkenness is an answer to crimes involving no specific intent, such as manslaughter. I agree with the explanation given by Lord Russell of Killowen in Majewski [3] that the passage in question "does no more than to say that special intent cases are not restricted to those crimes in which the absence of a special intent leaves available a lesser crime embodying no special intent, but embrace all cases of special intent even though no alternative lesser criminal charge is available". Likewise, I do not regard Lord Birkenhead's comments in Beard [4] as expressing the view that rape is an offence of specific intent - see Majewski [5] .

1. [1920] A.C., at p. 504. 2. [1977] A.C., at p. 499. 3. [1920] A.C., at pp. 504, 507. 4. [1977] A.C., at p. 500.

Thirdly, the law as settled by Majewski generally accords with the common law as it has been established in other jurisdictions, notably Canada (Leary v. The Queen [6] ) and the United States, though as so often happens, there are some variations as between the individual States. There the law has been expressed thus:

"Whatever the logical justification for such a distinction, the courts of most jurisdictions have agreed that although voluntary intoxication may not be shown for the purpose of negativing general criminal intent, where the prosecution is for a specific intent crime, intoxication, although voluntary, which precludes the formulation of the necessary intention, may be shown as a defense." Annotation: "Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge" 8 A.L.R. (3d) 1236, at p. 1246; see also 21 Am. Jur. par. 107. 1. (1977) 74 D.L.R. (3d) 103.

In New Zealand the question has been left open (Reg. v. Roulston [7] ; cf. Reg. v. Kamipeli [8] ). However, in South Australia, Majewski [9] has been followed and applied (Reg. v. Fahey [10] ). In New South Wales the rules enunciated in Beard as interpreted in Majewski , have been applied, subject to the qualifications that the Crown bears the onus of proving intent and that the test is not incapacity to form an intent but the absence of the necessary intent in the accused himself (Reg. v. Menniss [11] ; Reg. v. Gordon [12] ; Reg. v. Stones [13] ). Victoria is exceptional in allowing drunkenness rendering the accused incapable of forming an intent as an answer to all offences except offences of strict liability (Reg. v. Keogh [14] ; Reg. v. Haywood [15] , and the judgment of the Court of Criminal Appeal which is the subject of the appeal to this Court).

1. [1976] 2 N.Z.L.R. 644. 2. [1975] 2 N.Z.L.R. 610. 3. [1977] A.C. 443. 4. (1978) 19 S.A.S.R. 577. 5. [1973] 2 N.S.W.L.R. 113. 6. (1963) 63 S.R. (N.S.W.) 631, at p. 635. 7. (1956) 56 S.R. (N.S.W.) 25. 8. [1964] V.R. 400. 9. [1971] V.R. 755.

The fact that the principle now in question has been for the most part accepted and applied in the common law world not only confirms its legitimacy but serves to demonstrate that such difficulties as may be inherent in the principle and its application - and in particular, the suggested difficulty of explaining to juries the meaning and application of the principle - have not proved to be of much moment. The same suggested difficulties are inherent in the provisions of the statutory criminal codes (see, e.g., s. 28 of the Queensland Criminal Code), yet they, like the common law principle, have been constantly applied without undue difficulty.

The challenge to the principle of law stated in Beard [16] and applied in Majewski rests very largely on the claim that it is at variance with the general rule governing responsibility or liability for criminal offences and that the principle depends on an erroneous and unsatisfactory distinction between offences involving a specific intent and those involving a basic intent.

The general rule governing responsibility for criminal acts at common law is that a person is not liable unless the act constituting the offence was voluntary or willed. Barwick C.J. said in Ryan v. The Queen [17] : "In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act." In stipulating that there is a need for a willed or a voluntary act the Chief Justice was not referring to mens rea, a guilty mind or to intention, which express different conceptions. He was saying that although the element of mens rea and intention will vary according to the definition of the particular offence, as Stephen J. observed in Reg. v. Tolson [18] , nevertheless the existence of a voluntarily willed act remains an essential element in criminal liability.

1. (1967) 121 C.L.R., at p. 216. 2. (1889) 23 Q.B.D., at pp. 185-187.

I shall assume that the Chief Justice's remarks were intended to have a universal application, although they were not specifically directed to cases of intoxication, Ryan not being a case of that kind. There is, however, a real question whether the principle of voluntariness has a universal application and, if it has, whether it operates in the way in which the Court of Criminal Appeal thought that it did. We have to recognize that offences committed by persons who are intoxicated have always been considered to stand apart and to be subject to special rules, not only in early times when the maxim "Drunkenness is no defence" prevailed without any qualification, but also in the nineteenth century when the operation of the maxim was qualified in relation to offences of specific intent. Indeed, the very expression "voluntary intoxication" expresses the reluctance of the law to concede that a crime committed by a person who has voluntarily taken drink or drugs is an involuntary act. In the speeches in Majewski [19] emphasis was given to the voluntary nature of the intoxication which precedes the commission of the act charged. Lord Elwyn-Jones L.C. (with whom Lord Diplock and Lord Kilbrandon agreed) quoted with approval the observations of Lord Denning in Attorney-General (Northern Ireland) v. Gallagher [20] and subsequently in Bratty v. Attorney-General (Northern Ireland) [21] . In Gallagher [22] , Lord Denning quoted the words of Sir Matthew Hale in his Pleas of the Crown, vol. 1, p. 32:

This vice [drunkenness] doth deprive men of the use of reason, and puts many men into a perfect, but temporary phrenzy By the laws of England such a person shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses. In Bratty [23] , Lord Denning said: Another thing to be observed is that it is not every involuntary act which leads to a complete acquittal. Take first an involuntary act which proceeds from a state of drunkenness. 1. [1977] A.C. 443. 2. [1963] A.C. 349. 3. [1963] A.C. 386. 4. [1963] A.C., at p. 380. 5. [1963] A.C., at p. 410.

A similar approach has been taken in cases of automatism where the defendant, though unconscious and unaware at the time of the commission of the alleged offence, had earlier by his voluntary act or omission contracted a condition the effect of which was that he became unable to control his actions - see Hill v. Baxter [24] , and Reg. v. Quick [25] . In Quick [26] , Lawton L.J. said:

A self-induced incapacity will not excuse (see Reg. v. Lipman [27] ), nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals while taking insulin. 1. [1958] 1 Q.B. 277. 2. [1973] Q.B. 910. 3. [1973] Q.B., at p. 922. 4. [1970] 1 Q.B. 152.

In these cases, as in cases of drunkenness, the view is taken that the act charged is voluntary notwithstanding that it might not be ordinarily considered so by reason of the condition of the perpetrator, because his condition proceeds from a voluntary choice made by him. These cases therefore constitute an exception to the general rule of criminal responsibility.

The issue, then, is whether there is a case for eliminating the exception. In deciding this question we need to recall that the justification of the existing exception lies not only in the historical development of the common law but also in the values which it has accepted and reflected.

The common law gives expression to a policy which is a compromise between various considerations. On the one hand, there are two strands of thought whose thrust is to deny that drunkenness is an excuse for the commission of crime. One is essentially a moral judgment - that it is wrong that a person should escape responsibility for his actions merely because he is so intoxicated by drink or drugs that his act is not willed when by his own voluntary choice he embarked on the course which led to his intoxication. The other is a social judgment - that society legitimately expects for its protection that the law will not allow to go unpunished an act which would be adjudged to be a serious criminal offence but for the fact that the perpetrator is grossly intoxicated. The point was made in Majewski that the courts would expose themselves to stern and justified criticism if the law was so declared that a man in Lipman's situation could escape unpunished. It will be recalled that Lipman when under the influence of LSD, an hallucinatory drug, killed a girl by suffocating her when suffering from the illusion that on a trip to the centre of the earth he was attacked by snakes from which he was defending himself. He was convicted of manslaughter and acquitted of murder (Reg. v. Lipman [28] ). On the other hand, there is the force of the general principle of criminal responsibility that a criminal act needs to be voluntary. The law as declared by Beard and explained by Majewski reflects a compromise between these factors. Although the law which results from this compromise is lacking in logic and symmetry, the suggested price to be paid for a remedy - the adoption of a universal rule that the act must be willed at the time when it is done - is the abandonment of two very important values on which the existing law is based. In my view it is an exorbitant price to pay.

The central element in the compromise to which the law gives expression is the difference between offences of specific intent and offences not involving such an intent. Although this difference was not elaborated in Beard , the Lord Chancellor held that murder was a crime of specific intent and that rape was not. In Majewski attempts were made to elucidate the difference. Lord Elwyn-Jones L.C. approved the distinction between crimes of specific intent and crimes of basic intent drawn by Lord Simon of Glaisdale in Reg. v. Morgan [29] . Lord Simon of Glaisdale himself referred to his earlier remarks in Morgan . However, he also referred with approval to the comments of Fauteux J. in Reg. v. George [30] .

1. [1976] A.C., at p. 216. 2. (1960) 128 Can. C.C. 289, at p. 301.

There are difficulties in the distinction between crimes of specific intent and crimes of basic intent. Not the least of them is the possibility that the remarks made by Lord Simon of Glaisdale in Morgan [31] and the comments by Fauteux J. in George will yield different results. For my part, I do not accept the suggested distinction. I would prefer, as did Gibbs J. in Viro [32] , to say that "when an intention to cause a particular result ("a special intent") is an element of the crime - as in a charge of murder based upon an intention to kill or to inflict grievous bodily harm - the fact that the accused was intoxicated may have an important bearing on the question whether he had the necessary intent".

1. [1976] A.C. 182. 2. (1978) 141 C.L.R., at p. 109.

Further, I agree with the observations made by Gibbs J. in Viro the effect of which was to qualify the second and third rules as expressed by Lord Birkenhead in Beard [33] . The second rule should be understood as stating that evidence of drunkenness should be taken into consideration with the other facts proved in order to determine whether the accused had the necessary special intent. The third rule must be read in light of the rejection by this Court of the notion that the question of intention is foreclosed by the presumption that the accused intended the natural consequences of his act (Smyth v. The Queen [34] ; and Parker v. The Queen [35] ). "The Crown must prove beyond reasonable doubt that the accused actually formed the special intent necessary to constitute the crime. If no more were proved than that the accused was capable of forming such intent, the case for the prosecution would not have been established" (Viro [36] ).

1. [1920] A.C. 479. 2. (1957) 98 C.L.R. 163. 3. (1963) 111 C.L.R., at p. 632. 4. (1978) 141 C.L.R., at p. 111.

In the result I would grant special leave to appeal and allow the appeal.

The expression "mens rea" refers to the central idea of criminal common law that a mental element is present in all crime except in offences of strict liability. Apart from crimes of specific intent, the theory requires the existence of a generalised element described as guilty mind, criminal intent, or something similar. For convenience, I will use the expression, "criminal intent". The persistence of the Latin tag indicates that lawyers have not been able to state the idea and its implication precisely in English. The vagueness of the doctrine has served to conceal numerous contradictions. In this case, one of these contradictions has surfaced and requires resolution.

Logically the theory should lead to the conclusion that any person without criminal intent, whether or not intoxicated, is not guilty of an offence in which mens rea is an element. However, it is not socially acceptable to hold criminally blameless a person who kills or injures another while intoxicated (to the point where criminal intent is not attributed to him). For this reason, the development of the theory of mens rea has been marred by much confusion (see Professor R. Cross, The Mental Element in Crime, Law Quarterly Review, vol. 83 (1967) 215, at p. 226; P. Brett, An Inquiry into Criminal Guilt (1963); Professor D. R. Stuart, The Need to Codify Clear, Realistic and Honest Measures of Mens Rea & Negligence, Criminal Law Quarterly, vol. 115 (1972), p. 160; H. L. A. Hart, The Morality of the Criminal Law (1969)).

Intoxication. The question of intoxication raises problems of different levels of consciousness which are often in practice complicated by an intoxicated person's impaired recollection or memory. The state of the law reflects the primitive state of knowledge of these matters, at least in the way they are presented to the court. The problem is whether to decide that there is an exception by which the intoxicated person is held liable despite absence of criminal intent (as the House of Lords did in Director of Public Prosecutions v. Majewski [37] ) or to maintain the theory of mens rea and leave it to Parliament to create species of offences of killing, injuring, etc., while intoxicated, which require no proof of criminal intent.

One difficulty is that a person may, while intoxicated, do something without criminal intent which he might, while sober, also have done without intent. At the least, a person should not be held criminally liable for an act done without intent while he was intoxicated, unless the requisite intent would be inferred if he did the same act when sober. An associated difficulty is that it is not generally possible to conclude that an intoxicated person who has done an unlawful act without criminal intent would have had criminal intent if he had done it when not intoxicated.

If the Crown's contentions are accepted, the court will recognize or invent constructive crimes, for example, that a person who unlawfully injures another without criminal intent while intoxicated shall be deemed guilty of malicious injury and be punished accordingly. This means that mens rea should be imputed to a person who is charged with a crime, an element of which is mens rea although it is not proved that he had mens rea (indeed, it may be proved or accepted that he did not), provided it is proved that he was intoxicated and that mens rea should have been inferred if he were sober. That is, if mens rea is not established but intoxication is, mens rea is not regarded as an element of the offence. But where an offence requires proof of mens rea, this has traditionally been regarded as its essence (see Thomas v. The King [38] ; Ryan v. The Queen [39] ). An offence which is the same except for the ingredient of mens rea is, however much one glosses over it, an essentially different offence. I find it unacceptable to create judicially a species of constructive crimes and conceal these under the label of other crimes from which they differ essentially, thus extending to those accused of them liability to the same punishment. Although I have expressed views on the desirability of judges adapting the common law to current social context (see Dugan v. Mirror Newspapers Ltd. [40] ; State Government Insurance Commission v. Trigwell [41] ), these do not extend to the intention of crimes. Shaw v. Director of Public Prosecutions [42] demonstrated the extreme undesirability of such inventions. The problem should be resolved not by distorting the theory of mens rea but by leaving it to the legislature to deal with the unacceptable conduct of intoxicated persons. A person who injures another, after deliberately allowing himself to become intoxicated with the awareness that when intoxicated he may well injure others, may be dealt with either logically, within the traditional notions of mens rea (see Reg. v. Egan [43] ), or else, by legislation, be made liable for an aggravated form of unlawful injury while intoxicated.

1. (1937) 59 C.L.R. 279. 2. (1967) 121 C.L.R. 205. 3. (1979) 142 C.L.R. 583. 4. (1979) 142 C.L.R. 617. 5. [1962] A.C. 220. 6. (1897) 23 V.L.R. 159.

The confusion of two different crimes in one charge is compounded by the artificial way in which the difference is glossed over. It is said that "intoxication supplies intent", that is, intoxication is a substitute for requisite intent. But, in this case, the trial judge directed that evidence of intoxication was irrelevant to the consideration of the charge of unlawful and malicious wounding. The jury were then required to determine artificially, and on a basis which was false because it excluded relevant material, whether the accused was guilty because he had the requisite mental element, not whether he was guilty because he either had that element or was intoxicated. Having been directed to ignore intoxication, the jury may have found the accused guilty on the basis that he had criminal intent, although if they had been allowed to consider evidence of intoxication, they may have found intoxication, but no criminal intent. Such artificiality should have no part in the criminal law.

Evidence of intoxication which tends to prove or disprove mens rea is admissible and available for the jury's consideration. If Majewski were followed, so that intoxication could be used to establish guilt in the absence of intent, evidence of intoxication must be admissible and available. Indeed, one would expect the prosecution to lead the evidence, otherwise it may be left with an acquittal based on no intent (because that is the fact) and no intoxication because evidence of it was not introduced.

In most cases, the fact of intoxication may not present much obstacle to proving the existence of a guilty mind. The inferences to be drawn from intoxication are not all one way: evidence of intoxication may result in absence of proof beyond reasonable doubt of mens rea, or in a more ready acceptance that mens rea exists on the supposition that intoxication reduces inhibitions. If the requisite criminal intent is satisfied by reckless indifference, proof of evidence of intoxication is relevant to prove or disprove it. Various degrees of intoxication may provide a basis for inferring the intent, although other degrees of intoxication may provide otherwise.

Presumption of Intent. My reasons for rejecting the view that proof of criminal intent may be dispensed with, where an accused was intoxicated, do not depend upon the rejection of the traditional presumption that a person intends the natural and probable consequences of his actions. The description, "natural and probable", does not seem to have caused any problems. The presumption, which is a rebuttable presumption of fact, has a long history and appears in most legal systems. In the absence of contrary evidence, once a person is proved to have done something, a tribunal attributes to him the intention to bring about the natural and probable, that is, the ordinary, consequences of his action. This applies in both the criminal and civil systems; both would be practically unworkable without some such presumption. If an eye-witness testifies that an accused aimed at, shot and killed the deceased and if there were no admission from the accused and no more evidence, is the accused necessarily to be acquitted of murder because there is no presumption that he intended to kill or wound the deceased? To overcome this, it is said that the tribunal may make inferences and that the proper and only reasonable inference is that the accused did so intend. In Smyth v. The Queen [44] , the Court said:

In this Court disapproval has been expressed on more than one occasion of the use, where a specific intent must be found, of the supposed presumption, conclusive or otherwise, that a man intends the natural, or natural and probable, consequences of his acts: see Stapleton v. The Queen [45] ; Baily v. Baily [46] ; Deery v. Deery [47] ; Gow v. White [48] , per O'Connor J. The ruling of Lord Goddard C.J. in Reg. v. Ward [49] is difficult to reconcile with his Lordship's statement in R. v. Steane [50] , which we think is to be preferred and is certainly sound. The fact is that, as Cussen J. remarked in Cox v. Smail [51] , the statement that a person must be held to intend the natural consequences of his act merely conceals the true position. However, the Court also said [52] : Having considered the evidence in this case we think that a jury properly directed and understanding the question could not reasonably fail to draw the inference that when the appellant struck the deceased several times with the wrench he intended to cause him what would amount to grievous bodily harm. It seems to me that in one breath the Court was rejecting the presumption and in the other applying it under the label, "inference". The inference is drawn because of the presumption. In Baily v. Baily [46] , Dixon C.J. and Webb and Fullagar JJ. referred to: "the highly dangerous maxim that every person must be taken to intend the natural and probable consequences of his actions". 1. (1957) 98 C.L.R., at pp. 116-167. 2. (1952) 86 C.L.R. 358, at p. 365. 3. (1952) 86 C.L.R. 424, at p. 427. 4. (1954) 90 C.L.R. 211, at pp. 219-223. 5. (1908) 5 C.L.R., at p. 876. 6. [1956] 1 Q.B. 351, at p. 356. 7. [1947] K.B. 997, at pp. 1003-1005. 8. (1912) V.L.R. 274, at p. 279. 9. (1957) 98 C.L.R., at p. 166. 10. (1952) 86 C.L.R. 424, at p. 427.

In Director of Public Prosecutions v. Smith [53] , the House of Lords adopted a view that there was an irrebuttable conclusion that a person intended the natural and probable consequences of his actions, that is, irrebuttable except by proof of incapacity to form an intent, insanity or diminished responsibility. This was rejected, correctly, in my view, as being an unacceptable guideline in Australian law (see Parker v. The Queen [54] ). There is a world of difference between what the House of Lords described as a presumption and the traditional rebuttable presumption of intention. Regrettably, the two have been confused. The Justices in Baily referred to the maxim "that every person must be taken to intend the natural and probable consequences of his actions". In Stapleton v. The Queen [55] , it was stated that:

The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous. For it either does no more than state a self evident proposition of fact or it produces an illegitimate transfer of the burden of proof of a real issue of intent to the person denying the allegation. Cf. R. v. Steane [56] . In Smyth [57] , the reference was to the "supposed presumption, conclusive or otherwise, that a man intends the natural, or natural and probable, consequences of his acts". The confusion of the two ideas, one erroneous and the other a practical intellectual instrument, seems to have arisen from attempts to mitigate onerous divorce laws by imputing (irrebuttably) intention to desert in certain constructive desertion cases (see Lang v. Lang [58] ). Perhaps no harm will be done if the (rebuttable) presumption continues to be used, even if it is described as a process of inference. It is important in cases where there is evidence of intoxication that the tribunal understand that, consistently with the presumption of innocence, an inference is available to it that a person intends the natural and probable consequences of his actions. In the absence of other evidence, this is the only reasonable inference open to them in most criminal cases, for example, Smyth . In criminal cases, of course, a tribunal, or at least a jury, may acquit however strong the evidence (including any presumptions or inferences). 1. [1961] A.C. 290. 2. (1963) 111 C.L.R. 610. 3. (1952) 86 C.L.R., at p. 365. 4. [1947] K.B., at pp. 1003, 1004. 5. (1957) 98 C.L.R. 163. 6. (1954) 90 C.L.R. 529; [1955] A.C. 402.

The Full Court of the Supreme Court of Victoria entered judgment of acquittal. In my opinion (contrary to what has been held by this Court in earlier cases), s. 73 of the Constitution does not authorize this Court to entertain an appeal from an acquittal and special leave should be refused. If it does authorize it, special leave should only be allowed from an acquittal in extraordinary circumstances (see R. v. Wilkes [59] ). This does not mean that I agree with the order of the Court of Criminal Appeal. The argument that the jury, if properly directed, would have acquitted the respondent on the charge of malicious wounding is not persuasive; it could well have returned the same verdict. A new trial should have been ordered.

Special leave should be refused but, if granted, the appeal should be dismissed.

The material facts out of which this appeal arises are stated in other judgments and I do not need to repeat them here. The critical question is whether this Court should accept the views expressed by the House of Lords in Director of Public Prosecutions v. Majewski [60] . Stated perhaps too shortly, the point involved was whether, and if so to what extent, intoxication (in the sense defined by Stephen J. in his reasons for judgment) brought about by the voluntary taking of alcohol or drugs (which I refer to throughout this judgment simply as "intoxication") may be relied upon by an accused person in an endeavour to negative the necessary mental element involved in the offence in question. The problem does not involve the question of insanity however arising, though it is worthwhile to remember that the absence of capacity to form the relevant intent in such a case must be brought about by a "disease of the mind".

Until the beginning of the nineteenth century the common law did not regard intoxication of whatever degree as constituting a defence or as negativing any mental element required in a particular offence. This attitude began to change and towards the end of that century it was generally accepted that the proper view was that the effect of excessive consumption of alcohol and drugs should be related to the mental element in a crime. Thus in 1887 Stephen J. directed the jury that they were to take into account the accused's drunkenness in deciding whether he acted with the requisite intention to kill or to cause grievous bodily harm. He said in Reg. v. Doherty [61] :

"Although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constitutent elements, you may look at the fact that a man was in" [a state of intoxication] "in considering whether he formed the intention necessary to constitute the crime." 1. (1887) 16 Cox C.C., at p. 308.

The charge was one of murder and no occasion arose for adverting to the possible differences between murder and other charges.

The older cases were all examined by Lord Birkenhead in Beard v. Director of Public Prosecutions [62] in a speech which was concurred in by all their Lordships. That decision was the subject of much discussion and considerable uncertainty existed as to its significance because there appeared to be a conflict between two passages, i.e. that at pp. 499-500 and that at p. 504. Those passages are the subject of careful examination in the speeches in Majewski's Case where Lord Russell's reconciliation of the apparent conflicts (at p. 499) was accepted by Lord Elwyn-Jones, L.C., at p. 473, and by Lord Diplock, at p. 476, and Lord Simon, at p. 479. Leaving aside the question of the problem of reconciling those two statements, there are now a number of difficulties in accepting Beard's Case as authoritative. The first is that in the critical passages Lord Birkenhead spoke of drunkenness causing an accused to become incapable of forming the relevant intention which was essential to the relevant offence. Thus he said [63] : "If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved."

1. [1920] A.C. 479. 2. [1920] A.C., at p. 499.

He said however that the consequence of establishing such a degree of incapacity produced the result that the accused should not be found guilty of murder but guilty of manslaughter.

It has now become recognized that the proper test is not incapacity to form the intention but is whether in fact the intention was formed, though if there were incapacity no question of actual formation could arise.

The second point is that Beard's Case was prior to the decision in Woolmington's Case [64] which established the proposition that the onus of proof of all the ingredients of an offence, including the necessary mental element, rests on the prosecution and that it is not for the accused to negative that or any other ingredient of the crime with which he is charged. The formulation in Beard's Case [65] was contrary to that later decision.

1. [1935] A.C. 462. 2. [1920] A.C., at pp. 502-504.

The third point is that Beard's Case was also based upon the propositions that an accused is presumed to have intended the reasonable and probable consequences of his acts. That proposition was accepted by the House of Lords in Director of Public Prosecutions v. Smith [66] in the speech of Lord Kilmuir with whom the others agreed. In 1963 this Court took the unusual course of saying in Parker v. The Queen [67] that it was not prepared to follow that decision of the House of Lords because it regarded it as contrary to fundamental principle, that is, it is for the Crown to prove all the necessary ingredients of the offence charged, including whatever material element formed a constituent part of the offence. Dixon C.J. said [68] :

In Stapleton v. The Queen [69] we said: "The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous" [70] . That was some years before the decision in Director of Public Prosecutions v. Smith [71] , which seems only too unfortunately to confirm the observation. I say too unfortunately for I think it forces a critical situation in our (Dominion) relation to the juducial authority as precedents of decisions in England. Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith's Case, I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept. I shall not discuss the case. There has been enough discussion and, perhaps I may add, explanation, to make it unnecessary to go over the ground once more. I do not think that this present case really involves any of the so-called presumptions but I do think that the summing-up drew the topic into the matter even if somewhat unnecessarily and therefore if I left it on one side some misunderstanding might arise. I wish there to be no misunderstanding on the subject. I shall not depart from the law on the matter as we had long since laid it down in this Court and I think Smith's Case should not be used as authority in Australia at all.

I am authorized by all the other members of the High Court to say that they share the views expressed in the foregoing paragraph.

1. [1961] A.C. 290, esp. at pp. 325-327. 2. (1963) 111 C.L.R. 610. 3. (1963) 111 C.L.R., at pp. 632-633. 4. (1952) 86 C.L.R. 358. 5. (1952) 86 C.L.R., at p. 365. 6. [1961] A.C. 290.

In the United Kingdom the effect of the decision of the House of Lords in Smith's Case was destroyed by the Criminal Justice Act, 1967, s. 8 of which reads as follows:

A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

In Majewski's Case [72] their Lordships drew a distinction between crimes of "specific intent" where evidence of intoxication if accepted might give rise to an acquittal if the jury took the view that because of it the accused did not form the required intention, and crimes of "basic intent" where such evidence was not admissible to negative such intention. Quite apart from the difficulties of that distinction on which I need not elaborate, there is what I regard as a more fundamental problem.

That problem is how is that decision to be reconciled with the principle upon which this Court refused to follow and apply the decision in Smith's Case. The question is how the necessary intent which is required as an ingredient of all offences (leaving aside statutory offences which involve strict liability and offences involving negligence) is to be supplied in a case where the hypothesis is that the accused did not form an intention to do the relevant act. In the House of Lords, Lord Elwyn-Jones L.C. said that the necessary mental element, the mens rea, was supplied by the act of becoming intoxicated voluntarily, being reckless of the possible consequences. There is no doubt that in certain cases recklessness as to consequences may supply the necessary mental element, being in such a case recognized as supplying mens rea. However the accepted view has been that the intent should exist at the time of the doing of the act and that where recklessness stood in place of actual intent it too must be contemporaneous with the act itself.

Lord Elwyn-Jones L.C. [73] approved the following passage from the speech of Lord Denning in Bratty v. Attorney-General (Northern Ireland) [74] :

Another thing to be observed is that it is not every involuntary act which leads to a complete acquittal. Take first an involuntary act which proceeds from a state of drunkenness. If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary, see Beard's Case [75] . and said: I do not for my part regard that general principle as either unethical or contrary to the principles of natural justice. If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases: see Reg. v. Venna [76] , per James L.J. The drunkenness is itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. 1. [1977] A.C., at pp. 474-475. 2. [1963] A.C., at p. 410. 3. [1920] A.C. 479. 4. [1976] Q.B. 421, at p. 429.

Lord Diplock agreed with the speech of the Lord Chancellor. Lord Simon said [1] :

The criminal law prohibits certain defined conduct (actus reus). But it goes on to say that a person who perpetrates such a conduct is not criminally responsible, in general, unless such conduct is accompanied by a wrongful state of mind which is expressed or implied in the definition of the offence (mens rea). This wrongful state of mind can vary greatly with the various offences contained in the criminal code, as is shown by the quotations by my noble and learned friend on the Woolsack from the judgment of Stephen J. in Reg. v. Tolson [2] . Mens rea is therefore on ultimate analysis the state of mind stigmatised as wrongful by the criminal law which, when compounded with the relevant prohibited conduct, constitutes a particular offence. There is no juristic reason why mental incapacity (short of M'Naghten insanity), brought about by self-induced intoxication, to realise what one is doing or its probable consequences should not be such a state of mind stigmatised as wrongful by the criminal law; and there is every practical reason why it should be. 1. [1977] A.C., at pp. 477-478. 2. (1889) 23 Q.B.D., at pp. 185, 187.

Lord Salmon reached the same conclusion on the ground of social policy when he said [3] :

As I have already indicated, I accept that there is a degree of illogicality in the rule that intoxication may excuse or expunge one type of intention and not another. This illogicality is, however, acceptable to me because the benevolent part of the rule removes undue harshness without imperilling safety and the stricter part of the rule works without imperilling justice. It would be just as ridiculous to remove the benevolent part of the rule (which no one suggests) as it would be to adopt the alternative of removing the stricter part of the rule for the sake of preserving absolute logic. Absolute logic in human affairs is an uncertain guide and a very dangerous master. The law is primarily concerned with human affairs. I believe that the main object of our legal system is to preserve individual liberty. One important aspect of individual liberty is protection against physical violence.

If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling. That is why I do not consider that there is any justification for the criticisms which have been made of the Court of Appeal's decision in Reg. v. Lipman [4]

If, as I think, this long standing rule was salutary years ago when it related almost exclusively to drunkenness and hallucinatory drugs were comparatively unknown, how much more salutary is it today when such drugs are increasingly becoming a public menace? My Lords, I am satisfied that this rule accords with justice, ethics and common sense, and I would leave it alone even if it does not comply with strict logic. It would, in my view, be disastrous if the law were changed to allow men who did what Lipman did to go free. It would shock the public, it would rightly bring the law into contempt and it would certainly increase one of the really serious menaces facing society today. This is too great a price to pay for bringing solace to those who believe that, come what may, strict logic should always prevail.

1. [1977] A.C., at pp. 483-484. 2. [1970] 1 Q.B. 152.

Lord Edmund-Davies took somewhat the same ground [5] and based his conclusion on social policy as did Lord Russell [6] .

1. [1977] A.C., at pp. 492-497. 2. [1977] A.C., at p. 498.

In the result therefore in cases of what their Lordships call "basic intent" a situation arises in which a jury must be told they may (perhaps must) convict in circumstances in which it has not been proved that the accused had the relevant intention, and indeed where it may have been shown that he did not have such intention.

This very question was raised in New Zealand in Reg. v. Kamipeli [7] where the headnote correctly summarizes the decision as follows:

2. Drunkenness is not a defence of itself. Its true relevance by way of defence is that a jury must take into consideration all the evidence, including evidence as to the accused's drunken state, drawing such inferences therefrom as appear proper in the circumstances. It is the fact of intent rather than capacity for intent which must be the subject matter of the inquiry.

3. The onus of proof always lies on the Crown; there is no presumption of law that a man intends the natural and probable consequences of his action. The responsibility of deciding whether the inference of intention should be drawn lies upon the jury and the use of the word "presumption" should be avoided.

McCarthy P., speaking for the Court of Appeal said [8] , after quoting from Lord Birkenhead in Beard's Case [9] "So whether it be a general or a particular intent the burden is the same: the Crown must prove the intent required by the crime alleged." He further said [10] :

"We are strongly of the view that the alternative proposition mentioned by Lord Devlin" [in Broadhurst v. The Queen [11] ], "namely, that the law as laid down in Beard's Case must now be interpreted in the light of later decisions on the proof of guilty intent, should be adopted; for the common law, as it must be applied since Woolmington's Case, requires the prosecution to prove all the elements in a definition of an offence, including any mental elements such as intention or recklessness. Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused's drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry. The alternative is to say that when drunkenness is raised in defence there is some special exception from the Crown's general duty to prove the elements of the charge. We know of no sufficient authority for that, nor any principle which justifies it." I respectfully agree with the views there expressed. 1. [1975] 2 N.Z.L.R., at p. 614. 2. [1920] A.C., at p. 504. 3. [1975] 2 N.Z.L.R., at p. 616. 4. [1964] A.C. 441, at p. 461.

I do not regard the force of those observations as being reduced for my purposes by the fact that since Majewski's Case [12] it has been said in New Zealand that "The whole question of the" [application of] " Majewski's Case in New Zealand must still be regarded as open" (per Woodhouse J. in Reg. v. Roulston [13] ). Needless to say it is not for me to suggest that the position in New Zealand is not now as stated by Woodhouse J.

1. [1977] A.C. 443. 2. [1976] 2 N.Z.L.R. 644, at pp. 653-654.

With due respect to the views of the majority of the Supreme Court of Canada in Leary v. The Queen [14] I prefer the dissenting view of Dickson J., with whom Laskin C.J. and Spence J. concurred. His judgment contains a valuable analysis of the cases and of the problems involved in Majewski's Case [15] . I quote only three passages:

Consider the position of the jury. The members of the jury will have heard all of the evidence as to drunkenness and are then, in effect, told to excise it from their minds. The result is that either: (a) the Crown, because the accused was intoxicated is relieved of the burden of proving a requisite mental state which would have had to be proven if the accused had been sober (placing the intoxicated offender in a worse position than the sober offender - the antithesis of the policy sought to be implemented by the 19th century jurists); or (b) in the alternative, the jury is required to examine the mental state of the accused, notionally absent the alcohol, an impossible task and, in the case of a general intent crime and a very drunk man, to find a fictional nonexisting mental state as an ingredient of guilt. The jury is expected to consider only that part of the behaviour which had its genesis in considerations other than drunkenness. All of this suggests that the distinction sought to be made between specific intent and general intent is neither meaningful nor intelligible.

When an accused, in answer to a criminal charge, says that he was so sodden as to be virtually an automaton, incapable of knowing what he was about, his defence is not drunkenness but an absence of voluntariness caused by excessive drinking. The question then is whether the act was voluntary. Likewise, when the offence with which he is charged includes a mental element which must be established by the Crown, such as intention or recklessness, it should be open to an accused to contend that upon all of the evidence the Crown has failed to establish the requisite mental element. The law should take no note of the inducing cause which led to the incapacity or lack of intent. On the other hand, it is generally recognized that the usual effect of drinking is merely to remove self-restraints and inhibitions and induce a sense of self-confidence and, perhaps, aggressiveness. If the accused was drunk at the time of the alleged offence but it is proved that he did the act intentionally or recklessly, it is irrelevant that but for the drinking he would never have done the act. The intent or recklessness, constituting the necessary mental element, is present and the fact that, by reason of drink, his judgment and control relaxed so that he more readily gave way to his instinctual drives, avails him nothing.

It may well be that an accused knows, or ought to have known, that drink or drugs makes him prone to certain kinds of conduct. A man who becomes violent when drunk, or a drug-taker who has reason to believe he will obliterate his will and hence become a danger to others may be reckless in the relevant sense. That is a question of fact to be determined in the circumstances of each particular case and not by application of what is, in effect, an irrebuttable presumption against an accused.

Recklessness in a legal sense imports foresight. Recklessness cannot exist in the air; it must have reference to the consequences of a particular act. In the circumstances of a particular case, the ingestion of alcohol may be sufficiently connected to the consequences as to constitute recklessness in a legal sense with respect to the occurrence of the prohibited act. But to say that everyone who gets drunk is thereby reckless and therefore accountable is to use the word "reckless" in a non-legal sense and, in effect, in the case of an intoxicated offender, to convert any crime into one of absolute or strict liability.

1. (1977) 74 D.L.R. (3d) 103. 2. (1977) 74 D.L.R. (3d), at pp. 121, 122-123, 124-125.

The view so expressed commends itself to me as based on fundamental principles of the criminal law.

Sir Owen Dixon, in a paper, written in 1935, said of the development of the law of homicide that "for eight centuries the course of its very gradual evolution has been from an almost exclusive concern with the external act which occasioned death to a primary concern with the mind of the man who did the act" (Australian Law Journal, vol. 9, supp. p. 64). It may be that this process of common law development is as yet unfinished. It seems to me that the observations of Dixon C.J. in Parker v. The Queen [17] which I have quoted above represent this Court's determination that no backward step in that development should be taken. It may be that the passing of s. 8 of the Criminal Justice Act, 1967 by the United Kingdom Parliament represents the same idea. 1. (1967) 121 C.L.R., at p. 238. 2. (1963) 111 C.L.R., at pp. 632-633.

The observations of Barwick C.J. in Ryan's Case [18] , especially in the passage at p. 216, emphasize the importance of the principle that, save for statutory offences and offences involving negligence, acts the subject of a criminal charge must be voluntary, that is to say, must be acts done pursuant to an exercise of the will of the accused.

I do not regard the decision in Viro v. The Queen [19] as having dealt with the present question. That was a case of murder and, on either view of the matter, the effects of intoxication were material. The accused having claimed in his statement from the dock that at the relevant time he was affected by drugs and did not intend to kill the deceased, it was necessary that the jury should have been told that they could take the evidence of drug taking into account and the manner in which they could use such evidence.

With due respect to their Lordships I am unable to regard the decision in Majewski's Case [20] as other than a retreat from those basic principles. Again I am unable to regard the basis of the reconciliation by their Lordships of the decision in Majewski's Case with the provision of s. 8 of the Criminal Justice Act, 1967 as capable of reconciling the principles referred to in Parker's Case and Ryan's Case in the passages referred to above with the view that in crimes of "basic intent" an accused may be convicted without such an intent being present, if it is established (whether by the accused alone or perhaps by the prosecution) that intoxication prevented the act from being voluntary in the sense of being pursuant to his will.

I am of course conscious that their Lordships recognized the lack of logic involved in the view which they reached and regarded their decision as required by social policy. No doubt over-use of alcohol and drugs is a serious social problem and the infliction of serious injuries on members of the general public or members of the police force by those affected thereby is part of that social problem. We have no means of knowing how frequent such occurrences are when the degree of effect of alcohol or drugs is such that the accused does not know what he is doing and is thus "intoxicated" in the sense defined by Stephen J.

However, if getting into such a condition, or an act done when in such a condition, is to be made criminal, it is for the legislature to do so and to prescribe appropriate penalties. It would be a matter for the legislatures to consider whether the range of the Criminal Injuries Compensation Act 1972 Vict. and like legislation in other States should be extended.

In the result therefore I am in agreement with the views expressed by the Court of Criminal Appeal. I would grant special leave to appeal but dismiss the appeal.

In this case the Crown in right of the State of Victoria seeks special leave to appeal from a judgment of the Full Court of the Supreme Court of Victoria (Young C.J., Starke and Gray JJ.) which allowed an appeal by the respondent from his conviction of the offence of unlawful and malicious wounding, and directed the entry of a judgment and verdict of acquittal.

The point at issue in the case is the question of the effect at common law of self-induced intoxication on criminal responsibility, with particular reference to offences such as the present in which no specific intent is required to be proved. It is an issue which has attracted the lengthy consideration of appellate tribunals in several countries in recent years.

The history of the matter may be recounted briefly. On 4th October 1978 the respondent appeared before a judge and jury in the County Court at Melbourne on a presentment which contained two counts, one count of theft and one count of wounding with intent to do grievous bodily harm or with intent to resist or prevent lawful apprehension. In relation to the latter count, s. 423 of the Crimes Act 1958 Vict. empowers the jury to bring in an alternative verdict of unlawful and malicious wounding to meet the case where the jury is satisfied of the wounding but not satisfied of the intent to do grievous bodily harm or to resist or prevent lawful apprehension.

The trial proceeded for five days, and on 10th October 1978 the jury acquitted the respondent on the two counts contained in the presentment, but found him guilty of the statutory alternative count of unlawful and malicious wounding. On 17th November 1978 he was sentenced to be imprisoned for three years with a minimum term of eighteen months.

The relevant circumstances surrounding the alleged offences as they were revealed in the evidence at the trial are outlined by Young C.J. in his reasons as follows [21] :

The Crown alleged that at about 10.30 p.m. on 2nd March 1978, the applicant was seen in the parking area of a block of flats in Sunshine known as "The Gables" where he appeared to be going through the glove box of one of the cars. The car belonged to a Constable Paterson who was the occupant of one of the flats. A neighbour summoned Constable Paterson who went to the car park where he saw the applicant who was personally known to him standing beside his (Constable Paterson's) car carrying a blue map holder. The map holder had been taken from Constable Paterson's car. When questioned the applicant ran off towards a vehicle which was being driven towards the street. Constable Paterson chased the applicant and caught him. He told the applicant he was under arrest for stealing his map holder. The applicant moved away from the constable but as he did so he tripped and fell to the ground. As Constable Paterson pulled the applicant to his feet he noticed that he held an open knife in his right hand. The knife in fact belonged to the constable and had been left in the glove box of his car. The applicant struck Constable Paterson in the upper left arm with the knife causing him considerable pain and a wound which required several stitches. The applicant tried to strike the constable again but in the struggle which ensued the knife fell to the ground. Although the applicant tried to recover the knife he failed to do so. Eventually the applicant quietened down and was conveyed to the police station. When interviewed the applicant is alleged to have made certain admissions, said that the stabbing must have been an accident and also said that he was doped at the time, having taken some Avil car sickness tablets as well as some alcohol. The police evidence, however, was that he showed no signs of intoxication.

At the trial the applicant gave evidence on oath. He said amongst other things that on the afternoon of 2nd March 1978, he had consumed fifteen Avil tablets and a certain amount of alcohol. He described the effect which the combination produced. In the evening he consumed some three bottles of beer whilst in a friend's flat at The Gables until the room in which he was "began to look out of shape". He went outside as his friend was going to drive him home. He remembered placing his foot on an open door of a white car. Then he was grabbed from behind and "everything blacked out". He did not really know what had happened except that he was placed in the police divisional van.

The learned trial judge directed the jury on the question of intoxication in the following way:

I have to tell you what the law is, and the law says that where the crime requires a specific intent, then it is a defence to put forward the fact that the accused man was intoxicated by drugs or alcohol or both. But the law has said where there is no specific intent alleged, then it is no defence for someone to say, "Oh well, I deliberately or consciously drugged myself up, took alcohol, and went out and did this crime - bad luck, you can't do anything about it". The law says if there isn't any specific intent alleged, then self-induced intoxication is no defence. And it is because of that that Mr. Granat has correctly said in relation to the alternate to the second count, that is the count of wounding, that this question of intoxication does not avail his client; I just repeat what I said, that intoxication, whether caused by the consumption of alcohol or drugs, if voluntarily caused, that is, if self-induced, is no excuse for the commission of a crime; but if an intention to cause a particular result is present, that is what the law says is a specific intent, and that is an element of the crime and has to be proved. And the fact that the accused was intoxicated may have an important bearing on the question as to whether or not he had that necessary intent.

In directing the jury in these terms it is clear that the learned trial judge was following the common law as it has recently been confirmed for England by the decision of the House of Lords in Director of Public Prosecutions v. Majewski [22] .

In Majewski's Case the appellant had been involved in a brawl in a public house. He was alleged to have assaulted the police officer who arrested him, and another police officer on the way to the police station and a third police officer in a cell at the police station the following morning. He was charged with three offences of assault occasioning actual bodily harm and three offences of assault on a police officer in the execution of his duty. His defence was that the offences had been committed whilst he was suffering from the effects of alcohol and drugs to an extent which deprived him of any understanding of what he was doing. He was convicted on all counts. He appealed on the grounds that the trial judge was wrong in law in ruling that self-induced intoxication by drink and drugs could not amount to a defence. The trial judge had told the jury that the Crown was not obliged to prove any specific intent and that the self-induced intoxication was to be ignored by them in reaching their verdict. The Court of Appeal (Criminal Division) and the House of Lords unanimously dismissed the appeal.

In the House of Lords, Lord Elwyn-Jones L.C. concluded his speech in the following terms [23] :

My noble and learned friends and I think it may be helpful if we give the following indication of the general lines on which in our view the jury should be directed as to the effect upon the criminal responsibility of the accused of drink or drugs or both, whenever death or physical injury to another person results from something done by the accused for which there is no legal justification and the offence with which the accused is charged is manslaughter or assault at common law or the statutory offence of unlawful wounding under s. 20, or of assault occasioning actual bodily harm under s. 47 of the Offences against the Person Act, 1861.

In the case of these offences it is no excuse in law that, because of drink or drugs which the accused himself had taken knowingly and willingly, he 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. As in the instant case, the jury may be properly instructed that they "can ignore the subject of drink or drugs as being in any way a defence" to charges of this character.

Although the Lord Chancellor referred specifically to manslaughter and assault at common law, and the statutory offences of unlawful wounding and assault occasioning actual bodily harm under s. 47 of the Offences against the Person Act, 1861, it is clear that their Lordships intended the principle they enunciated to apply to all offences comprehended by the description "offences of basic intent", as distinguished from offences which have as an essential element of the offence the presence of a specific intent which is required to be proved by the Crown.

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. For the other States the issue is one of fundamental importance, involving an evaluation of two principles which clearly are of great importance to the community and yet which are said to be in conflict in the case of an intoxicated offender. I refer to the expectation on the one hand that the law will provide adequate protection to the community, and on the other hand that the principles determining criminal responsibility will reflect enlightened standards of fairness and justice to a person accused of a crime.

Majewski provided the opportunity in England for a thorough curial examination of the problem, first by three members of the Court of Appeal (Criminal Division), and then by an unusually strong bench of the House of Lords, consisting of seven Law Lords. The result exhibits a remarkable unanimity in favour of a view of the common law consistent with that expounded to the jury by the learned trial judge in the present case.

However, the learned judges constituting the Court of Criminal Appeal of Victoria, after a consideration of the relevance of two decisions of this Court (Viro v. The Queen [1] and Ryan v. The Queen [2] ) and a forthright and critical evaluation of the decision of the House of Lords, resolved unanimously that the decision in Majewski did not represent the law for Victoria. That law was summarized by the learned Chief Justice in the following terms:

I think that the learned trial Judge must be held to have misdirected the jury by failing to tell them that in considering the statutory alternative of unlawful wounding they should take into account along with all the other circumstances proved the intoxication of the accused (if they found that he was intoxicated) in deciding whether the Crown had proved the necessary intent. [3] . 1. (1978) 141 C.L.R. 88. 2. (1967) 121 C.L.R. 205. 3. [1980] V.R., at p. 645.

Before I proceed to examine the reasons for judgment advanced by the members of the Court of Criminal Appeal it is necessary to consider the significance of the two earlier decisions of this Court that were considered by the Court of Criminal Appeal and were canvassed in argument before us.

The learned Solicitor-General of Victoria submitted to us that the whole of Majewski was indorsed by this Court in Viro , and that it necessarily followed from that decision that both the distinction between offences of special and general (or basic) intent and the relevance of intoxication as expounded in Majewski were part of the law in Victoria.

Viro was convicted of murder in New South Wales. The fatal act committed by him occurred after he had attacked the deceased with the intention of robbing him, and after the deceased had, according to Viro's account, resisted with unusual violence. In an unsworn statement from the dock Viro told the jury that he was addicted to heroin and that at the time of the stabbing he was badly affected by heroin. He said, inter alia: "You just can't think properly with drugs in you. I certainly wasn't thinking straight. I never formed any intent to harm Rellis."

In the High Court an application for special leave was argued as if it was an appeal. It was submitted on behalf of Viro before a bench of five Justices comprising Gibbs, Stephen, Jacobs, Murphy and Aickin JJ. (a second argument ultimately being decided by the whole Court), that the learned trial judge had failed to direct the jury that in deciding whether the accused had formed the intention to kill or to do grievous bodily harm they might have regard to the fact that he had taken heroin. Gibbs J., with whose reasons on this point the other four Justices agreed, discussed at some length the rules of the common law relating to the effect on criminal responsibility of self-induced intoxication, but with particular reference to offences requiring proof of a specific intent. In the course of that discussion, after observing that there is no difference between intoxication from drugs and intoxication from alcohol, he said, [4] :

It is well established that intoxication voluntarily caused is no excuse for the commission of a crime. However, when an intention to cause a particular result ("a special intent") is an alement of the crime - as in a charge of murder based upon an intention to kill or to inflict grievous bodily harm - the fact that the accused was intoxicated may have an important bearing on the question whether he had the necessary intent. His Honour continued [5] : The state of intoxication of an accused person is one of the matters to be considered by the jury in deciding whether they are satisfied that he had the requisite intent. In Director of Public Prosecutions v. Majewski, Lord Salmon said [6] : "This does not mean that drunkenness, of itself is ever a defence. It is merely some evidence which may throw a doubt upon whether the accused had formed the special intent which was an essential element of the crime with which he was charged. Often this evidence is of no avail because obviously a drunken man may well be capable of forming and does form the relevant criminal intent: his drunkenness merely diminishes his powers of resisting the temptation to carry out this intent." That in my respectful opinion is good sense as well as good law One might reasonably infer from these and other passages in the judgment of Gibbs J. that he and those members of the Court who agreed with him would have given their approval generally to the result in Majewski if it had been necessary or relevant to do so. But it was neither necessary nor relevant, for, as Gibbs J. himself observed the crime in Majewski [7] "was not one involving a special intent, and the present question did not fall for direct decision". 1. (1978) 141 C.L.R., at p. 109. 2. (1978) 141 C.L.R., at pp. 111-112. 3. [1977] A.C., at p. 481, at p. 639. 4. (1978) 141 C.L.R., at p. 111.

This is a distinction of critical importance to the learned Solicitor-General's argument, for it is common ground that the offence of which the applicant in the present case has been convicted is not a crime of special intent. I therefore conclude that Viro [8] , while persuasive, does not constitute authority on the question whether Majewski [9] represents the common law for Australia.

I come now to consider Ryan [10] , the second of the two decisions of this Court which were pressed upon us in argument.

Ryan was referred to by both the learned Chief Justice and Starke J. in the Court of Criminal Appeal. The former was of the opinion that "the approach of the High Court (in Ryan ) is fundamentally inconsistent with the approach of the House of Lords in Majewski's Case ", while Starke J. found "direct authority" in Ryan for the proposition that intoxication is a relevant consideration when determining the existence of a general intent. Both the learned Chief Justice and Starke J. cited the following passage from the judgment of Barwick C.J. in Ryan [11] :

In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. The lack of that exercise which precludes culpability is not, in my opinion, limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused. If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury. 1. (1967) 121 C.L.R., at pp. 216-217.

Ryan was a case of murder by shooting. The defence at the trial was that the discharge of the firearm was an accident, but in the course of argument before the High Court attention was focused on the basic requirement of a voluntary act as the foundation of criminal responsibility. A discussion of this principle appears in the judgment of Barwick C.J. [12] , and the principle is adverted to in the joint judgment of Taylor and Owen JJ. [13] and in the judgment of Windeyer J. [14] . Undoubtedly some significance must attach to the exhaustive terms in which Barwick C.J. expressed the principle that only a voluntary act can amount to a crime, and one can understand Lord Edmund-Davies' acceptance in Majewski that the Chief Justice's statement of principle in Ryan was intended to extend to an automatic state arising from intoxication [15] . On the other hand, there was no element of intoxication in Ryan , and no judge referred to such a factor.

1. (1967) 121 C.L.R., at pp. 213-217. 2. (1967) 121 C.L.R., at p. 231. 3. (1967) 121 C.L.R., at p. 244. 4. [1977] A.C., at p. 491.

As a statement of general principle it is incontestable that no crime can be committed unless there is a voluntary act or omission on the part of the accused. However, there has long been a recognized exception to this principle in the case of self-induced intoxication (see e.g. ss. 23 and 28, Criminal Codes, Queensland and Western Australia).

The emphatic restatement of the voluntary act principle by Barwick C.J. in Ryan is not necessarily to be taken as a denial, by implication, of the recognized exception in the case of self-induced intoxication. Whilst the views expressed in Ryan are naturally deserving of great respect, it is, in my opinion an overstatement to describe them as "authoritative" for the present case and the question of the significance of self-induced intoxication falls to be determined by this Court free from any binding authority.

It seems to me that the proper starting point for a consideration of the present question is to recognize that the House of Lords' decision in Majewski is not a revolutionary decision. It does not break new ground. In essence, it confirms the common law as it has been understood and applied for at least the past century (cf. Reg. v. Doherty [16] ). It may be open to criticism on the grounds that changing circumstances now call for a different decision as an expression of the capacity of the common law to respond to the needs of changing times. But if that be so, it is for those who advocate such a change to carry the burden of persuasion. Apart from some present uncertainty in New Zealand, where the matter has expressly been left open by the Court of Appeal (Reg. v. Roulston [17] ; but cf. Reg. v. Kamipeli [18] ), Victoria would seem to be the only jurisdiction in the common law world to have departed from the traditional view on the relevance of self-induced intoxication; cf. England: Majewski [19] ; N.S.W.: Reg. v. Menniss [20] ; South Australia: Reg. v. Fahey [21] ; Canada: Leary v. The Queen [22] ; South Africa: State v. Tsotsotso [23] ; see also American Law Institute Model Penal Code s. 2.08; Indian Penal Code s. 86, as applied in Basden v. State of Pepsu [24] .

1. (1887) 16 Cox C.C. 306. 2. [1976] 2 N.Z.L.R. 644, at p. 654. 3. [1975] 2 N.Z.L.R. 610. 4. [1977] A.C. 443. 5. [1973] 2 N.S.W.L.R. 113. 6. (1978) 19 S.A.S.R. 577. 7. (1977) 74 D..L.R. (3d) 103. 8. [1976] 1 S.A.L.R. 364. 9. [1956] S.C.R. 363 [A.I.R. 1956 S.C. 488].

The only decisions to the contrary are two decisions of judges at first instance in Victoria: Reg. v. Keogh [25] ; Reg. v. Haywood [26] .

It may also be remarked that hitherto no distinction has been drawn between the element of voluntariness and the basic intent attending the commission of the act. Evidence of self-induced intoxication has been held to be irrelevant in either case: cf. Bratty v. Attorney-General (Northern Ireland) [27] ; Reg. v. Lipman [28] .

1. [1963] A.C., at p. 410. 2. [1970] 1 Q.B. 152.

The respondent advances several arguments against the maintenance of the old rule. These include the unreality of the distinction between offences of basic and special intent, the illogicality of holding that intoxication is relevant to some criminal intents but not others, the ethics of requiring a jury to convict a person of an offence notwithstanding that it may be evident that his mind did not go with the act, and the problem that may arise of directing a jury that it may take evidence of intoxication into account in relation to some charges but must ignore it in relation to others.

It was argued that, rightly understood, the judgment of Lord Birkenhead L.C. in Director of Public Prosecutions v. Beard [29] drew no distinction between offences of basic intent and offences of specific intent and that the case is authority for the proposition that, when raised, evidence of intoxication should be taken into account in relation to all offences. In this submission the respondent drew some support from the judgments of Young C.J. and Gray J. in the Court of Criminal Appeal.

There are passages in Lord Birkenhead's judgment that are difficult to reconcile with one another. The apparent inconsistency between what appears at pp. 499-500 and the passage at p. 504 has been the subject of much debate. However, with all respect to the learned Justices in the Court of Criminal Appeal, I think, having regard to the historical survey made by the Lord Chancellor before coming to the passage at pp. 499-500, that it is clear that he intended to draw a distinction between offences requiring a specific intent and those where no specific intent need be shown. I am fortified in this conclusion by the discussion of Beard in the speech of the Lord Chancellor in Majewski [30] , and by the analysis made by Lord Russell of Killowen in the same case [31] . After citing a passage from the judgment of Lord Denning in Attorney-General (Northern Ireland) v. Gallagher [32] , and two passages from Lord Denning's judgment in Bratty v. Attorney-General (Northern Ireland) [33] , the Lord Chancellor concluded [34] :

The seal of approval is clearly set on the passage at p. 499 of the Beard decision. In no case has the general principle of English law as described by Lord Denning in Gallagher's Case [35] and exposed again in Bratty's Case [36] been overruled in this House and the question now to be determined is whether it should be. 1. [1977] A.C. pp. 473-475. 2. [1977] A.C., at pp. 499-500. 3. [1963] A.C. 349, at p. 380. 4. [1963] A.C., at pp. 409, 410. 5. [1977] A.C., at p. 474. 6. [1963] A.C. 349. 7. [1963] A.C. 386.

In my respectful opinion, the difficulty of distinguishing between the two categories of offences has been exaggerated. In Viro [37] Gibbs J. drew the distinction in words which I have already cited, namely, "when an intention to cause a particular result (a "special intent") is an element of the crime - as in a charge of murder based upon an intention to kill or to inflict grievous bodily harm - the fact that the accused was intoxicated may have an important bearing on the question whether he had the necessary intent." I find this statement acceptable. It identifies an offence which requires, in addition to proof of a voluntary act attended with foresight of consequences, proof of an additional element related to the purpose with which the impugned conduct took place. In so doing, it corresponds to the phrase appearing in s. 28 of the Criminal Codes of Queensland and Western Australia to which I have already referred. In my opinion, these Codes accurately reflect the common law as it was understood at the time of their enactment (cf. Stephen, Digest of the Criminal Law, 5th ed. (1894), Art. 30; Reg. v. Doherty [38] ).

1. (1978) 141 C.L.R., at p. 109. 2. (1887) 16 Cox C.C. 306.

It was also argued before us on behalf of the respondent, as it was argued before their Lordships in Majewski [39] , that it is illogical to take evidence of intoxication into consideration in relation to some offences but not in relation to others, and that it is unethical to attach penal consequences to conduct in respect of which a defendant may have had no mens rea because of self-induced intoxication. These arguments were fully canvassed in Majewski and, in my opinion, having regard to the social issues involved, were answered satisfactorily in the course of the speeches in that case. I cite in particular the following passage from the speech of Lord Simon of Glaisdale [40] :

there is nothing unreasonable or illogical in the law holding that a mind rendered self-inducedly insensible through drink or drugs, to the nature of a prohibited act or to its probable consequences is as wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable consequences (or is reckless as to whether they ensue). The latter is all that is required by way of mens rea in a crime of basic intent. But a crime of specific intent requires something more than contemplation of the prohibited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element. This purposive element either exists or not; it cannot be supplied by saying that the impairment of mental powers by self-induced intoxication is its equivalent, for it is not. So that the 19th century development of the law as to the effect of self-induced intoxication on criminal responsibility is juristically entirely acceptable; and it need be a matter of no surprise that Stephen stated it without demur or question. 1. [1977] A.C. 443. 2. [1977] A.C., at pp. 479-480.

In any event, it is relevant to recall the historical explanation for the so-called anomaly that evidence of intoxication is relevant to some offences but not to others. Before the nineteenth century evidence of intoxication was totally disregarded. The law was strict, perhaps harsh, but not illogical. Then, as is explained in the speech of the Lord Chancellor in Majewski [41] , from 1819 onwards the courts began to mitigate the severity of the common law in cases such as murder and serious violent crime, where the penalty was death or transportation, and cases such as attempted suicide, where there was likely to be sympathy for the accused. The result was that evidence of drunkenness was admissible in some cases, where a specific intention was alleged on the part of the accused, but was generally inadmissible. It would be a strange result, however, if the merciful relaxation of a strict rule of law to allow an exception in some cases had the effect of denying any logical merit to the substance of the rule. If anything it is the exception, and not the basic rule, which disturbs the logical symmetry.

In his reasons for judgment in the Court of Criminal Appeal, Young C.J. referred to the following three principles which formed part of the English criminal law at the beginning of this century: 1. A man was presumed to intend the natural and probable consequences of his acts. 2. The onus of establishing matters of exculpation rested upon the accused. 3. Intoxication could not be relied upon as a defence to a criminal charge, subject to some relaxation of the rule during the nineteenth century. His Honour concluded that all three principles have been substantially modified in the course of this century to the extent that none of them now forms part of the law in Victoria. In particular the Chief Justice was of the view that the modifications to the first two rules leave no room for the operation of the third. It is appropriate that I should say something briefly on this point.

The presumption that a man intends the natural and probable consequences of his acts is clearly not part of the law of Australia: Smyth v. The Queen [42] ; Parker v. The Queen [43] . The presumption was finally abolished in England by s. 8 of the Criminal Justice Act, 1967. The presumption was never more than a rule of evidence, however, and its abolition can have no effect on the substantive principles of the common law relating to criminal responsibility.

1. (1957) 98 C.L.R., at pp. 166-167. 2. (1963) 111 C.L.R., at p. 632.

Lord Birkenhead L.C. referred to the presumption in the course of his judgment in Beard [44] and this aspect of his judgment was rightly criticised by Gibbs J. in Viro [45] . Nonetheless, in my respectful opinion, this criticism did not affect the central proposition for which Beard stands. The distinction which the common law came to recognize during the nineteenth century between offences of specific intent and those of "basic intent", and which was affirmed in Beard , is not dependent on the presumption that a man intends the natural and probable consequences of his acts.

1. [1920] A.C. 479. 2. (1978) 141 C.L.R., at p. 110.

The principle that an accused bears the onus of proving matters of exculpation was denounced by the House of Lords in Woolmington v. Director of Public Prosecutions [46] . That case established that the Crown bears the onus of proving each element of the offence charged. However, I do not understand Woolmington to affect the proposition that self-induced intoxication is no excuse for the commission of an offence of "basic intent". Their Lordships in Woolmington made no reference to Beard and I cannot accept that they intended to re-write the law on intoxication without referring to the latter decision. In every case the Crown bears the onus of proving all the elements of the offence, including the commission of a voluntary act or omission with foresight of consequences or with recklessness. In some cases the Crown must also prove that the accused acted with an intention to produce a specific result. The effect of Beard , and Majewski , is to deny to an accused any resort to evidence of self-induced intoxication except upon the issue of a specific intention.

With respect to the learned Chief Justice in the Court of Criminal Appeal, I do not accept that the developments in the common law identified by him now require a rejection of the Majewski doctrine.

Counsel for the respondent pressed us with the submission that the Majewski doctrine is one which could present great difficulty to a trial judge charging a jury, particularly in a case where there are a number of alternative verdicts open to the jury, some of which involve proof of a specific intent and some of which do not. I do not disregard the complexity which such a case may present to a trial judge, but, in the end, it must come down to an evaluation of competing principles. The desire for simplicity in the law cannot override the primary principle that the law must meet the needs and demands of the community. In my opinion, the community requires protection from the sometimes violent conduct of intoxicated individuals. Furthermore, the Majewski doctrine is comparable to the law contained in the Criminal Codes of Queensland and Western Australia for virtually the whole of this century, and in Tasmania since 1924 (s. 17 of the Tasmanian Criminal Code). It has not been shown to me that the task of directing juries has produced undue difficulties for trial judges in those States.

After anxious consideration, and in the light of the matters to which I have referred, I have come to the conclusion that Majewski should be followed in Australia.

I recognize the force of the arguments based on logic and principle but what confirms me in my opinion is the conviction that such considerations, even if they have merit, should not necessarily determine the result.

We are not deciding this question in a vacuum, where there is no status quo. In effect, we are being asked to change the existing law.

Whilst this kind of judicial legislation may be acceptable in many cases, the Court must consider the impact on the community of the proposed change. If that impact is likely to be substantial, and if there are political considerations which may be controversial, then I believe the Court should refrain from innovation. Such a task should be left to the legislature.

In the present case, I believe that the impact on the community and the processes of law enforcement of a decision not to follow Majewski [47] would be unfortunate. It is not a question of trusting juries to "do the right thing"; they should not be asked to carry the burden of reconciling the felt needs of the community with the law. It would often be the case when an honest and conscientious jury, properly directed, will be left with a reasonable doubt as to the criminal responsibility of an accused, notwithstanding that great injury or disturbance may have been caused by the action of a person under the influence of drink or drugs.

I must acknowledge that a different view of the law has been applied from time to time in Victoria, apparently without attracting the consequences which I would have anticipated. Nevertheless, I remain unpersuaded. To my mind, it is sufficient answer to the critics of Majewski to cite the facts of the present case. A law which excuses from criminal responsibility a wounding in the circumstances that obtained here is, in my respectful opinion, seriously deficient. If it is then said that it is for the legislature to remedy the deficiencies of the law in this area, my answer is simply that I prefer to see the courts assert and maintain the traditional approach to intoxication so as to adequately preserve the Queen's peace pending any legislative action that may be considered appropriate.

Finally, I cannot close my mind to the very strong persuasive force that proceeds from the unanimous decisions of the Court of Appeal (Criminal Division) and the House of Lords in Majewski , and the six to three majority decision of the Supreme Court of Canada in Leary [48] . I cannot accept that this Court should be the first court of final appeal in the common law world to break new ground in this area.

I would therefore grant special leave, allow the appeal and restore the verdict and sentence.

Since writing my reasons for judgment, I have read the reasons of Gibbs J. I would respectfully agree with all that his Honour has written.