R v O'Connor

[1980] HCA 17

High Court of Australia|1980-06-20|Before: Wilson JJ

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Court

High Court of Australia

Decision date

1980-06-20

Before

Wilson JJ

Source

Original judgment source is linked above.

Judgment (284 paragraphs)

[1]

The application for special leave thus raises a fundamental question of grave import.

[2]

Before entering upon a consideration of the very important question raised, I would like to reiterate the view I have already expressed as to the proper approach which this Court ought now to take to the declaration of the principles of the common law: see Cullen v. Trappell [2] . The Court now not being bound by any decision of the courts of the United Kingdom or of Her Majesty in Council has become the final arbiter of what is the common law in Australia until it is altered by a competent legislature. All State courts are bound by its decisions: see Viro v. The Queen [3] . Accordingly, the Court has a very heavy responsibility. It would be easy simply to accept the declarations of common law which have heretofore been made by any of the courts of the United Kingdom, particularly if they are of long standing. The Court will, of course, have regard to these declarations and, in particular, will pay the highest respect to the decisions of the House of Lords. But it seems to me quite inadequate in the performance of its high obligation for the Court merely to accept without its own close, critical and independent examination those declarations of the common law which heretofore have been made. Whilst the common law itself may be said to be the same wherever it is operative, it may be differently declared in one juristic unit as compared with another: see Australian Consolidated Press Ltd. v. Uren [4] . The Court must, in my opinion, decide for itself upon principle what is the common law. It must make its declaration of principle in the sense of the common law as it understands it to be and to have been.

[58]

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.

[60]

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.

[69]

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.

[75]

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.

[111]

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.

[158]

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.