procedural. The court directed that the jury be told that, for both the s 33 count and the alternative s 35(2) count, they are entitled to take into account the accused's self-induced intoxication in deciding...
Key principles
Self-induced intoxication may be taken into account by a jury when determining the mens rea required for an offence under s 35(2) Crimes Act (reckless as to causing actual bodily...
The mere fact that an offence is expressed in terms of recklessness (as in s 35(2)) does not, of itself, exclude the possibility that it is an offence of which an intention to...
Issues before the court
Whether self-induced intoxication may be taken into account by the jury when determining the Crown's proof of mens rea for the statutory alternative...
Whether the presence of recklessness in the mental element of s 35(2) means the offence is not one of specific intent and therefore intoxication...
Cited legislation
No linked legislation citations have been extracted yet.
Plain English Summary
The judge ruled that jurors may consider an accused's self-induced drunkenness when deciding whether the prosecution proved the required mental element for both the main charge of wounding with intent (s 33) and the Crown's statutory alternative of causing grievous bodily harm recklessly (s 35(2)). The judge compared the statutory elements and concluded there is no sound reason to exclude intoxication from consideration for the alternative recklessness-based count.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,860 words · generated 12/07/2026
What happened
This was a pre‑address ruling in a jury trial in the District Court of New South Wales (Berman SC DCJ) concerning Mr Darryl Mark Williams. He was charged with wounding with intent to cause grievous bodily harm (s 33 Crimes Act) after tipping a fridge on his former partner, Ms Fairbairn, causing serious injuries to her left leg, including bone penetrating the skin [1]. The Crown advised from the outset that, if the jury did not convict on the s 33 count, it relied upon a statutory alternative, an offence under s 35(2) Crimes Act of causing grievous bodily harm being reckless as to causing actual bodily harm [1].
The evidence had closed and addresses were about to commence. The defence and prosecution were in dispute over whether the jury could take the accused's self‑induced intoxication into account when considering the alternative s 35(2) count [2]. It was conceded that intoxication may be taken into account for the s 33 count, which appears in the specific-intent table in s 428B(2) of the Crimes Act [3]. The narrow question was whether the alternative s 35(2) offence, expressed in terms of recklessness, is an offence of "specific intent" for the purposes of s 428B(1) and hence whether intoxication may be considered in relation to it.
Berman DCJ studied the statutory formulation and prior authorities. He concluded that, given the similarity of the elements in the primary (s 33) and alternative (s 35(2)) counts, the jury should be instructed that self‑induced intoxication may be taken into account for both counts [12], and formally directed the jury accordingly [14].
Why the court decided this way
The court's reasoning proceeds from the statutory definition of a crime of specific intent in s 428B(1): "an offence of specific intent is an offence of which an intention to cause a specific result is an element" [9]. The judge acknowledged the conceptual and practical difficulty in applying the specific/basic intent labels. He emphasised that the statutory definition is simple in form but ambiguous in application, and he relied upon a careful comparison of the mental elements of the two offences charged.
For the s 33 count the second element is plainly an intention to cause grievous bodily harm, an intention to bring about a specific result: therefore intoxication is relevant (and s 33 is listed in the specific-intent table) [8].
For the s 35(2) alternative the elements are (1) that the accused caused grievous bodily harm, and (2) that he either intended to cause actual bodily harm or realised the possibility that his actions would cause actual bodily harm but went ahead anyway (recklessness) [9]-[11]. The judge considered the second element to involve a mental state directed to a specific outcome (actual bodily harm), and saw close correspondence between the elements of that alternative and the primary s 33 offence [12].
The Crown argued that the insertion of recklessness meant s 35(2) could not be a specific-intent offence, and hence intoxication would be irrelevant. The judge rejected that categorical leap. He relied on the reasoning in R v Grant to show that offences founded on recklessness may still operate within the specific-intent framework: the Court of Criminal Appeal in Grant treated murder as a specific-intent crime whether based on intention or reckless indifference [13]. Taking the elements as a whole, the judge therefore concluded that intoxication is relevant to both the primary and the statutory alternative and gave the jury the corresponding direction [14].
The decision is pragmatic and statutory-element driven rather than committed to a particular theory of the basic/specific intent taxonomy. The judge also canvassed the broader background: Beard and Majewski established (in England) a specific/basic distinction; the High Court in O'Connor rejected that division and allowed intoxication to be considered for all offences; the NSW legislature subsequently enacted Part 11A of the Crimes Act to overturn O'Connor in certain respects [6]-[8]. Those observations contextualise the ruling and show the judge was conscious of competing lines of authority and statutory response [7]-[8].
Before and after state of the law
Before the twentieth century the criminal law commonly treated self‑induced intoxication as no defence; policy and moral opprobrium shaped that approach [5]. In the twentieth century, the English authorities in DPP v Beard and DPP v Majewski adopted and confirmed a distinction between crimes of specific intent (where intoxication could be relevant) and crimes of basic intent (where it could not) [6]. The High Court of Australia in O'Connor rejected that strict dichotomy and permitted intoxication to be considered in determining mens rea generally; that decision was sometimes labelled a "drunk's charter" and prompted legislative reform in NSW by Part 11A, which altered the legal treatment of intoxication [7]-[8].
This District Court ruling does not overturn any High Court authority nor create a new statutory rule; it addresses the application of the statutory definition in s 428B(1) to the facts and charges in this trial. The judge's approach is to compare the elements of the specific offence and its statutory alternative and to conclude that where the mens rea element is sufficiently directed to a specific result (even if expressed in terms of recklessness), intoxication may be considered.
After this decision (within the trial), the immediate practical effect is to allow the jury to consider intoxication on both counts. The ruling is procedural and trial-specific; it is persuasive authority. The judge noted the lack of direct Court of Criminal Appeal authority on whether self-induced intoxication may be taken into account for s 35(2) alternatives and that District Court judges had taken different views [4]. The decision is therefore a reasoned addition to the local jurisprudence on this question.
Key passages with plain-English translation
"[...] I am firmly of the view that intoxication can be considered by the jury both as regards the count on the indictment under s 33 and its alternative under s 35(2)." [4]
Translation: The jury should be allowed to consider the accused's voluntary drunkenness when deciding whether he had the required mental state for both the main charge and the alternative.
"Section 428B(1) is deceptively simple. It provides 'an offence of specific intent is an offence of which an intention to cause a specific result is an element.' But that simple definition hides a great deal of ambiguity." [9]
Translation: Although the statute defines 'specific intent' simply, applying that definition to real offences is often unclear and can produce hard questions.
"The result is that I will direct the jury that for both the count on the indictment and the alternative count, they are entitled to take into account Mr Williams' self‑induced intoxication..." [14]
Translation: The judge made the formal order: jurors must be told they can consider intoxication when assessing the mental element for both offences.
Historical/contextual: "The High Court, in O'Connor v R... rejected the division and held that intoxication... could be taken into account in deciding the mens rea of all offences. That decision was sometimes referred to as 'a drunk's charter'." [7]
Translation: O'Connor allowed intoxication to be a factor for mens rea across offences; that move was controversial and prompted legislative reaction.
What fact patterns trigger this precedent
This ruling is triggered where:
The accused is charged with a primary offence that is clearly included in the specific‑intent table (for example s 33 wounding with intent), and
The Crown also relies upon a statutory alternative under s 35(2) (causing grievous bodily harm recklessly), or a similar alternative where the mens rea element is expressed as intention or recklessness as to causing actual bodily harm, and
The accused was self‑intoxicated at the time of the incident, and
Defence counsel seeks a direction that intoxication be excluded from the jury's consideration on the alternative count.
In such cases, this decision supports a direction that intoxication can be considered in relation to both counts where the elements of the alternative sufficiently mirror the specific‑result mental state of the primary offence [12]-[14].
How later courts have treated it
The judgment itself records that there was, at the time, a lack of direct Court of Criminal Appeal authority on whether self‑induced intoxication may be taken into account for s 35(2) alternatives and that District Court judges had taken different positions [4]. The present ruling contributes a clearly reasoned statement in favour of allowing intoxication to be considered (subject to the ordinary rules about what the jury may consider). This decision is persuasive but not binding on higher courts. The judge expressly relied on comparison of statutory elements and on existing authorities, particularly R v Grant, for the proposition that recklessness does not necessarily exclude a specific‑intent character [13]. Practitioners should therefore treat the decision as a well-reasoned District Court ruling that adds to trial-level precedent, but they should look for later appellate authority (Court of Criminal Appeal or High Court) for any binding statement.
(As this deep dive must be strictly source‑grounded, no additional subsequent appellate treatment beyond what appears in the judgment itself is discussed here.)
Still-open questions
Binding authority: This District Court ruling is persuasive only. The Court of Criminal Appeal has not, at the time of the ruling, given a definitive answer to whether s 35(2) alternatives can be treated as specific-intent offences for the purpose of intoxication directions. That leaves a question open for appellate determination [4].
Limits of the element-comparison approach: The judge applies an elements-comparison approach to conclude intoxication is relevant where the alternative shares a mental element directed at a specific result. The precise boundary of that test (how close the correspondence must be, and whether some forms of recklessness should be treated differently) remains analytically imprecise and could be clarified by higher authority [9],[12].
Interaction with Part 11A statutory scheme: The judge noted that Part 11A was enacted to overturn O'Connor in New South Wales [8]. How Part 11A's provisions interact with the element‑comparison approach applied here, particularly for other offences or differently drafted alternatives, may require further judicial exposition.
Policy considerations: The historical and academic critiques quoted by the judge point to policy tensions underpinning the intoxication doctrine. Whether policy considerations should, or will, influence appellate courts in clarifying the law remains an open question. The textual ambiguity in s 428B(1) suggests the potential for divergent outcomes depending on whether courts prioritise statutory literalism, doctrinal coherence, or policy.
Jury direction content and limits: The ruling directs that intoxication may be taken into account; it does not prescribe the precise content of the jury direction about how intoxication bears on capacity and mens rea. How courts should frame and contextualise such directions (to avoid unfair prejudice or misunderstanding by juries) remains a practical and important issue.
Practitioners should take from this ruling that, in the NSW District Court context at least, where an alternative offence's mens rea element substantially mirrors a specific-result mental element, a jury can be told to consider voluntary intoxication in assessing mens rea. However, until appellate courts pronounce definitively, the legal landscape retains unresolved issues which may be fertile ground for appellate clarification.
Judgment (3 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions
Peter Murphy Criminal Law
File Number(s): 2017/60992
[2]
Judgment
HIS HONOUR: The accused is charged with an offence of wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act. That charge is based on an allegation that after having consumed a quantity of alcohol he tipped a fridge on his former partner, causing quite serious injuries to her left leg, injuries which involved bones penetrating her skin, thus causing a wound. But from the beginning of the trial the Crown has made it clear to me and the jury that in the event that they find the accused not guilty of the offence on the indictment, the Crown relies on a statutory alternative, an offence under s 35(2) Crimes Act of causing grievous bodily harm, being reckless as to causing actual bodily harm.
The evidence has closed and the next thing that will happen in the trial is that addresses will commence. Before that happens, it is important to resolve an issue on which the Crown and Ms Mikhaiel, who appears for the accused, are divided. That issue is whether self-induced intoxication may be taken into account by the jury in considering the alternative count.
There is no dispute that the jury can take self-induced intoxication into account when considering the count on the indictment under s 33. Indeed, that offence appears, helpfully, in the table to be found in s 428B(2) of the Crimes Act. The offence under s 35(2) does not, but that does not mean that it is not a crime of specific intent. The fact that the offence under s 35(2) is not listed in the table is not to be taken as indicating that intoxication is irrelevant when the jury considers the alternative count.
Perhaps somewhat surprisingly there appears to be no authority from the Court of Criminal Appeal, or indeed elsewhere, directly on this issue. I say somewhat surprisingly because trials involving s 35(2) are hardly unknown and it is a relatively common situation that an accused has been drinking before he or she allegedly committed the offence. I am also aware that different judges of this Court take different views as to whether self‑induced intoxication may be taken into account. Despite that dearth of authority, and despite different views being expressed by judges of this Court, I am firmly of the view that intoxication can be considered by the jury both as regards the count on the indictment under s 33 and its alternative under s 35(2).
The attitude of the criminal law to offences allegedly committed under self‑induced intoxication has varied over the years. Many hundreds of years ago self-induced intoxication was held to be no defence, the reasoning being that, unlike conditions such as insanity, self-induced intoxication was a product of voluntary behaviour. The attitude may have been influenced by the fact that getting drunk was something that was not well regarded and indeed has, at other times, been an offence. This attitude is perhaps best expressed by the expression, "he that killeth a man drunk, sober shall be hanged." (I am indebted to an article in the Osgoode Hall Law Journal, vol 2, number 2, April 1961, A Review of the Defense of Drunkenness in the Criminal Law by Donald N Synowicki for that expression which is taken from T. Starkey England in the Reign of Henry VIII).
Attitudes changed, at least in England and Wales, in the 1920s. That was when the decision of DPP v Beard [1920] AC 479 was handed down. Beard held that crimes of specific intent such as murder were crimes where intoxication could be taken into account, but crimes of basic intent were crimes where intoxication had to be ignored.
Later on, in DPP v Majewski [1977] AC 443 the division of crimes into those of specific and basic intent was confirmed. However, the common law of Australia differed from the law as explained in Beard and Majewski. The High Court, in O'Connor v R (1980) 146 CLR 64, rejected the division and held that intoxication, whether self-induced or otherwise, could be taken into account in deciding the mens rea of all offences. That decision was sometimes referred to as "a drunk's charter". It was criticised, but it remained the law for many years. It was consistent with the view widely held, by lawyers and academics anyway, that moral culpability only flows from willed acts.
It may be that the common law of Australia as explained in O'Connor differed from the law in other parts of the world apart from England and Wales. Certainly, that suggestion was made when the legislature of New South Wales overturned O'Connor by the introduction of part 11A of the Crimes Act, which deals with intoxication.
Section 428B(1) is deceptively simple. It provides
"an offence of specific intent is an offence of which an intention to cause a specific result is an element."
But that simple definition hides a great deal of ambiguity. For example Glanville Williams, Textbook of Criminal Law, 1978 at 428 noted that the obscurity of the phrase "crimes of specific intent" has often been commented on. He said "in allocating crimes to one category or the other, the Courts adopt a Humpty-Dumpty attitude". He then listed those crimes which had been held to be crimes of specific intent and said "it is impossible to make sense of these lists," before going on, at 429, to effectively demolish the reasoning of the House of Lords in Majewski. He concludes his discussion with these words
"in short, the doctrine of 'basic intent' plays tricks with words." "Basic intent" is a meaningless expression which the Courts use when they wish to impose a restriction on the mens rea doctrine. They distinguish between offences on grounds of policy, while pretending to derive the distinction from definitions."
George Fletcher, Rethinking Criminal Law 1978 says that the distinction between crimes of basic intent and specific intent
"glides well through the sea of crimes defined by the pattern ' assault with intent to…'. Yet the distinction scrapes bottom as soon as we consider more compactly define offences, such as murder and larceny."
I should also note that in O'Connor Barwick CJ observed that despite murder being consistently described as a crime of specific intent, it doesn't fit the definition. And see also R v Grant [2002] NSWCCA 243 per Wood CJ at CL at [93] where his Honour says the decision in Majewski "accepts the existence of an illogicality".
It is my unhappy task to make sense of something which makes little sense at all.
Cleverer people than me have wondered why definition in 428B(1) does not apply to almost all offences, perhaps all offences except those offences of absolute liability. Is not every offence, apart from offences of absolute liability, an offence which requires proof of an intention to cause a specific result? The answer to that question must be "no" because the legislature tells us that there are some crimes of specific intent and some crimes which are not of specific intent.
I do not need to decide matters generally, of course; what I need to decide is how I will direct the jury in this specific case. The answer is made clear, in my view, when attention is paid to the elements of both offences. I have prepared a document which I propose to give to the jury, and which the lawyers agree is an accurate expression of the elements of the two offences, at least insofar as this trial is concerned. Given the nature of the issues, I have reduced the elements down to focus the jury's attention on the specific issue in the trial, which concerns what Mr Williams intended when he pushed the fridge towards the doorway, he says accidentally, thereby causing injury to Ms Fairbairn when the fridge toppled over and struck her.
The elements of the count on the indictment are these:
The accused caused Ms Fairbairn to suffer a wound; and
When he did that, he intended to cause her grievous bodily harm.
It is clear that the second of those elements, requiring proof that the accused intended to cause Ms Fairbairn grievous bodily harm, is an intention to cause a specific result. It is clear therefore, the matter being confirmed by the appearance of s 33 in the table, that when the jury considers whether the Crown has proved that second element they are entitled to take into account Mr Williams' self-induced intoxication.
The elements of the alternative count are as follows:
The accused caused grievous bodily harm to Ms Fairbairn; and
The accused either intended to cause her actual bodily harm or realised the possibility that his actions would cause her actual bodily harm but went ahead anyway.
When one compares the elements of this alternative count with the elements of the primary count, one can see that they look very similar. The first element relates to an injury which is caused and the second element concerns an intention or, in the alternative count, recklessness, as to a result. I can see no reason at all why, given that the primary count is an offence involving specific intent where intoxication is relevant, the same should not be said about the alternative count, given the similarity of the elements the Crown must prove.
The Crown did raise an argument that the introduction of recklessness in s 35(2) meant that that offence was not an offence of which an intention to cause a specific result is an element. As I understand the decision in R v Grant [2002] NSWCCA 243, the Court of Criminal Appeal in that case says exactly the opposite, the Court holding that murder is a crime of specific intent whether based on an intention to kill or reckless indifference.
The result is that I will direct the jury that for both the count on the indictment and the alternative count, they are entitled to take into account Mr Williams' self‑induced intoxication in deciding whether the Crown has proven beyond reasonable doubt that, for the count on the indictment, he intended to cause her grievous bodily harm and, for the alternative count, that he intended to cause her actual bodily harm or realised the possibility that his actions would cause her actual bodily harm, but went ahead anyway.
[3]
Amendments
25 June 2018 - Typographic error in para [13]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 June 2018
The court directed that the jury be told that, for both the s 33 count and the alternative s 35(2) count, they are entitled to take into account the accused's self-induced intoxication in deciding whether the Crown has proved the requisite mens rea beyond reasonable doubt [14].