Is Intoxication a Defence? (NT)

Lawyers are often asked whether intoxication can be used as a defence to criminal offences. Under NT law, courts can take the intoxication of an accused person into account in a number of ways when determining whether they are guilty of an offence. However, self-induced intoxication does not amount to a criminal defence in the NT. This article looks at how intoxication is dealt with under NT criminal law and why these laws exist.

Self-induced intoxication

Under section 42AR of the Criminal Code Act 1983, a person’s intoxication is self-induced unless it came about:

• Involuntarily;
• As a result of fraud, sudden and extraordinary emergency, accident, reasonable mistake, duress or force;
• From the use of a prescription drug in accordance with directions of a medical practitioner;
• From the use of a non-prescription drug in accordance with the dosage recommended by the manufacturer.

Intoxication is presumed to be voluntary unless the contrary is proven.

Offences of basic intent

In the NT, evidence of an accused person’s self-induced intoxication cannot be taken into account in determining whether a fault element of basic intent existed. For example, where a person is charged with assault, the fact that they were intoxicated would be irrelevant to determining whether they intended or foresaw that their actions would result in an assault.

Offences of specific intent

When a person is charged with an offence of specific intent, their intoxication may be taken into account in determining whether the requisite intention has been proved. For example, a finding of guilt for murder requires the accused to have intended to kill the victim. If an accused person was heavily intoxicated, this may be difficult to prove.

Negligence and intoxication

Some criminal offences involve a fault element of negligence. Examples of these are negligent manslaughter under section 160 of the Criminal Code Act and negligently causing serious harm under section 174E.

If a person charged with such an offence was intoxicated and the intoxicated was self-induced, the court must determine whether they were negligent with reference to what a reasonable person who was not intoxicated would have done.

This is because offences involving negligence are based on the principle that individuals have a duty of care towards others who are in proximity to them, and this duty is unaltered by intoxication.

If a person is intoxicated and the intoxication is not self-induced, their conduct will be assessed based on what a reasonable person who was intoxicated to the same extent would have done (section 43AT).

Defences and intoxication

If an accused person is relying on a defence and any part of the defence is based on actual knowledge or belief, their self-induced intoxication can be taken into account in assessing whether that belief or knowledge existed. For example, an accused person’s self-induced intoxication can be taken into account in determining whether conduct was accidental. Intoxication may also be considered when determining whether an honest and reasonable mistake of fact was made.

However, where an accused person relies on a defence that involves reasonable belief, this must be assessed by the standard of a reasonable person who is not intoxicated. For example, where a person commits an assault and relies on self-defence, their conduct will be assessed based on what a reasonable person would have done in the circumstances as the accused perceived them.

In this situation, though the circumstances were perceived by an intoxicated person, the accused’s response will be assessed against what a reasonable sober person would have done. For the defence of self-defence to succeed, the accused’s response must have been proportionate to the threat they believed they were facing.

Review of laws surrounding intoxication

In 2013, the NT Law Reform Committee tabled a report on the laws on self-induced intoxication. The report noted that there is a wide range of public opinions as to the extent to which intoxication ought to be taken into account when assessing an accused’s intent.

It noted the diametrically opposed views that on the one hand, an offender’s intoxication is an aggravating feature, rather than an excuse, and on the other hand, that a person can become so intoxicated as to lose the ability to form an intention and therefore cannot be held criminally liable.

The report concluded that there is a clear need to hold members of the public responsible for criminal acts committed when they have allowed themselves to become intoxicated by drugs or alcohol and that the NT ought to continue to amend its Criminal Code Act to bring it into line with the Model Criminal Code.

Conclusion

While intoxication does not amount to a criminal defence in the NT, it does affect how an accused person’s conduct is evaluated in some cases. This approach to intoxication is consistent with the approach taken in other Australian jurisdictions and reflects the widespread belief that a person should not be excused from criminal responsibility because they made a choice to become intoxicated.

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