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CONTENTS
Passage History Purpose Background
Main Provisions Endnotes Contact Officer and
Copyright Details
Passage History Purpose Background
Main Provisions Endnotes Contact Officer and
Copyright Details
Criminal Code Amendment Bill 1997
Date Introduced: 3
December 1997
House: Senate
Portfolio: Justice
Commencement: On Royal Assent
To bring forward
the commencement date of certain provisions in the Criminal
Code Act 1995 (Cwlth) which relate to self-induced
intoxication. Currently, these provisions are due to commence in
the year 2000.
The Model
Criminal Code Project
The Criminal Code Act 1995 deals with
principles of criminal responsibility. It originated in the Model
Criminal Code Project which:
... had its genesis in the 1990
recommendations of the Review of Commonwealth Criminal Law headed
by Sir Harry Gibbs. The recommendation was that there be uniform
principles of criminal responsibility throughout Australia.
In 1990, the Standing Committee of
Attorneys-General (SCAG) placed the question of the development of
a national Model Criminal Code for Australia on its agenda. SCAG
then established a Committee (now called the Model Criminal Code
Officers Committee) to develop the model code. In 1992 the
Committee produced a final report on General Principles of
Criminal Responsibility. With the exception of the general
principles relating to intoxicated defendants, the recommendations
in this report were accepted by the SCAG. The report on criminal
responsibility then formed the basis of the Criminal Code Act
1995 together with provisions replacing the O'Connor
defence (see below) in relation to intoxication which had been
rejected by SCAG with provisions based on the position in what are
called the code jurisdictions of Australia (see below). The Model
Criminal Code Officers Committee has continued to produce
discussion papers and reports which are intended to form the basis
of other chapters of the Model Criminal Code. Matters so far
addressed by the Committee include fraud, theft and related
offences; offences against the person and drug offences.
The Model Criminal Code Project has a number of
purposes. One is to codify the principles of criminal
responsibility which apply to Commonwealth offences. The
Criminal Code Act 1995 sets out principles of criminal
responsibility that apply to these offences. These principles of
criminal responsibility include matters such as fault, burdens of
proof and absolute and strict liability. Pending the commencement
of the Criminal Code Act 1995 in its entirety, the
Crimes Amendment Act 1995 (Cwlth) applies common law
principles of criminal liability to all Commonwealth
offences.(1)
The Criminal Code Act 1995 and other
chapters of the Model Criminal Code are also intended as a model
for adoption by all States and Territories. A model code does not
mean that identical legislation will be adopted in all States and
Territories. Variations may occur between jurisdictions but it is
hoped that there will be a central core which is implemented across
the nation. One writer has expressed the need for a model code in
this way:
Australia is a country with a
relatively small population of 18 million spread over a land mass
the size of the continental USA. Despite this, we maintain nine
different systems of criminal law. These different laws lead to
inequalities, complications and unnecessary duplication of time,
people, money and other resources.(2)
Intoxication
Most criminal offences require proof that the
accused person acted voluntarily (consciously). Further, most
criminal offences require proof of an additional mental element
(intention). In this regard there are differences between what are
called 'basic intent' offences and what are called 'specific
intent' offences. A 'basic intent' offence is one where the only
intention required is the intention to carry out the proscribed
conduct eg an intention to strike a person. Assault is a 'basic
intent' offence. In the case of a 'specific intent' offence, a
further intention is required-this is an intention to achieve a
particular purpose or result. Murder is an offence of specific
intent. It requires proof that the accused person acted with an
intention to kill or commit grievous bodily harm.
One of the matters dealt with in the
Criminal Code Act 1995 is self-induced intoxication. The
Act adopts the approach taken in the code jurisdictions(3) of
Australia. In these jurisdictions-Queensland, Western Australia,
Tasmania and the Northern Territory-evidence of intoxication can be
used to deny intention or recklessness in offences of 'specific
intent' (such as murder) but cannot be used as an excuse in 'basic
intent' offences (such as assault).
This situation can be contrasted with the
position taken in the so-called common law jurisdictions. In these
jurisdictions, criminal laws are based on decisions made by
judges-although there is also a growing number of statutes in these
jurisdictions which have 'supplemented, modified or replaced
particular parts of the common law.'(4) In common law jurisdictions
like Victoria, South Australia,(5) the Australian Capital Territory
(8) and, until recently in New South Wales,(9) gross intoxication
can be taken into account in relation to all offences. This follows
the High Court's decision in O'Connor(10) in which a
majority of judges held that evidence of gross self-induced
intoxication whether caused by alcohol, other drugs or both could
be considered by a jury deciding whether an accused person had
acted voluntarily and intentionally. As a result of the enactment
of the Crimes Amendment Act 1995, this is also the
position in relation to Commonwealth offences.
The O'Connor defence relates to gross
intoxication. Research conducted by the Victorian Law Reform
Commission in the 1980s indicated that the vast majority of
offenders who consume alcohol or other drugs before committing an
offence are convicted despite their intoxication. It appears there
have been few acquittals in Australia because of lack of
voluntariness or intent due to intoxication.(6) However, such a
case did occur during 1997 in the ACT. Noa Nadruku, a well-known
footballer, was charged with assault. Mr Nadruku reportedly told
the ACT Magistrates Court that he had blacked-out after drinking up
to 40 schooners of beer, a six-pack of stubbies and half a bottle
of wine and could not remember the assaults.(11) Magistrate Shane
Madden concluded that Mr Nadruku was too drunk to form an intention
to commit the assaults.
This case attracted considerable media
attention. In October 1997, the Commonwealth Attorney-General,
Daryl Williams, said he would urge the Victorian, South Australian
and ACT Attorneys-General to adopt the Model Criminal Code approach
to evidence of self-induced intoxication.(12) He said:
Women in particular have expressed
concern at the use of this defence and I share that concern. Nobody
should be subject to violence and it must be especially
disconcerting to women, as the most frequent victims of domestic
violence, to have any such trauma exacerbated by outmoded legal
considerations.
The use of this defence has sent
disturbing messages to those who get intoxicated and engage in
violent behaviour. It has given them a supposed excuse for their
behaviour when there is no excuse.(7)
In her Second Reading Speech for the Criminal
Code Amendment Bill 1997, Senator Amanda Vanstone said:
Currently, the common law applies in
relation to Commonwealth offences and the accused can raise the
argument that he or she was so grossly intoxicated that the
offending conduct was not voluntary or intended.
While the common law is rarely used,
and then usually in relation to the State offence of assault, the
Government wishes to provide a lead to those States who have not
enacted the Model Criminal Code provisions on this topic.
The effect of Items 1 and
2 of the Schedule is that, from
the date of commencement of the Criminal Code Amendment Bill 1997,
self-induced intoxication will not be able to be considered in
determining whether conduct is voluntary or intentional in relation
to Commonwealth offences of 'basic intent'.
-
- Prior to the commencement of the Crimes Amendment Act
1995, common law principles of criminal responsibility applied
in the case of Commonwealth Crimes Act offences. In the case of
Commonwealth offences found in statutes other than the Crimes Act,
the principles of criminal responsibility which applied were those
of the State or Territory in which the case was heard. These
principles varied considerably depending on whether the
jurisdiction was a common law or code jurisdiction.
- McDonald, G 'Towards a national criminal law. An overview of
the model criminal code project,' Reform, Summer 1995/96,
Issue 68, 16.
- In these jurisdictions, the common law has been replaced by
statute-a criminal code-that encapsulates general principles of
criminal responsibility as well as detailing the more serious
criminal offences and their penalties.
- Brown, D et al Criminal Laws, 2nd ed,
vol.1, Federation Press, Sydney, 1996, 24.
- On 19 February 1998, it was reported that the South Australian
Government had decided to introduce legislation into Parliament to
abolish the 'drunk's defence.' AAP Wire Service, Australian News,
19 February 1998.
- In November 1997, the Crimes (Amendment) Bill (No.6) 1997 was
introduced into the ACT Legislative Assembly. The Bill was not
passed before the Assembly expired prior to elections scheduled for
21 February 1998. This Bill was designed to prevent evidence of
self-induced intoxication from being considered in determining
whether a defendant voluntarily or intentionally committed a 'basic
intent' offence.
- The NSW Parliament has passed the Criminal Legislation
Amendment Act 1996 reflecting the approach taken in the
Commonwealth Criminal Code Act 1995 to provide that
self-induced intoxication cannot be used to escape criminal
liability in relation to offences of 'basic intent'.
- (1980) 146 CLR 64.
- Law Reform Commission of Victoria, Criminal Responsibility:
Intention and Gross Intoxication, Report No. 6, November 1986.
- 'Lawyers defend "drunk defence"', The Age, 25 October
1997.
- Williams, D 'States urged to drop drunk's defence.' Press
Release (Attorney-General), 353, 29 October 1997.
- Ibid.
Jennifer Norberry
24 February 1998
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1997
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