Bills Digest No. 132   1997-98 Criminal Code Amendment Bill 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History Purpose Background Main Provisions Endnotes Contact Officer and Copyright Details

Passage History

Passage History Purpose Background Main Provisions Endnotes Contact Officer and Copyright Details

Passage History

Criminal Code Amendment Bill 1997

Date Introduced: 3 December 1997

House: Senate

Portfolio: Justice

Commencement: On Royal Assent

Purpose

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.

Background

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.

Main Provisions

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'.

Endnotes

  1. 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.

  2. McDonald, G 'Towards a national criminal law. An overview of the model criminal code project,' Reform, Summer 1995/96, Issue 68, 16.

  3. 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.

  4. Brown, D et al Criminal Laws, 2nd ed, vol.1, Federation Press, Sydney, 1996, 24.

  5. 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.

  6. 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.

  7. 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'.

  8. (1980) 146 CLR 64.

  9. Law Reform Commission of Victoria, Criminal Responsibility: Intention and Gross Intoxication, Report No. 6, November 1986.

  10. 'Lawyers defend "drunk defence"', The Age, 25 October 1997.

  11. Williams, D 'States urged to drop drunk's defence.' Press Release (Attorney-General), 353, 29 October 1997.

  12. Ibid.

 

Contact Officer and Copyright Details

Jennifer Norberry
24 February 1998
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1997

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.



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