Banishing evidence of intoxication in determining whether a defendant acted voluntarily and intentionally

Abstract

As the title suggests, this paper argues that evidence of intoxication should be inadmissible for all offences, including murder. Such an argument is justified on public policy grounds, and by the proposition that principles of criminal law relating to voluntariness and intention should be secondary to the morally correct position that a person who is voluntarily intoxicated is criminally responsible for any conduct he nor she causes whilst in such a condition. As an alternative to such an 'absolutist' position, this paper contends that it is appropriate to place a legal burden on the defence where intoxication is raised to rebut the presumption that the intoxicated person foresaw or intended the natural and probable consequences of his or her conduct. The analysis is conducted through the relevant intoxication provisions in the Criminal Code 1995 (Cth) and the Criminal Code 1983 (NT). The argument is made that these two Codes have the weakest and least effective version of the Majewski principle of all Australian jurisdictions such that the relevant basic intent provisions make the prohibition virtually meaningless. Revised provisions dealing with intoxication have been proposed for s 43AS Criminal Code 1983 (NT). The overriding objective of these redrafted provisions is to strengthen the reach of s 43AS, and to make these provisions the strongest and most effective version of the Majewski principle in Australia.