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

Hemming, Andrew (2010) Banishing evidence of intoxication in determining whether a defendant acted voluntarily and intentionally. University of Tasmania Law Review, 29 (1). pp. 1-30. ISSN 0082-2108

[img]
Preview
PDF (Published Version)
Hemming_UTLR_v29n1_PV.pdf

Download (340Kb)

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.


Statistics for USQ ePrint 18802
Statistics for this ePrint Item
Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Authors retain copyright.
Depositing User: Mr Andrew Hemming
Faculty / Department / School: Historic - Faculty of Business - School of Law
Date Deposited: 01 Apr 2011 06:15
Last Modified: 19 Aug 2014 05:18
Uncontrolled Keywords: intoxication; voluntary; intentional; onus of proof
Fields of Research (FOR2008): 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
16 Studies in Human Society > 1602 Criminology > 160204 Criminological Theories
Socio-Economic Objective (SEO2008): E Expanding Knowledge > 97 Expanding Knowledge > 970118 Expanding Knowledge in Law and Legal Studies
URI: http://eprints.usq.edu.au/id/eprint/18802

Actions (login required)

View Item Archive Repository Staff Only