Intoxication and Diminished Responsibility

436. The Impact of Alcohol on Aboriginal Communities. The problems many Aboriginal communities experience with alcohol have been documented in some detail.[106] Aboriginal communities are still seeking ways of dealing with alcohol and alcohol-related problems. These do not, for the most part, involve the use of traditional sanctions or dispute resolving mechanisms,[107] but rather co-operation with outside authorities (eg licencing courts or commissions, police) to reduce or contain alcohol abuse.[108] Longer term solutions are likely to be found only through various forms of support for Aboriginal groups in developing methods of prevention and treatment,[109] although even this has been doubted.[110] One thing, however is clear. Despite recent moves in this direction, the more stringent application of legal penal ties for drunkenness is practically certain to be ineffective, resulting only in more and longer terms of imprisonment for offenders whose real problems remain unaddressed. This point was powerfully made by Justice Muirhead in R v Douglas Wheeler Jabanunga:

The courts cannot effect a cure or diminution of the incidence of alcohol induced violence. but the situation cries out for community concern, intelligently planned programs and action rather than words. All the courts can do in the meantime is to punish those who kill or injure, but the deterrent value of what we do is, I am afraid, precisely nil.[111]

437. Alcohol and Aboriginal Customary Laws. Alcohol is an introduced problem which causes great disruption in Aboriginal communities. There are few, if any, traditional restraints on alcohol abuse. Drinking alcohol is an activity which individuals or groups choose to engage in and which is largely considered to be their own business. Individuals and collectivities (such as Councils) have limited jurisdiction over the actions and disputes of others.[112] Aborigines do not regard alcohol as justifying or totally excusing otherwise wrongful acts, although it can be an explanatory or mitigating factor (as well as, in some cases, a catalyst for offences). Breaches of customary laws may be caused by alcohol:

It is admitted also by many drinkers that alcohol makes one lax in matters of traditional law. On numerous occasions I have heard drunken persons use the names of the recently dead. This causes consternation among sober listeners. Sexual liaisons between forbidden partners are also mentioned as a distressing outcome of drinking. Probably the most serious misdemeanour of all, however, is the revelation of secret-sacred material to those who have no right of access to it.[113]

Such breaches are seriously regretted but they do not appear to lead to any change in drinking patterns.[114] And the existence of alcohol as a factor in an offence does not necessarily preclude or prevent some later response or retaliation, especially where the consequences of the offence (in terms of injury or death) are lasting or serious.[115]

438. Intoxication and Criminal Responsibility. Under the common law in Australia as laid down in O’Connor v R,[116] intoxication, whether or not voluntary or self-induced, is relevant to criminal responsibility in that it may help to show that the defendant acted involuntarily or lacked the necessary intent. Under the common law in England[117] and under the State Codes, on the other hand, intentional intoxication[118] is regarded as irrelevant to criminal responsibility in relation to ‘offences of basic intent’, although it is relevant (in the same way as at common law) to the existence of a ‘specific intent’ where this is a constituent of the offence.[119] An offence of ‘specific intent’ is one where ‘an intention to cause a specific result is an element of [the] offence’.[120] Although the distinction between the two remains obscure, it is settled that offences such as murder, theft and wounding with intent are crimes of specific intent, whilst manslaughter and assault are crimes of basic intent.[121] The status of rape is uncertain.[122] As was pointed out in para 437, under Aboriginal customary laws intoxication is not regarded as a complete justification or excuse, though it may be a mitigating factor. There seems to be no warrant in Aboriginal customary laws for preferring one version of the intoxication rule to the other, especially since in practice the difference between them is less than might appear. Both the Australian common law and the State Codes allow account to be taken of the beliefs and pressures which may underlie an offence triggered by alcohol, in sentencing and in determining the defendant’s state of mind in other respects. In the case of both the common law and the Codes, intoxication may be relevant in casting doubt upon the existence of a specific intent in murder cases, thus reducing the charge to manslaughter and attracting a sentencing discretion.[123] Accordingly, no special provision is justified in the context of this inquiry. However customary law elements in an offence committed while the defendant was intoxicated should still be able to be taken into account. Accordingly the legislation set out in Appendix 1 contains a provision which makes it clear that intoxication does not necessarily exclude the application of the other provisions for the recognition of Aboriginal customary laws in determining criminal liability.

439. Intoxication under the Northern Territory Code. As originally enacted the Criminal Code 1983 (NT) section — established a legal presumption (‘until the contrary is proved’) that, in any case where ‘intoxication may be regarded for the purposes of determining whether a person is guilty or not guilty of an offence’, the accused ‘foresaw the natural and probable consequence, of his conduct and intended them’.[124] The effect of section 7, it appears, would have been to place the burden of proof on an accused to prove that he did not foresee nor intend the natural consequences of his conduct while intoxicated. It would thus have greatly increased the likelihood of a murder conviction, irrespective of the accused’s actual state of mind.[125] Following representations from the Commonwealth,[126] section 7 was amended with retrospective effect. It now provides that:

(1) In all cases where intoxication may be regarded for the purposes of determining whether a person is guilty or not guilty of an offence —

(a) it shall be presumed that, until the contrary is proved, the intoxication was voluntary; and

(b) unless the intoxication was involuntary, it shall be presumed evidentially that the accused person foresaw the natural and probable consequences of his conduct.

The effect of the new section is unclear, and much will depend on how readily the evidentiary presumption in section 7(1)(b) is rebutted. Evidentiary presumptions in similar contexts appear to be readily rebuttable. Moreover the presumption now goes only to the question of foresight as distinct from intent. It may well be the case then that section 7(1)(b) will not vary in any significant way ‘the traditional onus of proof of intent in cases where an offender was intoxicated’.[127] However it is most undesirable that persons should be convicted of murder and be imprisoned for life in cases where there was no actual intention to kill or cause serious harm, and where no judicial consideration of questions of mitigation has been possible. If section 7(1)(b) were to be construed to produce this result, it would need to be further amended. The provision should be kept under review by the appropriate authorities.

440. Diminished Responsibility.[128] The defence of diminished responsibility may be made out if a defendant, charged with murder, is able to show that he was labouring under a mental disorder at the time the offence was committed, sufficient to reduce the gravity of the offence to manslaughter. The degree of mental disorder required is less than that required for insanity. The defence of diminished responsibility recognises that a defendant may have been labouring under a defect of mind which has partially reduced his responsibilities for his actions. Its legal effect is to reduce murder to manslaughter, thereby attracting a sentencing discretion in those jurisdictions where murder carries a mandatory life sentence.[129] In Australia the defence is a statutory one, available only in Queensland, New South Wales and the Northern Territory. For example, section 304A of the Queensland Code provides:

(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease of injury) as substantially to impair his capacity to understand what he is doing, or his capacity to control his actions, or his capacity to know that he ought not to do the act or make the omission, he is guilty of manslaughter only.[130]

The notion of ‘abnormality of mind’ is much broader than for insanity, and the defence is accordingly more flexible. In R v Byrne the Chief Justice Lord Parker described its English equivalent in the following terms:

‘Abnormality of mind’ … means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgment. The expression ‘mental responsibility for his acts’ points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.[131]

Adherence to Aboriginal customary laws is, of course, not an indication of ‘abnormality of mind’. However it has been argued that the tensions caused for indigenous peoples through cross-cultural conflict and related problems can lead to a ‘recognizable psychiatric disease[132] which would, if it resulted in homicidal acts, give rise to a defence of diminished responsibility.[133] In such cases diminished responsibility is a better and more flexible vehicle for assessing criminal responsibility than the old defence of insanity.[134]

[106]See eg M Brady & K Palmer, Alcohol in the Outback: Two Studies of Drinking North Australia Research Unit, Darwin, 1984; House of Representatives, Standing Committee on Aboriginal Affairs, Alcohol Problems of Aboriginals, AGPS, Canberra, 1977; Wilson (1981) 48-62; C Fua & L Lumsden, ‘Aboriginal Alcohol Abuse and Crime in Queensland’ in B Swanton (ed) Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra, 1984, 6; J McCorquodale, ‘Alcohol and Anomie: The Nature of Aboriginal Crime’, id, 17.

[107]See eg P Roe, D Grey, Transcript of Public Hearings, Broome (15 March 1981) 500-1, B Wooramurra, Transcript, Fitzroy Crossing (31 March 1981) 743; WH Edwards, Transcript, Adelaide (17 March 1981) 37; Stanley, Transcript, (29 April 1981) 2005-6.

[108]See eg EM Grubb, Transcript, Adelaide (17 March 1981) 8-11; NH Edwards, Transcript, Adelaide (17 March 1981) 37-8; F Warner, Transcript, Adelaide (17 March 1981) 74; R Reid, Transcript, Pt Augusta (18 March 1981) 145-6; R Norling, Transcript, Strelley (24 March 1981) 365-70.

[109]P Wilson, Black Death White Hands, George Allen & Unwin, Sydney, 1981, 63; Fua & Lumsden, 13-14.

[110]Brady & Palmer, 75-7 argue that Aboriginal groups are for various reasons reluctant or unable to take steps over alcohol abuse, and that most action taken in this area is based upon wishful thinking and false assumptions.

[111]Unreported, Northern Territory Supreme Court, 16 October 1980, transcript of proceedings, 27-8; ACL RP6A, 26-7.

[112]This is not to deny the possibility that customary laws and traditional dispute-resolving techniques may be modified or adapted to deal with alcohol. But at present, it seems that EP Millikin’s simple assertion, that ‘to the majority of individual Aborigines, what other Aborigines do in respect of drinking alcohol in their own business’ remains true: EP Millikin, ‘Social Structures and the Problems of Northern Territory Aborigines’, in RM Berndt (ed) A Question of Choice, UWA Press, Perth, 1974, 44, 51. He added that corrective action may be taken ‘not because a person has been drinking, but because he is creating a disturbance’: ibid. cf Brady and Palmer, 76: ‘Despite a public display of concern over the issue of drinking, evidenced by the Minutes of Council meetings, the members of the community subscribed to the view that drinking was a universal right’.

[113]R O’Connor, ‘Alcohol and Contingent Drunkenness in Central Australia’ (1984) 19 Aust J Soc Iss, 173, 174.

[114]id, 175.

[115]cf Brady & Palmer, 36: ‘To some extent … people … made allowances for what people did when drunk … on the other hand, a man who had served time in gaol for manslaughter and who persisted in committing violent assaults when he was drunk was known as a “murderer” of whom people were frightened. His behaviour … caused severe anxiety.’ See further id, 61. But for the notion of ‘diminished responsibility’ for drunkenness see id, 26-8, 70.

[116](1980) 29 ALR 449. See Howard, 323-7; PA Fairall, ‘Majewski Banished’ (1980) 4 Crim LJ 264; M Goode, ‘some Thoughts on the Present State of the “Defence” of Intoxication’ (1984) 8 Crim L J 104. For a US study see LC Sobell and MB Sobell, ‘Drunkenness, A “Special Circumstance” in Crimes of Violence: Sometimes’ (1975) 10 International Journal of the Addictions 869. For an application of the rule see Herbert, Sampson & Wurrawilya v R (1982) 42 ALR 631; retrial (1983) 23 NTR 22; further appeal (1984) 53 ALR 542.

[117]DPP v Majewski [1977] AC 442. For criticism see eg Glanville Williams, 416-38; ACE Lynch, ‘The Scope of Intoxication’ [1982] Crim L Rev 139.

[118]This does not refer to one who intends to get drunk, merely to one who intends to drink and in fact gets drunk, ie to voluntary drunkenness: R v Kusu [1981] Qd R 136, 141 (WB Campbell J).

[119]Qld, s 28; WA, s 28; cf Tas, s 17. See R v Kusu [1981] Qld R 136; R v Martin (1979) 1 A Crim R 85; RS O’Regan, ‘Intoxication and Criminal Responsibility under the Queensland Code’ (1977) 10 U Queens L J 70-82. For the Northern Territory position see para 439.

[120]cf Qld, s 28(3).

[121]Glanville Williams, 428. Why murder is a crime of specific intent is not clear, but it is clear that it is: cf R v O’Connor (1980) 29 ALR 449, 465 (Barwick CJ).

[122]CR Williams, Brett and Waller’s Criminal Law, Butterworths, Sydney, 1983, 657.

[123]Intoxication was regarded as reducing murder to manslaughter in 11 of the 24 cases of manslaughter in ACL RP6A, 64. Alcohol was involved in 30 of the 47 cases there: id, 65.

[124]The presumption did not apply if intoxication was involuntary, but it was similarly presumed to be voluntary: s 7(a).

[125]The Code also abolished the existing sentencing discretion for Aborigines in murder cases: see para 519-20. The effect of s 7 would thus have been substantially to increase the number of life sentences imposed on Aborigines by law. See ALRC DP 20 (1984) para 29.

[126]Action under the Northern Territory (Self-Government) Act 1978 (Cth) s 9 was proposed. See (1984) 9 Commonwealth Record 472, recording the agreement between the Commonwealth and Northern Territory Attorneys-General for amendments to the Code.

[127]ibid (Senator Evans). Other provisions of the Code specifically penalising intoxicated offenders were also amended, especially s 383. But cf s 154(4) (which however preserves the judicial sentencing discretion).

[128]See Howard 94-8; Glanville Williams 622-30; S Dell, ‘Diminished Responsibility Reconsidered’ [1982] Crim L Rev 809; M Gannage, ‘The Defence of Diminished Responsibility in Canadian Criminal Law’ (1981) 19 Osgoode Hall LJ 301. The Victorian Law Reform Commissioner has recommended the introduction of the defence: Report No 12, Provocation and Diminished Responsibility as Defences to Murder, Melbourne, 1982, 1-46.

[129]See para 518-21 for the present position with sentencing discretions in murder cases.

[130]cf Crimes Act 1900 (NSW) s 23A (inserted 1974); Criminal Code (NT) s 37.

[131][1960] 2 QB 396, 403.

[132]CP Hellon, ‘Legal and Psychiatric Implications of Erosion of Canadian Aboriginal Culture’ (1969) 19 U Toronto LJ 76.

[133]Diminished responsibility would certainly have been available in one case in ACL RP6A (Case No 1) and possibly in others. In R v Alwyn Peter, diminished responsibility was relied on to reduce the offence to manslaughter, although in the event the Crown accepted a plea of guilty to manslaughter on the ground of intoxication. Accordingly Dunn J expressed no opinion on the diminished responsibility plea, except to describe the evidence as ‘indeed thought provoking’: R v Alwyn Peter, unreported, Queensland Supreme Court, 18 Sept 1981, reasons for sentence, 2. See further Wilson (1982).

[134]On insanity (which raises no specific issues for present purposes) see Howard, 327-43; Glanville Williams, 589-617.