Sunday, March 18, 2012



This section will examine the basic elements of mens rea, that is the mental ingredient of criminal offences. It examines the law's preference for subjective rather than objective standards, and the effect of mistake and intoxication on mens rea.

Mens rea

Mens rea in Latin means guilty mind. It is used in the criminal law as a shorthand term to describe the various subjective mental states which accompany the actus reus. There is a clear preference in the criminal law for subjective fault elements. For both common law offences and statutory offences there is a presumption of mens rea. Refer to He Kaw Teh at BFW 352. There is a quote from the 19th century decision Tolson (1889) which is regarded as establishing the preference for subjective mental states. Professor Glanville Williams in his text book describes mens rea as the mark of advancing civilisation.
The subjective mental states are intention, knowledge and recklessness. Other words have been used to connote mens rea, such as "maliciously", s 5 Crimes Act 1900 (NSW) see BFW 347.. This preference for subjectivity is related to the liberal philosophical justification for criminal punishment. Legal philosopher HLA Hart said that the principle of criminal punishment should be restricted to those who have voluntarily broken the law. This means that the decision to break the law was the outcome of a free choice. This principle suggests that a person should be punished only when he or she has recognised the harmful aspect of their conduct or consequences. In other words the defendant must intend, know or was at least be aware of the risk (that is be reckless) as to the particular harm occurring. The principle that a person should not be punished without proof of fault is at the heart of the criminal law. The influence of liberal theory on the criminal law explains the modern judicial preference for subjective mental states.

The Meaning of Intention: Illusive or Illusory

Intention is the most stringent of the subjective mental states. At the outset I should warn you that intention, a word used daily in legal practice, has evaded precise legal definition. The high point of the controversy over intention occurred in England in 1961 with the House of Lords decision DPP v Smith (1961), BFW 399, BWW 176. Prior to that decision, the trend in the cases in the 20th century had been to restrict the scope of objective forms of criminal liability. The preference for subjective mental states means that criminal liability must be determined by reference to the actual state of mind of the defendant, rather than by reference to what the ordinary person (formerly the reasonable man) ought to have known. The English court flirted briefly with an objective meaning for intention in DPP v Smith. The case concerned the meaning of intent for murder at common law. However, the defendant was driving a car containing stolen property. A police officer directed him to pull over. The defendant accelerated and the police officer clung on to the side of the car. The police officer fell off and was killed. The trial judge directed the jury using an objective test for intention. The House of Lords endorsed the objective test, and held that a person is guilty of murder where an ordinary man would have foreseen that the defendant's action would result in death or grievous bodily harm. The effect of this decision in the UK was repealed by section 8 of the Criminal Justice Act 1967 and the mens rea for murder is now subjective.
The Australian courts were strongly opposed to the objective formulation of mens rea used in DPP v Smith, and the High Court in Parker (1963) criticised the House of Lords decision, BFW 399-400. The High Court ruled that the decision did not form part of the common law for Australia. The High Court's decision in Parker enables us to state confidently what the test of intention is not - intention is not determined by an objective test. Rather the test of intention is subjective.
Intention is not the same thing as motive. It is important to appreciate the distinction which the criminal law draws between intention and motive. Motive, the reason for desiring or wishing a certain result, is traditionally said to be irrelevant to the criminal law, though it is relevant to sentencing. As you shall see in some of the cases below, because of the irrelevance of motive, the courts are often forced to distort and restrict the meaning of intention to avoid a conviction where the defendant has acted for a good motive and ought not to be punished.

Intention: Multiple Meanings

Brennan J reviewed the "general principles" governing mens rea in He Kaw Teh, BFW at 357. At the outset he recognises that the mens rea for each crime is distinctive and will vary from one crime to another. Brennan J then goes on to differentiate between voluntariness and intent. Be warned that Brennan J takes an unusual approach to voluntariness in his judgment, viewing voluntariness as aspect of mens rea. The more conventional view, and the view adopted by most commentators and judges, is that voluntariness is an aspect of the actus reus - the requirement that the defendant's conduct is voluntary. If the defendant commits a crime in a state of involuntariness, there has been no voluntary action which can be the basis of criminal liability.]
Brennan J draws a number of distinctions in the use of the term intention in criminal offences:
He describes what is sometimes referred to by commentators and judges as the basic intent: an intention to bring about a particular act specified by the offence, refer to BFN 360. Brennan J uses the example of A striking B. The basic intent is the defendant's intention to connect a fist with with B's face.
In the middle of passage Brennan J states "Intent, in another form, connotes knowledge": BFW 359. What does he mean by this? Intent and knowledge are separate and different states of mind. How can intent connote knowledge? Brennan J is making the point that the mental states of intent and knowledge are related and in many cases intent will be based on knowledge. In other words, intent presupposes knowledge. He uses the example of A striking B. So A's intentional striking of B requires A to have knowledge of B's presence.
Brennan J refers to another type of intent, specific intent. This is where the crime prescribes a further result and the intent must extend to this consequence. An example is an offence which requires the prohibited conduct to cause bodily harm, for example assault occasioning actual bodily harm. Such an offence requires the defendant to possess a basic intent; that the defendant intends to commit an assault. It also requires the defendant to possess a specific intent; that the defendant by the assault intends to cause actual bodily harm on the victim.
At the outset I should point out that there has been no High Court decision directly dealing with the meaning of intention in murder or any other offence. The law accordingly is in a state of uncertainty. The uncertainty stems from the judicial development of a narrow and extended definition of intention.
Brennan J defines intention as follows: "a decision to bring about a situation so far as it is possible to do so". He goes on to say that such a decision implies a desire or wish to do such an act or bring about a particular result. This is the narrow form of intention, sometimes described as direct intention. This is where the defendant aims to bring about the particular result. The Model Criminal Code defines intention as the meaning to engage in that conduct or meaning to bring about that consequence: see BFW 375. The most popular lawyers synonym for this form of intention is "purpose".
However the court have developed a broader form of intention, which is commonly referred to as oblique intention: BFW 375. This is term is applied where the outcome of the defendant's conduct was not directly linked to his intention, but emerges obliquely as the consequence of that conduct. The following hypothetical is often used to illustrate the point. The person who intends to collect the insurance on a plane by placing a bomb on the plane timed to exploded in mid air. That person does not have the direct intention to cause the death of the crew, but is aware that it is virtually certain to follow from his or her action. Can it be argued that the person lacked the intention to kill the crew? Should that person's foresight or belief that the particular result is virtually certain or probable to occur be regarded as intention for the purposes of the criminal law?

Oblique Intention in the English Courts

The English courts have grappled with this issue for more than twenty years in the context of murder. For an excellent review of this legal development of oblique intention, see N Lacey, "A Clear Concept of Intention: Ellusive or Illusory?" (1993) 56(5) Modern Law Review 621.
Hyam [1975] AC 55 is a good example of the some of the problems with employing this extended definition of intention. The defendant poured petrol through a letter box and lit it in order, she claimed, to frighten the woman in the house. In the ensuing fire, two of the woman's daughters died. Hyam claimed that she had not intend to kill them. The House of Lords defined intention in a broad way to include not only direct intention but also foresight of a probable consequence. Lord Halisham took the view that intention does include foresight of a moral certainty. So if the defendant foresees that death is a probable consequence of her actions, then the defendant has the relevant intent to kill.
But the effect of Hyam was to introduce into the criminal law a broad definition of intention which overlaps with recklessness. Recklessness in Australia for murder as foresight of a probable consequence, and for other offences is defined as foresight of a possible consequence. Subsequent decisions have attempted to tighten up the level of foresight required for oblique intent. In 1985 the House of Lords reconsidered the Hyam decision in Moloney [1985] AC 905. The defendant shot his step father with a shot gun at close range, but claimed that he had not had any intention to kill or hurt his victim. There was alcohol involved but this was not raised as a defence. There was also evidence that his step father had challenged him to pull the trigger "You havent got the guts to pull the trigger". His state of mind is summed up at bottom of BWW at p. 165.
The House of Lords in Moloney, without expressly departing from Hyam, held that the degree of foresight has to be "little short of overwhelming before it will suffice to establish the necessary intent": BWW at 171, per Lord Bridge. In his view the "golden rule" is that judges should avoid unnecessary definitions or explanation of intention, leaving the meaning of intention to the good sense of the jury. However, Lord Bridge pointed out that the judge can still direct the jury as to what intention is not, ie that it is "something quite distinct from motive or desire" : BFW 171.

Intention, Knowledge and the Role of Wilful Blindness?

The law has developed several techniques for inferring mens rea - wilful blindness is one such technique. The term describes the state of mind of a person who suspecting the truth deliberately shuts his or her eyes to a particular fact: see BFW 349. With the emphasis placed on mens rea, and the need to prove actual knowledge or intention for serious crimes, this person presents a problem. The early approach of the common law was to treat wilful blindness as equivalent to actual knowledge. However, in recent cases the High Court has been reluctant to equate wilful blindness with knowledge.
In Kural (1987) BFW 350, the High Court had to determine the meaning of "intention to import a prohibited import" in s. 233B(1)(b) of the Customs Act 1901 (Cth). The majority held that this intention did not require actual knowledge of what was being imported. Belief, falling short of actual knowledge, could sustain an inference of intention. However, the majority pointed out that wilful blindness was not an alternative mental state for this offence, it was simply evidence which a jury could use to infer intention.
In the next case, Pereira (1989) BFW 350, the High Court considered the cognate offence to importation under the Customs Act 1901 (Cth) - the offence of possession of a prohibited import . The defendant was delivered a package containing cricket balls containing a quantity of cannabis resin. The parcel had been posted in Bombay. The defendant took delivery of the package, but had not opened it when the police raided her premises an hour later. The trial judge directed the jury as to the importance of proving knowledge and that wilful blindness is the equivalent of knowledge. The jury was directed the defendant would be wilfully blind if her suspicions about receiving a parcel from overseas were aroused and she refrained from making any enquiries for fear that she would learn the truth.
The majority made some observations about the role of and knowledge and wilful blindness, at BFW 350. The majority referred to the earlier decision Kural, where the High Court ruled that the offence of importing a prohibited import did not require actual knowledge. In Pereira, by contrast, the High Court held that the offence of possession of a prohibited import did require actual knowledge. The majority made three points. So knowledge is actual knowledge not imputed knowledge. It is never the case that a state of mind less than actual knowledge will suffice. But the defendant's suspicion coupled with a failure to inquire, may be evidence which a jury can infer knowledge.
Kural and Pereira have both relegated wilful blindness to an evidential role. A similar development occurred for oblique intention. For both intention and knowledge there appears to be a tension between the technical rules governing the meaning of intention and knowledge, and the broad practical application of those rules by the jury. Wilful blindness and oblique intention should be viewed essentially evidential concepts. Indeed as the High Court hinted using terms like wilful blindness are liable to create confusion in the minds of the jury: cf McConnell (1993) 69 A Crim R 39 NSW CCA.


Recklessness is the third category of mens rea. The term recklessness describes the state of mind of the person who, doing an act, is aware of a risk that a particular consequence is likely to result. Awareness of a risk is the essence of recklessness. However, the state of mind is also formulated as one of knowledge, foresight or realisation that a consequence is likely to result. The preferred shorthand for recklessness is foresight: the defendant must foresee that a particular consequence is likely to result. See BFW 375.
There is clearly a similarity or overlap between recklessness and oblique intention. Oblique intention is foresight of a particular consequence as a moral or virtual certainty. In other words, the person foresees that the particular consequence is very likely to occur. Wilful blindness also overlaps with recklessness. Professor Glanville Williams has argued that wilful blindness is really a type of recklessness. He argued that a person can only be wilfully blind to the existence of a fact, if he or she is first aware of its likely existence. Individuals can only close their eyes to a fact, if they are aware of the risk of that fact existing.

Multiple Meanings of Recklessness

The meaning of recklessness was considered by the High Court in Crabbe (1985) 156 CLR 464, BFW 492, BWW 159. The High Court considered the meaning of recklessness in the context of murder at common law. Murder in the Northern Territory was governed at this time by the common law - the Northern Territory Criminal Code had not yet been enacted. The defendant was a road train driver. The defendant was thrown out of a motel bar for drunken behaviour. He returned in the early hours of the morning with his prime mover and drove it through the motel bar wall, killing 5 people. The defendant was charged with murder and convicted. The appeal raised the correctness of the trial judge's direction on the meaning of recklessness, in particular the precise level of foresight required for murder. The trial judge had directed the jury that the defendant would be reckless if he foresees the possibility that his conduct may cause death or serious injury. Under this direction, recklessness involves a low level of foresight.
The High Court was unanimous in its judgment. It is extremely rare for the Court to deliver a single judgment. The Court rejected the view which had been expressed in earlier cases that recklessness for murder only required defendants to foresee death or serious injury was a possible result of their actions. This broader definition of recklessness had been adopted by Stephen J in La Fontaine (1976), BFW 495, BWW 160. Where there are no statutory provisions effecting the position, the High Court concluded that murder requires the defendant to know that death or grievous bodily harm is a probable consequence. So a person who foresee death or serious injury as a probable consequence is as morally blameworthy as someone who intended to kill. And on one view, may be regarded as having intended those consequence - a reference to oblique intention. But the High Court, demonstrating better sense than the House of Lords, refused to be drawn into the oblique intention debate. The High Court in Royall (1991), refer to Course Outline, has held that this definition of recklessness should be applied for murder under statute, in that case murder under s. 18, Crimes Act 1900 (NSW). So recklessness for murder, whether common law or statutory, is foresight of probability, not possibility.
In Crabbe, the High Court also considered the role of indifference in recklessness. In some statutes, recklessness is formulated as "Reckless indifference". Murder in the s 18 Crimes Act 1900 (NSW) is an example. The High Court in Crabbe stressed that under the common law definition of recklessness it was not necessary that the defendant's knowledge of the probable consequences of his actions be accompanied by indifference,
"It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.": BWW at 162
The High Court in Crabbe expressly stated that their statements only applied where no statute applied. Notwithstanding this limitation, the Federal Court has held that murder under s. 18 of the Crimes Act 1900 (ACT) should follow the common law position: Brown (1987) 78 ALR 368. The Federal Court held that although the section refers to "reckless indifference to human life", it is immaterial whether the defendant was indifferent to the risk. The sole question is whether the defendant at the relevant time foresees the probability of causing death.
This approach to indifference in recklessness reflects the criminal law's stance on the irrelevance of motive. Requiring indifference on the part of the defendant would be tantamount to regarding motive as relevant to liability. If indifference is not required, as the High Court suggests, then how do we protect conduct which involves the high risk of harm to others, but is done for a legitimate reason. In Crabbe, the High Court gives the example of the doctor who performs a surgical operation which involves the high risk of death to the patient. Every day doctors are aware that death or serious injury is a likely consequence of medical procedures. How does the law protect doctors from liability under the criminal law when their procedures fail. There are two ways to protect individuals who take risks for legitimate reasons. The first way is to allow them to raise the defence of necessity. Necessity or justification is a complete defence and would render the doctor's conduct lawful. But the onus is on the defendant to raise some evidence that the conduct was justified. This is hinted to by the High Court in Crabbe:
"Academic writers have pointed out that in deciding whether an act is justifiable its social purpose or social utility is important: see, for example, Howard's Criminal Law (4th ed, 1982), pp 54-5 and 359-9. That question need not be discussed in the present case where there was no possible justification or excuse for the actions of the applicant. It should, however, be made clear that lack of social purpose is not an element of the mental state with which we are here concenred, though it may bear on the question whether the act is justifiable". BFW 162.
The second way is to adopt a narrower definition of reckless by requiring the defendant's risk-taking to be unjustifiable. In the present edition of Howards Criminal Law, Professor Fisse proposes that recklessness should be defined as substantial and unjustifiable risk-taking. Doctors regularly foresee the risk of harm occurring, but as the risk is one which is socially justifiable, the doctors are not reckless. Professor Fisse borrowed this definition of recklessness from the American Law Institute Model Penal Code. See his discussion of this definition of recklessness in Howards Criminal Law pp. 62-63 and pp. 486-493. This proposal has been very influential, though the High Court in Crabbe did not go so far as to endorse it: see above. However, the Model Criminal Code for Australia has however incorporated Fisse's formulation of recklessness into the general principles section of the Code, defining recklessness as substantial and unjustifiable risk-taking: discussed in BFW 375.
In Crabbe, the High Court also considered the role of wilful blindness (see above). Crabbe was decided before Kural and Pereira, op cit, and is the first High Court case critical of the role of wilful blindness in the criminal law. The High Court was critical of the direction used by the trial judge with regard to wilful blindness. The High Court agreed with the opinion of Professor Glanville Williams, see BWW 162. Since it is the defendant's knowledge that death or grievous bodily harm is the crucial element, the jury should not be confused by reference to wilful blindness.
There may be very good reasons why the level of foresight for murder is fixed at the level of probability, rather than possibility. The Australian court are concerned to ensure that the law of murder reflects distinctions in moral culpability. The High Court in Crabbe was concerned that punishing the defendant for murder when death or serious injury was foreseen as merely possible to occur would spread the scope of murder too far. However, this strict definition of recklessness does not apply for less serious offences. For offences other than murder, the courts have not applied the high level of foresight based on foresight of probable consequence. Coleman, BFW 347: see Assault and Sexual Assault. The case involved the NSW statutory offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse. The courts have long held that the term "maliciously" in the Crimes Act means intention or recklessness is required. The defendant appealed his conviction on the ground that the trial judge had misdirected the jury on recklessness by not applying the Crabbe formulation. The NSW Court of Criminal Appeal held that for all statutory offences other the murder, recklessness is defined as foresight of possibility not probability, refer to S at p. 61. So offences which are satisfied by recklessness, like malicious wounding and rape, only require foresight of possibility.
So it is most important that the trial judge must direct the jury as to the meaning of recklessness. Unlike intention, the courts have gone to some lengths to formulate a precise definition of recklessness, using formulations of foresight of proable or possible consequences.
For example, see the High Court in the earlier decision La Fontaine (1976), BWW 163. In La Fontaine the High Court made two suggestions regarding recklessness. First, that in murder trials the issue of recklessness should not be left to the jury unless it arises as a real possibility on the facts. Secondly, the High Court suggested that the term "reckless" should not be used in the trial judge's direction to the jury as it is liable to confuse. Rather, the jury should be directed that the defendant must foresee that death or serious injury is a probable consequence of his or her action. In BWW, the authors ask why should the judges avoid using the "r" word in front of juries. I would suggest there is a good reason for avoiding a direction to a jury using the terms "recklessness".
In Williams (1990) 50 A Crim R 213, New South Wales Court of Criminal Appeal the court adopted a similar approach to the meaning of recklessnes for the purpose of assault (see Assault):
"The word reckless is a word well-known in ordinary speech and a person is said to be reckless who acts without regard to the possible consequences of the act in question. In most contexts the law gives to the word the same meaning that it has in ordinary speech." Badgery-Parker J at 222
But the ordinary common-sense use of the term recklessness is much broader than its legal use. Consider the definition of recklessness found Macquaries dictionary: it defines reckless as "utterly careless of the consequences; without caution". Carelessness is an objective not a subjective standard. Without proper guidance on the meaning of recklessness a jury would be likely to depart from a subjective standard, and in its stead apply an objective standard of negligence.

Caldwell Recklessness Downunder

A word of caution about the meaning of recklessness under English law. In the early 80s the English courts also developed a dual meaning for recklessness. However, be warned, recklessness in England does not have the same dual meaning which is applied in Australia. The House of Lords in Caldwell [1982] AC 341 established a second objecgive standard for recklessness. This other meaning of recklessness is often described in shorthand as Caldwell recklessness. The case concerned the meaning of "recklessly" under the statutory offence of criminal damage. The House of Lords held that in interpreting the word recklessly, the courts must apply the ordinary meaning and usage of the word. The Lords held that recklessness has two meaning. It embraces subjective awareness of a risk: the person who is aware of a risk but ignores it. But it also embraces an objective aspect: the person who fails to appreciate the risk when the risk of its occurrence would obvious to the reasonable person. The Lords concluded that inadvertence to an obvious risk was as morally culpable as subjective risk-taking.
The decision caused uproar in the legal community. However, the Caldwell definition of recklessness still applies in England and has been extended to other statutory offences like rape and reckless driving. Professor JC Smith and other English academics were extremely critical of this departure from subjectivism in mens rea. Refer to BWW 121 for articles critical of the decision. As the authors of BWW point out the decision obviously blurs the distinction between recklessness and criminal negligence: "Such an extension renders the line between recklessness and negligence very fine indeed". Caldwell recklessness has not been applied in Australia, however there appears to be some movement toward a modified standard in the field of sexual offences: se R v Tolmie (1996) 37 NSWLR 660, per Kirby J.


The basic point to master is that mistake of fact and intoxication do not operate as defences per se. Where the crime is one of mens rea, mistake or intoxication may provide proof that the defendant lacked the necessary intent, knowledge or recklessness. It does not matter that the mistake or intoxication came about through the defendant's stupidity or carelessness: if the defendant lacks mens rea, he or she cannot be punished. This principle is most clearly articulate in Morgan, BFW 394, (see Sexual Offences), where Ld Hailsham held:
"it seems to follow as a matter of inexorable logic that there is no room either for a 'defence' of honest belief or mistake, or of a defence of honest and reasonable belief or mistake. Either the prosecution proves that the accused had the requisite intent, or it does not. In the former case it succeeds, and in the latter it fails. Since honest belief clearly negatives intent, the reasonableness or otherwise of that belief can only be evidence for or against the view that the belief and therefore the intent was actually held"
There is a danger that this approach to mens rea entrenches dangerous rape myths about female sexuality such as "No means Yes": see S Bronitt, "The Direction of Rape Law in Australia: Toward A Positive Consent Standard" (1994) 18 Criminal Law Journal, Sydney, LBC, 249-253; and generally S Bronitt, "Rape and Lack of Consent" (1992) 16 Criminal Law Journal, Sydney, LBC, 289-310.
Mistake, Strict Liability and Negligence
For crimes of strict liability (where mens rea is not an element), mistake may be raised as a defence provided that it is a reasonable: see He Kaw Teh (Mistake and Strict Liability). Also a where the crime is satisfied by proof of criminal negligence (Criminal Negligence), the defendant's mistaken belief may suffice for liability. In the Code States, rape is a crime of strict liability, and therefore the defendant must establish that the mistaken belief in consent is both honest and reasonable in the circumstances.


The first point to make is that in most cases intoxication, through either alcohol or drugs, is generally irrelevant to criminal liability. Intoxication is only relevant in the present law when it is so serious that it affects voluntariness or prevents the formation of a mental element. Intoxication must be very acute to affect the voluntariness of the defendant's action. In such cases the intoxication must induce a state of automatism. More commonly, intoxication can affect the defendant's capacity to form the relevant mens rea. It may prevent the defendant forming the relevant intention, knowledge or recklessness. Intoxication is not a defence per se. It is simply evidence which may a raise doubt in the jury's mind as to whether the defendant was acting voluntarily or with the relevant mens rea, BFW 405. Although it is misleading to speak of it as a defence, academics and judges persist to speak of the defence of intoxication: see for example, the title to Chapter 15 of BWW.
The attitude of the criminal law to intoxication is ambivalent. One view is that intoxication may preclude criminal culpability in certain cases. This view stems from the criminal law's emphasis on voluntariness and subjectivity. Intoxication may affect criminal culpability in two ways: first, it may affect the voluntariness of the defendant's actions, and secondly, it may affect the mental state of the defendant. The defendant should not be culpable where the harm arises out of involuntariness or where the harm is not intended or foreseen.
The opposing view is that intoxication should be irrelevant where defendant made a voluntary decision to get drunk or high on drugs. To allow self-induced intoxication to excuse the defendant overlooks the prior fault on the part of the defendant. There should be culpability in such cases because the defendant voluntarily made a choice to put himself or herself in a position of irresponsibility endangering the health and safety of others: see for eg, Mason J's dissent in O'Connor BFW 418.
The approach of the early common law in England was extremely unsympathetic to individuals who committed crimes whilst in a state of intoxication. Until the 19th century evidence of intoxication was totally disregarded. In the early 19th century the courts began to take a less harsh approach. Although generally inadmissible, evidence of drunkenness was admissible in exceptional cases, reducing murder to manslaughter. However, the general policy of the common law prevented the defendant relying on self-induced intoxication as a defence. The early law reflected the prior fault approach to intoxication.
The House of Lords affirmed this approach in DPP v Majewski [1977] AC 443. The facts of this decision are set out at BWW 805. The defendant was involved in a violent brawl in a pub, committing several assault. His defence was that because of the alcohol and drugs he had consumed, he did not intend to commit the assaults. The appeal raised the issue of self-induced intoxication,. The House of Lords reviewed the 19th century decisions, and drew a distinction between crimes of specific and general intent. In relation to crimes of specific intent, self-induced intoxication could be raised by the defendant. In relation to crimes of general or basic intent self-induced intoxication can never give rise to a defence. The House of Lords held that offences like assault and manslaughter were crimes of general intent. Later cases confirmed that murder, wounding, causing grievous bodily harm are crimes of specific intent.
Using the distinction between specific and general intention to determine the scope of intoxication is unprincipled and illogical. Smith and Hogan, the English textbook, conclude that "the distinction is based on no principle but on policy". It is simply a device to limit, in the context of some offences, the availability of intoxication. Lord Salmon admitted as much, see BWW 806. Prof Glanville Williams wrote of this law: "In allocating crimes to one category or the other, the courts adopt a Humpty Dumpty attitude" (ie "it means just what I choose it to mean - neither more nor less", from the exchange between Humpty and Alice in Through the Looking Glass)
The only convincing rationalisation of the distinction is based on the defendant's prior fault in consuming the alcohol or drugs. Crimes of specific intent require proof of intention in the narrow sense of purpose. Crimes of basic intent are satisfied by either intent or recklessness. For basic intent crimes, it then follows that the defendant's recklessness in consuming of the alcohol or the drugs is sufficient for culpability of the crime committed subsequently. So the defendant's recklessness at this earlier stage, prevents intoxication being raised as a defence. The problem with this rationalisation is that it poses difficulties for the requirement of concurrence of mens rea and actus reus. The mental state, and subsequent criminal conduct, do not occur together.
The Australian courts have avoided the problems of Majewski. The High Court has rejected the prior fault approach to self-induced intoxication in O'Connor (1979), BFW 405. The majority of the High Court held that Majewski is not good law in Australia. The defendant stole a map holder and a knife from a car owned by a police officer. A neighbour observed this, and alerted the police officer who gave chase to the defendant. During the officer's attempt to arrest the defendant, the defendant stabbed the officer with the knife. He was charged with two offences: stealing and wounding with intent to resist arrest. At trial, the defendant gave evidence that he had been taking a hallucinatory drug and alcohol. He had no recollection of the incidents. The trial judge directed the jury according to the rule in Majewski. The question on appeal was whether this approach to intoxication should be followed in Australia.
The first point made by Barwick CJ was that it is improper to refer to intoxication as a defence, refer to BFW 406. The second point, made in the next paragraph, is that intoxication or drunkenness can vary greatly, and intoxication does not in every case affect the voluntariness or mental state of the defendant. In many cases, alcohol simply releases the defendant's inhibition to commit crime. This state of intoxication does not affect criminal culpability because the defendant is acting voluntarily and with intent. The third point is that it is only a rare case that intoxication affect voluntariness. More commonly, it will affect the defendant's mental state, see BFW 407.
The important point in the judgment is that the majority of the High Court refused to follow the rule in Majewski. The Court regarded the distinction between specific and basic intent as unhelpful and haphazard. The Court did refer to the prior fault argument, BFW 411. So the defendant's culpability in getting drunk differs from the culpability required by the particular crime committed whilst drunk.
By rejecting Majewski, the High Court rejected the prior fault approach to intoxication. But there remains one important qualification in the present law where prior fault is relevant. The High Court held that intoxication is irrelevant where the defendant formed the intent to commit the crime and deliberately consumed alcohol or drugs in order to pluck up the courage to commit the offence. This is called Dutch Courage. The majority of the High Court affirmed the English decision Gallagher [1963] AC 349. This point is made by Barwick CJ, and he quote from Lord Denning in Gallagher, see discussion of this case by Stephen J at BFW 416. So the common law in Australia, in this exceptional case, prevents the defendant from relying on intoxication in their defence. In this case, prior fault of the defendant (in the form of the defendant's earlier intention to commit the crime) supplies the relevant degree of culpability for the subsequent crime.
The traditional approach to intoxication in the criminal law has been shaped by concerns about public order and public safety. Several of the Law Lords in Majewski were concerned that a general unrestricted intoxication defence would mean that dangerous conduct which causes harm would go unpunished. The Lords were concerned that a general defence would open the floodgates, providing many defendants with an avenue for an unmeritorious acquittal. This assumes that a jury would be too eager to accept evidence of intoxication affecting voluntariness or mens rea, and so acquit the defendant. The High Court in O'Connor did not share this view: see BFW 412.
The confidence about juries not being to eager to acquit may be due to the acknowledgment that the "jury needs careful and special instruction": read Barwick CJ "model direction", BFW 412. It reflects the tension between the strict theory of the law (which suggests that intoxication can excuse culpability, by affecting both voluntariness and mens rea) and the practical application of the rules by the jury (which suggest that intoxication in practice rarely excuses culpability because of the defendant's prior fault).
Indeed the empirical data on intoxication suggests that the present law does not operate as a Drunk's Charter: see G Smith, "Footnote to O'Connor's Case" (1981) 5 CrimLJ 270.
Intoxication illustrates the tension between the importance of subjectivity and broader considerations of public policy. The dissatisfaction with the present approach to individuals who commit crimes whilst impaired through intoxication has led to calls for reform. The proposals for reform are outlined in BWW at p. 828-829. The Butler Committee in England made certain recommendations for reform, including the creation of a new offence of dangerous intoxication. Such an approach was even foreshadowed by Barwick CJ in O'Connor BFW 411. In 1993 the English Law Commission published a Consultation Paper on Intoxication and Criminal Liability. The Law Commission recommended that Majewski should be abolished by statute and that intoxication should be relevant to the issue of whether the defendant's conduct was voluntary and accompanied by the relevant mens rea. However, like Butler the Commission recommended that Parliament to protect the community from dangerously intoxicated persons should create a special offence of causing harm whilst intoxicated.

Intoxication, strict liability and negligence

Is intoxication relevant to crimes which no do require mens rea? There are many statutory offences which do not require the prosecution to prove a mental state on the part of the defendant: these are called crimes of strict and absolute liability. Where the defendant commits such a crime in a state of intoxication, the defendant cannot argue that intoxication prevented the formation of mens rea, because mens rea is not an element of the strict and absolute liability offences. Intoxication is however relevant to voluntariness. Strict or absolute liability offences are satisfied by proof that the defendant completed the actus reus of the offence. So, in extreme cases, intoxication may affect the voluntariness of the defendant's conduct. In other words, automatism can be raised as a defence for strict and absolute liability offence.
The second question is whether intoxication is relevant to crimes satisfied by criminal negligence, like manslaughter. Criminal negligence punishes the defendant for what he or she ought to have done and ought to have foreseen. Unlike crimes of mens rea, the culpability is objectively determined by reference to what the reasonable hypothetical person would have done and foreseen placed in the defendant position. The courts point out that the reasonable person is both prudent and sober. So there is little scope of intoxication to affect culpability in crimes of criminal negligence. However, offences satisfied by criminal negligence are still subject to the voluntariness requirement. So the defendant's extreme intoxication may lay the basis for a defence of automatism.

Criminal Negligence and Strict Liability

The Model Criminal Code for Australia, in its final report on General Principles, identified possible four fault elements for criminal offences: intention, knowledge, recklessness and negligence. The Committee who drafted the Code stated that the fault elements are set out in descending order of culpability. So intention is the most serious fault element and negligence is the least serious. This is now contained in the Criminal Code Act 1995 (Cth), s 5.4.
This hierarchy of fault for crimes reflects the traditional model of criminal culpability. The general position in the common law is that serious offences require proof of mens rea: intention, knowledge or recklessness. Exceptionally, negligence may suffice for culpability. However, it does not follow that all serious crimes must have mens rea. Some crimes which are satisfied by negligence can be very serious: manslaughter is the prime example. In the criminal law objective fault standards, like negligence, are considered controversial because they depart from norm of mens rea.
Criminal negligence can be contrasted with the three mens rea states. Unlike intention, knowledge or recklessness, criminal negligence is not concerned with the defendant's actual state of mind. Rather culpability is determined objectively, by referring to what the reasonable person in the position of the defendant would have done and known. So the magistrate or the jury will be judging the defendant's conduct according to the standards of the hypothetical reasonable person. Why does the criminal law permit the objective standard of criminal negligence to pollute the subjective standards? The simple answer is that in some cases the defendant failure to do something that could have been done can be as morally culpable as the person who acts with intention, knowledge or recklessness.

The standard of criminal negligence

Because of the general reluctance to use objective standards in the criminal context, the courts have developed a narrower meaning for negligence. You may remember from your tort law, that negligence is any departure, however slight, from the standard of care expected from a reasonable person. In the criminal law, the courts have developed a stricter definition for negligence.
In the 19th Century, the English courts attempted to draw a definition of negligence which was stricter than the civil standard. In the English decision Andrews v DPP (1937) the House of Lords reviewed these 19th century authorities: BFW 424; BWW 296. These authorities adopted circular definitions which confused negligence with mens rea, refer to Cashill v Wright (1856) BWW 297. But Lord Atkin in Andrews went onto criticise these definitions of criminal negligence as circular and unhelpful: see quotes in Taktak, BFW 544. He emphasised that a very high degree of negligence was required: BWW 297. Lord Atkin concluded that the term recklessness most nearly covers the case. However, the problem with Atkin's definition of criminal negligence is that it confuses negligence with recklessness. Following the High Court's decision in Crabbe it is clear that recklessness in Australia today is a purely subjective concept. So Atkin's definition is not very instructive.
The status of Andrews in Australia was considered in the Victorian decision Nydam (1977), BFW 520, BWW 300. This decision should be regarded as the leading authority in Australia on the meaning of negligence for criminal law purposes. The defendant threw petrol over two women, and ignited it. He claimed that he only intended to take his own life. The trial judge directed the jury as to both as to murder, and also manslaughter by criminal negligence. He was convicted of murder. On appeal the Supreme Court of Victoria considered the trial judge's direction on the meaning of criminal negligence for manslaughter. The Supreme Court of Victoria refused to endorse the subjective definition of criminal negligence used in DPP v Andrews. The Supreme Court found that the weight of authority favoured an objective test rather than a subjective test. The Court then considered the formulation for this objective test. Before outlining the standard developed in Nydam, you must be cautioned about the unconventional use of the term "mens rea" in Nydam: BFW 522, BWW 304, last paragraph. The Court says that manslaughter is a crime of mens rea. This is misleading because manslaughter does not require the death to be accompanied by intention, knowledge or recklessness. The Court is using mens rea in a limited and qualified sense. The Court is applying mens rea to the defendant's intention to do the acts which constitute the crime, rather a mental attitude towards the particular consequence specified by the offence. The problem is that all action must be "intentional" in the sense of being voluntary. To require intentional action is simply to require voluntary action. Voluntariness ought not to be regarded as an aspect of mens rea. So understand that criminal negligence does not require mens rea in the conventional sense that the defendant must intend, knowledge or foresee an particular consequence specified by the offence.
The Supreme Court then goes onto describe criminal negligence for manslaughter requires "the doing an act in circumstances involving a great falling short of the standard of care required of a reasonable man in the circumstances and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed".
So criminal negligence has two components.
The first aspect is that the defendant's conduct must involve a great falling short of the standard of care required of a reasonable person.
The second aspect is that the reasonable person, in the position of the accused, would have foreseen the risk of the particular consequence occurring.
The last component of the definition also refer to the requirement that the defendant's behaviour must involve such a falling short and such a risk so as to warrant criminal punishment. This is inherently circular. You cannot define an element of a crime by saying X is criminal when X is sufficient to justify punishment. So this aspect of the definition of criminal negligence must be treated with some scepticism. Perhaps the point the court is trying to make is that the standard of negligence in the criminal law is different from that applied in tort law.
There is one major problem with using objective standards in the criminal law. The problem is one which bedevils objective standards in law generally. Who is the "reasonable man", or as it is now known, the "reasonable person"? The reasonable person standard assumes a community consensus about what constitutes reasonable and unreasonable conduct. By using this hypothetical person to judge the defendant's conduct, the law is ignoring important characteristics like race and gender. The standard is in fact highly discretionary because magistrates or juries will be constructing the standard of judgment according to their own values. Because the standard is objective and neutral it is given a veneer of legitimacy: see S Bronitt and K Amirthalingam, "Cultural Blindness and the Criminal Law" (1996) 20(2) Alternative Law Journal, Melbourne, 58-64.
Even if we accept that magistrates or juries can agree upon the type of "reasonable person" they will use, the objective standard poses severe problems for those people who are unable to reach the standards of the reasonable person because of some inherent physical and intellectual weakness, see BFW 423. In Stone and Dobinson (Omissions) where one defendant was half-blind, and the other defendant was of low intelligence. They had both unsuccessfully tried to care for a bed-ridden relative, and eventually the relative died. The law report noted that the defendants could not even use the telephone. Both defendants were charged with manslaughter by criminal negligence. The House of Lords statements about criminal negligence should be read with caution because they follow the approach in Andrew, and confuse criminal negligence with recklessness. However, the facts show that an objective standard can operate harshly against defendants who have some physical or intellectual weakness. There are two questions for the jury. First whether their conduct involved a great falling short of the standard of care required of a reasonable person, and secondly whether the reasonable person, in the position of the defendants, would have appreciated the risk of death or injury. Both elements would have been satisfied in Stone.
The Victorian Law Reform Commission in 1990 in its review of Homicide was critical of the outcome in Stone. The Commission pointed out the unfairness of criminal negligence for people who could not reasonably be expected to reach the standard of the reasonable person. To avoid this unfairness, the Commission proposed a special defence for this category of person. Any person charged with manslaughter by criminal negligence would have a defence if by reason of some physical or mental infirmity he or she cannot reach the standard of expected from ordinary persons. The defence has not yet been enacted.

Strict and Absolute Liability

Crimes of strict and absolute liability have two distinctive feature. First, strict and absolute liability offences are creatures of statute: they are statutory offence. Secondly, these offences, like offences satisfied by criminal negligence, depart from the paradigm of mens rea. Strict and absolute liability offences do not require the prosecution to prove any subjective mental state or fault element on the part of the defendant. The prosecution only has to prove the actus reus of the crime was completed by the defendant. In the textbooks these types of offences are marginalised to the periphery of the criminal law, described as exceptional and regulatory in nature. However, the truth is that in terms of numbers of offences, the majority of crimes do not require proof of mens rea.
The law's preference for mens rea manifests itself in a reluctance to dispose of the mens rea requirement too readily for statutory offence . In the 19th Century, in the face of a growing number of statutory crimes not requiring mens rea, the courts developed a presumption in favour of mens rea. The High Court has affirmed this rebuttable presumption in He Kaw Teh, BFW 352, BWW 859.
There will be cases where Parliament has expressly or impliedly excluded mens rea from a statutory crime. However, the courts are still uneasy about punishment of actus reus alone. Indeed the courts have allowed the defendant's state of mind to be raised by way of a defence - the defence of honest and reasonable mistake of fact. So although the prosecution need not prove mens rea, the defendant can raise a mistaken belief that the conduct is innocent as a defence. The law imposes a requirement that the mistake must be reasonable, and a mistake which is one of fact not law. Statutory crimes which do not require mens rea but allow the mistake defence are called strict liability offence.
He Kaw Teh considers when this defence of mistake will operate (Mistake and Strict Liability). At this point it is important to know that there will be some statutory offences which do not require mens rea and do not allow the defendant to raise his mistake as a defence. Where the mistake defence is not available, this type of statutory offence is called an absolute liability offence.
To sum up, what the difference between strict and absolute liability offences? The difference between strict and absolute liability offences relates to the availability of the defence of mistake of fact. Where it is available liability is strict, where it is not available liability is absolute.

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