http://law.anu.edu.au/criminet/tmensrea.html
Overview
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
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.
Mistake
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.
Intoxication
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.
