R v B, MA
[2007] SASC 384
•5 November 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, MA
[2007] SASC 384
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
5 November 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION
Appeal against conviction for rape - evidence given that both the appellant and the complainant were affected by alcohol at the time of the rape - no issue as to proof of basic intent to engage in sexual intercourse - issue as to proof of specific intent to rape - trial judge gave a direction to the jury as to the relevance of intoxication limited to credibility and reliability - defence counsel did not request the trial judge to direct the jury as to the relevance of intoxication to the forming of specific intent - no direction of this kind given by the trial judge - section 268 of the Criminal Law Consolidation Act 1935 (SA) addresses culpability in circumstances where the objective elements of an alleged offence are established, but the defendant's consciousness was, or may have been, impaired by intoxication, whether self-induced or otherwise, to the point of criminal irresponsibility at the time of the alleged offence - section 269(1) of the Criminal Law Consolidation Act provides, inter alia, that the question whether the defendant's consciousness was or may have been impaired by intoxication to the point of criminal irresponsibility is not to be put to the jury by the judge, prosecutor or defendant unless the defendant or prosecutor specifically asks the judge to address the jury on that question - section 269(2) of the Criminal Law Consolidation Act provides that a defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility, if because of impairment of consciousness, a subjective element of the alleged offence cannot be established by the defendant - whether the failure of defence counsel to request a direction as to intoxication and specific intent resulted in a miscarriage of justice - whether the trial judge retained a residual discretion to direct the jury as to intoxication and specific intent - whether the trial judge should have directed the jury as to intoxication and specific intent, notwithstanding the absence of a request from counsel.
Held: Appeal dismissed.
(Per Gray, Sulan and David JJ): no miscarriage of justice arose through the failure of defence counsel to request a direction as to intoxication and specific intent - section 268 of the Criminal Law Consolidation Act is restricted to questions of intoxication affecting the basic intent of the defendant - section 269 of the Criminal Law Consolidation Act applies to directions of intoxication as they relate to both the basic and specific intent of the defendant.
(Per Gray & Sulan JJ): if a defendant wishes to contend that a specific intent has not been proved by reason of intoxication, it is necessary for the defendant to request the judge to direct the jury on that question - section 269 of the Criminal Law Consolidation Act does not displace the common law duty of a trial judge to ensure that the accused receives a fair trial - the trial judge retained a common law discretion to direct the jury in a manner that would ensure a fair trial - the particular circumstances of this case did not require the trial judge to exercise his common law discretion to direct the jury on intoxication and specific intent.
(Per David J): by reason of section 269 of the Criminal Law Consolidation Act 1935, the trial judge has no residual discretion to direct the jury as to intoxication unless it is raised by counsel.
Criminal Law Consolidation Act 1935 (SA) s 48, s 267A, s 268 and s 269; Criminal Law Consolidation (Intoxication) Amendment Act 1999 (SA); Acts Interpretation Act 1915 (SA) s 22; Interpretation of Legislation Act 1984 (Vic) s 35(a); Acts Interpretation Act 1901 (Cth) s 15AA, referred to.
The Queen v Tucker (1984) 36 SASR 135; Pemble v The Queen (1971) 124 CLR 107; Seay v Eastwood [1976] 1 WLR 1117; Cozens v Brutus [1973] AC 854; K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309; Mills v Meeking (1990) 169 CLR 214; Burch v South Australia (1998) 71 SASR 12; Owen v South Australia (1996) 66 SASR 251; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Bropho v Western Australia (1990) 171 CLR 1; Daniels Corp v ACCC (2002) 213 CLR 543; R v O’Connor (1979) 146 CLR 64; Director of Public Prosecutions v Beard [1920] AC 479; R v Soneji [2006] 1 AC 340; London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182; Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; Charles v Judicial Legal Service Commission [2003] 1 LRC 422; Attorney General's Reference (No. 3 of 1999) [2001] 2 AC 91; British Columbia (Attorney General) v Canada (Attorney General; An Act respecting the Vancouver Island Railway (Re), Society Promoting Environmental Conservation v Canada (Attorney-General), New Zealand Institute of Agriculture Science Inc v Ellesmere County [1994] 2 SCR 41; Dietrich v The Queen (1992) 177 CLR 292; Gipp v The Queen (1998) 194 CLR 106; RPS v The Queen (2000) 199 CLR 620; Tully v The Queen (2006) 81 ALJR 391; Fingleton v The Queen (2005) 227 CLR 166; Stokes v R (1990) 51 A Crim R 25; Bedi v The Queen (1993) 61 SASR 269; Galambos (1980) 2 A Crim R 388; Ali v R (2005) 214 ALR 1; TKWJ (2002) 212 CLR 124; Nudd v The Queen (2006) 80 ALJR 614; R v Birks (1990) 19 NSWLR 677; Hunter (1999) 105 A Crim R 223; R v Hughes [2007] SASC 318, considered.
R v B, MA
[2007] SASC 384Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY and SULAN JJ.
This is an appeal against conviction.
Introduction
The background and facts relevant to this appeal are set out in the reasons of David J. We only refer to the facts where necessary for an understanding of our reasons.
The defendant and appellant was convicted of the offence of rape.[1] The complainant gave evidence that the conduct occurred against her vehement protest and that the act of rape was accompanied by significant violence. The complainant’s evidence was that both she and the appellant were affected by alcohol at the time.
[1] Pursuant to Criminal Law Consolidation Act 1935 (SA), section 40.
The appellant gave evidence. He admitted the act of intercourse, the subject of the charge. There was no issue about basic intent – that is, the intent of the appellant to have intercourse with the complainant. On the appellant’s evidence the complainant was or appeared to be a willing and consenting party. The appellant said that he had consumed both alcohol and cannabis prior to the act of intercourse. His blood alcohol reading of 0.155 indicated a substantial ingestion of alcohol.
The trial Judge limited his directions to the jury about intoxication to the issue of credibility. The Judge gave no direction in regard to the effect alcohol may have on intent.
The Appeal
At the outset it is convenient to distinguish between basic and specific intent. Basic intent is the intent to do the physical act constituting the actus reus of the crime. Some crimes require a specific intent. We respectfully adopt the analysis of King CJ in Tucker:[2]
A person is, it is true, criminally responsible only for actions which are accompanied by the will. It is also true that, albeit in rare cases, the ingestion of alcohol may deprive a person of the use of his will with the consequence that his actions do not result from the exercise of the will. Criminal liability requires, however, in the great majority of crimes, not only that the physical act constituting the actus reus be voluntary but also that it be accompanied by a basic intention to do the forbidden act. In the case of many crimes, moreover, there must be a further specific intent. The existence of intent, either basic or specific, in the sense in which I have used those words, implies the existence of volition.
[2] The Queen v Tucker (1984) 36 SASR 135 at 138-139.
Counsel for the appellant did not request the trial Judge to direct the jury as to the effect of intoxication on specific intent, that is, the question of whether the appellant had sexual intercourse with the complainant knowing that she was not consenting or being recklessly indifferent as to whether or not she was consenting.
On appeal it was argued that the question of the effect of alcohol ingestion and cannabis use and consequent intoxication should have been the subject of direction to the jury, in particular highlighting the relevance of intoxication to the question of specific intent. It was said that the decision by defence counsel not to ask the Judge to direct the jury about intoxication and specific intent was an oversight and that in all the circumstances this Court should conclude that a risk of a miscarriage of justice has arisen. It was further submitted that in any event the Judge had a residual discretion to direct the jury as to intoxication and specific intent and in the circumstances of this case should have done so.
We agree with the conclusion of David J that this appeal should be dismissed. We agree that in the circumstances of the present case no issue as to basic intent arose and that given the way the case was conducted and the evidence of the appellant there is no risk of a miscarriage of justice having arisen as the result of the absence of any direction to the jury concerning intoxication and specific intent. However, with respect to David J, we have reached a different conclusion on the question of whether, as a matter of law, the Judge retained a residual discretion to so direct the jury having regard to the terms of section 269 of the Criminal Law Consolidation Act 1935 (SA). We have also reached the conclusion that the Judge did retain a common law discretion to direct the jury in a manner that would ensure a fair trial. However, as earlier observed, we do not consider that there was any need in the present case for a direction as to intoxication and specific intent.
An important question arises for determination on this appeal, being the proper construction of Part 8 of the Criminal Law Consolidation Act. Part 8 addresses intoxication and comprises two principal sections – 268 and 269. As later analysis reveals these sections were enacted with very different purposes in mind.
The Criminal Law Consolidation (Intoxication) Amendment Act 1999 (SA) received Royal Assent on 1 April 1999. Section 268 addresses culpability in circumstances where the objective elements of an alleged offence are established, but the defendant’s consciousness was, or may have been, impaired by intoxication, whether self-induced or otherwise, to the point of criminal irresponsibility at the time of the alleged offence. Section 269 prescribes the circumstances in which intoxication and its impact upon proof of the elements of an offence should be left to the jury.
Counsel for the Crown contended that the Second Reading Speech[3] made it clear that section 268 dealt with aspects of the common law with respect to intoxication. Further, it was said that the speech also made clear that section 269 was intended to deal with the procedural implications of the High Court decision in Pemble[4] concerning the failure of counsel to raise or argue a particular issue. Counsel submitted that a literal interpretation of section 268 and section 269 achieved a result entirely in keeping with the purpose of the Act as expressed in the Second Reading Speech.
[3] South Australia, Parliamentary Debates, House of Assembly, 4 March 1999, 995-997 (The Hon. I.F. Evans); Legislative Council, 9 December 1998, 445-447 (The Hon. K.T. Griffin).
[4] Pemble v The Queen (1971) 124 CLR 107.
Counsel for the appellant accepted that no issue of basic intent arose in the trial. It was accepted that the appellant intended to have sexual intercourse with the complainant. However, it was contended that the appellant’s state of intoxication was such that a fair trial required the jury to be directed as to intoxication and its relevance to specific intent. Counsel developed this submission in two ways. It was accepted that counsel at trial had not sought a direction. It was said that this was through oversight and as a result there was a risk of a miscarriage of justice. It was contended that this Court could interfere and order a re-trial for this reason alone. Alternatively, it was contended that the Judge, notwithstanding the language of section 269 of the Criminal Law Consolidation Act, retained an overriding discretion to direct the jury on the relevance of intoxication to the forming of specific intent. It was argued that in the circumstances the Judge should have given a direction in any event, notwithstanding the absence of a request from counsel.
Before embarking on an analysis of the legislation, it is convenient to briefly refer to two further principles of statutory construction.
The Purposive Approach to Statutory Construction
Generally speaking the grammatical or literal interpretation of legislation should achieve the drafter’s desired purpose. Accordingly, the words used in a section should be given their ordinary, everyday meaning and commonsense, experience and local knowledge should guide the interpretation of legislation.[5] The particular provision under scrutiny should not be read in isolation from the rest of the enactment of which it forms part.[6]
[5] Seay v Eastwood [1976] 1 WLR 1117 at 1121 (Lord Wilberforce); Cozens v Brutus [1973] AC 854.
[6] K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J).
The purposive approach to statutory construction is statutorily prescribed. Section 22(1) of the Acts Interpretation Act 1915 (SA) provides:
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
Of its Victorian counterpart, section 35(a) of the Interpretation of Legislation Act 1984 (Vic), which is in similar terms to both the South Australian provision and to section 15AA of the Acts Interpretation Act 1901 (Cth), Dawson J, in Mills v Meeking,[7] observed:
[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. … The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose … The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
[7] Mills v Meeking (1990) 169 CLR 214 at 235 (footnotes omitted).
In Burch,[8] Cox J considered that section 22 of the Acts Interpretation Act1915 (SA) was designed to achieve the same result as section 15AA of the Commonwealth statute. Further, his Honour considered that it was not necessary to first identify that the section under consideration was open to more than one construction before the purpose of the enactment could be referred to:[9]
It would be strange if the mischief rule could not be used where there is no apparent ambiguity but a literal interpretation would lead to inconsistency or injustice.
[8] Burch v South Australia (1998) 71 SASR 12.
[9] Burch v South Australia (1998) 71 SASR 12 at 18.
In discovering the purpose of a statutory amendment it is permissible for a Court to have regard to the content of the Minister’s Second Reading Speech in addition to reports of law reformers.[10]
[10] Owen v South Australia (1996) 66 SASR 251; Burch v South Australia (1998) 71 SASR 12.
In Project Blue Sky v Australian Broadcasting Authority,[11] McHugh, Gummow, Kirby and Hayne JJ observed:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[11] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]. (footnotes omitted).
Legislation Affecting Common Law Rights
In Bropho v Western Australia,[12] the High Court referred to rules relating to the construction of a statute that would abolish or modify fundamental common law principles or rights. The Court noted:[13]
[T]he rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used” [Potter v. Minahan (1908) 7 CLR 277, at p 304, and see, also, Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, at p 93.]
More recently in Daniels Corp v ACCC,[14] McHugh J observed:
Courts do not construe legislation as abolishing, suspending or adversely affecting rights, freedoms and immunities that the courts have recognised as fundamental unless the legislation does so in unambiguous terms. In construing legislation, the courts begin with the presumption that the legislature does not interfere with these fundamental rights, freedoms and immunities unless it makes its intention to do so unmistakably clear. The courts will hold that the presumption has not been overcome unless the relevant legislation expressly abolishes, suspends or adversely affects the right, freedom or immunity or does so by necessary implication. They will hold that the legislature has done so by necessary implication whenever the legislative provision would be rendered inoperative or its object largely frustrated in its practical application, if the right, freedom or immunity were to prevail over the legislation. A power conferred in general terms, however, is unlikely to contain the necessary implication because “general words will almost always be able to be given some operation, even if that operation is limited in scope”.
[12] Bropho v Western Australia (1990) 171 CLR 1.
[13] Bropho v Western Australia (1990) 171 CLR 1 at 18.
[14] Daniels Corp v ACCC (2002) 213 CLR 543 at [43] (footnotes omitted).
Consideration of Section 268
The common law position with respect to involuntary intoxication was settled by the High Court in O’Connor,[15] where Barwick CJ observed:
In my opinion, evidence of the state of the body and mind of an accused tendered to assist in raising a doubt as to the voluntary character of the physical act involved in the crime charged is admissible on the trial of an accused for any criminal offence, whether an offence at common law or by statute. Further, in my opinion, such evidence tendered to raise a doubt as to the actual intention with which the physical act involved in the crime charged, if done, was done is admissible on the trial of an accused for any offence, whether at common law or by statute, with the exception of such statutory offences as do not require the existence of an actual intent, the so-called absolute offences.
As I earlier indicated, however, the jury needs careful and special instruction. If the evidence, if accepted, is not such as to be capable of raising a doubt as to either of the basic elements, voluntariness or actual intent, there being no other material to suggest a lack of voluntariness or actual intent, that evidence can be withdrawn from the jury’s consideration. It will have had no more than a tendency to establish that though the accused acted voluntarily and with the requisite intent, he was influenced in what he did by a state of insobriety. They should be told that if the evidence does not raise in their minds a doubt as to voluntariness or actual intent they may put that evidence out of their minds in considering the accused’s guilt or innocence. But if the evidence is capable of raising a doubt either as to voluntariness or the existence of an actual intent, the jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charged requires. It would be proper in these cases to tell a jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intent.
[15] R v O’Connor (1979) 146 CLR 64 at 87-88.
Section 268 provides:
(1)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a) formed an intention to commit the offence before becoming intoxicated; and
(b) consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)However, subsection (2) does not extend to a case in which it is necessary to establish that the defendant—
(a) foresaw the consequences of his or her conduct; or
(b) was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
(4) If—
(a) the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b) the defendant's conduct resulted in death; and
(c) the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d) the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,
the defendant may be convicted of manslaughter and liable to imprisonment for life.
(5) If—
(a) the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b) the defendant's conduct resulted in serious harm (but not death); and
(c) the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d) the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,
the defendant may be convicted of causing serious harm by criminal negligence.
Maximum penalty: Imprisonment for 4 years.
(6)A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
Section 267A provides the following relevant definitions:
consciousness includes—
(a) volition;
(b) intention;
(c) knowledge;
(d) any other mental state or function relevant to criminal liability;
objective element of an offence means an element of the offence that is not a subjective element;
subjective element of an offence means a mental element of the offence and includes voluntariness;
A question has arisen as to whether section 268 addresses only basic intent or whether it goes further and addresses specific intent. Sub-section (2) is critical. It appears to identify voluntariness – the hallmark of basic intent.
In the course of the Second Reading Speech the Attorney-General made plain the purpose of the proposed provision:[16]
The bill, as its title suggests, seeks to amend the criminal law to abolish what is commonly known as ‘the drunk’s defence’. To put it another way, the bill seeks to overturn the majority decision of the High Court in O’Connor. That is not easy to do. The law to which we seek to return was itself complicated and controversial. To understand what the bill seeks to do, it is necessary to look at the history of the law on intoxication as a so-called defence to certain crimes.
[16] South Australia, Parliamentary Debates, House of Assembly, 23 February 2004, 1355 (The Hon. M.J. Atkinson).
Having reviewed the history of the common law the Minister identified that the general intent was to reverse O’Connor[17] and in substance enact a statutory provision that reflected the English decision in Beard.[18]However, it was acknowledged that the Beard rule posed some difficulties and in that respect the Minister observed:[19]
Clearly, then, the Beard rules pose formidable difficulties. But there is an alternative. The Model Criminal Code Officers Committee was directed by the Standing Committee of Attorneys-General to devise a solution. It did so. It has an effect similar to the Beard rules, but not identical. The basis of this solution is an attempt to define “basic intent” rather than try to define the slippery notion of “specific intent”. The result is that self-induced intoxication cannot be taken into account to deny voluntariness and the intention with which the act was done, but can be taken into account to deny any other fault element, whatever that might be. It is this approach to reinstating a version of the Beard rules that forms the basis of the amendments proposed by this Bill.
...
The key to the proposal contained in the Bill is in proposed section 268(2). The effect of it is that, if (a) the prosecution establishes the physical elements of the offence against the accused (called in this Act the “objective elements of the offence”) and (b) the accused is grossly impaired by self-induced intoxication, then (c) the conduct (act, omission or state of affairs) is assumed to be both intentional and voluntary. As the example points out, that does not necessarily mean that the accused will be guilty of the whole offence. If the crime alleged requires proof of fault for a circumstance or a result, for example, the fault elements for that circumstance or result are not presumed, and it is open for the accused to deny those fault elements by reason of self-induced intoxication.
...
Of course, Barwick CJ did not need to resolve this problem. His decision, and that of the court, made it unnecessary to do so, for the old rules requiring the distinction were swept aside. Restoring the law does require a solution. It must be that an “immediate result” of the kind referred to by His Honour is a part of the act. The purpose of this Bill is to restore a set of rules very close to the old Beard rules. The old rules were anomalous in some ways. This was one of them. Pure logic cannot be applied in every situation. Wounding and assault should be treated as if they simply required an intentional and voluntary act, namely to wound and assault respectively, for the purposes of the drunk's defence, whatever may be the position as to liability for reckless behaviour. That has always been the position under the Beard rules and is intended to be restored under this Bill.
This is undeniably difficult law. But it always was difficult law. The Government promised to remove the drunk's defence. This Bill is designed to restore the common law before the decision in O'Connor so far as that is possible.
[emphasis added]
[17] R v O’Connor (1979) 146 CLR 64.
[18] Director of Public Prosecutions v Beard [1920] AC 479.
[19] South Australia, Parliamentary Debates, House of Assembly, 23 February 2004, 1356-1358 (The Hon M.J. Atkinson).
Applying these principles of statutory interpretation to section 268, the conclusion should be reached that the section addresses basic intent and that in particular, subsections (2) and (6) of section 268 should be so read.
Before coming to discuss the interpretation of section 269 it is convenient to outline and discuss one further principle of statutory construction.
Mandatory and Directory Terms
The approach to be taken to mandatory and directory legislative requirements has undergone a marked change since the early 1980s. The now outdated and rejected approach was summarised in Soneji,[20] by Lord Steyn:
A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.
[20] R v Soneji [2006] 1 AC 340 at [14].
In 1980, Lord Hailsham’s judgment in London & Clydeside Estates Ltd v Aberdeen District Council[21] introduced the new approach:
In such cases, though language like “mandatory,” “directory,” “void,” “voidable,” “nullity” and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.
In Soneji, Lord Steyn described Lord Hailsham’s judgment as “an important and influential dictum”,[22] explaining its effect on the English law of statutory construction in the following terms:[23]
It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity. In framing the question in this way it is necessary to have regard to the fact that Parliament ex hypothesi did not consider the point of the ultimate outcome. Inevitably one must be considering objectively what intention should be imputed to Parliament.
[21] London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at 189E-190C.
[22] R v Soneji [2006] 1 AC 340 at [15].
[23] R v Soneji [2006] 1 AC 340 at [15].
In Wang v Commissioner of Inland Revenue,[24] the Privy Council adopted Lord Hailsham’s dictum.[25] That case concerned a legislative provision that imposed a time requirement. Lord Slynn of Hadley provided the speech of the Privy Council. In doing so, he observed that when asked to consider an alleged failure to comply with a time provision, their Lordships considered it better to avoid the words “mandatory” and “directory” altogether and to ask two questions:[26] whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time; if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision-maker of jurisdiction and render any decision which he purported to make null and void?
[24] Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286.
[25] See also Charles v Judicial Legal Service Commission [2003] 1 LRC 422, another decision of the Privy Council where the reasoning was along similar lines as Lord Hailsham’s observations in Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286.
[26] Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1296.
These questions can readily be adapted to other types of legislative provisions where the issue of whether the provision attempts to impose a mandatory or directory requirement arises, such as, for example, those under consideration in the present case.
The decision of the House of Lords in Attorney General's Reference (No. 3 of 1999)[27] is of similar effect to Wang. In that case, the Court considered a legislative provision which provided that if a defendant is cleared of an offence, fingerprints or samples taken from him in the investigation of the offence must be destroyed. Following a breach of this duty, a DNA profile obtained from swabs taken from a rape victim was found to match that of the defendant. The defendant was charged and convicted.
[27] Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91.
In declining to apply the mandatory directory distinction, the Court adopted the reasoning of Lord Hailsham and concentrated on the consequence of non-compliance. It then addressed the question: what, in the light of the consequences, must Parliament be taken to have intended?
In Soneji, Lord Steyn described Attorney General’s Reference (No. 3 of 1999) as a “strong decision” as it involved a rejection of the mandatory/directory distinction in the face of explicit imperative language.[28]
[28] R v Soneji [2006] 1 AC 340 at [18].
In Project Blue Sky,[29] McHugh, Gummow, Kirby and Hayne JJ observed:
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
[29] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] (footnotes omitted). A similar approach to the question of statutory construction has been adopted in Canada - British Columbia (Attorney General) v Canada (Attorney General; An Act respecting the Vancouver Island Railway (Re), Society Promoting Environmental Conservation v Canada (Attorney-General), New Zealand Institute of Agriculture Science Inc v Ellesmere County [1994] 2 SCR 41.
Lord Steyn in Soneji extended his review of the relevant case law. In doing so, he referred to the High Court of Australia’s decision in Project Blue Sky, adopting the remarks referred to earlier. Lord Steyn commented:[30]
This reasoning contains an improved analytical framework for examining such questions. In the evolution of this corner of the law in the common law world the decision in Project Blue Sky is most valuable.
[30] R v Soneji [2006] 1 AC 340 at [21].
Right of an Accused to a Fair Trial
High Court authorities have repeatedly discussed the overriding obligation of a trial judge to ensure that a defendant receives a fair trial. As Deane J declared in Dietrich:[31]
[31] Dietrich v The Queen (1992) 177 CLR 292 at 326.
The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law.
A convenient summary of the common law is to be found in Gipp[32] where McHugh and Hayne JJ observed:
[32] Gipp v The Queen (1998) 194 CLR 106 at 123-125 (footnotes omitted).
A criminal trial under the common law system remains today, as it has been for many centuries, based on the theory that it is an adversarial contest between the Crown and the accused. Each party gathers its own evidence, tenders its own evidence and cross-examines the evidence of the opposite party. Each party selects the grounds upon which it relies and argues them without assistance from the court. For its part and subject to statutory exceptions, the court’s role is generally limited to determining what legal rules govern the issues selected by the parties and whether the evidence and contentions of the parties are within those rules.
In a criminal appeal, the adversarial nature of the proceedings is maintained. The appellant frames the issues for determination by the appellate court by selecting the grounds upon which he or she relies to quash a conviction or vary a sentence or, in the case of a Crown appeal, the grounds upon which it relies to increase the sentence. The court plays no part in framing the grounds of appeal. As Mason CJ and Brennan J pointed out in Pantorno v The Queen:
“In principle, the notion is erroneous that a court must tell the parties what the law is. A court is under no duty to a party to advise him how to present his case; the court's duty is to give him a reasonable opportunity to present his case.”
These words were uttered in relation to the duty of a court in a criminal trial but they are equally applicable to an appeal against a criminal conviction. Their Honours went on to say:
“The responsibilities of counsel cannot be assumed by the court, for its even-handedness would be compromised by assuming a responsibility for the conduct of the case of one of the parties.”
It is true that criminal proceedings are not wholly adversarial in nature. One important exception to the adversarial nature of criminal proceedings is that a trial judge has a duty to direct the jury on any matter that could result in the acquittal of the accused even though the accused deliberately refuses to argue the point. A trial judge also has a duty “to ensure that rules made for the protection of an accused person do not constitute a trap for those who are unrepresented and ignorant of them”. In Pantorno, Mason CJ and Brennan J also said that a trial judge has a duty to keep out inadmissible evidence although we doubt that their Honours intended it to apply in respect of all inadmissible evidence. Another exception to the adversary system is that the Crown has a duty to draw the attention of the trial judge and to courts of criminal appeal to a matter that might affect the criminal liability or sentence of the accused, if the Crown is aware of the matter.
Nevertheless, criminal proceedings could not retain their adversarial nature if it were the duty of trial judges and courts of criminal appeal to take every step that they thought was appropriate to protect the accused's interests at the trial or on appeal. It is one thing to say that, when all the evidence is in, a trial judge has a duty to direct the jury that they must consider a matter that the accused has not raised in his or her defence. It is not surprising that, in furtherance of the requirement that there should be a trial according to law, appellate courts modified the adversary system to impose this duty on trial judges.
The corollary of this obligation is the common law right of a defendant to have the jury directed on all defences that are legally open on the evidence and thereby to receive a fair trial. As pointed out in Gipp this obligation in particular circumstances will override the failure of defence counsel to raise the issue or even in extreme circumstances when defence counsel disallow any reliance on the defence.
In RPS,[33] Gaudron, Gummow, Kirby and Hayne JJ outlined the obligations of a trial judge to ensure a fair trial when giving directions to a jury:[34]
The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
[33] RPS v The Queen (2000) 199 CLR 620.
[34] RPS v The Queen (2000) 199 CLR 620 at [41] (Gaudron, Gummow, Kirby and Hayne JJ) (footnotes omitted).
In Tully,[35] Kirby J noted that the principles for judicial instructions to the jury are measured against the judge’s obligation to secure a fair trial for the accused:[36]
The content of the instruction in a particular trial is ultimately determined by the judicial obligation to ensure that the accused secures a fair trial in accordance with law. This obligation requires the trial judge to put fairly before the jury the case which the accused has made or is entitled to rely upon in the evidence that has been adduced. In particular, where, from the greater experience of the judge in the law and the conduct of trials, certain matters emerge that are relevant to the fair trial of the accused, the judge must explain those matters to the jury, with appropriate reference to the evidence.
[35] Tully v The Queen (2006) 81 ALJR 391.
[36] Tully v The Queen (2006) 81 ALJR 391 at [46] (Kirby J) (footnotes omitted).
As pointed out in Gipp, this obligation in particular circumstances will override the failure of defence counsel to raise the issue or even in extreme circumstances when defence counsel disavows any reliance on a defence. Barwick CJ in Pemble observed:[37]
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. …
…
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.
Menzies J considered the role of the appellate court in reviewing jury verdicts in these types of cases:[38]
An appeal court is not, of course, concerned to investigate the actual basis upon which a jury has returned its verdict, but the events which I have outlined emphasize that the conduct of a case by counsel does not impose any limit upon the course which the jury may take and cannot make superfluous a full and accurate direction covering all that must be proved before a verdict of guilty can be returned.
[37] Pemble v The Queen (1971) 124 CLR 107 at 117-118.
[38] Pemble v The Queen (1971) 124 CLR 107 at 130.
The principle has since been upheld in subsequent High Court decisions. McHugh J in Fingleton,[39] specifically endorsed Barwick CJ’s reasons in Pemble:
The right of every accused to a fair trial according to law cannot automatically depend on the forensic choices of counsel who represents the accused.
[39] Fingleton v The Queen (2005) 227 CLR 166 at 199.
The principle has also been applied to allow an appeal based on a judge’s failure to put the issue of voluntariness and intoxication to the jury. In Stokes,[40] Hunt J observed:
The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: Lawson and Forsythe [1986] VR 515 at 548; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestly, Sharpe JJ, 17 July 1990) at pp 1-2.
In the decision of this Court in Bedi,[41] Duggan J commented on the relevance of intoxication to a defence case:[42]
It is clear that the intoxication of an accused person, whether induced by alcohol, drugs, or a combination of both, may be of relevance to a variety of issues in a criminal trial, including the existence of a particular state of mind or the appreciation of facts relevant to some element of an offence or to a defence of the charge. Intoxication may also be of relevance in the assessment of the reliability of the witnesses. If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law. It may well be that for one reason or another the defence does not wish to rely on evidence of intoxication, but that does not relieve the trial judge of giving the jury appropriate directions …
However, the issue of intoxication must be reasonably open on the evidence. In Galambos, Reynolds JA discussed the principles to be drawn from Pemble and their applicability to the issue of intoxication:[43]
It is not authority for the proposition that a judge is bound to put every factual position to a jury that may favour the accused. To inform a jury that intoxication may be so severe as to as to deprive a man of his capacity to form an intention or to have formed it in a case where there is no suggestion of such a thing happening is to advert to an unnecessary matter with which a jury should not be burdened. On the other hand, where a real question arises as to the non-existence of intention by reason of intoxication or any other circumstance, even though the elements of the crime are fully stated, reference will be required to the effects relating to the intoxication or other circumstances to avoid the summing up being held to be defective on the grounds of inadequacy.
[40] Stokes v R (1990) 51 A Crim R 25 at 32.
[41] Bedi v The Queen (1993) 61 SASR 269.
[42] Bedi v The Queen (1993) 61 SASR 269 at 273.
[43] Galambos (1980) 2 A Crim R 388 at 391 (Reynolds JA).
In evaluating the extent of the judge’s obligations at common law, it is also useful to look to the reasoning of the High Court in cases dealing with the alleged incompetence of defence counsel. The judgments of the court in Ali,[44] TKWJ[45] and most recently Nudd,[46] as discussed in more detail in David J’s reasons, are consistent with the principle that the trial judge retains an obligation of securing a fair trial for the accused, notwithstanding the failure of defence counsel to raise certain issues or defences favourable to their client.
[44] Ali v R (2005) 214 ALR 1.
[45] TKWJ v R (2002) 212 CLR 124.
[46] Nudd v The Queen (2006) 80 ALJR 614.
In Nudd, it was unanimously concluded that defence counsel’s conduct at trial could not have been anything other than seriously incompetent. However, their Honours emphasised that not all incompetent acts or omissions by counsel will necessarily result in a miscarriage of justice. In that case, given the weight of the evidence against the appellant, and the fact that the trial judge had directed the jury appropriately on the relevant issues, their Honours found that there had been no miscarriage of justice as the appellant had not been deprived of a chance of an acquittal.
Callinan and Heydon JJ adopted the reasoning that, notwithstanding that defence counsel was incompetent, the trial judge had a proper understanding of the elements of the offence, and instructed the jury correctly on them. Therefore, there was no miscarriage of justice: [47]
It is most unfortunate that a person charged with such a serious crime as the appellant was, should come to be represented by a person whose competence fell short of the standard which a court should be entitled to expect. However, just as in medicine there may be terminal cases which not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel. We have come to the conclusion that this was such a case. … [U]nlike in the operating theatre, there is in the criminal court a suitably qualified judge, detached from the protagonists and whose duty it is to intervene and make such corrections as need to be made to ensure a fair trial. Trial judges may only correct errors that become apparent to them, but in this case such errors as might otherwise have caused the trial to miscarry, were duly corrected by way of her Honour’s summing up and insistence that instructions be duly obtained.
[47] Nudd v The Queen (2006) 80 ALJR 614 at [162].
The authorities demonstrate that incompetence by counsel will only succeed as a ground of appeal if, in all the circumstances of the case, counsel’s conduct has given rise to a material risk of a miscarriage of justice. Any omission by counsel to raise defences or issues favourable to the accused that are reasonably open on the evidence may be rectified by the trial judge in directions to the jury. Providing the jury is properly instructed, no miscarriage of justice has occurred.
Consideration of Section 269
The question that arises is whether section 269 of the Criminal Law Consolidation Act has overridden or eroded the common law position.
Section 269 provides:
(1)On the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant's consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility—
(a) is not to be put to the jury by the judge, the prosecutor or the defendant; and
(b) if raised by the jury itself, is to be withdrawn from the jury's consideration,
unless the defendant or the prosecutor specifically asks the judge to address the jury on that question.
(2)A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.
It is to be observed that the deeming provision in section 269(2) is in different terms from the deeming provision in section 268(6). In particular, specific reference is made to “a subjective element of the alleged offence”.
In the course of the Second Reading Speech, the following observations were made by the Minister:[48]
The second thing that the Bill does is procedural rather than substantive, but it is likely to have a powerful effect. It is well known amongst criminal legal practitioners that running an intoxication argument is very much a two-edged sword. Quite apart from the obvious risk that the jury is more likely to ascribe responsibility on the basis that the intoxication did not prevent the formation of the required fault, but rather inspired it, it is also the case that on questions of credibility as to the facts, the jury is likely to discount the evidence of a person who was self-admittedly intoxicated as opposed to the evidence of a sober witness. That being so, defence counsel tend to lead evidence of intoxication without making too much of it, or let the prosecution lead it, and rely on the established law that, if there is a reasonable possibility that intoxication could have affected the fault of the accused, the trial judge must give a full direction on it. If the result is an acquittal, well and good. If there is a conviction, then it can all be ventilated on appeal and a new trial may be had. This is not only a waste of resources, it is also the source of the decisions which cause public misunderstanding. Therefore the Bill contains a provision that says that the trial judge should only direct the jury on the effects of intoxication on fault where the defence specifically requests it to be done. This is designed to ensure that if the defence wants to deny guilt because of intoxication, the case has to be run on that basis the first time and not on appeal.
[emphasis added]
[48] South Australia, Parliamentary Debates, House of Assembly, 4 March 1999, 997 (The Hon. I.F. Evans).
Section 269 seeks to effect a change in procedure. As observed in the Second Reading Speech its purpose is to preclude a defendant seeking to obtain an unfair advantage. This section applies to the issues of both basic and specific intent. If a defendant wishes to contend that a specific intent has not been proved by reason of intoxication, then it is necessary for the defendant to request the Judge to direct the jury on that question.
The evident purpose of introducing section 269 was to overcome what was perceived to be an abuse of process by defence counsel. The section was intended to preclude defence counsel from deliberately refraining from raising voluntary intoxication in the hope that the judge would in any event direct the jury on that topic; further, in the event that the judge did not do so, to prevent the defence from complaining about the failure of the judge to do so being raised on appeal.
The legislative intent is clear. Parliament did not intend to remove or erode a trial judge’s common law obligation to ensure that a defendant receives a fair trial. Particular and unusual circumstances may require a trial judge to direct a jury as to legal defences open on the evidence notwithstanding counsel’s failure to advance those defences.
Equally, section 269 does not oblige a judge to comply with a request from counsel for a direction. A judge would only accede to a request if there is evidence on the topic fit to go to the jury.
The reasoning in the earlier referred to authorities is consistent with and supportive of the conclusion that section 269 does not displace the common law duty of a trial judge to ensure that the accused receives a fair trial.
Conclusion
As earlier observed, we agree that this appeal should be dismissed. We agree that no miscarriage of justice arose through the suggested oversight of counsel. The particular circumstances of the present case did not require the trial Judge to exercise his common law discretion to further direct the jury on intoxication. It was not the defence case that there was any misunderstanding by the appellant of the complainant’s state of mind. His case was that the complainant was a willing and consenting party and that the conduct occurred in circumstances that did not include violence. The appellant received a fair trial and trial according to law.
DAVID J. The appellant was charged with three counts of rape upon his wife (whom I will refer to as “V”), contrary to s 48 of the Criminal Law Consolidation Act 1935 (“the Act”). He was tried before judge and jury, and acquitted of the first two counts, but convicted of the third. He now appeals against that conviction.
At trial the prosecution alleged that the appellant forcibly had vaginal sexual intercourse without V’s consent. The appellant admitted that sexual intercourse took place, but said that it was consensual. Evidence was led that the appellant and V were both clearly affected by alcohol at the time.
This appeal is concerned with the trial judge’s decision not to direct the jury about a possible defence of self-induced intoxication being open to the appellant. This argument focuses on consideration of ss 267 to 269 of the Act. In particular, the argument concerns whether, in the circumstances of this case, a judge is precluded from giving an intoxication direction when neither counsel has requested such a direction and, indeed, defence counsel has asserted the contrary.
There was further argument that if a trial judge is so precluded from giving such a direction because of the terms of s 269 of the Act, was defence counsel’s decision not to ask for a direction so erroneous that a miscarriage of justice has occurred?
The Charges and the Evidence
The Information alleged three counts of rape, all occurring on different occasions. Counts one and two were both particularised as being between 26 February 2000 and 23 September 2005. The particulars in relation to count three alleged a specific date, namely 23 September 2005. The appellant was acquitted of counts one and two, but convicted of count three. I will only deal with the facts in relation to that count.
V gave evidence that she first met the appellant in South Australia, but they were married in Western Australia some 10 to 15 years ago. She said the marriage only lasted about 11 months before she left Western Australia and came back to Adelaide to live. Even though still legally married, she understood that her relationship with the appellant was over. In early 2000 V moved into a Housing Trust home, at which time the appellant also moved back to Adelaide. V gave evidence of their relationship after that time and leading up to the alleged offending particularised in count three. That evidence included the allegations which were the basis of the first two counts, of which the appellant was acquitted. V’s evidence about that period was that for about three months they attempted to resume their relationship, but it broke down once again because of the appellant’s drinking and the fact that he would rape her. V gave evidence that the appellant stopped living at her house after that three month period, but he would continue to visit her nonetheless, often whilst drunk, and often breaking into her house. V gave evidence that the police had been called to the house on a number of occasions because the appellant refused to leave.
V’s specific evidence in relation to count three was that she had been out and returned home in the early hours of the morning of 23 September 2005. During the previous day she had consumed alcohol and smoked marijuana. When V returned home she was accompanied by some of her cousins. V said the appellant was there and she described him as “[d]runk, he was drunk drunk”. She said that her cousins left after about 15 minutes. V then gave evidence that she was in the toilet and the appellant tried to kick the door down. She opened the toilet door and saw the appellant standing there naked, masturbating himself. She then tried to run into her bedroom and put a wardrobe against the door so that he could not get in. She was unsuccessful and the appellant entered the bedroom. In evidence V said they were “scrapping around”. She said that by that she meant “[f]ighting, I was throwing punches at him”. The appellant then pushed V onto the bed and raped her. When the appellant eventually stopped, V said that she wanted to go to the toilet. She pushed past him to escape but he pushed her down. V was kicking and swearing. She managed to escape to a neighbour’s house, which was about a minute down the road. She was naked from the waist down. V told her neighbour that she had been raped, and that evidence was led by way of recent complaint.
By way of an agreed fact the prosecution also led evidence that blood was taken from the appellant by the police medical officer on 23 September 2005, and was found to contain not less than 0.155% of alcohol. There was no evidence about what time the blood was taken and, consequently, no evidence of a back‑calculation of the reading at the time of the alleged rape. In his summing up the trial judge directed the jury that that evidence would be of little assistance, other than confirming that the appellant had consumed alcohol in the preceding hours. The arresting police officer, Sean Willdin, also gave evidence on the topic of alcohol. He said that when the appellant was arrested, a little after 5.00 am on the morning of 23 September 2005, he appeared moderately affected by alcohol, as did V when she was spoken to on that morning.
The appellant gave evidence on oath in answer to the charge. He denied ever having raped V. In relation to count three he gave evidence that on 22 September 2005 he had been drinking moselle and smoking marijuana with V. The appellant had left the house and then returned, and they both continued to drink alcohol and smoke marijuana. Although they had an argument about the possible infidelity of V in relation to a specific person, they nevertheless made‑up, went to bed, watched a video and had consensual intercourse. After that had finished, V went to the toilet and did not return. The appellant did not look for her, but got up and left the house, and then went to a hotel to drink more alcohol with a friend. The police arrested the appellant the next morning. He denied raping V and said that intercourse was consensual.
It is to be noted that the contrast between both versions was extreme. On V’s version there was violence and fighting and forcible rape, whereas the appellant described consensual intercourse.
Before the prosecutor opened, the trial judge asked counsel whether they would be raising Part 8 of the Criminal Law Consolidation Act. They said they would not. Before counsels’ final addresses the trial judge raised issues of law, and no request was made by either counsel that a direction should be given in relation to intoxication, other than its effect on the reliability of witnesses. The trial judge did not direct the jury on intoxication affecting either voluntariness or a mental element of the offence, although he did give general directions about intoxication and reliability. The trial judge directed the jury on intoxication generally in the following terms:
You have the evidence of the drinking and the use of cannabis by both of them and if you accept the general tenor of the evidence you may well find that it was a relationship that was marked by arguments and periods of drunkenness or intoxication.
Later he said:
I said a little while ago that I would come back to the question of alcohol and cannabis. We all know from experience of life that consumption of alcohol and using cannabis can, whether alone or in combination, have an effect on people. It is a matter for you to assess, on the basis of the evidence, whether either of them consumed alcohol or used cannabis and whether on any of the three occasions that are the subject of a charge either the accused or [V] was intoxicated or affected for either or both of those reasons and to what extent. It is common experience, is it not, that intoxication can have an adverse effect on someone’s perception of what is happening around them or to them. It can also affect a person’s subsequent recall of relevant events. So, the effect of cannabis and alcohol, depending on what you make of the evidence, can affect the reliability of a person’s evidence and of course, as the Crown carries the onus of proving the case beyond reasonable doubt, that is relevant to your consideration of [V’s] reliability as a witness and what she says occurred on these occasions. Again, looking at them separately.
So, depending on your assessment of the evidence, it is relevant to both her credibility and her reliability but there is more: to what extent did her intoxication - I am using that in the sense of also possibly being affected by cannabis - affect her memory of what really happened? To what extent, if at all, did it affect her judgment about whether or not she would engage in sexual activity with her husband? Obviously these are questions that are relevant to the second element of the offence, namely, the onus on the Crown, the prosecution, to prove that the complainant did not in fact consent to the act of sexual intercourse. I repeat, on each of those separately, three occasions.
He also said:
Now, although some further relevant experts were not called as witnesses, there was some expert evidence put before you in the form of agreed facts.
One was about the alcohol content in a sample of blood taken from the accused on the morning of 23 September. If you accept the evidence the result of the analysis of that sample was a reading of not less than 0.155% blood alcohol content. Ladies and gentlemen, alcohol tolerance as you know varies greatly from person to person. Someone who is used to alcohol may be quite tolerant at a reading that might result in someone else appearing to be noticeably affected. That evidence, that I have just referred to is before you and you make of it what you will bearing in mind what I have said about expert evidence. At the end of the day, other than confirmation that the accused had consumed alcohol in the preceding hours, you may find it to be of very little assistance.
It is important to remember that the trial judge’s reference to that evidence being “of very little assistance” refers to the actual blood alcohol reading being of little assistance. That is because there was no expert evidence accompanying the evidence of the reading as to what the reading may have been at the time of the alleged offence, and how to interpret that reading. In giving that direction, the trial judge was not saying that evidence of intoxication was not relevant, as suggested by the appellant in his written submissions, but, was merely saying that the actual reading was not relevant in assessing the state of intoxication.
The appeal to this Court focuses on that decision not to give a direction - whether not giving such a direction was an error in law which amounted to a miscarriage of justice.
Grounds of Appeal
There was originally one ground of appeal, but on the hearing of the appeal the appellant’s counsel sought to amend the Notice of Appeal by adding a second ground. Leave to amend was granted. The two grounds were:
1.The learned trial judge erred in failing to direct the jury to have regard to the effect of intoxication on the accused’s mind in determining whether he possessed the requisite intent.
2.The failure of counsel to request the learned trial judge to direct the jury in relation to the appellant’s intoxication, and in particular its possible effects on his perception of whether the complainant consented or not has led to a miscarriage of justice.
Both grounds are inter‑related and it is convenient to deal with them together.
Counsel for the appellant argues that despite the attitude of counsel at trial, as there was evidence that the appellant was intoxicated, it was the duty of the trial judge to identify that evidence and direct the jury on the law as to how it may relate to the issues in the case. He further argues that the judge was not prohibited from giving such directions by virtue of s 269 of the Act. As I understand his argument, it is that s 268 of the Act was passed in order to overcome the effect of the decision in R v O’Connor,[49] namely, to strongly limit self‑induced intoxication as any form of defence to a crime which involves only a “basic intent”. In R v O’Connor[50] it was held that self‑induced intoxication could be a defence to a charge equivalent to unlawful wounding, which is a crime that does not require a specific intention. By “basic intent” I mean an offence where the mens rea attaches to the act, whereas by “specific intent” I mean an offence requiring a further mental element. From that, counsel argues that as part of the scheme in relation to intoxication, s 269 of the Act also only concerns itself with directions of self‑induced intoxication as they relate to basic intent, not to specific intent. The argument follows that in the present case self‑induced intoxication may have been a matter which was relevant to whether the appellant held a specific intent, namely his knowledge that V was not consenting, as distinct from a basic intent, and, therefore, did not come within the ambit of s 269. In this event, the appellant argues that the trial judge was not forbidden from raising it with the jury, even though counsel did not seek such a direction.
[49] R v O’Connor (1980) 146 CLR 64.
[50] Ibid.
In order to understand the argument it is necessary to set out fully the appropriate sections of the Act:
267A—Definitions
(1)In this Part—
alleged offence means the offence with which the defendant is charged but also extends to any other offence of which the defendant could be found guilty on the charge;
consciousness includes—
(a)volition;
(b)intention;
(c)knowledge;
(d)any other mental state or function relevant to criminal liability;
consumption of a drug includes—
(a)injection of the drug (either by the person to whom the drug is administered or someone else); and
(b)inhalation of the drug; and
(c)any other means of introducing the drug into the body;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
medical practitioner means a registered medical practitioner or registered dentist;
objective element of an offence means an element of the offence that is not a subjective element;
recreational use of a drug—consumption of a drug is to be regarded as recreational use of the drug unless—
(a)the drug is administered against the will, or without the knowledge, of the person who consumes it; or
(b)the consumption occurs accidentally; or
(c)the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or
(d)the consumption is therapeutic;
self-induced—see subsections (2) and (3);
serious harm means—
(a)serious mental or physical harm; or
(b)loss of, or damage to property, where the amount or value of the loss or damage exceeds $10 000;
subjective element of an offence means a mental element of the offence and includes voluntariness;
therapeutic—the consumption of a drug is to be regarded as therapeutic if—
(a)the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or
(b)the drug—
(i)is a drug of a kind available, without prescription, from registered pharmacists; and
(ii)is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions.
(2)Intoxication resulting from the recreational use of a drug is to be regarded as self‑induced.
(3)If a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same or another drug, the intoxication is to be regarded as self‑induced even though in part attributable to therapeutic consumption.
268—Mental element of offence to be presumed in certain cases
(1)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a)formed an intention to commit the offence before becoming intoxicated; and
(b)consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)However, subsection (2) does not extend to a case in which it is necessary to establish that the defendant—
(a) foresaw the consequences of his or her conduct; or
(b) was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
(4)If—
(a)the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b)the defendant's conduct resulted in death; and
(c)the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d)the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,
the defendant may be convicted of manslaughter and liable to imprisonment for life.
(5)If—
(a)the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self‑induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b)the defendant's conduct resulted in serious harm (but not death); and
(c)the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d)the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,
the defendant may be convicted of causing serious harm by criminal negligence.
Maximum penalty: Imprisonment for 4 years.
(6)A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
269—Question of intoxication must be specifically raised
(1)On the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant's consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility—
(a)is not to be put to the jury by the judge, the prosecutor or the defendant; and
(b)if raised by the jury itself, is to be withdrawn from the jury's consideration,
unless the defendant or the prosecutor specifically asks the judge to address the jury on that question.
(2)A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.
I agree with the appellant’s submission that s 268, in effect, abolishes the common law rule in R v O’Connor[51] that intoxication can be a defence to crimes involving only basic intent. Section 268(2) makes that clear. The subsections following that deal with the extent to which intoxication may be a defence to criminal offences which require more than a basic intent. However, in my view, there is no reason to confine s 269 to directions about intoxication and its effect on basic intent. I come to that conclusion for two reasons. Firstly, it is to be noted that the history of the legislation is such that s 268 in its present form came into existence in 2004. At that time, s 269 had been in existence since 1999, except for an amendment made in 2004, which added the prosecutor as a person who can also ask the judge to address the jury on the question of intoxication. It is clear that s 269 was unrelated to considerations which are dealt with in ss 268(2) to (6), which effectively abolished the rule in O’Connor’s[52] case. It appears that s 269 was enacted for the purposes of preventing counsel from running a case on the basis of there being no intoxication direction and then altering their position on appeal.
[51] R v O’Connor (1980) 146 CLR 64.
[52] Ibid.
There is a further reason why s 269 should not be confined to basic intent. In the definition section[53], “consciousness” is defined as:
(a) volition;
(b) intention;
(c) knowledge;
(d) any other mental state or function relevant to criminal liability
and the “subjective element” of an offence is defined as “a mental element of the offence and includes voluntariness”. Section 269(2) states:
A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.
Section 48 of the Act reads as follows:
[53] Criminal Law Consolidation Act 1935 (SA) s 267A.
48—Rape
A person who has sexual intercourse with another person without the consent of that other person—
(a)knowing that that other person does not consent to sexual intercourse with him; or
(b)being recklessly indifferent as to whether that other person consents to sexual intercourse with him,
shall (whether or not physical resistance is offered by that other person) be guilty of rape and liable to be imprisoned for life.
It can be clearly seen that proof that a defendant knew that the other person did not consent to sexual intercourse is a subjective element of the alleged offence. That is consistent with the definition of “consciousness”, especially “any other mental state or function relevant to criminal liability”. It is also consistent with the definition of “subjective element” as “a mental element of the offence and includes voluntariness”(emphasis added).
For these reasons, I find that s 269 of the Act is not to be confined to questions of intoxication affecting the “basic intent” of a defendant. It applies to a “subjective element” of the alleged offence. Such elements include the appellant’s state of knowledge as to whether V was consenting or not.
The appellant also argues that if the restricted application of s 269 of the Act is not to be applied, irrespective of the attitude of counsel, the trial judge nevertheless still has a discretion to raise questions of intoxication, and should have done so in this case. The appellant argues that it could not have been the intention of Parliament for a trial judge not to have such a discretion.
In my view, the wording of s 269(1) of the Act is very clear and leaves no doubt that the trial judge has no discretion to put intoxication to the jury unless it is raised by counsel. What the section does is allow counsel, especially defence counsel, to set the agenda as to what their client’s defence is and how it should be put to the jury. It attempts to confine the issues left to a jury to the real issues that have been contested at trial. It recognises that it is for counsel to make such decisions. Clearly, if defence counsel erroneously fails to request an intoxication direction, an appeal court can deal with that on the basis of counsel’s incompetence, leading to a miscarriage of justice. I now turn to that question.
The only aspect raised on appeal relating to the competency of defence counsel at trial related to his decision not to ask the trial judge to direct the jury on a possible defence of intoxication.
The principles as to whether incompetency of counsel may give rise to a miscarriage of justice were set out in two decisions of the New South Wales Court of Criminal Appeal, R v Birks[54] and Hunter[55]. In R v Birks, in relation to the question of counsel’s incompetence Gleeson CJ said:
[54] R v Birks (1990) 19 NSWLR 677.
[55] Hunter (1999) 105 A Crim R 223.
The relevant principles may be summarised as follows:
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[56]
[56] R v Birks (1990) 19 NSWLR 677, 685.
In Hunter, after referring to R v Birks[57] and other authorities, Woods CJ said:
[57] R v Birks (1990) 19 NSWLR 677.
… no single test of general application exists, by which it might be determined whether an error, or series of errors, of counsel has led to a miscarriage of justice. Each case will depend on its own facts and upon an assessment whether the errors made or incompetence displayed were of such a nature or consequence, in the particular circumstances of the case, as to have led to a miscarriage of justice.[58]
More recently in R v Hughes[59] Gray J considered a number of recent High Court decisions and, in particular, the case of Nudd v The Queen.[60] Gray J said:
In Nudd, Gleeson CJ observed that where the conduct of defence counsel is said to give rise to a miscarriage of justice, it is the role of the appeal court to conduct an objective inquiry, focusing on what was done or omitted to be done rather than why such conduct occurred. The Chief Justice also noted, that circumstances may arise where it will be necessary to answer that latter question:
“To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course up on [sic] the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective.”
Gleeson CJ later commented:
“There will be some cases in which it is not possible to decide whether injustice has occurred without knowing why a particular course was taken at trial. To take an extreme example, if an accused person failed to give evidence because counsel wrongly advised that an accused is not entitled to give evidence, it is difficult to imagine that a court of criminal appeal would not intervene. The example shows that, although, as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective, one cannot eliminate the possibility of exceptional cases in which it is relevant to know why a certain course was or was not taken.” (Footnotes omitted)[61]
[58] Hunter (1999) 105 Aust Crim R 223, 237.
[59] R v Hughes [2007] SASC 318 (Unreported, Court of Criminal Appeal, 29 August 2007).
[60] Nudd v The Queen (2006) 225 ALR 161.
[61] R v Hughes [2007] SASC 318 (Unreported, Court of Criminal Appeal, 29 August, 2007) [69]-[70].
In the present case, counsel at trial, by way of an affidavit submitted on appeal, said:
…
3.Before the start of the trial the Judge asked me whether Section 269 Criminal Law Consolidation Act or the question of intoxication would be raised by the defence. The trial Judge also raised the question with me before final addresses to the jury.
4.On each occasion I replied that it would not be raised. The reason for my answer was based on the appellant’s instructions that he was not raising an intoxication defence particularly with respect to count 3 because he remembered the incident and that the act of intercourse was consensual.
5.However I did not turn my mind to the issue whether the appellant’s level of intoxication at the time relating to count 3 was a matter that impacted upon his state of mind as to whether or not he knew that the complainant was not consenting to the act of intercourse as required to by proven by the Prosecution.
…
Viewing the matter objectively, I find the decision of counsel not to raise questions of intoxication going to knowledge could neither be regarded as incompetent nor amounting to a miscarriage of justice. The disparity between the two versions of events was so great that, on one view, it might be regarded as a perfectly sensible tactical decision for the defence at trial not to raise questions of intoxication. Such a direction could impinge upon the appellant’s main defence, namely that although affected by liquor, he had a memory that intercourse was consensual. V’s description of her physical resistance was too extreme to allow for an alternative path to acquittal without the jury finding there was a reasonable doubt as to her reliability and credit. Also, to raise consciousness of guilt by intoxication would place the appellant in the difficult situation of dealing with questions of recklessness. I cannot see that defending the case on the specific issue, consistent with the appellant’s evidence on oath, and not wanting to complicate matters with directions on intoxication, could possibly lead to a miscarriage of justice. That was a purely tactical decision which could not be criticised. In those circumstances, one of the purposes of s 269 (being to avoid a situation where counsel makes a tactical decision at trial and then seeks to reverse it on appeal) clearly comes into play.
Conclusion
I would dismiss the appeal.
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