R v O'Connor

[1980] HCA 17

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ.

THE QUEEN v. O'CONNOR

(1980) 146 CLR 64

20 June 1980

Criminal Law

Criminal Law—Intention—Voluntary intoxication—Unlawfully wounding—Crimes Act 1958 (Vict.), s. 423.

Decisions

1980, June 20.
The following written judgments were delivered: -
BARWICK C.J. The respondent to this application by the Attorney-General of the State of Victoria for special leave to appeal was indicted before the Supreme Court of that State on two counts: one of stealing (Crimes Act 1958 (Vict.), as amended, s. 72), the other, under s. 17 of that Act, of wounding with intent to resist arrest. He was acquitted of these charges by the jury but found guilty of an alternative charge made available by s. 423 of that Act. That section provides as follows:
"Where on the trial of any person for any felony except murder or manslaughter the presentment indictment or information alleges that the defendant did wound any person or did cause grievous bodily harm to any person and the jury are satisfied that the defendant is guilty of the wounding or of inflicting the grievous bodily harm charged in such presentment indictment or information but are not satisfied that the defendant is guilty of the felony charged they may acquit him of such felony and find him guilty of unlawfully wounding or of inflicting grievous bodily harm (as the case may be); and he shall be liable to punishment accordingly." (at p67)

2. The circumstances of the case were that the respondent was observed by a neighbour pilfering a car owned by an officer of the Victoria Police. The car was standing outside the block of flats in which the officer resided. The neighbour alerted the officer to what was going on. By the time the officer reached his car the respondent had removed from it a map holder and a knife. The officer, having identified himself to the respondent, asked the respondent why he took from the car the map holder. The respondent apparently made no response and ran away. The officer caught up with him to arrest him. During the course of his arrest, the respondent opened the blade of the knife he had taken from the car and, seemingly in an endeavour to resist arrest, stabbed the constable. At this time, the respondent said: "I don't know anything, I wasn't there." (at p68)

3. At his trial the respondent gave evidence that he had been taking a particular drug and also drinking alcohol during a substantial part of the day of the occurrence and that he had no recollection of what had occurred that day with the officer or with the officer's car. His only recollection was of placing his foot in an open door of a white car. (at p68)

4. According to medical evidence called on behalf of the respondent, the drug he claimed to have been taking was hallucinatory and in association with alcohol could have rendered the respondent incapable of reasoning and of forming an intent to steal or to wound. The acts attributed to the respondent were consistent with the effects of the hallucinogenic drug. (at p68)

5. The learned trial judge instructed the jury that they could take into account the evidence as to the respondent's intoxicated condition when considering the charges of theft and of wounding to resist arrest, but that they could not take that evidence into consideration when considering the alternative charge of unlawful wounding. The judge founded this direction on the reasons given by their Lordships in Director of Public Prosecutions v. Majewski (1977) AC 443 . (at p68)

6. As I have indicated, the jury thus directed acquitted the respondent on the two charges on which he had been indicted but convicted him of the alternative charge of unlawful wounding. He appealed to the Court of Criminal Appeal of Victoria. That Court was not prepared to accept the views expressed by the House of Lords in Majewski's Case. Basing themselves largely on views expressed by myself in Ryan v. The Queen (1967) 121 CLR 205 their Honours allowed the respondent's appeal and entered a verdict of acquittal on the alternative charge. Accordingly, the respondent was discharged. (at p68)

7. The Solicitor-General for Victoria, appearing in support of the application for special leave, pressed on the Court the views of their Lordships in Majewski's Case. He submitted that the respondent's evidence of self-induced intoxication was irrelevant to the consideration by the jury of the charge of unlawful wounding. He claimed that such evidence was inadmissible on the trial of a charge of a crime which does not require that the act charged should have been done to achieve a particular purpose, that is to say, where the charge is not of a crime, as he said, of "specific intent". (at p69)

8. The Solicitor-General explained the submission that voluntary intoxication whether by alcohol or by another drug or by a combination of drugs (which intoxication I shall hereafter throughout refer to simply as self-induced intoxication) is irrelevant in the case of a crime described as a crime of only "basic intent" on the basis that the voluntary ingestion of the alcohol or self-administration of another drug by an accused precludes him asserting or endeavouring to establish that the acts performed whilst so intoxicated were involuntary acts, i.e. unaccompanied by an exercise of his will, or that he had not had an intent to do the act charged. The Solicitor-General said that the voluntary nature of the ingestion or administration of the alcohol or other drug renders all the acts of a criminal nature done during the resulting intoxicated state voluntary acts for relevant purposes: and that the intention to do the criminal act whilst so intoxicated must be unchallengeably presumed. Thus, the voluntary taking of the alcohol and drugs to the point of intoxication satisfied the requirements of the relevant mens rea. (at p69)

9. An alternative explanation of the submission given by the Solicitor-General is that whilst criminal responsibility does not ordinarily attach to an involuntary act or to an act done without the requisite intent, self-induced inoxication constitutes an exception from the general rule, an exception based on "public policy". Perhaps it was not quite clear what that public policy was said to be. But the Solicitor-General relied on the views expressed in this connexion in Majewski's Case. (at p69)

10. The Crown also submits that whatever the reason for the rule, it is well established that self-induced intoxication is not a defence to or excuse for the commission of a crime which is not a crime of "specific intent", and that the rule is one which ought not now to be distrubed. (at p69)

11. The respondent's counsel submitted that this Court ought not to adopt the reasoning and conclusion of the House of Lords; that it should declare the common law in accordance with now firmly recognized principles, namely, that no person can be convicted of doing a criminal act which that person had not voluntarily done and that no person can be convicted of any crime unless the proscribed act was done by that person with the actual intent appropriate to the commission of the particular crime. He submitted that there was no basis in the common law for presuming an act to be voluntary beyond challenge or for presuming unchallengeably that an accused had the actual intent necessary to constitute the crime. (at p70)

12. The application for special leave thus raises a fundamental question of grave import. (at p70)

13. Before entering upon a consideration of the very important question raised, I would like to reiterate the view I have already expressed as to the proper approach which this Court ought now to take to the declaration of the principles of the common law: see Cullen v. Trappell (1980) 146 CLR 1 . The Court now not being bound by any decision of the courts of the United Kingdom or of Her Majesty in Council has become the final arbiter of what is the common law in Australia until it is altered by a competent legislature. All State courts are bound by its decisions: see Viro v. The Queen (1978) 141 CLR 88 . Accordingly, the Court has a very heavy responsibility. It would be easy simply to accept the declarations of common law which have heretofore been made by any of the courts of the United Kingdom, particularly if they are of long standing. The Court will, of course, have regard to these declarations and, in particular, will pay the highest respect to the decisions of the House of Lords. But it seems to me quite inadequate in the performance of its high obligation for the Court merely to accept without its own close, critical and independent examination those declarations of the common law which heretofore have been made. Whilst the common law itself may be said to be the same wherever it is operative, it may be differently declared in one juristic unit as compared with another: see Australian Consolidated Press Ltd. v. Uren (1969) 117 CLR 221; (1969) 1 AC 590 . The Court must, in my opinion, decide for itself upon principle what is the common law. It must make its declaration of principle in the sense of the common law as it understands it to be and to have been. (at p70)

14. With these views in mind I have approached the question whether evidence of self-induced intoxication may be relevant on the trial of an accused for an offence which does not require that the act charged should have been done in order to attain a specific purpose or to attempt to attain a specific purpose where the only reason for introduction of such evidence is to raise a doubt as to the voluntary or the intentional quality of the accused's relevant conduct. (at p70)

15. In days before the common law fundamentals of criminal liability with which we are now familiar had been educed and declared, it was said that drunkenness was no defence to or excuse for the commission of crime: indeed, it might be an exacerbation of the offence. This formulation still retains some currency. The use of the words "defence" and "excuse" suggests that the saying is based on the idea that drunkenness might furnish a defence to or excuse for an offence otherwise established. But proof of a state of intoxication, whether self-induced or not, so far from constituting itself a matter of defence or excuse, is at most merely part of the totality of the evidence which may raise a reasonable doubt as to the existence of essential elements of criminal responsibility. Such a doubt, if not removed by the Crown to the satisfaction of the tribunal of fact, will warrant an acquittal, not because the accused was intoxicated but because the charge will not have been proved beyond reasonable doubt. The onus made clear by the decision in Woolmington v. Director of Public Prosecutions (1935) AC 462 will not have been discharged. Thus, the question raised in this case is really one as to the relevance of evidence as to the accused's state of body and mind in relation to the essentials of criminal responsibility if due to his own acts. (at p71)

16. Before proceeding further, I should briefly discuss the need for some precision in the use of such terms as "drunkenness" or "intoxication". (at p71)

17. The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened, so that whilst intoxicated to this degree he does act voluntarily and intentionally which in a sober state he would or might not have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged. (at p71)

18. Intoxication to the stated degree might have rendered an accused less aware of what he was doing, or of its quality, significance or consequence. But, if voluntary, his acts remain his: and he intends to perform them. So long as will and intent are related at least to the physical act involved in the crime charged, and saving for the moment the case of a crime of so-called specific intent, the fact that the state of intoxication has prevented the accused from knowing or appreciating the nature and quality of the act which he is doing will not be relevant to the determination of guilt or innocence. Apart from provisions as to diminished responsibility where such provisions are available, it is only where the lack of appreciation of the nature and quality of what is voluntarily and intentionally done is due to a disease of the mind that such lack of appreciation bears on guilt: and then only for historical reasons on the nature of the verdict to be returned. (at p72)

19. If the degree of intoxication produces only those results which I have so far described, that state of intoxication is clearly irrelevant to a consideration of the accused's criminal culpability, certainly if the offence charged does not require that the act charged be done to achieve or to attempt to achieve some specified result. There may remain a question whether, if a purpose to achieve such a result is required, his state of intoxication, whilst allowing the formation of an intent to do the physical act charged, may possibly be such as to preclude the formation of the relevant purpose. Whether it does so or not may need to be dealt with as a specific problem related to the particular degree of intoxication and to the nature of the relevant crime: and I do not pursue that question here. But the inclination of my mind is to think that no differentiation need be made in this respect. (at p72)

20. What I have thus far written is, in my opinion, applicable whether the state of intoxication is self-induced or the result of the activity of another. The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability. (at p72)

21. But the state of intoxication may, though perhaps only rarely, divorce the will from the movements of the body so that they are truly involuntary. Or, again, and perhaps more frequently, the state of intoxication, whilst not being so complete as to preclude the exercise of the will, is sufficient to prevent the formation of an intent to do the physical act involved in the crime charged. It is in connexion with these states of intoxication that the problem raised in this case arises. (at p72)

22. It is proper here to remark that lack of recollection, attributable to a past state of intoxication, is not necessarily indicative of either of these states of intoxication. If no more is proved than a credible assertion of a lack of recollection, it is my opinion that an onus to establish the voluntary or intentional quality of what the accused is alleged to have done does not for that reason pass to the Crown. But probably such an assertion of amnesia will rarely stand alone: evidence of the actual state of the accused in relation to sobriety and the manner in which that state has been induced will be forthcoming. (at p73)

23. Now, there can be little doubt that as of this time an accused in the state of intoxication which has rendered his acts involuntary or precluded the formation of a relevant intent and which has been brough about by the act of another could not be found guilty of any common law offence. What his body had done, he had not done, or what he had done had not been done with intent to do it. Nothing in the speeches in Majewski's Case suggests the contrary. (at p73)

24. It is the fact that the state of intoxication results from the accused's own acts which is said to warrant the exclusion of evidence as to his physical and mental condition. It is this exclusion which gives rise to the fundamental question in this case. As will appear, the decision in Majewski's Case in reality is that the accused is to be denied the opportunity of proving or attempting to prove what was his physical and mental state vis a vis voluntariness or relevant intent at the time he is said to have committed the physical act charged, simply because he has contributed by his own act to that physical and mental state. (at p73)

25. This may be an appropriate place to say something of the concept of self-induced intoxication. Of course, there can be the case of deliberate self-intoxication as a means of performing an intended act. The facts in Attorney-General (Northern Ireland) v. Gallagher (1963) AC 349 illustrate how an intent formed before intoxication to do an act whilst intoxicated may make the act when done in an intoxicated state a voluntary act: see also the instance suggested by Madden C.J. in Reg. v. Egan (1897) 23 VLR 159 . The formation before intoxication of the requisite intent and the deliberate induction of a state of intoxication for the performance of the charged act understandably makes that act when done in a desired state of intoxication both a voluntary act and an act done with the requisite intent. But where the intent to do the proscribed act was not formed before intoxication or at all, these cases have, in my opinion, no relevance. (at p73)

26. However, quite apart from circumstances of the kind illustrated by Gallagher's Case, there are doubtless cases where a human sets out to become intoxicated, perhaps more likely in the administration of hallucinatory drugs than in the case of alcohol. But, I apprehend, many humans become intoxicated, certainly by alcohol, without any intention of so becoming. Of course, they voluntarily imbibe the liquor or take the drug but with no thought of the ultimate state they may reach, more particularly in the case of alcohol. The addictive quality of alcohol or other drug for some of them may possibly reduce the voluntary nature of their consumption of alcohol or other drug in the final stages of their intoxication. Their resultant state, however, may fairly be described as self-induced because of the deliberation with which they have commenced the course of drinking or drug taking. (at p74)

27. But the state of intoxication may be reached by inadvertence, even though the drug, whether alcoholic or other, may be taken voluntarily. Perhaps this is less likely in the case of some drugs than in the case of alcohol itself: but the rule proposed in Majewski's Case is universal and not discriminatory as between intoxication by alcohol or by other drugs. An example which comes to mind is that of the person who at dinner does not observe the frequency with which the waiter tops up his glass. If in the result that person becomes intoxicated, is the approbrium present in the description "self-induced intoxication" as used in relation to criminal responsibility really warranted? Is the wickedness of mind which is thought to satisfy mens rea present in instances of this kind? Yet in the universality of the rule as to admissibility of evidence of self-induced intoxication, such an instance is included. It is no answer to the situation, in my view, to leave it to the judicial discretion in punishment to palliate the conviction for what is done by such a person. (at p74)

28. Examples of wanton drinking of alcohol and perhaps more so of administration of other drugs are all too frequent. If the voluntary taking of the alcohol or other drug is to be a basis of criminal responsibility, it might well be thought that a distinction ought to be made between a deliberate or what I have called a wanton taking of alcohol or other drug with a view to becoming intoxicated or a taking with an indifference to becoming thereby intoxicated and instances of intoxication where these elements of deliberation, wantonness or indifference are absent. It seems to me unsatisfactory to place all instances of intoxication as the result of a voluntary imbibing of alcohol or a voluntary administration of another drug in one undifferentiated classification as self-induced. (at p74)

29. Because it is basic to the Crown's submissions in this application, it is now necessary to examine the decision in Majewski's Case (1977) AC 443 and at least some of its implications. (at p74)

30. Robert Stefan Majewski was convicted in a Crown Court of assaults occasioning actual bodily harm and of assaults of a police constable in the execution of his duty. The charges arose out of a drunken brawl in a public house and a subsequent incident at a police station. At his trial, the accused gave evidence that when the assaults were committed he had been taking a mixture of drugs and a fair amount of alcohol, none under medical advice. As a result, he said he did not know what he was doing on the evening in question and had no recollection of the incidents to which the charges related. (at p75)

31. The learned trial judge directed the jury as follows:
"Let us pass on to another matter which has been touched upon in this case, the question of drink and drugs. Now, the law upon this subject is clear that where an offence does not require a specific intent (any intention, for example, to cause grievous bodily harm as certain offences do or offences such as theft requiring an intention of dishonesty) - where no such intention is, as it were, a constituent part of the offence, then if a man has induced in himself a state in which he is under the influence of drink and drugs then that state is no defence. Indeed, in every single case in this indictment the allegation is one of assault. That does not require the proof by the prosecution of any specific intention and therefore the fact that (the defendant) may have taken drink and drugs is irrelevant provided that you are satisfied that the state which he was in as a result of those drink and drugs or a combination of both was self-induced because, so that you can understand this, what the law really says is that, if a person disables himself by his own conduct, by the taking of drink and drugs, from having powers of comprehension as to what is going on or his powers of self-control, he cannot then turn round and say: 'I am not responsible for what I did' because he put himself into that position in the first place. That is the logic of it but the practical effect of it, members of the jury, is this, that upon my direction in law you can ignore the subject of drink and drugs as being in any way a defence to any one or more of the counts in this indictment." (at p75)

32. The evidence in the case would not have supported the conclusion that the accused's acts were involuntary, acts unaccompanied by an exercise of will to do them. But a medical witness did say that it was possible but unlikely for a state of intoxication produced by a combination of certain drugs and alcohol to achieve a state of automatism. Further, such a combination could produce, but rarely, a state of unconsciousness. It was possible that, notwithstanding the state of intoxication produced by the combination of alcohol and other drugs, a person so intoxicated could form certain intentions and execute them. (at p75)

33. An appeal was brought from the convictions to the Court of Appeal (Lawton and James L.JJ. and Milmo J.). Before that Court, counsel for the Crown said that he could not support the convictions, as the direction of the trial judge which I have quoted was in error. Subsequently, however, argument in support of the convictions was presented to the Court of Appeal by the Director of Public Prosecutions. After argument by both sides, the Court dismissed the appeal. (at p76)

34. Subsequently, a certificate was granted under s.33 (2) of the Criminal Appeal Act, 1968 that a point of law of general public importance was involved, namely: "Whether a defendant may properly be convicted of assault notwithstanding that, by reason of self-induced intoxication, he did not intend to do the act alleged to constitute the assault." Consequent on the grant of this certificate, leave to appeal was given by the House of Lords. It is clear from the form of this question that the voluntariness of Majewski's acts as distinct from their intentional nature was not formally involved in the question to be submitted to the House of Lords. (at p76)

35. The question came for decision before the Lord Chancellor, Lord Elwyn-Jones, and Lord Diplock, Lord Simon of Glaisdale, Lord Kilbrandon, Lord Salmon, Lord Edmund-Davies and Lord Russell of Killowen. Their Lordships were unanimous in answering the question in the affirmative. (at p76)

36. Whilst, as I have said, the question of voluntariness of the acts charged was not raised, the question posed assumes that the defendant did not in fact have an intent to do the act charged; that is to say, the question assumes that evidence of self-induced intoxication had established the lack of the requisite intent. (at p76)

37. Further, the question distinguishes in relation to intent, between the physical act and its result as embodied in the indictment or charge: it speaks of the act constituting the assault. This precision in statement may, in my opinion, be important. In the present case, for example, the conviction is of unlawful wounding. But the physical act which supported it was the stabbing with a knife. Doubtless, such an act would be likely to wound. But in relation to intent, it is important, none the less, I think, to distinguish between an intent to use the knife and an intent to wound. In a sense, wounding as a result of the stabbing: perhaps an immediate result. In what follows, I have taken a minimal position in relation to intent and say that at the least an intent to do the physical act involved in the crime charged is indispensable to criminal responsibility. It thus becomes unnecessary for me to discuss in relation, for example, to a charge of unlawful wounding, whether or no there must be an actual intent to wound; that is to say, an intent to produce the described result of the physical act which is intended to be done. This is not to say that, in my opinion, an intent to produce a result is not included in the relevant mens rea. In relation to many charges of what are styled crimes of "basic intent" an intent to produce a result will be found to be necessary from the very description of the crime. It may be that such an intent is universally required. But, for the purpose of the present discussion, it seems to me to be unnecessary to explore that question. It suffices for my present purposes that at least an intention to do the physical act involved in the crime charged is indispensable to criminal responsibility. (at p77)

38. I might mention in passing, however, that, in his speech in Director of Public Prosecutions v. Morgan (1976) AC 182, at p 216 , Lord Simon treats an intent to assault, i.e. to produce the result of the physical act, as a necessary element in that crime. He treats, as it seems to me, the actus reus as consisting both of the physical act and its immediate consequence. The necessary intent is treated as involving both physical act and consequence. For my present purposes, as I have indicated, I have not done so. (at p77)

39. But it is perhaps worth remarking at this point that the distinction between "basic" intent and "specific" intent becomes less logically attractive if the view is taken that the basic intent must extend both to the physical act and to its immediate consequence. To add an additional consequence to the actus reus scarce warrants a distinction between the two types of crime in relation to the quality and extent of the intent, the mens rea, required in the one and that required in the other. But some would not treat the purpose of a crime of specific intent as part of the actus reus: see, e.g., Lord Simon's use of the word "ulterior" in this connexion (1976) AC, at pp 216-217 . (at p77)

40. By adopting for the purposes of discussion what I have called a minimal position, the distinction between an involuntary act and an unintended act may become fine: and, in some instances, fine perhaps to the point of disappearance. But, none the less, it must, it seems to me, be maintained: and in what follows I have done so. It was maintained in Reg. v. Kamipeli (1975) 2 NZLR 610 . (at p77)

41. It is now appropriate to return to express the result of the decision of their Lordships in Majewski's Case. (at p77)

42. The House in substance decided that on the trial of an accused for a criminal offence which does not require that the proscribed act should be done to attain or to attempt to attain a specified result beyond the immediate consequence of the physical act involved, evidence as to the effect which self-induced intoxication has produced on the relationship of the accused's will or intent to the activity of his body is irrelevant and therefore inadmissible, if tendered solely to raise a doubt as to the voluntariness of, or as to presence of intention to do, the physical act involved in the crime charged. Although, as I have said, not formally involved in the question certified by the Court of Appeal, in my opinion, the reasoning favoured by their Lordships extends to all the consequences of the self-induced intoxication by any means and is not limited to those which affect only the presence of an intent to do the physical act involved in the charge. The effect of intoxication, as I have said, may be so extensive as to render the acts of the accused involuntary or it may preclude the formation of an intent to do that physical act. In substance, therefore, the decision in Majewski's Case is that in the case of such a charge the act of the accused is to be incontestably presumed to have been voluntary and to have been done with an intent to do the physical act involved in the crime charged. Evidence to call in question either position is irrelevant and inadmissible if the accused's condition resulted from his own acts. (at p78)

43. The decision was in part built upon acceptance of the dichotomy of crimes into crimes of "specific" intent and crimes of "basic" intent. Although all of their Lordships did not specifically define the former, I think that they used the notion of a crime of specific intent in the sense in which I have used it in my summary of the substance of their decision. The purposive nature of the proscribed act is the indication of a crime of specific intent: hence the description I have used of what is involved in a crime of specific intent and by contrast what is not involved in a crime of so-called basic intent. My description is in line, I think, with Lord Simon's definition of specific intent. Having made this distinction, i.e. between crimes of basic intent and crimes of specific intent, their Lordships sought, as it seems to me, to bring their decision within the symmetry of the basic principles of criminal responsibility by treating the wantonness of becoming intoxicated as a form of recklessness or of wickedness of mind which satisfied the requirement of mens rea: see per the Lord Chancellor, at pp. 474-475, and Lord Simon, at p. 479. (at p78)

44. Along with this attempt to accommodate the decision to the fundamentals of the common law as they have come to be understood, their Lordships appear to have based themselves on public policy, the policy of safeguarding the citizen and of maintaining social order. Indeed, such a policy was treated as paramount, even in the case of crimes of "basic intent" to the point of conclusively presuming voluntariness and the presence of intent. (at p79)

45. A distrust of jurors and an anxiety that they may too readily be persuaded to an acquittal if evidence of the result of self-induced intoxication, particularly by drugs other than alcohol, were allowed, may have formed some part of the public policy on which the decision rests. I may say at once that I have, of course, no experience of English juries: but I have of juries in New South Wales. Starke J., a most experienced judge in the hearing of criminal charges in Victoria, having had as well a long and distinguished career as an advocate, expressed himself in the present case in relation to the impact of evidence of intoxication upon Victorian jurors. He said:

"I, of course, have no knowledge of how English juries react. But over nearly forty years' experience in this State I have found juries to be very slow to accept a defence based on intoxication. I do not share the fear held by many in England that if intoxication is accepted as a defence as far as general intent is concerned the floodgates will open and hordes of guilty men will descend on the community." (1980) VR 635, at p 647 .

I share his views, as if they had been expressed about jurors in New South Wales. In my opinion, properly instructed jurors would be scrupulous and not indulgent in deciding an issue of voluntariness or of intention. Indeed, I am inclined to think that they may tend to think that an accused who had taken alcohol and particularly other drugs to the point of extreme intoxication had brought on himself what flowed from that state of intoxication. (at p79)

46. But I do not doubt that admission of evidence of intoxication, including as most likely it will expert evidence, would call for careful direction by the presiding judge, a matter to which I shall later refer. But whatever the risks in a trial by jury, they do not justify, in my opinion, such a departure from fundamental principles of criminal responsibility as to my mind is involved in the decision of Majewski's Case. (at p79)

47. It is clear, I think, that no common law offence is made out by proof of the actus reus alone. In the case of all such crimes, at least an actual intent to do the physical act involved in the crime charged must be established. In so phrasing this principle, I have laid on one side recklessness of the kind which is at times accounted as a substitute for, if not indeed, a satisfaction of the need for, an actual intent. It is not necessary, in my opinion, for the purposes of resolving the question raised in this case to explore the area in which recklessness may suffice; or to examine the parameters of the concept of recklessness in this connexion. In Pemble v. The Queen (1971) 124 CLR 107, at p 119 , I discussed the sense in which recklessness is used in this area of discourse and indicated what is involved in it. In putting recklessness on one side, I am not unmindful of the use of recklessness by their Lordships in Majewski's Case, a use which, it seems to me, is outside the concept of recklessness as it is usally employed in relation to criminal responsibility. I shall say something later as to their Lordships' use of recklessness in that case. But I have confined my statement of principal for present purposes to the need for actual intent. (at p80)

48. Stephen J. in Reg. v. Tolson (1889) 23 QBD 168, at p 187 makes it clear that, whilst the requirement is not that the mental element in mens rea must always be of a like nature in all crime, there must be in every case an intent appropriate to the definition of the crime. I would prefer to avoid the use of mens rea in these reasons because of the sense of moral turpitude vestigial from an earlier time which the expression tends to carry: but it is a convenient expression to convey the indispensable need for actual intent in criminal responsibility. But, where possible, I will use intent rather than mens rea. (at p80)

49. In Ryan's Case (1967) 121 CLR 205 I attempted a summary statement of the principle that in all crime, including statutory offences, the act charged must have been done voluntarily, i.e. accompanied by the will to do it. I find no need to qualify what I then wrote. I stated the principle as without qualification. Gallagher's Case (1963) AC 349 and Reg. v. Egan (1897) 23 VLR 159 are not instances of responsibility for involuntary acts for the reason I have already given and are not exceptions from the rule I expressed. The decision in Majewski's Case (1977) AC 443 would in substance engraft a qualification on that principle. The question in the present case is to determine both if and why that should be so, conformably to the understanding of the common law as to criminal responsibility which has resulted from the work of the courts in the last fifty years or so. I set that time because of the influence of Woolmington's Case (1935) AC 462 and more recent cases, and because of the influence Director of Public Prosecutions v. Beard (1920) AC 479 ought, in my opinion, to have had and which in some areas it has had: cf. Kamipeli's Case (1975) 2 NZLR 610 . (at p81)

50. In Ryan's Case (1967) 121 CLR 205 , which involved a charge of murder - oddly enough a crime accounted to be a crime of specific intent - I had no need to consider the case of a voluntary act done without the requisite intent. Consequently, my summary was confined to a lack of voluntariness. Of course, if the act be involuntary, there can be no question as to the intent with which it was done. But even where there is a conjunction of will and deed, there remains, as I think, in every case of common law crime, and indeed in many cases of "statutory crime", the need for actual intent, at least an actual intent to do the physical act involved in the crime charged. (at p81)

51. The intent to do the physical act which is required as part of an actus reus of a non-purposive kind has been called a "basic intent" (per Lord Simon in Morgan's Case (1976) AC, at p 216 , although, as I have mentioned, his Lordship included in the necessary intent an intent to produce a result of the physical act. Such an intent is, of course, basic in the sense that it must always be present as one of the foundations of criminal responsibility. But, as I think, so is the intent to do the act required where the actus reus is of a purposive kind. Discussions such as have taken place in Hyam v. Director of Public Prosecutions (1975) AC 55 and other cases have emphasized that the intent must be actual and not constructive. See also the judgment of Sir Owen Dixon in Parker v. The Queen (1963) 111 CLR 610, at p 632 , which so strongly emphasizes this feature of criminal culpability. (at p81)

52. But the description "basic intent" has been used to distinguish the intent required in a crime in which the actus reus does not require the physical act involved in the charge to have been done to achieve a stated purpose from the intent required in crimes which do so require. The latter are then styled crimes of "specific intent". (at p81)

53. With great respect to those who have favoured this terminology in a classification of crimes, it is to my mind not only inappropriate but it obscures more than it reveals. The purpose with which a proscribed act must be done in order to be relevantly criminal is, in my opinion, part of the description of the actus reus: cf. Lord Simon in Morgan's Case (1976) AC, at p 216 . Assault to resist arrest specifies, in my opinion, the actus reus. Although described in terms of intent it connotes the purposive quality of the proscribed act. It does not refer, in my opinion, to the mens rea, or intention to commit the act in question, though of course if, for example, an accused intends to assault a constable in order to resist arrest, it can scarcely be said that he did not intend the physical act necessary to carry out that purpose. None the less, the purpose of resisting arrest is, in my opinion, part of the actus reus. In other words, the suggested basis for classification of crimes is not, in my opinion, on the footing of a distinction based on the nature and extent of the relevant mens rea but, rather, it is a distinction founded on the description of the actus reus. (at p82)

54. The description "specific intent" gained its currency from Stephen J.'s judgment in Tolson's Case (1889) 23 QBD 168 . As an expression calling attention to the elements of the actus reus it has no doubt its uses. As the intent or mens rea is related to the content of the actus reus, the transference of the purpose of the actus reus to the mens rea is tempting, but it is preferable, in my opinion, not to effect that transference. In my respectful opinion, the distinction between basic and specific intent is unhelpful as a basis for distinction of crimes by reference to mens rea. (at p82)

55. If I might for a moment turn to the requirements of a charge of wounding, the mens rea is at least an intent to do the physical act involved in the wounding. But if, conformably with Lord Simon's analysis in Morgan's Case, the requisite intent is to wound, i.e. it is an intent to produce a result, not merely to do a physical act, that result is, in my opinion, part of the description of the actus reus. The blow must have a purpose to wound. If the mens rea is to include an intent to produce the result it would seem to me to be difficult to distinguish in relation to the need for mens rea between such an offence and another offence which in prescribing the actus reus required the attempted attainment of a further result. Yet the one is sought to be distinguished from the other in the dichotomy of basic and specific intent. (at p82)

56. This is a convenient place at which to refer to Lord Birkenhead's judgment in Beard's Case (1920) AC 479 . The case was decided in 1920 and the decision founded on the Lord Chancellor's reasons which had the approval of the other participating Law Lords. His Lordship's reasons must now be read in the light of subsequent decisions, but particularly in the light of Woolmington's Case (1935) AC 462 . The emphasis in Beard's Case on the capacity to form an intent must be displaced by the need to find an actual intent; though, of course, an incapacity to form an intent must deny the existence of the intent. Also the reference to proof by the accused must be deleted in favour of the onus on the Crown to which Woolmington's Case called attention. The passage round which controversy has centred is at p. 504 and is as follows:
"In Meade's Case (1909) 1 KB 895 , therefore, it was essential to prove the specific intent; in Beard's case it was only necessary to prove that the violent act causing death was done in furtherance of the felony of rape. I do not think that the proposition of law deduced from these earlier cases is an exceptional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime - e.g., wounding with intent to do grievous bodily harm or with intent to kill. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis, only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences), a person cannot be convicted of a crime unless the mens was rea. Drunkenness, rendering a person incapable of the intent, would be an answer, as it is for example in a charge of attempted suicide. In Reg. v. Moore (1825) 3 C &K 319 (175 ER 571) drunkenness was held to negative the intent in such a case, and Jervis C.J. said: 'If the prisoner was so drunk as not to know what she was about, how can you say that she intended to destroy herself?'" (at p83)

57. His Lordship had referred to cases where an inability due to intoxication to form a specific intent had been accepted as relevant to criminal responsibility. These cases had, of course, represented a change in the declaration of the common law reflecting in relation to a state of intoxication the sense of fairness and justice of the common law. In my opinion, his Lordship in the passage quoted meant exactly what his words convey. So far from erecting a distinction between so-called basic intent (an expression not then current) and specific intent, it seems to me that his Lordship was pointing out that the cases to which he had had occasion to refer did not really represent a departure from but were in truth no more than illustrative of fundamental principle, i.e. that a person could not be convicted of a crime unless "the mens was rea". I think his Lordship probably realised how anomalous it would be, as I think undoubtedly it is, that an accused could not be convicted of what is there called a graver offence if he lacks the requisite intent but could be convicted of a lesser offence without the requisite intent. Now, of course, under Majewski's Case an accused can be convicted without the opportunity of evidencing whether or not he had the necessary intent. (at p84)

58. I may say that, in my opinion, Lord Birkenhead did appear to treat the specific intent as part of mens rea, and did not make the distinction I would make between the intent or purpose which is part of the actus reus and the intent which is the mens rea. But none the less, in my opinion, I cannot gainsay the effect of three elements in the passage quoted and one from the preceding pages, namely, first, that what was being decided was not by reason of an exceptional rule; second, that it was in line with fundamental principle, i.e. of the indispensable need for mens rea; third, the reference to Reg. v. Moore, and, lastly, the reference to a quotation from Meade's Case. (at p84)

59. I am inclined to think that the difficulty which has been experienced with Lord Birkenhead's words has arisen because of the postulation of the dichotomy of basic and specific intent whereas, as I read his language, his Lordship gave no countenance to such a distinction, however expressed. (at p84)

60. Left to myself, and with the utmost respect to Lord Russell's explanation of it, I would read the much debated passage as indicating a realization that the logic of the so-called relaxation for crimes of specific intent was applicable to all crime. Crimes of so-called specific intent are, generally speaking, graver crimes. I have difficulty in thinking that his Lordship, by graver crime, meant only crimes for which an alternative verdict was possible. If such a limited meaning was intended I cannot imagine it being sought to be conveyed by the language used, language which attracted the assent of the other members of the House. I agree entirely with the judgment of McCarthy P. in Kamipeli's Case (1975) 2 NZLR 610 , and its use of Beard's Case (1920) AC 479 . (at p84)

61. It is to my mind exceedingly strange that a person incapable of forming any intent may be found guilty of an offence which requires only an intent to do the physical act involved but may not be found guilty of doing an act to attain a specific result. If the cases to which Lord Birkenhead referred represented a movement in the common law, an amelioration in favour of the accused, there is no reason, it seems to me, why the movement had to stop at the point reached by these cases. That, it seems to me, is how the matter struck Lord Birkenhead and those who agreed with him: and, in my view, that is precisely the sense in which he expressed himself. Such cases were not exceptions from but examples of fundamental rules. (at p84)

62. Thus, if the evidence of intoxication is sufficient to raise a doubt as to voluntariness or as to the presence of requisite intent, I can see no logical ground for determining its admissiblity upon a distinction between a crime which specifies only the immediate result of the proscribed act and a crime which in addition requires a further result dependent on purpose. (at p85)

63. But it is in substance held that the voluntary taking or administration of alcohol or other drug producing an intoxicated state so infects that situation that what is done in that state must incontestably be accounted to be voluntary or, at the lowest, as having been done with the requisite intent. The view, that of Lord Elwyn-Jones to which their Lordships subscribed, is that to become intoxicated by your own act, is to supply an element of recklessness to the performance of any criminally proscribed act performed during that state: and thus to satisfy the requirement of mens rea. But this, in my respectful opinion, is a novel use of the word "reckless" and, in my opinion, a use heretofore not thought acceptable. If to take alcohol or drugs with at least the risk of becoming intoxicated is in one sense a reckless thing to do, yet that variety of recklessness can scarce be carried forward and attributed as a substitute for actual intent to do the proscribed act. The recklessness which may on occasion satisfy the requirement of mens rea involves an awareness of possible consequences of doing the act, i.e. the proscribed act charged, and at least a decision to disregard them and to act without caring for appreciated consequences. The recklessness or wantonness of the person taking alcohol or other drug with at least the chance of becoming intoxicated is surely of a quite different order. Further, it is, in my opinion, in a legal sense remote from the performance of the act charged. It is quite unlike the intent formed in Gallagher's Case (1963) AC 349 which was not remote from the act charged but in truth directly connected to it because of the intent formed before intoxication. To find an analogy in the field of recklessness to what occurred in Gallagher's Case, it would be necessary to find an appreciation before intoxication of the risks of acts of a criminal kind during intoxication and a decision before intoxication to take those risks or at least a conceived indifference to the possibility of their turning into reality. For my part, I am unable to accept that the voluntary nature of the taking of the alcohol or other drug, whether or not it be an act of a wanton or reckless kind, supplies the mens rea for the commission of a crime which in the case supposed may have been done involuntarily or without the requisite intent. (at p85)

64. It is proper at this point to acknowledge that the reduction of murder to manslaughter by reason of a state of intoxication is so far an entrenched anomaly. In the first place, murder does not fit the definition of a crime of specific intent: but yet it is consistently so treated. Secondly, manslaughter for its part is very much affected by its definition as unjustifiable homicide. The anomaly has not been the subject of critical judicial examination. The wide discretion available in the punishment of manslaughter has no doubt contributed to its acceptability as an alternative to murder where that crime for any reason is not made out. In what I wrote in Viro's Case (1978) 141 CLR, at pp 95-102 , I discussed the use of manslaughter as an alternative to murder when self-defence is set up. The anomalous position of manslaughter ought not, in my opinion, to provide any justification for any further departure from fundamental principle where voluntariness or requisite intent is absent. (at p86)

65. Then it is said that the protection of the community from violence, being a purpose of the criminal law, requires the conclusion to which the House came in Majewski's Case (1977) AC 443 . It may readily be granted that the frequency with which intoxicated persons act violently poses a distinct threat to our social order and, indeed, at times, to personal safety. Further, the use of drugs to produce intoxicated situations has become rife. It has added a new dimension to the possibility of violent and unsocial conduct on the part of those who have become intoxicated. That the society needs protection against violence by such persons can readily be conceded. But so it does in relation to armed robbery and, indeed, to housebreaking which is not infrequently accompanied by violence to the person. So it does in relation to many crimes of so-called specific intent. The question, it seems to me, which is posed for this Court is whether it is consonant with the common law to make such an exception in the case of self-induced intoxication as has been held to be the case by the House of Lords. Does the situation created by the use of drugs arising or which may arise from what I might call intoxicated violence warrant a radical departure from those principles of the common law evolved over a period of time, but particularly elucidated in the last fifty or so years? These principles have been established bearing in mind and not disregarding the need of the society for protection from violent and unsocial behaviour. These principles, on the one hand, provide the society with a protection against violent and unsocial conduct, whilst on the other hand, maintain a just balance between the Crown and the citizen who is charged with having broken the criminal law. That Majewski's Case is a departure from such principles can scarce be gainsaid. It seems to me to be completely inconsistent with the principles of the common law that a man should be conclusively presumed to have an intent which, in fact, he does not have, or to have done an act which, in truth, he did not do. (at p87)

66. I can readily understand that a person who has taken alcohol or another drug to such an extent that he is intoxicated thereby to the point where he has no will to act or no capacity to form an intent to do an act is blameworthy and that his act of having ingested or administered the alcohol or other drug ought to be visited with severe consequences. The offence of being drunk and disorderly is not maintained these days in all systems of the common law. In any case it has not carried a sufficient penalty properly to express the public opprobium which should attach to one who, by the taking of alcohol or the use of drugs, has become intoxicated to the point where he is the vehicle for unsocial or violent behaviour. But, though blameworthy for becoming intoxicated, I can see no ground for presuming his acts to be voluntary and relevantly intentional. For what is blameworthy there should be an appropriate criminal offence. But it is not for the judges to create an offence appropriate in the circumstances: cf. Knuller (Publishing, Printing &Promotions) Ltd. v. Director of Public Prosecutions (1973) AC 435, at pp 457-458, 464-465, 490 . It must be for the Parliament. (at p87)

67. There would be good sense, it seems to me, in a statutory provision which gave to a jury who were driven to the conclusion that an accused, due to the result of self-induced intoxication, was not culpable of the crime with which he is charged to be able to bring in an alternative verdict that he, by his own conduct, had brought himself to a state where he was not responsible for his acts. There should be a substantial penalty provided for his conviction of this alternative charge, a penalty of confinement which would include both an element of punishmen and provide an opportunity for treatment for the tendency to take alcohol or drugs. It would, it seems to me, be quite just to make the accused responsible for his act of having taken alcohol or other drug to the point I have described. (at p87)

68. 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. (at p88)

69. 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. (at p88)

70. In my opinion, the Court of Criminal Appeal was justified in not accepting Majewski's Case (1977) AC 443 . It does not appear from their reasons that they attempted a detailed analysis of the evidence as to voluntariness or as to actual intent. But it is evident that they took the view that the jury in acquitting of the charges in the indictment could be taken under the trial judge's direction to have had a doubt at least as to intent, if not as to voluntariness. Consequently, there is no ground for disturbing the court's conclusion that the respondent should be acquitted of the alternative offence. (at p88)

71. I would grant special leave to appeal and, for the reasons I have expressed, dismiss the appeal. (at p89)

Gibbs J. I have had the advantage of reading in draft the reasons for judgment prepared by my brother Wilson. He has dealt so fully with the questions involved that it is possible for me to express with comparative brevity my reasons for concurring in the conclusion which he has reached. (at p89)

2. The accused was charged with wounding with intent to do grievous bodily harm or intent to resist lawful apprehension. The jury acquitted him on that count but convicted him of an alternative count of unlawful and malicious wounding. The learned trial judge directed the jury that self-induced intoxication was no defence to the alternative charge. In so doing he followed the decision of the House of Lords in Reg. v. Majewski (1977) AC 443 . We are now called upon to decide whether that decision should be followed in Australia. (at p89)

3. Even the most severe of the many academic critics of Reg. v. Majewski do not, I think, suggest that the decision in that case involved a departure from established authority. The history of the rules of the common law as to the effect of voluntary intoxication on criminal responsibility was fully traced in Director of Public Prosecutions v. Beard (1920) AC 479 , and it reveals a gradual relaxation of the original principle that intoxication was regarded as an aggravation rather than as an excuse for criminal misbehaviour. Unfortunaely the judgment of Lord Birkenhead L.C. in Director of Public Prosecutions v. Beard (1920) AC 479 is not expressed with his Lordship's usual clarity and has created considerable difficulties, some of which were discussed in Viro v. The Queen (1978) 141 CLR 88, at pp 109-113 . In Viro v. The Queen it was said that it would be contrary to fundamental principle to hold that evidence of intoxication not amounting to incapacity is irrelevant to criminal responsibility where the commission of the crime requires a special intent, and it was held that on a charge of such a crime the state of intoxication of the accused person is a matter to be considered by the jury in deciding whether they are satisfied that he had the requisite intent. However, neither in Director of Public Prosecutions v. Beard nor in any of the English cases that followed it was it held that an accused person who was so intoxicated that he was incapable of knowing what he was doing was entitled to be acquitted of a criminal charge not involving a special intent. One passage in the judgment in Director of Public Prosecutions v. Beard (1920) AC, at p 504 , has been thought by some to suggest that the principle for which that case is authority was not confined to crimes in which it was necessary to prove a special (or specific) intent, but I respectfully accept the explanation of that passage given by Lord Russell of Killowen in Reg. v. Majewski (1977) AC, at p 499 , and agree with the observation of Lord Simon of Glaisdale (1977) AC, at p 479 , that the judgment in Director of Public Prosecutions v. Beard would be "broken-backed and inconsistent" if some explanation on the lines described by Lord Russell of Killowen were not accepted. The decision in Reg. v. Majewski is in my opinion consistent with that in Director of Public Prosecutions v. Beard and other English authority. (at p90)

4. The case does not conflict with any Australian authority, except for some decisions of judges sitting at first instance in the Supreme Court of Victoria. It was suggested that Reg. v. Majewski is inconsistent with some observations made in this Court by Barwick C.J. in Ryan v. The Queen (1967)121 CLR 205 . That was a case of felony murder, and proof of a special intent was not necessary, but no question of intoxication arose - the defence was that the killing was accidental. Barwick C.J. said (1967) 121 CLR, at p 216 , that "an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act", and went on (1967)121 CLR, at p 217 :
"If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused."
I respectfully agree with these observations in so far as they state a general principle. However, the learned Chief Justice did not discuss the questions (which did not arise in that case) whether this general principle applies where the reason why the acts of the accused are said not to be his willed acts is that he was in a state of self-induced intoxication, and whether, assuming the acts of the intoxicated person to have been voluntary, they can be said to have been done with a guilty mind. (at p90)

5. The decision in Reg. v. Majewski (1977) AC 443 is attacked on the grounds that it did not carry far enough the relaxation of the strict rules of the common law which the earlier authorities had brought about, and that the result is illogical and contrary to principle. In the first place it is said that there is no clear criterion, or consistent principle, by which crimes of special intent may be distinguished from crimes of basic intent. With the greatest respect to Lord Simon of Glaisdale, who suggested the use of the expression "basic intent" in Reg. v. Morgan (1976) AC 182 , I do not find that expression altogether helpful. It suggests that intention is an essential ingredient of a crime, when one question to be decided is whether that is so. However, I find no difficulty in distinguishing crimes which involve a special intent from those which do not. A crime of special intent, as I indicated in Viro v. The Queen (1978) 141 CLR, at p 111 , is a crime of which an intention to cause a particular result is an ingredient. Thus in the present case the learned trial judge without difficulty explained to the jury, and the jury appear to have understood and acted upon, the distinction between the charge of wounding with intent to do grievous bodily harm or intent to resist lawful apprehension, which was a crime of special intent, and the charge of unlawful and malicious wounding, of which the accused might properly be convicted although he acted without any intention to cause a particular result. In the case of some crimes - rape is one of them - confliciting opinions have been expressed on the question whether a special intent must be proved, but in most cases the distinction is clear and easily applied. (at p91)

6. A second argument is that once it is conceded that the state of intoxication of the accused, even if self-induced, is relevant to the question whether he possessed the requisite special intent when that has to be proved, it should also be relevant to the question whether he possesed the necessary mens rea in the case of a crime which does not involve any special intent. This is perhaps another way of saying that proof of intention is necessary in all cases, and that there is no real distinction between crimes of special intent and other crimes. This argument was met in Reg. v. Majewski in a number of ways. Some of their Lordships accepted that the conduct of a person who voluntarily becomes intoxicated should be regarded as reckless, and as providing evidence of a guilty mind sufficient in cases in which no special intent is required to be proved (see per Lord Elwyn-Jones L.C. (with whom Lord Diplock and Kilbrandon agreed), at pp. 474-475, per Lord Edmund-Davies, at p. 496, and per Lord Russell of Killowen, at p. 498). The critics of the decision have raised objections to this view. It is said that if recklessness constitutes the mens rea, the question whether the accused in fact acted recklessly in becoming intoxicated ought logically to be left to the jury - a course which has not hitherto been adopted, and which might have practical disadvantages. Another objection is that the recklessness would be anterior to, not contemporaneous with, the commission of the act said to constitute the crime. These objections are, however, not well founded if their Lordships were, in substance, expressing a view similar to that suggested by Lord Simon of Glaisdale (1977) AC, at p 478 - namely, that the mind of the person who is in a state of self-induced intoxication is treated by the law as a guilty mind. On that view the so-called recklessness of the offender in becoming intoxicated provides the ethical justification, rather than the legal basis, for holding him to have a guilty mind. An alternative approach is to accept that the principles laid down in Reg. v. Majewski are illogical, but nevertheless to regard them as satisfactory and to adopt them, remembering that the common law is founded on common sense and experience rather than on strict logic. This was the view of Lord Salmon (1977) AC, at pp 482-484 and it is in my opinion sufficient to support the decision. (at p92)

7. There is however sound practical justification for treating self-induced intoxication as capable of negating criminal responsibility in cases where the commission of the crime requires a special intent but not in other cases. Normally the crime of special intent will be the more serious, but that is not the reason for the distinction. In a crime of special intent, the intoxicated condition of the accused may show that one element of the offence as defined by the law - the intention to cause a particular result - was lacking; the fact of self-induced intoxication may be treated as establishing the existence of a guilty mind, but it cannot in itself establish the existence of the special intent. Nor is it, in my opinion, anomalous to distinguish between self-induced and unintentional intoxication. A person who has become intoxicated without any intention to consume anything intoxicating - for example, because his drink has been "surreptitiously laced", or because, against his will, a drug has been forcibly administered to him - is no more morally responsible for what he does than is a psychopath or a very young child, but a person who voluntarily gets drunk or high on drugs does not thereby cease to be morally responsible for his actions. (at p92)

8. The argument which the appellant in Reg. v. Majewski (1977) AC 443 , and the respondent in this case, advanced was that a person who, though not insane, commits what would in ordinary circumstances be a crime when he is in such a mental state that he does not know what he is doing, lacks a guilty mind, and is therefore not criminally culpable, even if the mental state was self-induced by the voluntary taking of drink or drugs. If this argument were accepted, an accused person would be entirely exculpated if he was sufficiently drunk when he committed the acts which would otherwise have been criminal. For example, if he was charged with murder, his crime would not be reduced to manslaughter, but he would be entitled to be acquitted. This was recognized by Crockett J. in Reg. v. Haywood (1971) VR 755, at p 758 . If this were the state of the law it would be gravely defective. I agree with the statement of Lord Salmon in Reg. v. Majewski (1977) AC, at p 484 , that: "If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling." Crimes of violence committed by persons while intoxicated have never been uncommon, and the increase of drug-taking in the community today has made the problem even more serious. The law would afford quite inadequate protection to the individual, and would rightly be held in contempt, if persons completely under the influence of drink or drugs could commit crimes with impunity. There are therefore strong reasons of policy which support the rule of substantive law for which Reg. v. Majewski is authority, namely that in crimes which are not crimes of special intent, self-induced intoxication does not relieve the accused of criminal responsibility. (at p93)

9. However, it was argued on behalf of the present respondent that it would be wrong to depart from sound principle because of a fear that if intoxication is treated as relevant to the question of voluntariness, or to the wider question of mens rea, juries will fail to do their duty and there will be many wrongful acquittals. There are two answers to this submission. First, Reg. v. Majewski involved no departure from the settled rules of the common law - the effect of the decision was that the relaxation of the original common law principles should proceed no further. The criminal responsibility of persons who act in a state of self-induced intoxication is governed by a distinct principle - namely, that such intoxication in itself provides no ground for saying that the act done was involuntary or that the mind of the actor was not guilty. Secondly, the danger of the suggested principle, that intoxication should be considered in deciding whether a person charged with a crime which involved no special intent was criminally responsible, is not that juries may improperly acquit, but that they may properly apply an unsatisfactory principle. If the law were as the respondent submits, the duty of the jury, in a case in which evidence of intoxication was given, would be to acquit unless it had been satisfied beyond reasonable doubt that the accused, in spite of his intoxication, knew what he was doing and was able consciously to control his actions. Juries, doing their duty, might well give the benefit of the doubt to offenders who had committed serious crimes while in a state of intoxication. (at p94)

10. Speaking generally, it seems to me in no way unjust to punish a person who commits a crime while in a state of self-induced intoxication. To do so would not, I think, offend the conscience of society or be contrary to ethical principles. Cases may be suggested in which it might appear harsh to punish a person for actions committed while in a state of advanced intoxication - for example, the case of an inexperienced child who became drunk or drugged to such a degree that he lost control of his actions - but those are the exceptions, and in general there would seem little merit in a rule that allowed a person to place himself beyond the law (deliberately or otherwise) by becoming intoxicated. (at p94)

11. It does not follow from the decision in Reg. v. Majewski that evidence of the intoxicated condition of the accused must be rejected as irrelevant. That would be absurd; the evidence is admissible as one of the surrounding circumstances, and in some cases it will be relevant to other questions in issue. (at p94)

12. Proposals have been made for the reform of the law with regard to intoxication, but our choice is not between the law as laid down in Reg. v. Majewski and some better principle which the law reformers may devise. The alternative to Reg. v. Majewski is that a person who commits what would otherwise be a crime, when so intoxicated that he is unable to know what he is doing, is entitled to be acquitted entirely. For the reasons I have given, I consider that to approve of that alternative principle would be to alter the law for the worse. (at p94)

13. I consider that the decision in Reg. v. Majewski was correct, and that it should be followed in Australia. (at p94)

14. I would grant special leave to appeal, and would allow the appeal. I would set aside the judgment of the Court of Criminal Appeal, and would restore the conviction and sentence. (at p94)

STEPHEN J. The general question of principle which lies behind this appeal is whether evidence of an accused's mental state at the time he commits an offence, if grossly affected by self-induced intoxication, is relevant to his defence regardless of the nature of the offence, of whether or not it be a crime of specific intent. (at p95)

2. Some preliminary definition of subject-matter and terms is necessary. With crimes of strict liability or involving no more than negligence I have no present concern. The words "grossly affected" and "self-induced", used to describe the extent and cause of the relevant state of intoxication, are, of course, imprecise: the former involves nice questions of degree, the latter may raise questions of actual knowledge, recklessness, duress, mistake, bona-fide use as medication and the like. Rather than be enmeshed at the very outset in complexities of definition, I accept relative imprecision. My subsequent references to intoxication are to be understood as restricted to the consequences of the voluntary taking of alcohol or drugs to a degree sufficient to deny the existence of the mental element necessary for the commission of the offence in question, although not involving a state of insanity; relatively mild states of intoxication, which do no more than suppress inhibitions, are excluded. (at p95)

3. The law of England confines the relevance of such intoxication to those offences regarded as requiring for their commission what is described as a specific intent. The appellant Crown contends that this is also the law for Victoria and that the Victorian Court of Criminal Appeal has erred in extending it to those offences which do not involve any such specific intent. (at p95)

4. It is by the decision of their Lordships in Director of Public Prosecutions v. Majewski (1977) AC 443 that the law for England has now been unequivocally declared, what was perhaps thought to remain equivocal after Director of Public Prosecutions v. Beard (1920) AC 479 having been placed beyond all doubt. (at p95)

5. There are, one supposes, two views, one at each extreme, which the law might in this century take of the intoxicated law-breaker. It might treat his intoxicated state as altogether irrelevant, or on the other hand it might in certain circumstances treat it as involving complete exoneration. In between lie several possible intermediate positions: one of these Majewski takes, it treats it as exonerating, but only in the case of those offences said to involve a specific intent. In the case of all other offences intoxication is irrelevant, at least as it may bear upon the existence of the mental element necessary for the commission of the offence. (at p95)

6. The unanimous decision in Majewski, arrived at after very full argument before a House comprised of seven of their Lordships of whom five gave detailed reasons for their conclusions, cannot fail to carry very great weight. The fact that it accords with prevailing views in the United States and was followed by a majority of the Canadian Supreme Court in Leary v. The Queen (1977) 74 DLR (3d) 103 emphasizes its authoritative position in the common law world. (at p96)

7. In nevertheless coming, as I have, to a different conclusion I take some comfort from the fact that, as several of their Lordships make clear, considerations of a policy nature played no little part in the decision arrived at - per Lord Elwyn-Jones L.C., at p. 469F, Lord Simon of Glaisdale, at pp. 476G-477E, Lord Salmon, at pp. 483H-484F, Lord Edmund-Davies, at pp. 486D, 494G, 495E-G, Lord Russell of Killowen, at p. 498F. Cogent as those considerations are, their nature is necessarily such as not to confer upon the decision of a court in another legal system, however eminent, quite the same degree of persuasive authority as would reside in a decision founded exclusively upon legal principle. (at p96)

8. Important legal principles are, I think, here involved, principles that constitute the foundation of our present notions of criminal responsibility. For criminal liability to be incurred (cases of strict liability and culpable negligence always apart) civilized penal systems have, in modern times, insisted that the accused should be shown to possess a blameworthy state of mind. As Stephen J. pointed out in Reg. v. Tolson (1889) 23 QBD, at p 187 , "The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed . . . ". (The reference to proof of absence must now, of course, be read in the light of Woolmington v. Director of Public Prosecutions (1935) AC 462 ). The mental element that must be present is a state of mind such as Lord Simon described, in Majewski, as "stigmatised as wrongful by the criminal law": it is that state of mind which, when compounded with prohibited conduct, constitutes the particular offence (1977) AC, at p 478 . As Dickson J. said in Leary v. The Queen (1977) 74 DLR (3d), at p 122 , "Society and the law have moved away from the primitive response of punishment for the actus reus alone". Thus in Bratty v. Attorney-General (Northern Ireland) (1963) AC 386, at p 407 the Lord Chancellor, in describing "the overriding principle, laid down by this House in Woolmington's Case" said, "that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused's state of mind; . . . if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea - if indeed the actus reus - has not been proved beyond reasonable doubt". (at p97)

9. In this Court Griffith C.J. said in Hardgrave v. The King (1906) 4 CLR 232, at p 237 , "The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident". In Thomas v. The King (1937) 59 CLR 279, at p 309 Dixon J. spoke of the mental element in crime as "the most fundamental element in a rational and humane criminal code" and Latham C.J. (1937) 59 CLR, at p 287 accepted as a principle of English law that "ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent". In Ryan v. The Queen (1967) 121 CLR 205, at p 216 Barwick C.J. said, "an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act". (at p97)

10. If the conventional division into actus reus and mens rea is to be adhered to, the relevant mental element in crime will not be found exclusively in the mens rea, since there will be no actus reus if the conduct of which it consists was involuntary: only voluntary conduct can constitute the actus reus. Then, superadded to this requirement that the conduct should be voluntary, is the requirement that there should be shown to exist that mental element which is involved in the concept of mens rea. Its precise content may differ from crime to crime. It has been described as the possession of a criminal intention or, as Sir Frederick Jordan put it in R. v. Turnbull (1944) 44 SR (NSW) 108, at p 109 , knowledge on the part of the accused "that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing". Recklessness will also serve to supply it. (at p97)

9. In the House of Lords, Lord Elwyn-Jones L.C. concluded his speech in the following terms (1977) AC, at p 476 :

"My noble and learned friends and I think it may be helpful if we give the following indication of the general lines on which in our view the jury should be directed as to the effect upon the criminal responsibility of the accused of drink or drugs or both, whenever death or physical injury to another person results from something done by the accused for which there is no legal justification and the offence with which the accused is charged is manslaughter or assault at common law or the statutory offence of unlawful wounding under s. 20, or of assault occasioning actual bodily harm under s. 47 of the Offences against the Person Act, 1861.

In the case of these offences it is no excuse in law that, because of drink or drugs which the accused himself had taken knowingly and willingly, he had deprived himself of the ability to exercise self-control, to realise the possible consequences of what he was doing, or even to be conscious that he was doing it. As in the instant case, the jury may be properly instructed that they 'can ignore the subject of drink or drugs as being in any way a defence' to charges of this character." (at p129)

10. Although the Lord Chancellor referred specifically to manslaughter and assault at common law, and the statutory offences of unlawful wounding and assault occasioning actual bodily harm under s. 47 of the Offences against the Person Act, 1861, it is clear that their Lordships intended the principle they enunciated to apply to all offences comprehended by the description "offences of basic intent", as dinstinguished from offences which have as an essential element of the offence the presence of a specific intent which is required to be proved by the Crown. (at p130)

11. The problem before us is relevant only to those States which continue to rely, at least in part, on the common law for the principles of criminal responsibility. For Queensland, Western Australia and Tasmania the question is determined by the Criminal Codes which have been enacted in those States. For the other States the issue is one of fundamental importance, involving an evaluation of two principles which clearly are of great importance to the community and yet which are said to be in conflict in the case of an intoxicated offender. I refer to the expectation on the one hand that the law will provide adequate protection to the community, and on the other hand that the principles determining criminal responsibility will reflect enlightened standards of fairness and justice to a person accused of a crime. (at p130)

12. Majewski provided the opportunity in England for a thorough curial examination of the problem, first by three members of the Court of Appeal (Criminal Division), and then by an unusually strong bench of the House of Lords, consisting of seven Law Lords. The result exhibits a remarkable unanimity in favour of a view of the common law consistent with that expounded to the jury by the learned trial judge in the present case. (at p130)

13. However, the learned judges constituting the Court of Criminal Appeal of Victoria, after a consideration of the relevance of two decisions of this Court (Viro v. The Queen (1978) 141 CLR 88 and Ryan v. The Queen (1967) 121 CLR 205 ) and a forthright and critical evaluation of the decision of the House of Lords, resolved unanimously that the decision in Majewski did not represent the law for Victoria. That law was summarized by the learned Chief Justice in the following terms:
" . . . I think that the learned trial Judge must be held to have misdirected the jury by failing to tell them that in considering the statutory alternative of unlawful wounding they should take into account along with all the other circumstances proved the intoxication of the accused (if they found that he was intoxicated) in deciding whether the Crown had proved the necessary intent." (1980) VR, at p 645 . (at p131)

14. Before I proceed to examine the reasons for judgment advanced by the members of the Court of Criminal Appeal it is necessary to consider the significance of the two earlier decisions of this Court that were considered by the Court of Criminal Appeal and were canvassed in argument before us. (at p131)

15. The learned Solicitor-General of Victoria submitted to us that the whole of Majewski was indorsed by this Court in Viro, and that it necessarily followed from that decision that both the distinction between offences of special and general (or basic) intent and the relevance of intoxication as expounded in Majewski were part of the law in Victoria. (at p131)

16. Viro was convicted of murder in New South Wales. The fatal act committed by him occurred after he had attacked the deceased with the intention of robbing him, and after the deceased had, according to Viro's account, resisted with unusual violence. In an unsworn statement from the dock Viro told the jury that he was addicted to heroin and that at the time of the stabbing he was badly affected by heroin. He said, inter alia: "You just can't think properly with drugs in you. I certainly wasn't thinking straight. I never formed any intent to harm Rellis." (at p131)

17. In the High Court an application for special leave was argued as if it was an appeal. It was submitted on behalf of Viro before a bench of five Justices comprising Gibbs, Stephen, Jacobs, Murphy and Aickin JJ. (a second argument ultimately being decided by the whole Court), that the learned trial judge had failed to direct the jury that in deciding whether the accused had formed the intention to kill or to do grievous bodily harm they might have regard to the fact that he had taken heroin. Gibbs J , with whose reasons on this point the other four Justices agreed, discussed at some length the rules of the common law relating to the effect on criminal responsibility of self-induced intoxication, but with particular reference to offences requiring proof of a specific intent. In the course of that discussion, after observing that there is no difference between intoxication from drugs and intoxication from alcohol, he said, (1978) 141 CLR, at p 109 :

"It is well established that intoxication voluntarily caused is no excuse for the commission of a crime. However, when an intention to cause a particular result ('a special intent') is an alement of the crime - as in a charge of murder based upon an intention to kill or to inflict grievous bodily harm - the fact that the accused was intoxicated may have an important bearing on the question whether he had the necessary intent."

His Honour continued (1978) 141 CLR, at pp 111-112 :

"The state of intoxication of an accused person is one of the matters to be considered by the jury in deciding whether they are satisfied that he had the requisite intent. In Director of Public Prosecutions v. Majewski, Lord Salmon said (1977) AC, at p 481, at p 639 : 'This does not mean that drunkenness, of itself is ever a defence. It is merely some evidence which may throw a doubt upon whether the accused had formed the special intent which was an essential element of the crime with which he was charged. Often this evidence is of no avail because obviously a drunken man may well be capable of forming and does form the relevant criminal intent: his drunkenness merely diminishes his powers of resisting the temptation to carry out this intent.' That in my respectful opinion is good sense as well as good law. . . "

One might reasonably infer from these and other passages in the judgment of Gibbs J. that he and those members of the Court who agreed with him would have given their approval generally to the result in Majewski if it had been necessary or relevant to do so. But it was neither necessary nor relevant, for, as Gibbs J. himself observed the crime in Majewski (1978) 141 CLR, at p 111 "was not one involving a special intent, and the present question did not fall for direct decision". (at p132)

18. This is a distinction of critical importance to the learned Solicitor-General's argument, for it is common ground that the offence of which the applicant in the present case has been convicted is not a crime of special intent. I therefore conclude that Viro (1978) 141 CLR 88 , while persuasive, does not constitute authority on the question whether Majewski (1977) AC 443 represents the common law for Australia. (at p132)

19. I come now to consider Ryan (1967) 121 CLR 205 , the second of the two decisions of this Court which were pressed upon us in argument. (at p132)

20. Ryan was referred to by both the learned Chief Justice and Starke J. in the Court of Criminal Appeal. The former was of the opinion that "the approach of the High Court (in Ryan) is fundamentally inconsistent with the approach of the House of Lords in Majewski's Case", while Starke J. found "direct authority" in Ryan for the proposition that intoxication is a relevant consideration when determining the existence of a general intent. Both the learned Chief Justice and Starke J. cited the following passage from the judgment of Barwick C.J. in Ryan (1967) 121 CLR, at pp 216-217 :
"In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. The lack of that exercise which precludes culpability is not, in my opinion, limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused. . . . If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. . . . Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury." (at p133)

21. Ryan was a case of murder by shooting. The defence at the trial was that the discharge of the firearm was an accident, but in the course of argument before the High Court attention was focused on the basic requirement of a voluntary act as the foundation of criminal responsibility. A discussion of this principle appears in the judgment of Barwick C.J. (1967) 121 CLR, at pp 213-217 , and the principle is adverted to in the joint judgment of Taylor and Owen JJ. (1967) 121 CLR, at p 231 and in the judgment of Windeyer J. (1967) 121 CLR, at p 244 . Undoubtedly some significance must attach to the exhaustive terms in which Barwick C.J. expressed the principle that only a voluntary act can amount to a crime, and one can understand Lord Edmund-Davies' acceptance in Majewski that the Chief Justice's statement of principle in Ryan was intended to extend to an automatic state arising from intoxication (1977) AC, at p 491 . On the other hand, there was no element of intoxication in Ryan, and no judge referred to such a factor. (at p133)

22. As a statement of general principle it is incontestable that no crime can be committed unless there is a voluntary act or omission on the part of the accused. However, there has long been a recognized exception to this principle in the case of self-induced intoxication (see e.g. ss. 23 and 28, Criminal Codes, Queensland and Western Australia). (at p133)

23. The emphatic restatement of the voluntary act principle by Barwick C.J. in Ryan is not necessarily to be taken as a denial, by implication, of the recognized exception in the case of self-induced intoxication. Whilst the views expressed in Ryan are naturally deserving of great respect, it is, in my opinion an overstatement to describe them as "authoritative" for the present case and the question of the significance of self-induced intoxication falls to be determined by this Court free from any binding authority. (at p134)

24. It seems to me that the proper starting point for a consideration of the present question is to recognize that the House of Lords' decision in Majewski is not a revolutionary decision. It does not break new ground. In essence, it confirms the common law as it has been understood and applied for at least the past century (cf. Reg. v. Doherty (1887) 16 Cox CC 306 ). It may be open to criticism on the grounds that changing circumstances now call for a different decision as an expression of the capacity of the common law to respond to the needs of changing times. But if that be so, it is for those who advocate such a change to carry the burden of persuasion. Apart from some present uncertainty in New Zealand, where the matter has expressly been left open by the Court of Appeal (Reg. v. Roulston (1976) 2 NZLR 644, at p 654 ; but cf. Reg. v. Kamipeli (1975) 2 NZLR 610 ), Victoria would seem to be the only jurisdiction in the common law world to have departed from the traditional view on the relevance of self-induced intoxication; cf. England: Majewski (1977) AC 443 ; N.S.W.: Reg. v. Menniss (1973) 2 NSWLR 113 ; South Australia: Reg. v. Fahey (1978) 19 SASR 577 ; Canada: Leary v. The Queen (1977) 74 DLR (3d) 103 ; South Africa: State v. Tsotsotso (1976) 1 SALR 364 ; see also American Law Institute Model Penal Code s. 2.08; Indian Penal Code s.86, as applied in Basden v. State of Pepsu (1956) SCR 363 (AIR 1956 SC 488) . (at p134)

25. The only decisions to the contrary are two decisions of judges at first instance in Victoria: Reg. v. Keogh (1964) VR 400 ; Reg. v. Haywood (1971) VR 755 . (at p134)

26. It may also be remarked that hitherto no distinction has been drawn between the element of voluntariness and the basic intent attending the commission of the act. Evidence of self-induced intoxication has been held to be irrelevant in either case: cf. Bratty v. Attorney-General (Northern Ireland) (1963) AC, at p 410 ; Reg. v. Lipman (1970) 1 QB 152 . (at p134)

27. The respondent advances several arguments against the maintenance of the old rule. These include the unreality of the distinction between offences of basic and special intent, the illogicality of holding that intoxication is relevant to some criminal intents but not others, the ethics of requiring a jury to convict a person of an offence notwithstanding that it may be evident that his mind did not go with the act, and the problem that may arise of directing a jury that it may take evidence of intoxication into account in relation to some charges but must ignore it in relation to others. (at p135)

28. It was argued that, rightly understood, the judgment of Lord Birkenhead L.C. in Director of Public Prosecutions v. Beard (1920) AC 479 drew no distinction between offences of basic intent and offences of specific intent and that the case is authority for the proposition that, when raised, evidence of intoxication should be taken into account in relation to all offences. In this submission the respondent drew some support from the judgments of Young C.J. and Gray J. in the Court of Criminal Appeal. (at p135)

29. There are passages in Lord Birkenhead's judgment that are difficult to reconcile with one another. The apparent inconsistency between what appears at pp. 499-500 and the passage at p. 504 has been the subject of much debate. However, with all respect to the learned Justices in the Court of Criminal Appeal, I think, having regard to the historical survey made by the Lord Chancellor before coming to the passage at pp. 499-500, that it is clear that he intended to draw a distinction between offences requiring a specific intent and those where no specific intent need be shown. I am fortified in this conclusion by the discussion of Beard in the speech of the Lord Chancellor in Majewski (1977) AC pp 473-475 , and by the analysis made by Lord Russell of Killowen in the same case (1977) AC, at pp 499-500 . After citing a passage from the judgment of Lord Denning in Attorney-General (Northern Ireland) v. Gallagher (1963) AC 349, at p 380 , and two passages from Lord Denning's judgment in Bratty v. Attorney-General (Northern Ireland) (1963) AC, at pp 409, 410 , the Lord Chancellor concluded (1977) AC, at p 474 :
"The seal of approval is clearly set on the passage at p. 499 of the Beard decision. In no case has the general principle of English law as described by Lord Denning in Gallagher's Case (1963) AC 349 and exposed again in Bratty's Case (1963) AC 386 been overruled in this House and the question now to be determined is whether it should be." (at p135)

30. In my respectful opinion, the difficulty of distinguishing between the two categories of offences has been exaggerated. In Viro (1978) 141 CLR, at p 109 Gibbs J. drew the distinction in words which I have already cited, namely, "when an intention to cause a particular result (a 'special intent') is an element of the crime - as in a charge of murder based upon an intention to kill or to inflict grievous bodily harm - the fact that the accused was intoxicated may have an important bearing on the question whether he had the necessary intent." I find this statement acceptable. It identifies an offence which requires, in addition to proof of a voluntary act attended with foresight of consequences, proof of an additional element related to the purpose with which the impugned conduct took place. In so doing, it corresponds to the phrase appearing in s. 28 of the Criminal Codes of Queensland and Western Australia to which I have already referred. In my opinion, these Codes accurately reflect the common law as it was understood at the time of their enactment (cf. Stephen, Digest of the Criminal Law, 5th ed. (1894), Art. 30; Reg. v. Doherty (1887) 16 Cox CC 306 ). (at p136)

31. It was also argued before us on behalf of the respondent, as it was argued before their Lordships in Majewski (1977) AC 443 , that it is illogical to take evidence of intoxication into consideration in relation to some offences but not in relation to others, and that it is unethical to attach penal consequences to conduct in respect of which a defendant may have had no mens rea because of self-induced intoxication. These arguments were fully canvassed in Majewski and, in my opinion, having regard to the social issues involved, were answered satisfactorily in the course of the speeches in that case. I cite in particular the following passage from the speech of Lord Simon of Glaisdale (1977) AC, at pp 479-480 :
". . . there is nothing unreasonable or illogical in the law holding that a mind rendered self-inducedly insensible . . . through drink or drugs, to the nature of a prohibited act or to its probable consequences is as wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable consequences (or is reckless as to whether they ensue). The latter is all that is required by way of mens rea in a crime of basic intent. But a crime of specific intent requires something more than contemplation of the prohibited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element. This purposive element either exists or not; it cannot be supplied by saying that the impairment of mental powers by self-induced intoxication is its equivalent, for it is not. So that the 19th century development of the law as to the effect of self-induced intoxication on criminal responsibility is juristically entirely acceptable; and it need be a matter of no surprise that Stephen stated it without demur or question." (at p137)

32. In any event, it is relevant to recall the historical explanation for the so-called anomaly that evidence of intoxication is relevant to some offences but not to others. Before the nineteenth century evidence of intoxication was totally disregarded. The law was strict, perhaps harsh, but not illogical. Then, as is explained in the speech of the Lord Chancellor in Majewski (1977) AC, at pp 471-472 , from 1819 onwards the courts began to mitigate the severity of the common law in cases such as murder and serious violent crime, where the penalty was death or transportation, and cases such as attempted suicide, where there was likely to be sympathy for the accused. The result was that evidence of drunkenness was admissible in some cases, where a specific intention was alleged on the part of the accused, but was generally inadmissible. It would be a strange result, however, if the merciful relaxation of a strict rule of law to allow an exception in some cases had the effect of denying any logical merit to the substance of the rule. If anything it is the exception, and not the basic rule, which disturbs the logical symmetry. (at p137)

33. In his reasons for judgment in the Court of Criminal Appeal, Young C.J. referred to the following three principles which formed part of the English criminal law at the beginning of this century: 1. A man was presumed to intend the natural and probable consequences of his acts. 2. The onus of establishing matters of exculpation rested upon the accused. 3. Intoxication could not be relied upon as a defence to a criminal charge, subject to some relaxation of the rule during the nineteenth century. His Honour concluded that all three principles have been substantially modified in the course of this century to the extent that none of them now forms part of the law in Victoria. In particular the Chief Justice was of the view that the modifications to the first two rules leave no room for the operation of the third. It is appropriate that I should say something briefly on this point. (at p137)

34. The presumption that a man intents the natural and probable consequences of his acts is clearly not part of the law of Australia: Smyth v. The Queen (1957) 98 CLR, at pp 166-167 ; Parker v. The Queen (1963) 111 CLR, at p 632 . The presumption was finally abolished in England by s. 8 of the Criminal Justice Act, 1967. The presumption was never more than a rule of evidence, however, and its abolition can have no effect on the substantive principles of the common law relating to criminal responsibility. (at p138)

35. Lord Birkenhead L.C. referred to the presumption in the course of his judgment in Beard (1920) AC 479 and this aspect of his judgment was rightly criticised by Gibbs J. in Viro (1978) 141 CLR, at p 110 . Nonetheless, in my respectful opinion, this criticism did not affect the central proposition for which Beard stands. The distinction which the common law came to recognize during the nineteenth century between offences of specific intent and those of "basic intent", and which was affirmed in Beard, is not dependent on the presumption that a man intends the natural and probable consequences of his acts. (at p138)

36. The principle that an accused bears the onus of proving matters of exculpation was denounced by the House of Lords in Woolmington v. Director of Public Prosecutions (1935) AC 462 . That case established that the Crown bears the onus of proving each element of the offence charged. However, I do not understand Woolmington to affect the proposition that self-induced intoxication is no excuse for the commission of an offence of "basic intent". Their Lordships in Woolmington made no reference to Beard and I cannot accept that they intended to re-write the law on intoxication without referring to the latter decision. In every case the Crown bears the onus of proving all the elements of the offence, including the commission of a voluntary act or omission with foresight of consequences or with recklessness. In some cases the Crown must also prove that the accused acted with an intention to produce a specific result. The effect of Beard, and Majewski, is to deny to an accused any resort to evidence of self-induced intoxication except upon the issue of a specific intention. (at p138)

37. With respect to the learned Chief Justice in the Court of Criminal Appeal, I do not accept that the developments in the common law identified by him now require a rejection of the Majewski doctrine. (at p138)

38. Counsel for the respondent pressed us with the submission that the Majewski doctrine is one which could present great difficulty to a trial judge charging a jury, particularly in a case where there are a number of alternative verdicts open to the jury, some of which involve proof of a specific intent and some of which do not. I do not disregard the complexity which such a case may present to a trial judge, but, in the end, it must come down to an evaluation of competing principles. The desire for simplicity in the law cannot override the primary principle that the law must meet the needs and demands of the community. In my opinion, the community requires protection from the sometimes violent conduct of intoxicated individuals. Furthermore, the Majewski doctrine is comparable to the law contained in the Criminal Codes of Queensland and Western Australia for virtually the whole of this century, and in Tasmania since 1924 (s. 17 of the Tasmanian Criminal Code). It has not been shown to me that the task of directing juries has produced undue difficulties for trial judges in those States. (at p139)

39. After anxious consideration, and in the light of the matters to which I have referred, I have come to the conclusion that Majewski should be followed in Australia. (at p139)

40. I recognize the force of the arguments based on logic and principle but what confirms me in my opinion is the conviction that such considerations, even if they have merit, should not necessarily determine the result. (at p139)

41. We are not deciding this question in a vacuum, where there is no status quo. In effect, we are being asked to change the existing law. (at p139)

42. Whilst this kind of judicial legislation may be acceptable in many cases, the Court must consider the impact on the community of the proposed change. If that impact is likely to be substantial, and if there are political considerations which may be controversial, then I believe the Court should refrain from innovation. Such a task should be left to the legislature. (at p139)

43. In the present case, I believe that the impact on the community and the processes of law enforcement of a decision not to follow Majewski (1977) AC 443 would be unfortunate. It is not a question of trusting juries to "do the right thing"; they should not be asked to carry the burden of reconciling the felt needs of the community with the law. It would often be the case when an honest and conscientious jury, properly directed, will be left with a reasonable doubt as to the criminal responsibility of an accused, notwithstanding that great injury or disturbance may have been caused by the action of a person under the influence of drink or drugs. (at p139)

44. I must acknowledge that a different view of the law has been applied from time to time in Victoria, apparently without attracting the consequences which I would have anticipated. Nevertheless, I remain unpersuaded. To my mind, it is sufficient answer to the critics of Majewski to cite the facts of the present case. A law which excuses from criminal responsibility a wounding in the circumstances that obtained here is, in my respectful opinion, seriously deficient. If it is then said that it is for the legislature to remedy the deficiencies of the law in this area, my answer is simply that I prefer to see the courts assert and maintain the traditional approach to intoxication so as to adequately preserve the Queen's peace pending any legislative action that may be considered appropriate. (at p140)

45. Finally, I cannot close my mind to the very strong persuasive force that proceeds from the unanimous decisions of the Court of Appeal (Criminal Division) and the House of Lords in Majewski, and the six to three majority decision of the Supreme Court of Canada in Leary (1977) 74 DLR (3d) 103 . I cannot accept that this Court should be the first court of final appeal in the common law world to break new ground in this area. (at p140)

46. I would therefore grant special leave, allow the appeal and restore the verdict and sentence. (at p140)

47. Since writing my reasons for judgment, I have read the reasons of Gibbs J. I would respectfully agree with all that his Honour has written. (at p140)