Supreme Court New South Wales Medium Neutral Citation: R v Johnson (No 4) [2017] NSWSC 609 Hearing dates: 9 May 2017 Date of orders: 10 May 2017 Decision date: 17 May 2017 Jurisdiction: Common Law Before: Button J Decision: See [8]-[11] Catchwords: CRIMINAL – offence of assault causing death whilst intoxicated and over the age of 18 years – element of accused being "intoxicated" – direction to jury with regard to meaning of "intoxicated" with regard to alcohol Legislation Cited: Crimes Act 1900 (NSW), ss 4, 25A(2), 428A Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) Category: Principal judgment Parties: Regina Steven John Johnson Representation: Counsel: L Carr (Crown) C Taylor (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Rice, More & Gibson (Accused) File Number(s): 2015/146675 Publication restriction: Nil Judgment Introduction 1. The issue arose in this homicide trial as to what I should say to the jury about the element of the accused allegedly being intoxicated, as part of an alternative allegation that he committed the offence of assault causing death, whilst intoxicated and over the age of 18 years, to be found in s 25A(2) of the Crimes Act 1900 (NSW) (the Act). The task was a challenging one, because neither my researches nor those of counsel showed that that particular element of this particular offence (which came into existence on 31 January 2014) has been the subject of judicial consideration before. 2. Counsel and I had access to the Second Reading speeches with regard to the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW), in both the New South Wales Legislative Assembly and the New South Wales Legislative Council. We also referred to the definitions of the word "intoxication", and related words, to be found in the Macquarie Dictionary and the Oxford English Dictionary. We also considered a number of authorities with regard to the concept of intoxication in other statutory settings; although the latter were useful, none of them particularly informed my ultimate decision. Submissions and reflections 1. Defence counsel submitted that the Second Reading speeches suggest that, when Parliament used the word "intoxicated" in this context, it meant a person who was grossly or very much affected by alcohol, or prohibited drugs, or any other substance (the latter part of the proposition in accordance with the definition of "intoxication" to be found in s 4 of the Act, linking as it does with the definition of the same word to be found in s 428A of the Act). 2. It is true that Second Reading speeches repeatedly speak of "drug and alcohol fuelled violence"; and also refer to "excessive and binge drinking". But analysing the text, context and purpose of the offence-creating provision itself, I do not think that the element of the offence is restricted in that way. As a matter of plain English, a person can be described as intoxicated by alcohol without approaching unconsciousness, or being, to use the vernacular, "blind drunk". I think that intoxication by alcohol – which is what is alleged by the Crown here – does not call for such an extreme state, as a matter of common Australian usage of the English word "intoxicated". 3. Separately, defence counsel invited attention to the aspects of the dictionary definitions of "intoxicate" that speak of "to affect temporarily with loss of control over the physical and mental powers"; "to excite mentally beyond self-control or reason"; and "to deprive of the ordinary use of senses or reason". He also referred to several definitions that speak of poisoning. 4. No doubt those are meanings of the word "intoxicated", though to my mind not the primary meaning. In a sense, the word "intoxicated" does have a foundation in the concept of being poisoned, in the sense of being subject to a toxic substance, but in its ordinary meaning I believe it encompasses something far less than that. 5. At one stage of my discussions with counsel, I was attracted to explaining to the jury that a person is intoxicated by alcohol if he or she is "materially affected" by that substance. Although the Crown Prosecutor was content with that, defence counsel resisted it. His submission that such a definition raises more questions than it answers – in particular, as to whether the effect could be physical, mental, emotional, and whether it must be obvious to others – seemed to me to have force, and in the result I did not use the phrase. Direction ultimately given, and aspects of summing-up 1. Ultimately, I directed the jury that, of course, the element of the accused being intoxicated needed to be proven by the Crown beyond reasonable doubt. I also directed them that "intoxicated" is an ordinary English word, in common parlance, with its ordinary English meaning in court. 2. Based upon the straightforward definition to be found in each Dictionary, and with the consent of the parties, I suggested to the jury that the concept of a person being intoxicated by alcohol could be expressed more plainly as the person being "drunk". 3. I also suggested to the jury that the concept of being intoxicated by alcohol involves something more than a person having a small amount of alcohol in his or her body, without it affecting that person, or with it affecting him or her only to a very small degree. 4. Finally, I went on to suggest to the jury that, as a matter of common English usage, a person who is merely tipsy or "happy" would not be thought of as intoxicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2017