R v Williams [2018] NSWDC 163

District Court New South Wales

Medium Neutral Citation: R v Williams [2018] NSWDC 163 Hearing dates: 21 June 2018 Date of orders: 21 June 2018 Decision date: 21 June 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The jury will be directed that for both the count on the indictment and the alternative count, they are entitled to take into account the accused's self-induced intoxication in deciding whether the Crown has proved its case beyond reasonable doubt. Catchwords: CRIMINAL LAW – Judgment – Ruling concerning 35(2) Crimes Act – Whether offence under s35(2) Crimes Act is a crime of "specific intent". Legislation Cited: Crimes Act. Cases Cited: DPP v Beard [1920] AC 479 DPP v Majewski [1977] AC 443 O'Connor v R (1980) 146 CLR 64 R v Grant [2002] NSWCCA 243 Texts Cited: A Review of the Defense of Drunkenness in the Criminal Law by Donald N Synowick Osgoode Hall Law Journal, vol 2, number 2, April 1961 George Fletcher, Rethinking Criminal Law 1978 Glanville Williams, Textbook of Criminal Law, 1978 Category: Procedural and other rulings Parties: The Crown Darryl Mark Williams Representation: Counsel: B Rowe (Crown) N Mikhaiel

Solicitors: Director of Public Prosecutions Peter Murphy Criminal Law File Number(s): 2017/60992

Judgment 1. HIS HONOUR: The accused is charged with an offence of wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act. That charge is based on an allegation that after having consumed a quantity of alcohol he tipped a fridge on his former partner, causing quite serious injuries to her left leg, injuries which involved bones penetrating her skin, thus causing a wound. But from the beginning of the trial the Crown has made it clear to me and the jury that in the event that they find the accused not guilty of the offence on the indictment, the Crown relies on a statutory alternative, an offence under s 35(2) Crimes Act of causing grievous bodily harm, being reckless as to causing actual bodily harm. 2. The evidence has closed and the next thing that will happen in the trial is that addresses will commence. Before that happens, it is important to resolve an issue on which the Crown and Ms Mikhaiel, who appears for the accused, are divided. That issue is whether self-induced intoxication may be taken into account by the jury in considering the alternative count. 3. There is no dispute that the jury can take self-induced intoxication into account when considering the count on the indictment under s 33. Indeed, that offence appears, helpfully, in the table to be found in s 428B(2) of the Crimes Act. The offence under s 35(2) does not, but that does not mean that it is not a crime of specific intent. The fact that the offence under s 35(2) is not listed in the table is not to be taken as indicating that intoxication is irrelevant when the jury considers the alternative count. 4. Perhaps somewhat surprisingly there appears to be no authority from the Court of Criminal Appeal, or indeed elsewhere, directly on this issue. I say somewhat surprisingly because trials involving s 35(2) are hardly unknown and it is a relatively common situation that an accused has been drinking before he or she allegedly committed the offence. I am also aware that different judges of this Court take different views as to whether self‑induced intoxication may be taken into account. Despite that dearth of authority, and despite different views being expressed by judges of this Court, I am firmly of the view that intoxication can be considered by the jury both as regards the count on the indictment under s 33 and its alternative under s 35(2). 5. The attitude of the criminal law to offences allegedly committed under self‑induced intoxication has varied over the years. Many hundreds of years ago self-induced intoxication was held to be no defence, the reasoning being that, unlike conditions such as insanity, self-induced intoxication was a product of voluntary behaviour. The attitude may have been influenced by the fact that getting drunk was something that was not well regarded and indeed has, at other times, been an offence. This attitude is perhaps best expressed by the expression, "he that killeth a man drunk, sober shall be hanged." (I am indebted to an article in the Osgoode Hall Law Journal, vol 2, number 2, April 1961, A Review of the Defense of Drunkenness in the Criminal Law by Donald N Synowicki for that expression which is taken from T. Starkey England in the Reign of Henry VIII). 6. Attitudes changed, at least in England and Wales, in the 1920s. That was when the decision of DPP v Beard [1920] AC 479 was handed down. Beard held that crimes of specific intent such as murder were crimes where intoxication could be taken into account, but crimes of basic intent were crimes where intoxication had to be ignored. 7. Later on, in DPP v Majewski [1977] AC 443 the division of crimes into those of specific and basic intent was confirmed. However, the common law of Australia differed from the law as explained in Beard and Majewski. The High Court, in O'Connor v R (1980) 146 CLR 64, rejected the division and held that intoxication, whether self-induced or otherwise, could be taken into account in deciding the mens rea of all offences. That decision was sometimes referred to as "a drunk's charter". It was criticised, but it remained the law for many years. It was consistent with the view widely held, by lawyers and academics anyway, that moral culpability only flows from willed acts. 8. It may be that the common law of Australia as explained in O'Connor differed from the law in other parts of the world apart from England and Wales. Certainly, that suggestion was made when the legislature of New South Wales overturned O'Connor by the introduction of part 11A of the Crimes Act, which deals with intoxication. 9. Section 428B(1) is deceptively simple. It provides "an offence of specific intent is an offence of which an intention to cause a specific result is an element." But that simple definition hides a great deal of ambiguity. For example Glanville Williams, Textbook of Criminal Law, 1978 at 428 noted that the obscurity of the phrase "crimes of specific intent" has often been commented on. He said "in allocating crimes to one category or the other, the Courts adopt a Humpty-Dumpty attitude". He then listed those crimes which had been held to be crimes of specific intent and said "it is impossible to make sense of these lists," before going on, at 429, to effectively demolish the reasoning of the House of Lords in Majewski. He concludes his discussion with these words "in short, the doctrine of 'basic intent' plays tricks with words." "Basic intent" is a meaningless expression which the Courts use when they wish to impose a restriction on the mens rea doctrine. They distinguish between offences on grounds of policy, while pretending to derive the distinction from definitions." 1. George Fletcher, Rethinking Criminal Law 1978 says that the distinction between crimes of basic intent and specific intent "glides well through the sea of crimes defined by the pattern ' assault with intent to…'. Yet the distinction scrapes bottom as soon as we consider more compactly define offences, such as murder and larceny." 1. I should also note that in O'Connor Barwick CJ observed that despite murder being consistently described as a crime of specific intent, it doesn't fit the definition. And see also R v Grant [2002] NSWCCA 243 per Wood CJ at CL at [93] where his Honour says the decision in Majewski "accepts the existence of an illogicality". 2. It is my unhappy task to make sense of something which makes little sense at all. 3. Cleverer people than me have wondered why definition in 428B(1) does not apply to almost all offences, perhaps all offences except those offences of absolute liability. Is not every offence, apart from offences of absolute liability, an offence which requires proof of an intention to cause a specific result? The answer to that question must be "no" because the legislature tells us that there are some crimes of specific intent and some crimes which are not of specific intent. 4. I do not need to decide matters generally, of course; what I need to decide is how I will direct the jury in this specific case. The answer is made clear, in my view, when attention is paid to the elements of both offences. I have prepared a document which I propose to give to the jury, and which the lawyers agree is an accurate expression of the elements of the two offences, at least insofar as this trial is concerned. Given the nature of the issues, I have reduced the elements down to focus the jury's attention on the specific issue in the trial, which concerns what Mr Williams intended when he pushed the fridge towards the doorway, he says accidentally, thereby causing injury to Ms Fairbairn when the fridge toppled over and struck her. 5. The elements of the count on the indictment are these: 6. 1. The accused caused Ms Fairbairn to suffer a wound; and 7. 2. When he did that, he intended to cause her grievous bodily harm. 8. It is clear that the second of those elements, requiring proof that the accused intended to cause Ms Fairbairn grievous bodily harm, is an intention to cause a specific result. It is clear therefore, the matter being confirmed by the appearance of s 33 in the table, that when the jury considers whether the Crown has proved that second element they are entitled to take into account Mr Williams' self-induced intoxication. 9. The elements of the alternative count are as follows: 10. 1. The accused caused grievous bodily harm to Ms Fairbairn; and 11. 2. The accused either intended to cause her actual bodily harm or realised the possibility that his actions would cause her actual bodily harm but went ahead anyway. 12. When one compares the elements of this alternative count with the elements of the primary count, one can see that they look very similar. The first element relates to an injury which is caused and the second element concerns an intention or, in the alternative count, recklessness, as to a result. I can see no reason at all why, given that the primary count is an offence involving specific intent where intoxication is relevant, the same should not be said about the alternative count, given the similarity of the elements the Crown must prove. 13. The Crown did raise an argument that the introduction of recklessness in s 35(2) meant that that offence was not an offence of which an intention to cause a specific result is an element. As I understand the decision in R v Grant [2002] NSWCCA 243, the Court of Criminal Appeal in that case says exactly the opposite, the Court holding that murder is a crime of specific intent whether based on an intention to kill or reckless indifference. 14. The result is that I will direct the jury that for both the count on the indictment and the alternative count, they are entitled to take into account Mr Williams' self‑induced intoxication in deciding whether the Crown has proven beyond reasonable doubt that, for the count on the indictment, he intended to cause her grievous bodily harm and, for the alternative count, that he intended to cause her actual bodily harm or realised the possibility that his actions would cause her actual bodily harm, but went ahead anyway.