Expert Evidence and the Intoxicated Offender*
| Published date | 01 March 1986 |
| Date | 01 March 1986 |
| Author | Loane Skene |
| DOI | 10.1177/000486588601900103 |
4(1986) 19 ANZJ Crim
EXPERT EVIDENCE AND THE INTOXICATED OFFENDER*
Loane Skenet
Abstract
This paper considers the role of the expert witness in cases where people charged
with criminal offences allege that they were grossly intoxicated when the act in
question was committed. Expert evidence concerning the effect of intoxication on
accused people may be relevant at two stages of the trial: in deciding whether they
acted voluntarily and with criminal intent; and in imposing a penalty if the offence
is proved. The
paper
will examine each of these aspects in turn. In each part, the
law concerning admissibility of expert evidence of this type will be summarized.
Then, in the context of specific cases, the types of questions and answers that are
likely to be put, will be described and examined. The aim of this analysis is to draw
to the attention of both expert medical witnesses and lawyers, the problems of
testimony on the possible effects of intoxication on mental processes and the
implications that that may have in imposing criminal responsibility on intoxicated
offenders and making appropriate dispositions. The usual outcome of such evidence
will be considered and it will be suggested that although expert evidence is far more
satisfactory at the sentencing stage of a criminal trial than at the earlier stage when
guilt is being determined, there is at both stages a real risk that the expert witness
may usurp the role of the arbiter of fact - either the jury or the magistrate or judge.
Notwithstanding this risk, however, few accused persons are acquitted because, due
to gross intoxication, they cannot be proved to have acted consciously and
voluntarily and the sentencing judge or magistrate has the final discretion in making
an appropriate disposition. Although the
paper
is concerned principally with expert
evidence on intoxication, the comments apply also to expert evidence on other
issues.
Intoxication and Criminal Responsibility
The effect
of
intoxication on criminal responsibility
The law: People charged with criminal offences frequently allege that they were
intoxicated at the time that they committed aproscribed act.' In the great majority
of cases, this intoxication will not be found to have affected their criminal
responsibility for their actions. While disinhibited by an intoxicant, they may have
acted in a way that they would not have done while sober. Yet, at the time of
committing the prohibited act, they knew what they were doing and intended to do
it. Criminal responsibility will generally be imposed, notwithstanding the
defendant's intoxication, which will be relevant, if at all, only when the defendant
is sentenced.
In a very few cases, however, defendants have successfully argued that they were
so grossly intoxicated at the time the criminal act was committed, that their
perception, reasoning and ability to foresee consequences were affected, or that
*The views expressed are those of the author and should not be taken as representing those of the Law
Reform Commission, Victoria.
tLLB (Hons) (Melb), LLM (Monash), Senior Research Officer, Law Reform Commission,
Victoria.
EXPERT
EVIDENCE
&
THE
INTOXICATED
OFFENDER
5
they were unable to control their actions. This meant that the prosecution was
unable to prove, beyond reasonable doubt, that the defendant acted voluntarily and
with the intention required to be proved for the offence charged, so that the
defendant was entitled to be acquitted. Thus, although intoxication is not a
"defence" to a criminal charge, it may, in effect, result in acquittal, by "negativing"
an element of the charge which must be proved by the prosecution - the mental
element of the offence. The "mental element" will generally involve proof that the
accused acted voluntarily and intentionally. Evidence of intoxication may,
however, also be relevant in other circumstances. For example, the defendant may
allege that the criminal act was committed due to a mistake that a sober person
would not have made, or due to a failure to appreciate a risk that would have been
obvious to a sober person. Such allegations concerning the defendant's intoxicated
state may be supported by evidence not only from the defendant, as to the amount
or combination of intoxicants consumed, but also by "expert evidence" as to the
likely effect of that quantity or combination of intoxicants on a person's perception,
reasoning, foresight of possible consequences and ability to control one's actions.
Rv
O'Connor
The effect that intoxication may have on voluntariness and intention is illustrated
by the case of RvO'Connor? which was decided by the High Court of Australia in
1980. It was held in that case that evidence of intoxication was relevant to all aspects
of criminal intent -whether the accused acted voluntarily, whether he acted with
"general intent" and whether he acted with a "specific intent", when that was an
element of the offence charged. These aspects of intention are best illustrated by
describing the facts of the case and the court's decision.
Mark Norman O'Connor was apprehended by an off-duty policeman after he had
stolen some items from the policeman's car. When the policeman identified himself
and tried to arrest O'Connor, O'Connor opened the blade of a knife he had taken
from the car and, seemingly in an endeavour to resist arrest, stabbed the policeman.
O'Connor testified at his trial that he had taken 15 Avil travel sickness tablets and
had also drunk three or four glasses of Galliano liqueur and three bottles of beer
during a large part of the day on which these events happened. He said that he had
no recollection of what had occurred immediately before or during the arrest. He
was charged with theft and wounding with intent to do grievous bodily harm or with
intent to resist or prevent lawful apprehension. He argued that as a result of the
alcohol and drugs that he had taken, he was so intoxicated that he did not form the
intent to commit the offences with which he was charged. Psychiatric evidence was
given that the mixture of AviI tablets and alcohol alleged to have been taken by the
accused could cause hallucinations, which could persist for up to eight hours.
Other
evidence was led as to the condition of the accused at various relevant times.
The trial judge directed the jury, on the basis of the law stated by the House of
Lords in Director
of
Public Prosecutions v Majewski, 3that evidence of intoxication
might be relevant if the offence charged were one of "specific" intent, but not of
"general" intent. O'Connor had been charged with offences of "specific intent".
These are offences which require proof not only that the defendant intended to
commit the proscribed act, but also that the defendant intended to achieve a
particular purpose or result. O'Connor was charged with theft, which requires proof
of an intention dishonestly to appropriate property belonging to another with the
intention of permanently depriving the other of it. Similarly, he was charged with
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