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Legislative Assembly for the ACT: 1997 Week 12 Hansard (13 November) . . Page.. 4064 ..

MR HUMPHRIES (continuing):

in that case. To do so would be quite inappropriate. However, it is entirely appropriate for the Government, and this Assembly, to consider whether, as a matter of policy, the law in the ACT on the issue of intoxication is in keeping with community standards and expectations. There can be little doubt, having regard to the understandable public outcry over the law on this matter, that a change to the law is required.

Briefly, the law in the ACT, as a result of the High Court four to three decision in the O'Connor case in 1980, permits a defendant to rely on intoxication, whether or not self-induced, to deny that his or her actions were voluntary. It is because the ACT is a common law jurisdiction that the O'Connor defence applies in the Territory. It also applies in Victoria and South Australia. In New South Wales - another common law jurisdiction - legislation was enacted last year to remove the availability of the defence. In those Australian jurisdictions which have a criminal code - Queensland, the Northern Territory, Western Australia and Tasmania - the defence of self-induced intoxication can be raised only in relation to offences of "specific intent", that is, where, as well as committing a physical act, the defendant must have intended a particular result such as intending death in the case of murder.

Other common law jurisdictions, including the US and Canada, have legislated so that defendants cannot rely on self-induced intoxication to avoid responsibility for their criminal acts. In England, broadly speaking, the common law position is the same as in the Australian code jurisdictions - that is, the defendant cannot rely on self-induced intoxication to avoid criminal responsibility for his or her acts, other than in relation to offences of specific intent. This position was decided by the House of Lords in Majewski's case in 1977.

Attorneys-General considered the intoxication defence when presented with the final draft of the first chapter of a model criminal code which is being prepared for the Standing Committee of Attorneys-General. In 1994 Attorneys rejected the inclusion of the O'Connor defence in the code. The code provisions dealing with intoxication now implement the Majewski position by not allowing a defendant to use voluntary intoxication to deny intent to act or omit to do something, but to allow a defendant to use voluntary intoxication to deny intent with respect to the circumstances in which the act is done or the consequences of the act or omission.

However, there has been no rush by common law jurisdictions to legislate the chapter of the code dealing with general principles of criminal responsibility because Attorneys have proposed to await the completion of the code, due next year, so that comprehensive implementation of the code can be considered. There has not been a perception that the O'Connor defence required immediate attention, as the defence has rarely been raised and has been even more rarely successful. The recent ACT decision is a reminder that it nonetheless is part of our law and it can be successfully raised in limited circumstances.

It is worth noting that the Commonwealth has enacted the principles of the criminal responsibility chapter of the code; but, significantly, it will not commence to operate in relation to the vast majority of Commonwealth offences until five years after receiving royal assent. It will, therefore, commence in the year 2000. In those circumstances,

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