South Australian Numbered Acts

CRIMINAL LAW CONSOLIDATION (INTOXICATION) AMENDMENT ACT 2004 (NO 40 OF 2004) - SECT 5

5—Amendment of section 268—Mental element of offence to be presumed in certain cases

Section 268—delete subsection (2) and substitute:

        (2)         If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.

        (3)         However, subsection (2) does not extend to a case in which it is necessary to establish that the defendant—

            (a)         foresaw the consequences of his or her conduct; or

            (b)         was aware of the circumstances surrounding his or her conduct.

Example—

A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).

        (4)         If—

            (a)         the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and

            (b)         the defendant's conduct resulted in death; and

            (c)         the defendant is not liable to be convicted of the offence under subsection (1) or (2); and

            (d)         the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,

the defendant may be convicted of manslaughter and liable to imprisonment for life.

        (5)         If—

            (a)         the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and

            (b)         the defendant's conduct resulted in serious harm (but not death); and

            (c)         the defendant is not liable to be convicted of the offence under subsection (1) or (2); and

            (d)         the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,

the defendant may be convicted of causing serious harm by criminal negligence.

Maximum penalty: Imprisonment for 4 years.

        (6)         A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.