This study explores how the state of ‘intoxication’ from the consumption of alcohol or other drugs is treated by the criminal justice system in Australia. The authors analysed more than 500 statutory provisions which attach significance to a person’s ‘intoxication’ for a variety of purposes, and 327 appellate court decisions handed down in Australia between 2010 and 2014 in which the court considered evidence that the accused, the victim or a witness was ‘intoxicated’ at the time of the alleged offence. The study found that ‘intoxication’ has multiple purposes in the criminal law, but there is a widespread problem of under-definition. In the absence of clear definition, intoxication is often assessed on the basis of highly subjective criteria—in contexts as diverse as public order policing and assessments of victim credibility in sexual assault trials. The authors recommend that consideration be given to the standardising the definition of ‘intoxication’, consistent with society’s expectation that criminal law should mark a clear line between ‘sobriety’ and ‘intoxication’ if the latter state is to carry penal consequences.
References
Ali P & Naylor P 2013. Intimate partner violence: A narrative review of the biological and psychological explanations for its causation. Aggression and Violent Behavior 18(3): 373
Anderson P & Bokor G 2012. Forensic aspects of drug-induced violence. Journal of Pharmacy Practice 25(1): 41–49
Anthony T 2015. Paperless arrests are a sure-fire trigger for more deaths in custody. The Conversation 28 May. http://theconversation.com/paperless-arrests-are-a-sure-fire-trigger-for-more-deaths-in-custody-42328
Babor T, Campbell R, Room R & Saunders J 1994. Lexicon of alcohol and drug terms. World Health Organization. https://www.who.int/publications/i/item/9241544686
Beck A & Heinz A 2013. Alcohol-related aggression: Social and neurobiological factors. Deutsches Aerzteblatt International 110(42): 711–715
Trends & issues in crime and criminal justice Australian Institute of Criminology No. 546 May 2018 14 Boles S & Miotto K 2003. Substance abuse and violence: A review of the literature. Aggression and Violent Behavior 8(2): 155–174
Brown D, Farrier D, McNamara L, Steel A, Grewcock M, Quilter J & Schwartz M 2015. Criminal laws: Materials and commentary on criminal law and process of New South Wales, 6th ed. Annandale: Federation Press
Daly K & Bourhous B 2010. Rape and attrition in the legal process: A comparative analysis of five countries, in Tonry M (ed) Crime and justice: A review of research vol 39. University of Chicago Press Duff C 2013. The social life of drugs. International Journal of Drug Policy 24(3): 167–172
Exum M 2006. Alcohol and aggression: An integration of findings from experimental studies. Journal of Criminal Justice 34(2): 131–145
Finch E & Munro V 2005. Juror stereotypes and blame attribution in rape cases involving intoxicants: The findings of a pilot study. British Journal of Criminology 45(1): 25–38
Finch E and Munro V 2003. Intoxicated consent and the boundaries of drug-assisted rape. Criminal Law Review V: 773–787
Graham K & Homel R 2008. Raising the bar: Preventing aggression in and around bars, pubs and clubs. Willan Publishing
Hart A & Moore D 2014. Alcohol and alcohol effects: Constituting causality in alcohol epidemiology. Contemporary Drug Problems 41(3): 393–416
Heerde J & Hemphill S 2014. A systematic review of associations between perpetration of physically violent behaviors and property offenses, victimization and use of substances among homeless youth. Children and Youth Services Review 44: 265–277
Hemming A 2010. Banishing evidence of intoxication in determining whether a defendant acted voluntarily and intentionally. University of Tasmania Law Review 29(1): 1–30
Hoaken P & Stewart S 2003. Drugs of abuse and the elicitation of human aggressive behaviour. Addictive Behaviors 28: 1533–1554
Kaestle C, Droste N, Peacock A, Bruno R & Miller P 2018. Perception of intoxication in a field study of the night-time economy: Blood alcohol concentration, patron characteristics, and event-level predictors. Addictive Behaviors 76: 195
Levine H 1981. The Vocabulary of Drunkenness. Journal of Studies on Alcohol and Drugs 42(11): 1038–1051
Mazerolle P, McHugh M, Fitzgerald R, Sanderson J, Anderson-Bond T & Manning M 2010. Ticketing for public nuisance offences in Queensland: An evaluation of the 12-month trial. Griffith University
McKetin R, Lubman D, Najman J, Dawe S, Butterworth P & Baker A 2014. Does methamphetamine use increase violent behaviour? Evidence from a prospective longitudinal study. Addiction 109(5): 798–806
McNamara L 2015. Criminalisation research in Australia: Building a foundation for normative theorising and principled law reform, in Crofts T & Loughnan A (eds), Criminalisation and Criminal Responsibility in Australia. Oxford: Oxford University Press
McNamara L & Quilter J 2015. Institutional influences on the parameters of criminalisation: Parliamentary scrutiny of criminal law bills in New South Wales. Current Issues in Criminal Justice 27(1): 21–40
McNamara L, Quilter J, Seear K & Room R 2017. Evidence of Intoxication in Australian criminal courts: A complex variable with multiple effects. Monash University Law Review 43(1): 148–194
Morgan A & McAtamney A 2009. Key issues in alcohol-related violence. Research in practice no. 4. Canberra: Australian Institute of Criminology. https://www.aic.gov.au/publications/rip/rip4
NSW Department of Justice 2015. Intoxication guidelines. Sydney: NSW Trade and Investment
NSW Law Reform Commission 2012. Penalty notices. Report no. 132. Sydney: NSW Law Reform Commission
NSW Ombudsman 2009. Review of the impact of criminal infringement notices on Aboriginal communities. Sydney: NSW Ombudsman
NSW Sentencing Council 2009. Sentencing for alcohol-related violence. Sydney: NSW Sentencing Council
Payne J & Gaffney A 2012. How much crime is drug or alcohol related? Self-reported attributions of police detainees. Trends & issues in crime and criminal justice no. 439. Canberra: Australian Institute of Criminology. https://www.aic.gov.au/publications/tandi/tandi439
Queensland Crime and Misconduct Commission 2008. Policing public order: A review of the public nuisance offence. Brisbane: Crime and Misconduct Commission
Quilter J 2017. Judicial responses to alcohol‐fuelled public violence: The Loveridge effect. International Journal for Crime, Justice and Social Democracy 6(3): 123–146
Quilter J 2014. One punch laws, mandatory minimums and ‘alcohol-fuelled’ as an aggravating factor: Implications for NSW criminal law. International Journal for Crime, Justice and Social Democracy 3(1): 81–106
Quilter J & McNamara L 2018. The meaning of “intoxication” in Australian criminal cases: Origins and operation. New Criminal Law Review 21(1): 170–207
Quilter J & McNamara L 2017. ‘Zero tolerance’ drug driving laws in Australia: A gap between rationale and form? International Journal for Crime, Justice and Social Democracy 6(3): 47–71
Quilter J & McNamara L 2013. Time to define ‘the cornerstone of public order legislation’: The elements of offensive conduct/language under the Summary Offences Act 1988 (NSW). University of New South Wales Law Journal 36(2): 534–562
Quilter J, McNamara L, Seear K & Room R 2016. Criminal law and the effects of alcohol and other drugs: A national study of the significance of ‘intoxication’ in Australian legislation. University of New South Wales Law Journal 39(3): 913–949
Room R & Rossow I 2001. The share of violence attributable to drinking. Journal of Substance Use 6: 218–228
Roth A 2015. The uneasy case for marijuana as chemical impairment under a science-based jurisprudence of dangerousness. California Law Review 103(4): 841–917
Saunders B, Lansdell G, Eriksson A & Brown M 2014. The impact of the Victorian infringements system on disadvantaged groups: Findings from a qualitative study. Australian Journal of Social Issues 49(1): 45–66
Shoebridge D 2015. Roadside drug testing shouldn’t ignore the commonly used drugs that impair driving: Prescription medication. Sydney Morning Herald 19 Oct
Simester A 2009. Intoxication is never a defence. Criminal Law Review 1: 3–14
Smyth C 2013. Alcohol and violence—exploring the relationship. Drugs and Alcohol Today 13(4): 258–266
Taylor N 2007. Juror attitudes and biases in sexual assault cases. Trends & issues in crime and criminal justice no. 344. Canberra: Australian Institute of Criminology. https://www.aic.gov.au/publications/tandi/tandi344
Tolmie J 1999. Intoxication and criminal liability in New South Wales: A random patchwork? Criminal Law Journal 23(4): 218–237
Transport for NSW 2015. New drug driving campaign launched: MDT – there’s no escaping it. Media release 1 Dec. https://webarchive.nla.gov.au/awa/20160907053118/http://pandora.nla.gov.au/pan/159911/20160831-1544/theindiantelegraph.com.au/index0036.html
Visentin L 2016. Roadside drug driving tests mysterious and uncertain, magistrate says. Sydney Morning Herald 2 Feb
Walsh T 2008. Poverty, police and the offence of public nuisance. Bond Law Review 20(2): 198–215
Weatherburn D 2001. What causes crime? Crime and Justice Bulletin: Contemporary Issues in Crime and Justice no. 54. Sydney: NSW Bureau of Crime Statistics and Research
Wiggers J et al. 2016. Facilitating police recording of the alcohol-related characteristics of assault incidents: A stepped wedge implementation trial. Drug and Alcohol Review 35: 30–39
Wiggers J, Radvan D, Dalton A, Valentine M & Nichols C 2009. The Alcohol Linking Program: Adoption by New South Wales Police. Newcastle: Hunter New England Health
Woolf K et al. 2013. Driving under the influence of drugs: Report from the Expert Panel on Drug Driving. London: UK Department for Transport
World Health Organization 1993. The ICD-10 Classification of Mental and Behavioural Disorders: Diagnostic criteria for research. https://www.who.int/publications/i/item/9241544554