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District Court 13 November 2012

R v Brady

[2012] NSWDC 222

Assault & violence
CRIMINAL LAW INTOXICATION

Citation: R v Brady [2012] NSWDC 222
Court: District Court of New South Wales
Date: 13 November 2012
Judge(s): Blackmore SC DCJ

Background

The accused faced an indictment alleging recklessly causing grievous bodily harm under s 35 of the Crimes Act 1900 (NSW). Before the matter proceeded to the jury, a preliminary legal question arose concerning the law of intoxication.

The question was whether the s 35 offence, as charged, constituted an offence of "specific intent" under Part 11A of the Crimes Act. The answer to that question determined whether the accused could rely on evidence of self-induced intoxication as part of the defence.

  • Whether recklessly causing grievous bodily harm under s 35 of the Crimes Act is an offence of "specific intent" within the meaning of s 428B of that Act.
  • Whether the requirement, established in Blackwell v R [2011] NSWCCA 93, that an accused must foresee the possibility of grievous bodily harm elevates the offence to one of specific intent.
  • What direction should be given to the jury on intoxication.

Decision

The District Court began with the text of s 428B itself, which defines an offence of specific intent as one for which an intention to cause a specific result is an element. While the table to s 428B provides examples of such offences, the section makes clear the table is not exhaustive. Significantly, s 35 does not appear in that table.

His Honour acknowledged that the position had become more complex following Blackwell v R, which clarified that under the amended s 35 the accused must foresee the possibility that his or her actions would cause grievous bodily harm specifically, not merely some harm. That foresight requirement gave the offence a more targeted mental element than had previously existed.

However, the court drew a clear conceptual distinction between recklessness and intention. Recklessness involves taking an unjustified risk; intention requires something more. As Kenny's Outlines of Criminal Law puts it, intention cannot exist without foresight, but foresight can exist without intention. The two concepts are not equivalent, and foresight of a risk does not transform a recklessness-based offence into one of specific intent.

The court also drew support from Grant v R, where Wood CJ at CL observed that reckless indifference murder is "strictly not a crime of specific intent," even though it requires the accused to have comprehended a real or substantial likelihood of death. His Honour found those observations consistent with concluding that s 35, framed in recklessness, is not a crime of specific intent under s 428B.

Orders Made

No formal orders were recorded in the provided text. His Honour ruled that the s 35 offence as charged is not an offence of specific intent under s 428B, and directed that the jury be instructed accordingly.

Key Takeaways

  • The District Court held that recklessly causing grievous bodily harm under s 35 of the Crimes Act is not an offence of specific intent for the purposes of s 428B, meaning self-induced intoxication is not available as a relevant consideration for that charge.
  • Section 428B defines specific intent offences by reference to an intention to cause a specific result; the table of examples is non-exhaustive, but s 35 does not appear in it and its recklessness element does not satisfy the definition.
  • The foresight requirement introduced by Blackwell v R does not, of itself, elevate a recklessness-based offence to one of specific intent. Foresight of a risk and intention to bring about a result remain legally distinct mental states.
  • Grant v R reinforced this distinction: even murder by reckless indifference was characterised as "strictly not a crime of specific intent," notwithstanding that it requires the accused to have foreseen a substantial likelihood of death.
  • At the time of judgment, s 35 had been amended again to remove the reckless-grievous-bodily-harm formulation entirely, a development his Honour noted but which did not affect the ruling on the charge as framed in the indictment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35, 428B, 428C

Cases
- Blackwell v R [2011] NSWCCA 93
- Grant v R (2002) 131 ACrimR 523
- DPP v Majewski [1977] AC 443
- Ilioski v R [2006] NSWCCA 164

Secondary Sources
- Kenny's Outlines of Criminal Law, 19th edition, para 24