Citation: R v Johnson (No 4) [2017] NSWSC 609
Court: Supreme Court of New South Wales
Date: 17 May 2017
Judge(s): Button J
Background
The accused stood trial on a homicide charge that included an alternative count of assault causing death whilst intoxicated and over the age of 18 years, contrary to s 25A(2) of the Crimes Act 1900 (NSW). That provision was introduced on 31 January 2014 as part of the legislature's response to alcohol and drug-fuelled violence.
During the trial, a question arose about how Button J should direct the jury on the meaning of the word "intoxicated" as an element of the s 25A(2) offence. No prior judicial consideration of that element had been found by counsel or the judge.
The judgment records the competing arguments presented by defence counsel and the Crown, and explains the direction that Button J ultimately gave to the jury.
Legal Issues
- What does "intoxicated" mean as an element of the offence of assault causing death under s 25A(2) of the Crimes Act 1900 (NSW)?
- Does the word require proof of a severe or extreme degree of alcohol impairment, such as gross intoxication or near-unconsciousness?
- How should the jury be directed on the ordinary English meaning of the term?
Decision
Defence counsel argued that the Second Reading speeches accompanying the amending legislation pointed to Parliament intending something more extreme, such as gross or excessive alcohol impairment. The speeches repeatedly referred to "drug and alcohol fuelled violence" and "excessive and binge drinking."
Button J rejected that submission. His Honour considered that, as a matter of plain English and common Australian usage, a person can be described as intoxicated by alcohol without approaching unconsciousness or being severely impaired. The element did not call for such an extreme state.
His Honour also considered, but ultimately set aside, a formulation that would have described intoxication as being "materially affected" by alcohol. Defence counsel raised legitimate concerns that the phrase would generate further questions about whether the effect needed to be physical, mental, or emotional, and whether it had to be externally observable. Button J accepted that criticism had force.
With the consent of both parties, his Honour directed the jury that the ordinary English word "intoxicated" could be expressed more plainly as being "drunk." The direction also told the jury that something more than a small or negligible amount of alcohol affecting the person was required, and that a person who was merely "tipsy" or "happy" would not ordinarily be regarded as intoxicated.
Orders Made
No orders were made in this decision.
Key Takeaways
- Button J held that "intoxicated" in s 25A(2) of the Crimes Act 1900 (NSW) carries its ordinary English meaning and does not require proof of gross, extreme, or near-unconscious impairment by alcohol.
- Second Reading speech references to "excessive" and "binge" drinking did not, in the court's view, confine the statutory element to such severe states.
- The word "intoxicated" was treated as synonymous with "drunk" in its ordinary Australian usage, consistent with standard dictionary definitions.
- A merely "tipsy" or "happy" person would not, in the court's view, ordinarily be considered intoxicated for the purposes of the offence.
- Where no prior judicial consideration of a statutory element exists, Button J demonstrated recourse to Second Reading speeches, dictionary definitions, and analogous authorities in other statutory contexts, while ultimately anchoring the direction in plain English.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 4, 25A(2), 428A
- Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)
Cases cited: No cases were specifically cited in the provided text.