Citation: R v Williams [2018] NSWDC 163
Court: District Court of New South Wales
Date: 21 June 2018
Judge: Berman SC DCJ
Background
The accused stood trial on a charge of wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act, based on allegations that he tipped a fridge onto his former partner while intoxicated, causing serious injuries to her left leg, including bones penetrating the skin. From the outset, the Crown indicated it would also rely on the statutory alternative of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act, should the jury acquit on the primary charge.
The evidence having closed, a dispute arose between the Crown and defence counsel before closing addresses. The point at issue was whether the jury could take the accused's self-induced intoxication into account when considering the s 35(2) alternative count, as well as the primary s 33 count.
No Court of Criminal Appeal authority directly resolved this question, and His Honour noted that judges of the District Court had taken differing views on it.
Legal Issues
- Whether the offence under s 35(2) of the Crimes Act (recklessly causing grievous bodily harm) is an offence of "specific intent" within the meaning of s 428B(1) of the Crimes Act.
- Whether self-induced intoxication may therefore be taken into account by the jury when considering the s 35(2) alternative count.
Decision
His Honour began by tracing the history of intoxication as a defence in criminal law, from early common law (where it was entirely irrelevant) through the English authorities of DPP v Beard [1920] and DPP v Majewski [1977], which distinguished crimes of "specific intent" from those of "basic intent." The High Court's decision in O'Connor v R (1980) 146 CLR 64 departed from the English approach and held that intoxication could be considered in assessing mens rea for all offences. The NSW Legislature subsequently overturned O'Connor by introducing Part 11A of the Crimes Act, including s 428B(1), which defines a specific intent offence as one "of which an intention to cause a specific result is an element."
His Honour acknowledged the well-documented academic criticism of the specific/basic intent distinction, noting that even the Court of Criminal Appeal in R v Grant [2002] NSWCCA 243 accepted the "illogicality" underlying the Majewski approach. Despite this conceptual untidiness, His Honour found the answer in a direct comparison of the elements of the two offences at issue in the trial.
The primary s 33 offence required proof that the accused intended to cause grievous bodily harm, clearly an intention to cause a specific result. The s 35(2) alternative required proof that the accused intended to cause actual bodily harm or was reckless as to that result. The structural similarity between the two offences was clear, and His Honour could see no principled basis for treating the primary count as a specific intent offence while treating the alternative differently.
His Honour also rejected the Crown's argument that the introduction of recklessness in s 35(2) removed it from the category of specific intent offences, citing the Court of Criminal Appeal's holding in R v Grant that murder is a crime of specific intent whether it rests on an intention to kill or on reckless indifference to human life.
Orders Made
No orders were made in this decision. The ruling was a pre-address direction to govern how the judge would instruct the jury, rather than a final order.
Key Takeaways
- The District Court held that s 35(2) of the Crimes Act (recklessly causing grievous bodily harm) is an offence of specific intent within s 428B(1), meaning self-induced intoxication is a matter the jury may take into account when determining whether the Crown has proved the fault element.
- A structural comparison of the elements of two related offences can resolve questions about specific intent classification where no direct authority exists, rather than relying on general policy considerations.
- The presence of recklessness as an alternative fault element does not, of itself, remove an offence from the category of specific intent: the Court of Criminal Appeal confirmed in R v Grant [2002] that murder retains its specific intent character whether founded on intention or reckless indifference.
- Under s 428B(1), the absence of an offence from the table in s 428B(2) does not conclusively indicate that intoxication is irrelevant to that offence; the table is not exhaustive.
- Academic and judicial commentary has long noted the conceptual instability of the specific/basic intent distinction, yet NSW courts remain bound to apply it through Part 11A of the Crimes Act following the legislative reversal of O'Connor.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 33, 35(2), 428B(1), 428B(2)
Cases
- DPP v Beard [1920] AC 479
- DPP v Majewski [1977] AC 443
- O'Connor v R (1980) 146 CLR 64
- R v Grant [2002] NSWCCA 243