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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 37
Lapsed owing to prorogation, 12 August 2004, and restored
in the Legislative Council, 15 September 2004
South Australia
Criminal
Law Consolidation (Abolition of the Drunk's Defence) Amendment Bill 2004
A Bill For
An Act to amend the Criminal Law Consolidation
Act 1935.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Criminal
Law Consolidation Act 1935
4 Amendment of s 267A—Definitions
5 Amendment of section 268—Mental element of offence to be presumed in certain cases
6 Amendment of
section 269—Question of intoxication must be specifically raised
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law Consolidation
(Abolition of the Drunk's Defence) Amendment Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Criminal Law Consolidation
Act 1935
4—Amendment of s 267A—Definitions
(1) Section 267A—before the definition of consciousness
insert:
alleged offence means the offence with which the defendant is charged but also
extends to any other offence of which the defendant could be found guilty on
the charge;
(2) Section 267A—after the definition of consciousness
insert:
consumption of a drug includes—
(a) injection of the drug (either by the person to whom the drug
is administered or someone else); and
(b) inhalation of the drug; and
(c) any other means of introducing the drug into the body;
drug means alcohol or any other substance that
is capable (either alone or in combination with other substances) of
influencing mental functioning;
medical practitioner means a registered medical practitioner
or registered dentist;
(3) Section 267A—after the definition of objective
element insert:
recreational use of a drug—consumption of a drug is to be regarded as
recreational use of the drug unless—
(a) the drug is administered against the will, or without the
knowledge, of the person who consumes it; or
(b) the consumption occurs accidentally; or
(c) the person who consumes the drug does so under duress, or as
a result of fraud or reasonable mistake; or
(d) the consumption is therapeutic;
self-induced—see subsections (2) and (3);
serious harm means—
(a) serious mental or physical harm; or
(b) loss of, or damage to property, where the amount or value of
the loss or damage exceeds $10 000;
(4) Section 267A—after the definition of subjective
element insert:
therapeutic—the consumption of a drug is to be regarded as therapeutic
if—
(a) the drug is prescribed by, and consumed in accordance with
the directions of, a medical practitioner; or
(b) the drug—
(i) is a drug of a
kind available, without prescription, from registered pharmacists; and
(ii) is consumed for a purpose recommended by the manufacturer
and in accordance with the manufacturer's instructions.
(5) Section 267A—after its present contents as
amended by this section (now to be designated as subsection (1)) insert:
(2) Intoxication
resulting from the recreational use of a drug is to be regarded as
self-induced.
(3) If
a person becomes intoxicated as a result of the combined effect of the
therapeutic consumption of a drug and the recreational use of the same or
another drug, the intoxication is to be regarded as self-induced even though in
part attributable to therapeutic consumption.
5—Amendment of section 268—Mental element of offence to be presumed in certain cases
(1) 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.
6—Amendment of section 269—Question of intoxication must be specifically raised
Section 269(1)—delete "unless the
defendant specifically asks" and substitute:
unless the defendant or the prosecutor specifically asks