The case of Noa Nadruku has stirred much debate and passion. The way his case was dealt with by both the courts and his rugby league club have inspired a groundswell of opposition. Broad opinion was that the law was an ass and the court should have convicted him of assault and that the Raiders club had been unduly influenced by the public opposition to the acquittal and had balanced the book by sacking him.
The Raiders decision is under review. It seems odd that they waited for the court case and then acted on an acquittal. If the court’s finding meant nothing, why didn’t they act at the time of the alleged assaults?
As to the law, popular opinion seems to be that no drunkenness defence should be permitted. The Federal Attorney-General, Daryl Williams, agrees saying those jurisdictions that have it, such as the ACT, should abolish it. But there would be danger in this course. A better view of the Nadruku case might be that the magistrate got the law right but misapplied the facts.
In 1980 the High Court diverged from the British House of Lords and allowed a very limited and strict drunkenness test. The High Court said that the criminal law cannot punish just the criminal act, it must punish the evil intent. If, therefore, a person was so drunk they did not know what they were doing, could not know it was wrong and could not remember what they were doing, they should be acquitted. The House of Lords had ruled earlier that such a view, while logical, would offend public conscience. Some lords argued that there was enough evil intent in the getting drunk for the criminal law to impute a general evil intent enough to make the person liable for the criminal act. It would mean, however, that a person drugged or drunk against his will would be entitled to an acquittal. The status of a person who took some drugs or alcohol under a mistake as to its potency would be in a grey zone.
The House of Lords view has some major philosophic difficulty, even if it might satisfy public opinion. In effect it says the criminal law should punish the act without intention. It is immoral to punish the completely mindless.
It could cause grave problems in other fact situations. For example, what of the mother who gets hopelessly drunk and rolls on her baby killing it.
A better view would be to retain the ACT position that requires the prosecution to prove intention which would generally be obvious from the facts. And the courts should make it clear that the drunkenness defence for all practical purposes is never going to succeed. This is because someone would have to show that alcohol or a drug had so affected them that they were mindless to the degree of not being capable of forming any intention. But if they were in that state it would be almost certain that they would be incapable of doing anything — comatose or paralytic. If drunk beyond intention you are usually drunk beyond action. The burden of proof for the prosecution would not have to be high. In the Nadruku case, for example, it is puzzling why the magistrate did not say that the fact he could count his drinks, walk out of the drinking establishment, argue with his wife and select women to hit should be enough to conclude that he had enough function to form an intention of some sort which would be enough to carry a conviction.
Justice Terence Higgins got it right shortly afterwards in another case saying that drunkenness as a general rule would not get up as a defence for that very reason. The important thing about Justice Higgins’s reasoning was that he did not concede the crucial moral element of our criminal law: that it punishes the evil intent.