It is a pity Noa Nadruku is such a well-known footballer. If he had been a nobody his case would have disappeared into the court pages and probably not made the TV news.
As it is, the fact he got off because he was too drunk to form an intention will now enter legal mythology. Getting off because you are too drunk to know what you are doing will become part of mass mythology about the law. And mass mythology about the law is very hard to eradicate.
For example, most people wrongly think contracts have to be in writing. That myth began in 1677 when the Statute of Frauds required a few limited classes of contract be in writing.
So let’s state it right now before the Nadruku myth gets hold: as a general principle of law, drunkenness of itself is no excuse. As a general principle of law people who commit acts while drunk will be held responsible in the criminal law for those acts.
There is a very limited exception, which the Nadruku case possibly fits (though an Crown appeal is inevitable, even if it will not affect Nadruku’s acquittal).
Before the knee jerks change the law and impose mandatory rules on the judges, we should look at the scope of the defence and why we have such a defence.
There are very, very few successful drunkenness defence pleas. Magistrates almost always reject them. Juries are deeply suspicious of them.
In any event the plea is rare. For a start, the defendant usually has to admit to the facts (thereby wrecking any other defence that might be around). And the degree of drunkenness or drug-effect has to be so huge that the defendant did not know what he was doing. Nadruku had a blood alcohol reading of between 0.3 and 0.4. Most people would be unconscious or dead at that level. We are not going to have a rash of people getting off because of this defence. And the defence cannot apply in negligence cases or strict-liability cases (such as traffic) where actual intention is not part of the offence.
What is the history and rationale of the defence?
Until the 17th century the criminal law was only interested in the fact of what happened. It punished the act. It did not care much about the state of mind of the offender.
In the 18th century the law started to require two elements to a crime: an act and an intention.
It was thought that in a civilised society you should punish evil intention, not just acts. People should not be punished for accidents
In the 19th century madness was held to be a defence. But in those days mad people were locked up indefinitely, so it was a rare defence; usually to escape the death penalty.
In the late 19th century judges said juries could consider drunkenness. If the defendant was so drunk that he did not form the intention required as an element of the crime, he could be acquitted.
But the defence was available for only certain intention-specific crimes like willful murder or carrying a weapon with intent to rob, and not to other general offences like assault.
Then an artificial debate ensued as to the theory behind the defence. In England, Canada and the US the defence is not accepted. They say the voluntary act of getting drunk is enough to constitute criminal intent.
The Australian High Court rejected this view (4-3) in 1980. The majority said there should be no difference between someone taking drugs or alcohol voluntarily and someone who takes them involuntarily, through spiked drinks or whatever. The law should punish according to the actual state of mind, however it comes about.
There is logic in that. However, the English judges said there was no common sense or morality in allowing someone to escape penalty through drunkenness, no matter what effect on their mind, and it would cause community outrage.
But I think the Australian position is better in both logic and morality. You see, we expect a prisoner being punished to reflect on his crime; to acknowledge it was wrong; to vow to reform. That is one of the main purposes of punishment. Even the tabloids and shock jocks would admit that. Before a prisoner gets parole or gets mitigation of sentence we expect him to show remorse. But how can these things happen if the prisoner says: “”I have no recollection of doing any of these things.” A civilised society should not punish an innocent mind.
It should not be an easy defence. Juries should be entitled to assume people intend their actions and the probably consequences of their actions, in the absence of any other explanation. Drug- or alcohol-induced automatism is one such explanation. It must be rare because more people are incapable of doing anything at all once they get to that state.
In any event, it should be a defence available only before a jury. If this had been a jury case, it would have had greater community acceptance.