R v Horne

In R v Kusu [1981] Qd R 136, a majority of the Queensland Court of Criminal Appeal held that involuntariness, by reason of intoxication, will not give rise to a defence to a charge, which does not involve a specific intent, based on either ss 23 or 28 Criminal Code. By his appeal, Mr Horne sought to challenge the correctness of that authority, asserting that the exculpatory provisions of the Code should be given their full force, and relying upon the correctness of Macrossan J’s dissenting judgment in Kusu. That argument required the appellant to show that the outcome in Kusu was plainly wrong. President Sofronoff, writing the reasons of the Court, disagreed. His Honour held that it was impossible to accept the appellant’s challenge to Kusu, according, as it does, with long established precedent. The Court dismissed the appeal.

Sofronoff P and Morrison and Mullins JJA

24 May 2022

Factual Background

The appellant, Mr Horne, was convicted by a jury on 17 December 2021 of four counts of (digital) rape and one count of sexual assault, committed upon the complainant on 17 October 2018.

The offending occurred on the complainant’s partner’s yacht, to where the appellant and several others had been invited following a mudcrab lunch at the nearby yacht club. [2], [3], [5]. Mr Horne did not contest that he had repeatedly entered the cabin bedroom where the complainant had been sleeping, and had digitally penetrated her on a number of occasions without her consent, while the rest of the group was upstairs. [6]–[12], [18].

The common position of the parties was that the applicant – a 60-year-old man of otherwise sound mind – did the physical acts constituting the offences while his mind was affected by intoxication.

The Crown case was that Mr Horne was criminally responsible for his actions which, while out of character, could be accounted for by alcohol intoxication alone. Indeed, Mr Horne and others in the party had drunk wine over the course of the lunch. [4]. He had also made admissions on two pretext calls to having drank too much (in his words, being “absolutely trolleyed”). [15].

Mr Horne’s case was that his capacities were influenced by a combination of the alcohol, the residual effects of an antibiotic (metronidazole) ceased the day before, and his allergic reaction to the mudcrab that he had handled during the lunch. He sought to rely upon an excuse under s 23(1)(a) Criminal Code, that the acts occurred as a result of sane automatism – that is, by reason of the operation of intoxication on his brain, his actions occurred independently of the exercise of his will. [18]–[19]. Critically, Mr Horne could not rely upon s 27(1) Code, as by s 28 Code, an excuse under s 27 will not be available to an accused who is intoxicated, to any extent, intentionally.

Issue

At the trial, the appellant accepted that the decision of the Court of Criminal Appeal in R v Kusu [1981] Qd R 136 (“Kusu”) bound the trial judge to direct the jury that s 23 Criminal Code could not avail the appellant if the Crown proved that he was intoxicated (by alcohol). [20].

In his appeal, the appellant challenged the correctness of Kusu. He submitted that the reasoning of the majority was wrong, and that language of the Code should be construed so as to give the exculpatory provisions their full force. In this way, it was submitted that the Court of Appeal should accept as correct the judgment and reasons of Macrossan J in dissent. [21].

Reasons

President Sofronoff wrote the reasons of the Court, with which Morrison and Mullins JJA agreed. [37], [38].

His Honour held that the longstanding position in Queensland, reflected in the judgment of the majority, (and with a “consistent line of high authority”) was correct. [32]. That is s 23 does not apply if the issue is involuntariness due to unsoundness of mind, delusion, or a disordered mind, because the operation of s 23 is excluded by necessary implication by ss 27 and 28. [31]. 

His Honour endorsed the majority in Kusu’s contrast of the common law position in Australia as established by the High Court in R v O’Connor (1980) 146 CLR 64 (in which the High Court, by a majority, decided that at common law, intoxication, whether voluntary or involuntary, was relevant to the question whether an accused had the mental element necessary for criminal liability) and emphasized that the concepts of “basic intent” and “specific intent”, which had informed the decision in O’Connor were “alien to the scheme created by the Code”. [23].

In particular, Sofronoff P cited the dissenting judgment of Wilson J which said: [23]:

“As a statement of general principle it is incontestable that no crime can be committed unless there is a voluntary act or omission on the part of the accused. However, there has long been a recognized exception to this principle in the case of self-induced intoxication (see e.g. ss 23 and 28, Criminal Codes, Queensland and Western Australia).”

His Honour went on to point out that the majority’s approach to the provisions of the Code was supported by various judgments of the High Court, such as in R v Falconer (1990) 171 CLR 30, aptly summarized in Gaudron J’s explanation that: [27]:

“[E]vidence postulating a mental state involving a disease of the mind, natural mental infirmity or a mind disordered in one of the ways specified in s. 28 should be seen as raising a defence under s. 27 or s. 28 and not as raising voluntariness or intent as a separate and distinct issue.”

Turning to Macrossan J’s consideration of the relationship between s 28 and s 28 in Kusu, Sofronoff P disagreed with the way in which the appellant relied upon the dissent. His Honour held that Macrossan J’s reasons “do no more than identify that in a case of involuntariness under s 23, in cases involving what used to be called ‘accident’, an accused’s intoxication might be relevant to prove that a particular act, such as pulling a trigger, was unintentional, in part because of the lack of bodily control caused by drunkenness”. In Sofronoff P’s opinion, Macrossan J was not considering – as the appellant sought to argue – the case of an accused who seeks to establish “the kind of involuntariness contemplated by ss 27 and 28”. [35].

For those reasons, the Court dismissed the appeal. [36].

Z Brereton of Counsel