Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191

Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191 · Read the judgment on AustLII

Catchwords: Self-defence – intoxication – New Year’s resolutions

In this decision of a single judge of the Supreme Court, it has been held (or perhaps confirmed) that the relevance to self-defence of intoxication is spent once it is taken into account in determining what the accused subjectively perceived.

The plaintiffs and others were charged with assault offences including affray. The Local Court hearing lasted an eye-watering 15 non-consecutive days, involved at least four co-accused and caused the Magistrate to issue a 71-page judgment; the ensuing facts are hard to condense. The accused were all 18- or 19-year-old men who were drunk at one house party on New Year’s Eve. The other side of the affray seem to be mostly older men associated with another nearby party. For complicated reasons, a fight broke out in the street. Punches were thrown, violent and abusive language was used, the wooden stock of a spear gun was brandished. The older men (who had turned up in a ute) were surrounded, and a bottle was thrown by the accused’s side, shattering the ute’s windscreen. There was a retreat by the men in the ute, but the violence and threats from the accused’s group continued until police attended – the point being that on the findings of the Magistrate there had been a number of occasions when the various accused could have backed out of the violence.

All the charges other than the affray were dismissed. But in respect of the affray charges the Magistrate rejected an argument in relation to self-defence and convicted the accused. Each accused (now, plaintiff) raised an appeal to the Supreme Court limited to a question of law alone, forsaking probably-simpler alternatives. The primary issue in the appeal was a claim that the Magistrate misdirected himself in relation to the relevance of intoxication to self-defence. More specifically, was the intoxication of the accused relevant to the assessment of the reasonableness of their conduct, or only to their perception of the circumstances?

Simpson AJA, sitting alone, first set out a summary of the law of self-defence generally. Her Honour adopted well-worn authority to the effect that the test under s 418 of the Crimes Act is, first, whether the defendant believed that his or her conduct was necessary for one of the stated purposes (protection of themselves etc). That test is determined entirely subjectively, having regard to all the personal characteristics of the defendant – including intoxication. The second question is whether the belief was reasonable, and that is determined objectively by reference to the reasonableness of the defendant’s conduct – although in light of the circumstances as (subjectively) perceived by the defendant (all at [47]).

Her Honour rejected submissions by the plaintiffs that intoxication was relevant not only to the defendants’ perceptions, but also to the reasonableness of their conduct (at [51]). Her Honour was unable to see how intoxication could be woven into the reasonableness of the defendant’s conduct: intoxication is relevant in the identification of the defendant’s perception, but the question of intoxication is spent once it has been taken into account on that question. There is no room for any intrusion of intoxication into the assessment of the reasonableness of their conduct (at [50]). Defendants, when they raise s 418, are potentially given the benefit of intoxication in two ways: whether they believed it was necessary to do what they did, and in their perception of the circumstances. They are not entitled to the benefit of intoxication in the assessment of the reasonableness of this conduct in the light of that perception (at [52]). For those and some other reasons not discussed here, her Honour dismissed the appeals.