Cases involving intoxication

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The effect of intoxication on the ‘mistake of fact’ defence means the defendant can say: “Sorry, your Honour, I was so drunk I thought she was consenting.” Intoxication of the complainant also lowers the bar for the defence to apply, meaning that the defendant can say: “Sorry, your Honour, she was so drunk I thought she was consenting.” This argument has succeeded even where there is evidence that the complainant verbally or physically communicated “no”, or was so intoxicated that she was almost or fully comatose, and therefore legally incapable of consent. In situations where the defendant and complainant are both intoxicated, the bar for establishing the defence can be extremely low.

There are plenty of areas of the law where we do not accept intoxication as an excuse or mitigation of bad behaviour. Driving is a good example of people having strict liability for their actions despite being drunk or high. Juries commonly ask questions about what use they can make of a defendant’s intoxication, and the answers they receive are often sources of confusion which lead to appeals.

Cases in which the defendant was intoxicated


R v Duckworth

The prosecution case at trial was that the complainant was so extremely intoxicated that she could not stop vomiting and needed help to get to bed. When she awoke, it was due to a sharp pain in her vagina, as the defendant was raping her. She tried to stop him, but was physically unable to scream or push him away. When a friend of the complainant entered the room, the defendant moved away from the complainant. The complainant and her friend subsequently left. Although the defendant did not give or call evidence at trial, the defence case was that no intercourse had occurred at all. However, the jury rejected this and found the defendant guilty. 

An appeal against the conviction was unanimously allowed. The jury had not been correctly informed about the ‘mistake of fact’ defence because the judge at the trial had said that “intoxication doesn’t relieve a person of responsibility for committing a crime”. One witness testified that the complainant had draped the defendant’s arm over her while they were lying together and this was sufficient to raise the possibility of a ‘mistake of fact’ despite the defendant’s argument being that no intercourse had occurred at all. One of the appeal judges said, “the trial judge failed to direct the jury that the appellant’s state of intoxication was relevant to the jury’s consideration whether he had an honest belief that the complainant was consenting.”

According to the majority judges, in other words, the bar for establishing an honest but mistaken belief in consent is lower for a defendant who is intoxicated than one who is sober, although it must still be shown that the mistake was reasonable. Only one judge at the appeal, Philippides J, said that the evidence about the draping of the defendant’s arm was not sufficient to raise the possibility of a ‘mistake of fact’ defence. The rest evidently thought it was open to the jury on the facts to conclude that the defendant’s mistake was not only honest (given his inebriation) but possibly reasonable. 

The full judgment of R v Duckworth is available here.


R v Hopper

The prosecution’s case in R v Hopper was that the complainant, a 17 year old woman, went with two male friends to a warehouse which served as a clubhouse for a group of bikies, arriving at 4:00am. While there, the complainant met a man called McLeod (not the defendant), and they went to a separate room where McLeod physically overpowered the complainant, covering her mouth to stifle screams, and then raped her. When Hopper (the defendant) entered the room, McLeod covered the appellant’s face with a pillow, holding the complainant down for the defendant to be able to approach them. The defendant then took physical control of the complainant, raping her, and McLeod left them. The complainant cried and pleaded with the defendant to stop, and to help her, and he then did, but when McLeod returned he said to the defendant, “Just fuck her”, and then the defendant pushed the complainant down and raped her again. “After that,” as the Court of Appeal said, “various other sexual indignities and offences were committed upon her by McLeod and the appellant, who at some stage were assisted by other men who had come upstairs.”

One of the grounds of appeal was that the judge at the trial didn’t adequately direct the jury on the effect of intoxication and its relevance to ‘mistake of fact’ and the mental state of the defendant. The defendant himself gave no evidence at trial, but in a recorded police statement he said about the first instance of rape: “Then I walked up the stairs up to the top floor and there was a girl there, I didn't know her, but she was laying out. Didn't have anything on. No clothes on. And being how I was, I was pretty well inebriated, I got on top of her. And she lay there, she didn't struggle, she just lay there and I heard that she started crying.” This evidence, according to the Court of Appeal, created a foundation for the ‘mistake of fact’ defence because the defendant’s inebriation could “help to induce a belief that a woman is consenting to intercourse; to that extent it may tend to show the belief to be genuine or ‘honest’ for the purposes of the defence.”

Overall, the appeal against conviction was dismissed and the Court of Appeal acknowledged that no jury could have found the defendant “reasonably” believed the complainant was consenting. However, R v Hopper is a violent gang rape case where ‘mistake of fact’ was found to be raised on the facts, and it continues to serve as precedent for voluntary intoxication assisting a defendant’s case that he had an honest mistaken belief. 

The full judgment of R v Hopper is available here.


R v Cook

This is another case in which the prosecution was based on the complainant being unconscious at the time of penetration, and waking to find the defendant raping her. The complainant was on her belly and so could not see the defendant, but when she reached behind her she realised from touching his hair that the defendant was not her husband (who was bald); she then immediately spoke out and struggled against the defendant, who withdrew. The defendant’s barrister did not raise ‘mistake of fact’ as a possibility because they completely denied any intercourse took place, but the defendant said he was heavily intoxicated. He was convicted on the one count of rape. One of the appeal judges, McMurdo P, said that the ‘mistake of fact’ defence was raised on the facts, and that the defence should have been explained to the jury and made available to the defendant because:

“It is true that he gave evidence that he did not have sex with her at all and the jury obviously rejected his evidence. That did not mean the jury should necessarily convict him. They were then obliged to consider whether the prosecution had proved his guilt beyond reasonable doubt on the evidence they did accept. The jury should have been directed that, if they got to that point, they must consider [mistake of fact] and only convict if satisfied beyond reasonable doubt that the appellant did not honestly and reasonably believe that the complainant was consenting to his actions.”

R v Cook shows that a defendant can potentially rely on the ‘mistake of fact’ defence even where there is evidence that the complainant was asleep at the time of initial penetration. The ruling also sets precedent for a defendant to benefit from running a denial-of-intercourse defence at trial, then have a conviction overturned with the benefit of a mistaken-as-to-consent submission on appeal. At trial, it would have harmed the defence’s position to have to articulate how the defendant was mistaken in believing the complainant consented, because the defendant claimed that the complainant was lying about intercourse occurring at all, and these scenarios are mutually exclusive. 

The full judgment of R v Cook is available here.


R v Soloman

In R v Soloman, the Court of Appeal ruled that the defendant at trial should have been able to rely on s 24, despite having consumed “at least a carton of stubbies of full strength beer during that day and evening, a dozen cans of rum and cola, and about five cones of cannabis.” The complainant’s evidence was that she woke up to the defendant penetrating her, where the defendant’s was that she was an enthusiastic participant (despite him leaving her apology messages the following day). The Court of Appeal ruled that the defence of mistake of fact may have been applied on the facts, as the jury may refuse to accept the cases of either of the parties and to “work out for themselves a view of the case which did not exactly represent what either party said.”

R v Soloman shows that a defendant who voluntarily consumes large quantities of alcohol and drugs can still potentially use the ‘mistake of fact’ defence to excuse his actions. This decision is especially problematic as it allows the defence to run a case at trial that puts forward a story of positive consent and actions, but allows the defendant to then appeal on the basis that he may have mistakenly believed that the complainant consented, when she in fact did not. At trial, it might harm the defendant’s case to suggest any grey zone surrounding consent, but R v Soloman indicates that the prospect of a reasonable mistake of fact can nonetheless be raised on appeal. The problem is similar to that in R v Cook.

The full judgment of R v Soloman is available here.


Cases in which the complainant was intoxicated


R v CU

The complainant’s evidence was that she was so drunk that she was vomiting and went to bed in her home, then awoke to find the defendant raping her with a vibrator. She asked him to leave the house, but then awoke again later to him raping her mouth with his penis. The jury convicted the defendant of two counts of rape, having also heard that the complainant had rejected multiple advances from him earlier the same evening. The defendant’s appeal against his conviction succeeded on the basis that the trial judge had misdirected the jury on the ‘mistake of fact’ defence. De Jersey CJ, with whom the other judges agreed, referred to a question posed by the jury as to whether, if the complainant did not have “the cognitive ability to give consent as she was drunk,” the defendant could nonetheless have formed “an honest and mistaken belief that she was awake, but she was unaware of her actions as she was so drunk.”

According to the Chief Justice, “the answer to that question was ‘yes’.” The ‘mistake of fact’ defence, in other words, can potentially be utilised where the complainant is in fact incapable of giving consent because she is unconscious, provided that the defendant honestly and reasonably believes that the complainant, although so drunk as to be unaware of her actions, is nonetheless awake.

The full judgment of R v CU is available here.


R v Cannell

The complainant’s evidence was that she was so intoxicated that she blacked out, and when she awoke the defendant had his hands around her throat, choking her, and then raped her. The prosecution case was that regardless of her consciousness (or lack thereof due to intoxication), the violence prevented consent. The defendant was charged with one count of rape and one count of assault occasioning bodily harm. He pleaded guilty to the assault, and was found guilty after trial of the rape. The Court of Appeal said “[the complainant’s] intoxication and its effect on the reliability of her account was a central issue.” At trial, the jury sent a note to the trial judge asking for “clarification of the legal definition of consent”, which indicated they were wondering what role intoxication played in satisfying the requirements of a mistake of fact defence. An appeal was allowed because the trial judge did not then adequately direct the jury’s attention to the actual allegations. 

The full judgment of R v Cannell is available here.



The complainant’s evidence was that she was so drunk she blacked out. The defendant gave conflicting evidence that she was conscious, although significantly affected by alcohol. The Court of Appeal concluded that the jury may have thought that she was “conscious but stupefied”. This was held to create the possibility for arguing ‘mistake of fact’, along with evidence to the effect that the complainant willingly got into the defendant’s car and walked into his apartment. A complainant who is extremely drunk, but not completely unconscious, and therefore does not or cannot strenuously resist the defendant’s advances, could find her intoxication used as a basis for the defendant’s mistake of fact. This line of argument was left open by the Court of Appeal even where the defendant was also significantly affected by alcohol.

The full judgment of R v SAX is available here


R v Awang

The jury convicted the defendant on one count of deprivation of liberty, but acquitted him of assault with intent to commit rape, and sexual assault. The complainant and defendant had been drinking together, and after the alleged attack there was evidence that the complainant’s hands had been bound so tightly with a phone cord that her circulation was cut off. A witness for the prosecution heard the complainant “crying” in the room after she called for help. The trial judge in his summing up directed the jury that they “must scrutinise the complainant’s evidence very carefully” because “she has an extensive criminal history. In particular, she has numerous convictions for offences of dishonesty.” The Court of Appeal’s comments included that “[the complainant] was intoxicated and her evidence as to the sexual offences was unsupported,” despite her physical injury and other witness testimony about her immediate complaint and distressed state.

The full judgment of R v Awang is available here


R v Elomari

This case is one where some intimacy, like kissing, was consensual, but then the complainant said the defendant became physically forceful and raped her. His defence was that she willingly participated. The trial judge’s failure to correctly inform the jury about the ‘mistake of fact’ defence was raised at the appeal. The appeal was ultimately denied, however McMurdo P said she would have allowed the appeal, partly because of the complainant’s intoxication: 

“There was other evidence capable of supporting an honest and reasonable belief as to consent. The complainant had accepted the appellant’s invitation to come alone to his house after midnight. Inside the laundry of the house they kissed consensually. When he kissed her on the neck and grabbed her buttock she giggled. She smoked three large cones of marijuana with him and was, on her evidence, ‘very stoned’. Some of the marks later found on her body could have been made consensually. The previous day she had a tattoo executed on the lower part of her back and this was hurting her at the time of the alleged offence. A jury could have considered that she may not have communicated her lack of consent effectively to the appellant because she was heavily affected by marijuana. They may have considered that he misinterpreted any signs of displeasure and discomfort as being caused by the pain from her recent tattoo rather than a demonstration of her lack of consent.”

McMurdo P’s comments raise a number of factors that are legally irrelevant to the law’s current definition of consent, but may help a defendant get acquitted because of ‘mistake of fact’. These include the complainant’s consent to come to the defendant’s house late at night, consensual kissing, and her level of intoxication. The judge’s comments that evidence of physical resistance or expressions of pain may not be clear enough communication of lack of consent are also extremely problematic: 

“The area where the incident occurred was cramped so that the appellant’s grabbing of the complainant’s hair to prevent her head from hitting the bottom stair was not necessarily inconsistent with a belief she was consenting. Prior to the act of oral intercourse she was sitting astride him. It is true that the complainant gave evidence that the appellant grabbed her hair and put her head down to his crotch before putting his penis in her mouth. But in the complex area of human sexual relations, the jury may have considered that even the appellant’s hand on the complainant’s head during the act of oral sex did not necessarily negate an honest and reasonable belief that the appellant was consenting.” 

This means that even signs of discomfort and protest by the complainant are not necessarily enough to overcome the ‘mistake of fact’ defence. 

The full judgment of R v Elomari is available here.


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