Section 28(2) of the Criminal Code (WA) does not preclude an accused who has intentionally caused themselves to become intoxicated from relying on the insanity defence under s 27(1) if the accused can prove, on the balance of probabilities, that a mental impairment independently of and without regard to the intoxication deprived them of a relevant capacity. The construction of s 28(1) and s 28(2) adopted by Jenkins J in Herbert is wrong and should not be followed. Under s 28(1), unintentional intoxication that disorders the mind and deprives a person of a relevant capacity is sufficient to engage the insanity defence without requiring proof of a separate mental impairment.
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