Post on 14-Apr-2018
7/30/2019 Seminar 13 Intoxication
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INTOXICATION
Sections 85 and 86 of the Penal Code
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Intoxication
When an A is drunkhow does intoxicated state
affect elements of crime?
Depends on level of intoxication, effect of
intoxication May effect mind of A: MR (temporary)
May effect voluntariness: AR (temporary)
May cause internal damage (permanent)
Question: Should the criminal law take all these
various effects of intoxication into account?
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Intoxication
Should the criminal law take intoxication into accountat all?
Relevant considerations Principle of individual culpability:
the drunk A vs. the sober, purposive A
but the effects of alcohol are well-known
Social considerations: Link between crime and alcohol
Message sent: in effect rewarding A for being drunk
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Intoxication: common law
Common law traditionally very reluctant to
take intoxication into account
Is this fair?
Glanville Williams, Criminal Law (1961)
If a man is punished for doing something whendrunk that he would not have done when sober, is
he not in plain truth punished for getting drunk
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Intoxication: common law
The common law has been very reluctant to takeintoxication into account for MR
Half-way house: Specific intent vs. basic intentcrimes
Alcohol can be taken into account for specific intentcrimes, not basic intent crimes
Categorization not clear or water-tight Capacity: insist that As capacity to form specific
intent must be destroyed
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Intoxication: common law
Common lawintoxication only allowed to negate
specific intent not basic intent
Why? Reluctance to let drunks/druggies get off completely
Is specific/basic distinction good to distinguish moralculpability?
Lipman
D and V take LSDtrips D thinks he is fighting with
snakesstrangles V to death
No murder, intoxication taken into accountmanslaughter
(culpable homicide)
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Intoxication: Penal Code
Penal Code recognizes two kinds of intoxication
Negates MR of intention (s. 86(2))
Only intention
specific or otherwise
Complete defense (s. 85)
If dont know what you are doing or nature of act Without consent, malicious or negligent act of another or
Insane, temporarily or otherwise
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Intoxication:
Complete acquittal/committal
S. 86 (2)goes to MR of intentcan result incomplete acquittal; A can also be convicted onlesser offense for lesser MR
S. 85 (2)acquittal/committal
Did not know what he was dong or did not know
act/omission was wrong Intoxication caused without consent,
malicious/negligent act of another or
Effect of intoxicationinsane, temporarily or otherwise
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s. 86 (2): drunk MR is still MR
Did A have MR?
Kingston (drugged pedophile) A has homosexual pedophilic tendencies, drugged
by 3rd party, A assaults 15 year old V, 3rd party
films to blackmail A
Court of Appeal: moral fault absent, MR absent
House of Lords: allowed appeal
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s. 86 (2) : Lack of MR or lack of
capacity to form MR
Negates MR of intent
Words of Penal Codejust need to ask if A had MR ofintent
Some local cases seem to require lack of capacity toform MR of intent
Confusion from older English cases that looked at capacitye,g,Beard
Tan Chor Jin
must show that he was so intoxicated that he could notform the intention which is a necessary element of thealleged offence (para. 27)
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s. 86 (2) vs. common law
Difference between old common law positionand Penal Code s. 86 (2)
Broadhurt v R [1964] AC 441 (Privy Council,Malta) 461
Beardand Penal Code: two different approaches to
intoxication Penal Code wording (same as ours) does not
require this lack of capacity
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s.86(2): burden of proof
Jumat bin Samat
On A or prosecutor?
Structure of Penal Code
When Prosecutor proving MRcan treat A as sober Court will have to answer some hypothetical and
artificial questions but better than solution which iscompletely out of accord with the general scheme of thePenal Code
Also s. 86 (2) includes voluntary intoxicationif putburden on prosecutorA put in better position than otherA pleading other defenses
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s. 86 (2): applies only to MR of intent
Jumaat bin Samad
Only applies to MR of intentnot lower MR
anomalous and disturbing
But words clear, consequences though
discomforting are not of such degree of absurdity
as would justify the court departing from a literal
interpretation
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Intoxication: problems
How can the criminal law balance between recognizing thatintoxication renders A less culpable and condemning the A forgetting drunk
Common law: specific/basic distinction
US Model Penal Code: purpose/knowledge crimes
Penal code: only for intent crimes
Are these limits workable/clear? Do they do their job of
distributing culpability clearly? Why not create separate offense?
German law: committing a wrongful act after intentionally ornegligently getting intoxicated
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s. 85: intoxication as not knowing
nature or quality of act Two competing approaches
Similar to unsoundness of mind (underlying, internaldisorder of some permanence)
Separate and different (temporary or otherwise)
YMC Adopts first approach
interprets temporary or otherwise as manifestation ofunderlying permanent disorder
Textual argument--- can textual argument go the otherway?
Purposive argument --- acquittal or committalconsequences
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Tan Ho Teck
A was charged with murdering his brother. D pleadedinsane intoxication under s 85(2)(b)
Court held We are satisfied on a balance of probabilities that D at the
material time was suffering from delirium due to acutealcoholic intoxication and that by reason of the intoxicationhe was insaneat the time of the stabbing and did not knowwhat he was doing.
Accordingly, pursuant to s 313 of the Criminal Procedure
Code we find that D was, by reason ofunsoundnessof mind incapable of knowing the nature of the act orthat what he was doing was either wrong or contrary tolaw.
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Tan Ho Teck
Medical experts found that the A had predisposing factorsthat made him more vulnerable to delirium than normal
persons upon taking vast amounts of alcohol
What were these predisposing factors?
Medical expert 1: broken home, depressed from gf rejection, attempt tocommit suicide, depressed over debt
Medical expert 2: extremes of life, head injury, immaturity of brain,condition reducing blood supply to brain, extreme fear and anxiety,intense depression, condition of the brain
Were these factors underlying and permanent? Or part ofnormal vicissitudes of life? Consider how does Tan Chor Jinperceive this.
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Tan Chor Jin
Court held
Two different conceptsunsoundness or mind andinsanity
Different wordingparliament must have intendeddifferent concepts
Unsoundness
abnormal state of mind diseases and deficiencies that areinvariably permanent conditions
Insanity
temporary or otherwise dont just mean temporarysymptomsmean transient insanity
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Re-cap: s. 84 vs s. 85
Unsoundness of mind
YMC: not defined in PCrefer to Australian case law (disease ofmind MNaghten) underlying pathological infirmity
Note: Tan Chor Jin defines this
Unsoundness abnormal state of mind that covers diseases anddeficiencies of the mind, both of which are invariably permanentconditions
Intoxication YMC: should interpret similar to unsoundnesspresence of
underlying, permanent infirmity
Tan Chor Jin: Transience is ok. Those who go temporarily insane fromdrinking alcohol (though normal otherwise) should be committed (para.25)
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Re-cap: Tengku Jonaris
D was charged with murder and pleadeddiminished responsibility due to self-inducedintoxication of cannabis.
The issue was whether such intoxication couldamount to an injury or a disease pursuantto Exception 7 to s 300
Self-induced intoxication is not illegallycaused and therefore cannot constituteinjury as defined in s 44
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Re-cap: Tengku Jonaris
I am of the view that the present underlying policy of the lawingrained in Exception 7 does not permit the raising of adefence of diminished responsibility based on self-induced orvoluntary intoxication by alcohol or drugs save in
circumstances where as for example it is involuntary or hascaused disease or injury to the brain due to long standingalcoholism or long standing heavy drug abuse.
If evidence of voluntary intoxication is taken into
consideration, it will simply allow an accused person to avoidliability that he lacked the mens rea for the offence.