CRIMINAL LAW MENTAL ABNORMALITY

1. Introduction to Defences
Determination of criminal liability requires consideration not only of the elements of an offence (AR and MR); but also of whether any defences may be available to the D Defence are of different form: o Statutory or Common law (or a combination) o General or Specific General: Applicable to most of the offences Including mental abnormality and special defences to murder E.g. Duress is not available for murder charges Statutory specific: e.g. due diligence defences to strict liability offences Defence operate in different ways o May be true defences After P has established AR & MR, then D can raise something which stands independently of the AR and MR in a sense that they offer an explanation justifying or excusing Ds conduct May be based on the existence of circumstances permitting D to act in the manner alleged o E.g. Consent o E.g. Self-defence o E.g. Prevention of crime and lawful escape o E.g. Necessity May be based on the existence of compulsion (i.e. circumstances compelling D to act in the manner alleged) o E.g. Duress (including duress of circumstances) o E.g. Marital coercion o E.g. Superior order and entrapment o May challenge or negate AR or MR elements E.g. Mistake: D honestly believe (mistaken belief) = P cannot prove MR E.g. Intoxication: D was intoxicated to negate MR E.g. Automatism: To negate both AR and MR o May challenge or negate responsibility i.e. foundational requirement that D should be a responsible actor Includes general defence of insanity and diminished responsibility (special defence reducing murder to manslaughter) E.g. Defence of infancy Defence o Mental abnormality Insanity & Automatism Intoxication o Special defences to murder Diminished responsibility Provocation Suicide pact o Excuses and justification Duress / Necessity Self defence / Crime Prevention At the extremities o Secondary responsibility
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Overview of defences

Inchoate liability and Inchoate

2. Mental Abnormality
If an individuals ability to choose between good and evil, between legal and illegal conduct, is compromised because of mental abnormality, this may lead us to say he or she is not morally responsible for his or her actions This may negate the imposition of criminal responsibility When mental abnormality is in issue: o D asserts he was suffering from some form of insanity o D asserts his conduct was involuntary because of the effect of some form of mental abnormality o D asserts he was intoxicate at the time of the offence Either as a result of drinking alcohol or taking some form of drug (be it prescription drugs or dangerous drugs) Mental abnormality may affect Ds state of mind in a variety of ways: o At trial Fitness of plead o At time of offence Common law: Insanity Automatism Intoxication Statutory (murder): Diminished responsibility (i.e. a special defence to murder) ASK: Is the D able to give evidence at trial or give instruction to counsel? If D is unfit to plead, then the trial may be postponed until such time as D is fit to plead (Mental Health Ord, ss.45-54A, 57 / CPO ss.75-76A, 83M) General test: o Can D understand the charges brought against him/ her, and appreciate the difference between a plea of guilty and not guilty (Podola (1960)) Assessed by a jury or a judge o D is required to have sufficient ability in relation to all the following matters (In M (2003)) (i) to understand the charges; (ii) to understand the plea; (iii) to challenge jurors; (iv) to instruct counsel and his solicitor; (v) to understand the course of the trial; and (vi) to give evidence if he chooses If jury/ judge finds D is unfit to plead, it must then go on and assess whether D did the act or made the omission charged (s.75A(1)(b), CPO) If it is found that D did not do the act or make the omission at all, then D must be simply acquitted Who can raise fitness to plead? o If raised by D: the burden of proof upon D on balance of probabilities (Podola) o If raised by P or judge: the burden of proof upon P (beyond reasonable doubt ??)

(a) Incapacity affecting participation in trial Fitness to plead

(b) Insanity
s.74(1), CPO: Where any act of omission is charged against any person as an offence, and it is given in evidence on trial of such person for that offence that he was insane, so as not to be responsible according to law for his actions at the time when the act was one or the omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused person is not guilty by reason of insanity (i) ** MNaghtens Rules (the rule was formally approved by HL in Sullivan (1984)) Presumption of sanity Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his actions, until the contrary be proved; and Proving insanity To establish a defence on ground of insanity, it must be clearly proved (on balance of probabilities) that, at the time of the committing of the act, the party accused was laboring: o under such a defect of reason, o from disease of mind, (and) o as not to known the nature and quality of the act he was doing; or o if he did known it, that he did not know he was doing what was wrong Note: Insanity was not often used as a defence because: o Burden of proof is placed on D; and o It carried a special mandatory hospital order (until the law was amended in 1996) o Did not cover persons who knew what they were doing, but could not resist (irresistible impulse) i.e. irresistible impulse is not part of the defence of insanity

(ii) Elements of insanity

(1) Defect of reason
Requires proof of actual impairment of Ds powers of reasoning (Clarke (1972))

(2) Not to know that wrong OR Not to know the nature and quality of act
Not to know that wrong o = a legally wrong (Windle) o Cf. the High Court of Australia held that the wrong includes knowledge that act is morally wrong R v Windle (1952) Facts: W was convicted of murdering his wife and sentenced to death. According to the evidence, W was man is little resolution and weak character. His wife was always speaking of committing suicide and she was certifiably insane. W gave his wife 100 tablets of aspirin and his wife took them all and died. At trial, D put forward a defence of insanity. A doctor was called for him who said that W was suffering from a for of communicated insanity with a defect of reason of mind. The doctors called by P opined that W, when administering the fatal dose of aspirin to his wife, knew that he was doing an act which the law forbade. The trial judge ruled against D deciding that there was no evidence of insanity
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Held that: Justifications:

CA dismissed the Ws appeal - The real test is responsibility: A man may be suffering from a defect of reason, but if he knows that what he is doing is wrong, and by wrong is meant contrary to law, he is responsible - The test must be whether it is contrary to law - It is not wrong according to the opinion of one man or of a number of people on the question whether a particular act might or might not be justified (was morally right or wrong)

Not to know the nature and quality of act o = physical nature and quality of the act (not its moral nature) (Codere / Sullivan)

(3) Disease of mind

A question of law and fact o i.e. the judge first decides whether condition raised by D amounts at law too a disease of mind If so, the jury or judge then decides whether D actually suffers from that condition (fact)

Distinction between Insanity and Automatism lies on disease of mind Insanity Automatism (=Insane automatism) (non-insane automatism) Defect of reason Not to know the wrong Disease of mind Verdict o Special verdict Simple (full) acquittal not guilty by reason of insanity Insane VS Non-insane automatism Insanity (insane automatism): If the only alleged cause for Ds lack of control or unconsciousness is a condition classifiable at law as a disease of mind, then the only defence open to D is insane automatism (i.e. insanity) Non-insane automatism: If the state of automatism is not caused by a disease of mind, it operates to negate MR and AR and leads to a simple acquittal

Disease of mind, not brain (R v Kemp) R v Kemp (1957) Facts: K was charged with causing grievous bodily harm to his wife for having alleged struck her during the night with a hammer. K was an elderly man of excellent character and he and his wife were thought to be a devoted couple, deriving no motive for the assault. K claimed that he was not conscious at the time he did the act, that he picked up the hammer or that he was striking his wife with the hammer Here K claimed automatism as defence Held that: K suffered from a disease of mind; accordingly he was not entitled to raise automatism and not entitled to a simple acquittal Justifications: - The law is not concerned with the brain but with the mind - Mind is ordinarily used in speaking of the mental faculties of reasoning, memory and understanding - The condition of the brain as well as the question whether the condition of the mind is curable or not, transitory or permanent are both irrelevant - Here, the hardening of the arteries is a disease which is shown on the
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Comments: -

evidence to be capable of affecting the mind in such a way as to cause a defect, temporarily or permanently, of its reasoning, understanding and so on, and so it is a disease of the mind which comes within the meaning of the MNaghten Rules Hence, it is a defence of insanity at most a special verdict of not guilty by reason of insanity; but did not entitle K to a full acquittal The test laid down by the court clearly involve a police element intended to ensure that dangerous D do not obtain a simple acquittal

The mental disorder has manifested in itself in violence and is prone to recur = A disease of mind (Bratty) Bratty v AG for Northern Ireland (1963) Facts: B was charged of murdering a young girl by strangulation. B claimed automatism based on the evidence that he may have been in a state of automatism by reason of suffering from an attack of psychomotor epilepsy Held that: Bs epilepsy was a disease of mind; thus he was not entitled to the defence of non-insane automatism Justifications: - Any mental disorder which has manifested itself in violence and is prone to recur is a disease of mind - At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal Internal or External cause of a state of automatism (R v Quick & Paddison) o Prima facie, a state of automatism arising from an internal cause is caused by a disease of mind = Insane automatism (insanity) o A state of automatism arising from an external cause is not caused by a disease of mind = Non-insane automatism (automatism) R v Quick & Paddison (1973) Facts: Q was charged with assault occasioning ABH. It was alleged that Q, a male nurse, assaulted a patient in his care. P, also a male nurse, was charged as an accessory, for having encouraged Q. Q, a diabetic, claimed he had taken insulin without eating properly, and that the assault may have occurred while he was in a hypoglycemic coma (caused by low blood sugar after injection of insulin) Trial judge ruled that diabetes was a disease of mind, meaning Q could only raise insane automatism. Q thus pleaded guilty and both Q & P were convicted Q & P appealed. Held that: CA quashed the convictions of both Q & P. CA held that the malfunctioning of Qs mind was caused by external factor, thus Q was entitled to have his defence of automatism. Since the jury were misdirected at trial, Qs conviction was quashed Justifications: - In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease - A malfunctioning of the mind of transitory effect caused by the application to the body of some external factors such as violence, drugs, including anesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease - Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility (e.g. self-induced incapacity will not excuse (R v Lipman (1970)) - Here, Qs alleged mental condition was not caused by his diabetes but
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by his use of insulin prescribed by his doctor (i.e. such malfunctioning of mind was caused by an external factor and not be a bodily disorder in the nature of a disease which disturbed the working of his mind) Q was entitled to have his defence of automatism left to the jury Note: A hypoglycemic coma, even though external in origin, will NOT automatically result in an acquittal if it was self induced i.e. External factor Entitlement to defence of automatism For the jury to answer questions whether to relieve D from responsibility

The tests established in Kemp and Quick & Paddison were re-affirmed by the HL in Sullivan R v Sullivan (1984) Facts: S was a lifelong sufferer of epilepsy for which he received regular treatment. He was charged with two counts of causing GBH with intent to a neighbor. It appeared that S assaulted V when V tried to help S during an epileptic seizure. S wanted to rely upon the defence of automatism. S changed his plea to guilty after the trial judge ruled that epilepsy amounted to a disease of mind and could only be relied on to support a defence of insane automatism. S was convicted and his appeal to the CA was unsuccessful. S further appealed to the HL Held that: HL dismissed the appeal Justifications: - Medical evidence found that the mental disorder (psychomotor epilepsy) must continue for a period of time to qualify for the description of a disease of mind - HL, however, affirmed the approach taken by Kemp that the meaning of the expression disease of mind is used in the ordinary sense of the mental faculties of reason, memory and understanding; if the effect of a disease is to impair these faculties so severely, the duration of the disorder or impairment is irrelevant - HL also affirmed Quick & Paddison test that the possibility of noninsane automatism is not excluded in cases where temporary impairment (not being self-induced by consuming drink or drugs) results from some external physical factors o Application of the tests with regards to disease of mind External pressures and stresses may amount to non-insane automatism only when they are more extreme in nature, featuring novelty or accident (Sullivan) R v Hennessy (1989) Facts: H was charged with taking a car and driving while disqualified. H, a diabetic, alleged that he had failed to inject insulin and his high blood sugar levels (hyperglycemia) was aggravated by stress and depression. H pleaded guilty after the trial judged ruled he was not entitled to a defence of non-insane automatism. H appealed Held that: CA dismissed appeal, upholding the trial judge that H was not entitled to a defence of automatism Justifications: - Stress, anxiety and depression can no doubt be the result of the operation of external factors; but they are NOT in themselves separately or together external factors of the kind capable in law of causing or contributing to a state of automatism - The constitute a state of mind which is prone to recur - They lack the feature of novelty or accident - i.e. the stress and depression is the cause and is a disease of mind Rabey v The Queen (1980) Canadian Supreme Court case
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Held that:

Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a disease of mind if it prevents the accused from knowing what he is doing The ordinary stresses and disappointments of life DO NOT constitute an external cause constituting an explanation fro a malfunctioning of the mind which takes it out of the category of a disease of the mind Transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of mind

R v Burgess (1991) Facts: B was charged with wounding with intent. B attacked V by hitting her head with a bottle when she was asleep, then with a video recorder and finally grasping her round the throat. B acted out of character and seemed vicious and angry. He appeared to come to senses until V managed to say I love you Bar and thereafter showed great anxiety for what he had done. He later called for ambulance B claimed a defence of automatism that he may have done the act while he was sleep-walking Held that: CA dismissed appeal, holding that Bs sleep-walking amounts to malfunctioning of mind caused by an internal factor which entitled B to only a defence of insane automatism (insanity) but not automatism Justifications: - The malfunctioning of mind or mental disorder caused by an internal factor may be a disease of mind - Accepted definition of disease of mind in Bratty: any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind - On evidence the trial judge was right to conclude that this was an abnormality or disorder, albeit transitory, due to an internal factor, whether functional or organic, which had manifested itself in violence. It was also a disorder or abnormality which might recur Comments: - Cf. R v Parks Supreme Court of Canada ruled that sleep-walking does not necessarily amount to a disease of mind; on grounds that the impairment of a persons faculties of reason, memory and understanding is caused not by any disorder or abnormal condition but by a natural and normal condition (sleep) (iii) Proof Defence, Prosecution or Judge may raise question of insanity Burden and standard of proof vary accordingly o D: On balance of probabilities o P / Judge: Beyond reasonable doubt (iv) Verdict Not guilty by reason of insanity (s.74, CPO) Other possible consequential orders: o Hospital order / Guardianship/ Supervision / Absolute discharge (s.76, CPO)

(c) Automatism

(i) Nature & Effect of Automatism Automatism = Involuntariness arising from mental abnormality An involuntary act in this context (automatism) means: (Bratty) o An act which is done by the muscles without any control by the mind, such as spasm, a reflex action or a convulsion; or o An act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion i.e. Lack of conscious control or unconsciousness Requires a TOTAL lack of control (A-Gs Ref (No 2 of 1992) [1993]) Automatism may operate either as incapacitating factor or by negating AR & MR It is NOT involuntary merely because: o D does not remember ding of the act if D was otherwise conscious at the time of the offence (Podola (1960)) o D could not control or resist impulse (Roberts v Ramsbottom (1980)) o D not working in top gear (Isitt) o D acting under duress o D act unintentionally or the acts consequences are unforeseen Advantages of raising automatism: o Only evidential burden on D: P must prove voluntary conduct BRD o D, if P cannot rebut the defence of automatism, is entitled to full acquittal Note: Not all involuntary act leads to a full acquittal (e.g. involuntary act arising from a state of intoxication)

(ii) Elements of Automatism

(1) Proper evidential foundation
Why? A mans act is presumed to be a voluntary act unless there is evidence from which it can reasonably be inferred that it was involuntary; thus, the defence of automatism ought not to be considered until the defence has produced at least prima facie evidence (Hill v Baxter) How to prove? By medical evidence In order to displace the mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary (Bratty) o The evidence will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental evidence Who to establish the foundation and on what standard? (Bratty) The necessity of laying the proper foundation is on the defence It leaves the legal burden on the prosecution to discharge the ultimate burden of proving that the act was voluntary BRD An evidential burden on D in that he must lay a proper foundation for the defence of automatism and be able to point to evidence from which it may reasonably be inferred that his act was not voluntary (Mohammad Hussain (1993)) The question whether such a foundation had been laid is a question of law for the judge

(2) NOT caused a disease of mind (i.e. the state of automatism must not amount to
disease of mind)
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If the only alleged cause for Ds lack of control or unconsciousness is a condition classifiable as a disease of mind, then the only defence available to D is insane automatism (insanity) If the condition is held to amount to a disease of mind but D fails to prove insanity on balance of probabilities, D CANNOT alternatively rely on automatism or involuntariness alone (Bratty) o Disease of mind = Any mental disorder which has manifested itself in violence and is prone to recur (Bratty) o Internal / External factor distinction (Quick & Paddison): A state of automatism arising from an internal cause is caused by a disease of mind (i.e. Insane automatism (insanity)); whereas a state of automatism arising from an external cause is not caused by a disease of mind (i.e. Non-insane automatism (automatism))

Different Causes of Involuntary Act Insanity / Automatism? Causes Insanity? Non-insane (= disease of mind) automatism? (A) Organic (physical) Concussion Epilepsy (Bratty) / (Sullivan) Diabetic coma a. Hypoglycemia (Quick & Paddisson) b. Hyperglycemia (Hennessy) (B) Functional Psychological trauma & dissociative states Sleep walking Schizophrenia (Rabey) (Hennessy) (Burgess) (R v T (rape-induced trauma)) (Parks) / (Stone)

(3) Self-induced automatism

A self-induced incapacity will not excuse nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something (Quick & Paddison) Need to take into account the distinctions between: (R v Bailey) o Involuntary VS Voluntary (self-induced) o Specific intent offence VS Basic intent offence o Alcohol/ dangerous drugs VS Non-dangerous drugs For specific intent offence: o Automatism may be relied upon to negate liability for a specific intent offence even if self-induced; provided that D has laid down a proper evidential foundation for claiming automatism to the jury For basic intent offence: o D would be entitled to rely on the defence of automatism: (1) If a state of automatism arose from consumption or use of non-dangerous drugs (e.g. sleeping pill); (2) Provided that there had been a proper medical foundation for state of automatism; and (3 Unless P proves BRD that D has recklessly induced the state of automatism

Recklessness = If D does appreciate the risk that such an action or a failure may lead to aggressive, unpredictable and uncontrollable conduct and D nevertheless deliberately runs the risk or otherwise disregards it, this will amount to recklessness the key is whether it is common knowledge for D to appreciate such risk?

R v Bailey (1983) Facts: B was convicted of wounding with intent or malicious wounding for having struck V (who was Bs ex-girlfriends new boyfriend) on head with an iron bar. B alleged that he may have suffered a momentary blackout (10 secs) arising from state of hypoglycemia after taking insulin and not eating properly and only struck V whilst he was in this state of automatism Held that: CA dismissed appeal, holding that B was entitled to defence of automatism but D failed to establish proper medical foundation for automatism Justifications: - Self-induced in this context means or includes the failure to take sufficient food after his does of insulin For specific intent offence (wounding with intent): Automatism may be relied upon to negate liability for a specific intent offence even if the state of automatism is self-induced Since wounding with intent is a specific intent offence, B was entitled to have automatism, self-induced or not For basic intent offence (malicious wounding): If D has established a proper medical foundation for automatism and the state of automatism is caused by voluntary consumption/ use of nondangerous drugs, D would have been entitled to be acquitted unless the P proved BRD that D had recklessly induced the state of automatism Recklessness: Whether D, in his common knowledge, appreciates the risk that such an action or failure to act may lead to aggressive, unpredictable and uncontrollable conduct and he nevertheless deliberately runs the risk or otherwise disregards it, this will amount to recklessness It is common knowledge that those who take alcohol to excess or certain sorts of drugs may become aggressive or do dangerous act, they may be able to foresee the risk of causing harm to others but nevertheless persist in their conduct; But it Is not common knowledge, among diabetics, that aggressive, unpredictable and uncontrollable conduct is a consequence of a failure to take food Proper medical foundation for automatism: However in this case, D failed to establish the requisite proper evidential foundation. Medical evidence showed that hypoglycemia is progressive in its effect from drowsiness to loss of consciousness/coma and does not cause momentary unconsciousness

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3. Intoxication
3 Distinctions: 1. Is the state of intoxication INVOLUNTARY or VOLUNTARY (Self-induced)? 2. If voluntary, whether offence is SPECIFIC INTENT or BASIC INTENT? 3. If voluntary & basic intent offence, whether the state of intoxication was induced by ALCOHOL/DANGEROUS DRUGS or by NON-DANGEROUS DRUGS? Summary of Intoxication Rules
Intoxication Involuntary | Can adduce evidence on intoxication | | MR proved | | | Not a defence MR not proved | | Acquit D MR proved BRD | Not a defence Voluntary Specific Intent | | | | | | | | Can adduce evidence MR not proved | | Acquit D Basic Intent | | | Dangerous drugs/ Alcohol | CANNOT adduce evidence Non-dangerous drugs | | Can adduce evidence | UNLESS P proves reckless intoxication | CANNOT rely on evidence of intoxication

(a) Involuntary Intoxication

E.g. Intoxication caused by consumption of prescription drugs (in accordance with prescription), or by laced food or drink which is secretly contaminated by drugs If D is involuntarily intoxicated, o D will be entitled to adduce evidence of the fact about the involuntary intoxication o Regardless of whether D is charged with specific intent offence or basic intent offence It remains on P to prove the necessary MR beyond reasonable doubt o If P fails to prove the requisite MR BRD, and D is able to adduce evidence of the involuntary intoxication, D is entitled to be acquitted relying on the defence of involuntary intoxication o If P can prove the necessary MR BRD, even if the D is involuntarily intoxicated, a drunken intent is still an intent (R v Sheehan); Ds involuntary intoxication does not add a further defence and the D is not entitled to acquittal

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R v Kingston (1995) Facts: K (D) is sexually interested in children. He was jointly with P indicted on a count of indecent assault on a youth aged 15. K was in dispute over business matters with F who employed P to obtain damaging information about K. P invited the youth to Ps room where P secretly drugged the youth. On the same night K and P went to the room where K indulged in gross sexual acts with the unconscious youth. P made a video recording and took photographs and the sexual acts, which later came into the hands of the police. K alleged that P had also secretly administered drugs to K, although the video recording showed K was not unconscious The jury by a majority returned a verdict of guilty against K, for which he was sentenced to 5 years imprisonment. The CA quashed the conviction Held that: HL allowed the appeal, holding the judges ruling and direction were correct Justifications: - Intoxication is NOT per se a defence: A druken intent is nevertheless an intent (R v Sheehan) - Where the intoxication is involuntary, D is entitled to adduce evidence of the fact of the involuntary intoxication, regardless of whether D is charged with an offence characterized as a specific or basic intent (defence of absence of MR is available) the D is entitled to be acquitted unless the P proves MR BRD - However, there is nothing to suggest that where the requisite MR (intent) is proved, involuntary intoxication adds a further defence - Despite Ds allegation that he formed his indecent intent after he was drugged, the HL held this could still constitute the necessary MR of the offence

(b) Voluntary Intoxication

If D is voluntarily intoxicated, ASK further: Whether it concerns a Specific Intent offence OR a Basic Intent offence

(i) Distinguish Specific Intent offence and Basic Intent offence The classification is based on no principle but on policy. In order to know how a crime should be classified for this purpose we can look only to the decisions of the court (Smith and Hogan) Elusive distinction between specific and basic intent (R v Heard) Step 1: Look up the judicial classifications o Specific Intent offence E.g. Theft (with the intention of permanently depriving the other of the property) E.g. Burglary E.g. Wounding / Causing GBH with intent to cause grievous bodily harm E.g. Handling stolen goods E.g. Murder o Basic Intent offence E.g. Common Assault/ Battery E.g. Unlawful wounding E.g. Indecent assault E.g. Assault occasioning actual bodily harm E.g. Rape / Attempted rape E.g. Manslaughter (whether voluntary or involuntary)
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Step 2: Definitions from case law (in addition to the usual categorization) o Specific Intent offence If the prosecution must in general prove that the purpose for the commission of the act extends to the intent expressed or implied in the definition of the crimes (per Lord Simon in Majewski) Requiring an additional state of mind contemplating consequences beyond those defined in the AR and is merely one type of specific intent E.g. s.17(a), OAPO wounding with intent to cause grievous bodily harm The offence requires 2 elements of MR: (i) Maliciously wound; and (ii) With intention to cause grievous bodily harm o Basic Intent offence = Crimes whose definition expresses (or, more often, implies) a mens rea (MR) which does not go beyond the actus reus (AR) (per Lord Simon in Morgan)

(ii) If (1) Voluntary + (2) Specific Intent offence If D is voluntarily intoxicated AND it is a Specific Intent offence, o D can rely on the evidence of the intoxication to raise reasonable doubt to negate the MR; So that if P cannot prove MR BRD, then D is entitled to acquittal o Note: this is not applicable to a crime of basic intent (R v Majewski) R v Majewski (1977) Facts: Out of a disturbance in a bar where M (D) and his friends were drinking, M verbally and physically assaulted the landlord of the bar and another customer. M also cut the landlord with broken glass. When the police were called, M shouted foul language at the police and kicked a PO on the shins. During the struggle to get M into the police, M also shouted at and kicked a PO M was charged with 3 counts of assault occasioning ABH and 3 counts of assaulting a PO in execution of duty. M claimed that when the assaults were committed he was acting under the influence of a combination of drugs (not medically prescribed) and alcohol, to such an extent that he did not know what he was doing and he did not remember anything from the incidents occurred. At trial, the judge directed the jury that the fact M might have taken drink or drugs was irrelevant provided the jury was satisfied that Ms intoxication state was self-induced. M was thus convicted on all counts. CA dismissed Ms appeal. Held that: HL dismissed the appeal, upholding that it is no excuse in law that, because of drink or drugs which the D himself had taken knowingly and willingly, D had deprived himself of the ability to exercise self control, to realize the possible consequences of what he was doing, or even to be conscious that he was doing it Justifications: - As distinct from crimes of specific intent, self-induced intoxication provides no defence and is irrelevant to offences of basic intent R v Morgan: Crimes of basic intent = Crime whose definition expresses (or more often implies) a MR which does not go beyond the AR (e.g. Assault the MR correspond exactly to an act that causes another person to immediate and unlawful violence) - If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition
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Ds course of conduct in reducing himself by drugs and drink to that condition supplies the evidence of MR, of guilty mind sufficient for crimes of basic intent It is a reckless course of conduct and recklessness is enough to constitute the necessary MR in assault cases (R v Venna)

(iii) If (1) Voluntary + (2) Basic Intent offence + (3) Alcohol/ Dangerous Drugs OR NonDangerous Drugs If D is voluntarily intoxicated AND it is a Basic Intent offence, o Ask further: Whether it concerns consumption of alcohol/ dangerous drugs OR non-dangerous drugs If (1) Voluntary + (2) Basic intent offence + (3) ALCOHOL/ DANGEROUS DRUGS o D CANNOT rely on evidence of his voluntary state of intoxication arising out of consumption of alcohol or dangerous drugs to negate (raise reasonable doubt) the MR (R v. Majewski) If (1) Voluntary + (2) Basic intent offence + (3) NON-DANGEROUS DRUGS o D can rely on evidence of his voluntary state of intoxication arising out of consumption of non-dangerous drugs to negate (raise reasonable doubt) the MR (R v. Majewski) o UNLESS the P proves D was reckless in becoming intoxicated (R v. Hardie)/ (R v Bailey) Recklessness = If the D subjectively foresaw/ knew that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled (or might lose control or consciousness) with the result that he may cause some injury to others and he persists in the action or takes no remedial action when he knows it is required, it will be open to the jury to find that D was reckless (R v Bailey) R v Hardie (1985) Facts: H (D) was distressed after his partner had told him their relationship had broken down and insisted H leave. While packing, H found a bottle of Valium pills which Hs partner had from >10 years earlier. H took one pill first to calm him down. Later, H took 2 more pills in front of his partner who said, take as many as (H) like, they are old stock and will do (H) no harm. Afterwards, H took 2 more pills and fell into a deep sleep. Thereafter, H started a fire in the bedroom and was therefore charged with aggravated arson. At trial, he was convicted. Held that: CA allowed Hs appeal and quashed his conviction; holding that the trial judge was wrong in directing that the effects of Valium were necessarily irrelevant Justifications: - Self-induced automatism, other than that due to intoxication from alcohol or dangerous drugs, may provide a defence to crimes of basic intent UNLESS P have proved the necessary element of recklessness (R v Majewski / R v Bailey) - Here the self administration of Valium is NOT reckless: There was no evidence that it was known to H or even generally known that the taking of Valium in the quantity would be liable to render a person aggressive or incapable of appreciate risks to others or have other side effects such that its self-administration would itself constitute an element of recklessness - Valium is a drug wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness
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If the effect of a drug is merely soporific (causing sleep) or sedative the taking of it, it cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving MR in ordinary crimes (of basic intent) Therefore, in the present case, the jury should not have been directed to disregard any incapacity, which resulted or might have resulted from the taking of Valium. The correct direction should be: If the jury came to conclusion that, as a result of Valium, D was unable to appreciate the risks of property and persons from his actions at the time, they should then consider whether the taking of the Valium was itself reckless

(iv) Note: HK position HK essentially follows the approach adopted in Majewski However this has been challenged by HKCA in HKSAR v Tang Yuk Wah o Leave to appeal to the CFA was granted involving 2 issues: (i) the question whether psychiatric evidence is admissible to show that an Ds drug or drink induced condition negated his intention to cause or capacity to appreciate the danger to life created by his conduct; and (ii) the question whether such a condition is a defence where the accused has only himself to blame for its existence o Even though the appeal has not yet been pursued, the position is uncertain HKSAR v Tang Yuk Wah (2007) Facts: Tang was charged with aggravated arson as he set two fires in his apartment block, causing enormous damage. He was re-tried after it was held by the CA that the trial judge had wrongly directed the jury in terms of recklessness, contrary to the correct tests in R v. G as approved by the HKCFA in Sin Kam Wah. At re-trial, Tang argued that the proceedings should be stayed since he could no longer remember the events and that he had taken drugs in combination with drink and lacked the necessary MR. Tang attempted to call psychiatric evidence on the effect of taking drugs and drink on his mental state (voluntary intoxication), in particular whether he was reckless as to whether life would be endangered by intentionally or recklessly destroying property The trial judge rejected his application. Tang appealed. Held that: CA dismissed the appeal by majority (where Stuart-Moore VP found the defence had not raised any real defence to reckless arson while Barnes I ruled that the trial judge correctly rejected the psychiatrists evidence) Justifications: Note: Dissenting judgment by Stock JA: - The rule in Majewski will not apply where, in the case of a drug, the drug is not generally known or known by D to cause unpredictable and uncontrollable conduct; yet this cardinal issue was not addressed either at trial or on appeal - On the basis upon which the evidence was received, I do not, with respect, think that the judges treatment of the psychiatric evidence in relation to recklessness, was satisfactory The psychiatric evidence had been to the effect that patients long used to sleeping drugs become inured to them in the sense that they may not induce sleep even though they may affect the level of awareness and consequence of conduct The psychiatrist testified that a person might still perform in a purposeful & organized way despite a high dose of hypnotic drugs It was open to the judge to reject the evidence, but he was bound to address it and there is no sufficient indication that he did so
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(c) Intoxication and Mistake

Intoxication may also affect Ds mind by making D mistakenly believe that there is something in the circumstances which would justify or excuse D is acting in a manner which might otherwise amount to an offence o E.g. what if D mistakenly believes that another person is threatening to kill D if D does not hit V? (a mistaken belief giving rise to duress) o E.g. what if D uses force against V in the mistaken belief that V is about to attack D (a mistaken belief giving rise to self-defence)? (a) Involuntary Intoxication o If in case of involuntary intoxication, D ought to be entitled to rely on the mistaken belief and any defence found on it (b) Voluntary Intoxication o (i) Voluntary & Duress The defence of duress/ necessity requires Ds mistake to be a reasonable mistake However, an intoxicated person would not have made a reasonable mistake (i.e. the mistaken belief caused by voluntary intoxication in general is regarded as unreasonable) Therefore, D is NOT entitled to rely on a mistaken belief caused by voluntary intoxication in claiming duress or necessity o (ii) Voluntary & Self-defence Mistaken belief caused by voluntary intoxication CANNOT be relied upon to raise self-defence D is NOT entitled to rely on a mistaken belief to raise a self-defence as a defence found on intoxicated mistake to negate liability if the mistake is induced by voluntary intoxication; Regardless of whether the offence is a basic intent offence (manslaughter) or a specific intent offence (murder) (R v OGrady (1987)) Mistaken belief caused by voluntary intoxication can ONLY be used to raise reasonable doubt to negate MR of a Specific Intent offence As a general rule, D could adduce evidence of voluntary intoxication to negate the MR of a specific intent offence only (not a basic intent offence) (R v OConnor) However, adopting OGrady, D could not rely on a mistaken belief resulting from a voluntary state of intoxication to raise self-defence as a defence to a specific intent offence (murder) (OConnor)

R v OGrady (1987) Facts: OGrady (D) was an alcoholic. D drank with his friends including the deceased (V). Another man woke up the next morning seeing D was covered in blood when D admitted D & V had a fight. D later reported the murder. There was no doubt that both D & V were very drunk at the material time. D claimed that he was hit first by the V who was holding a piece of glass in one hand. To make V stop hitting D, D picked up a piece of glass and hit V. D was charged with murder, convicted of manslaughter and sentenced to 7 years imprisonment. D now appealed against conviction. Held that: CA dismissed Ds appeal on conviction, claiming the evidence cannot be
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Justifications:

relied on to claim self-defence - Where the jury are satisfied that (1) D was mistaken in the belief that any force of the force which he in fact used was necessary to defend himself (mistaken belief giving rise to self defence) AND (2) the mistake was caused by voluntarily induced intoxication, the selfdefence (in negating Ds liability) must fail - Regardless of any distinction drawn between offences involving specific intent offence (e.g. murder) and basic intent offence (e.g. manslaughter)

(d) Intoxication and Dutch Courage

D will NOT be entitled to rely on the intoxication to (raise reasonable doubt on) negate the MR IF: (A-G for Northern Ireland v Gallagher) o (1) D forms the requisite intention to commit a particular specific intent offence (e.g. murder); o (2) D makes use of intoxication to lessen his inhibitions and gain the courage to carry out his intentions, and o (3) D actually commits the offence Attorney-General for Northern Ireland v Gallagher (1963) Facts: G (D) was convicted of murdering his wife, who died after suffering extensive brutal injuries from a knife and hammer G argued insanity, alternatively he was so drunk when he killed her as to be incapable of having any intent to kill her or do her GBH. Evidence showed that G had been in a mental hospital; and after he was allowed out, he bough a knife and a bottle of whisky and went home. Two hours later G told his neighbor that he had killed his wife. At trial, G was convicted of murder. CA allowed the appeal Held that: HL allowed the appeal, restoring the conviction of murder Justifications: - If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this selfinduced drunkenness as a defence to a charge of murder - He cannot say that he got himself into such a stupid state that he was incapable of an intent to kill - So also when he is insane, he cannot by drinking rely on his selfinduced defect of reason as a defence of insanity - The wickedness of his mind before D got drunk is enough to condemn him, coupled with the act which he intended to do and did do Comments - G might be able to claim diminished responsibility as a defence; but DR was not available as a defence in Northern Ireland at that time

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