INTOXICATION

Sections 85 and 86 of the Penal Code

Intoxication

When an A is drunk how 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 account at all? Relevant considerations Principle of individual culpability:

the drunk A vs. the sober, purposive A but the effects of alcohol are well-known Link between crime and alcohol Message sent: in effect rewarding A for being drunk
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Social considerations:

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 when drunk 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 take intoxication into account for MR Half-way house: Specific intent vs. basic intent crimes

Alcohol can be taken into account for specific intent crimes, 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 law intoxication 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 moral culpability? D and V take LSD trips D thinks he is fighting with snakes strangles V to death No murder, intoxication taken into account manslaughter (culpable homicide)
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Lipman

Intoxication: Penal Code

Penal Code recognizes two kinds of intoxication Negates MR of intention (s. 86(2))

Only intention specific or otherwise If dont know what you are doing or nature of act

Complete defense (s. 85)

Without consent, malicious or negligent act of another or Insane, temporarily or otherwise

Intoxication: Complete acquittal/committal

S. 86 (2) goes to MR of intent can result in complete acquittal; A can also be convicted on lesser 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 intoxication insane, temporarily or otherwise

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

s. 86 (2) : Lack of MR or lack of capacity to form MR

Negates MR of intent

Words of Penal Code just need to ask if A had MR of intent

Some local cases seem to require lack of capacity to form MR of intent

Confusion from older English cases that looked at capacity e,g, Beard

Tan Chor Jin

must show that he was so intoxicated that he could not form the intention which is a necessary element of the alleged offence (para. 27)
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s. 86 (2) vs. common law

Difference between old common law position and Penal Code s. 86 (2) Broadhurt v R [1964] AC 441 (Privy Council, Malta) 461
Beard and 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 MR can treat A as sober Court will have to answer some hypothetical and artificial questions but better than solution which is completely out of accord with the general scheme of the Penal Code Also s. 86 (2) includes voluntary intoxication if put burden on prosecutor A put in better position than other A pleading other defenses

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s. 86 (2): applies only to MR of intent

Jumaat bin Samad

Only applies to MR of intent not 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 that intoxication renders A less culpable and condemning the A for getting 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 or negligently 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, internal disorder of some permanence) Separate and different (temporary or otherwise) Adopts first approach interprets temporary or otherwise as manifestation of underlying permanent disorder Textual argument--- can textual argument go the other way? Purposive argument --- acquittal or committal consequences
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YMC

Tan Ho Teck

A was charged with murdering his brother. D pleaded insane 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 acute alcoholic intoxication and that by reason of the intoxication he was insane at the time of the stabbing and did not know what he was doing. Accordingly, pursuant to s 313 of the Criminal Procedure Code we find that D was, by reason of unsoundness of mind incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law.
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Tan Ho Teck

Medical experts found that the A had predisposing factors that 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 to commit 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 of normal vicissitudes of life?

Consider how does Tan Chor Jin perceive this.

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Tan Chor Jin

Court held Two different concepts unsoundness or mind and insanity

Different wording parliament must have intended different concepts abnormal state of mind diseases and deficiencies that are invariably permanent conditions temporary or otherwise dont just mean temporary symptoms mean transient insanity
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Unsoundness

Insanity

Re-cap: s. 84 vs s. 85

Unsoundness of mind

YMC: not defined in PC refer to Australian case law (disease of mind MNaghten) underlying pathological infirmity Note: Tan Chor Jin defines this Unsoundness abnormal state of mind that covers diseases and deficiencies of the mind, both of which are invariably permanent conditions
YMC: should interpret similar to unsoundness presence of underlying, permanent infirmity Tan Chor Jin: Transience is ok. Those who go temporarily insane from drinking alcohol (though normal otherwise) should be committed (para. 25)

Intoxication

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Re-cap: Tengku Jonaris

D was charged with murder and pleaded diminished responsibility due to self-induced intoxication of cannabis. The issue was whether such intoxication could amount to an injury or a disease pursuant to Exception 7 to s 300 Self-induced intoxication is not illegally caused and therefore cannot constitute injury 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 law ingrained in Exception 7 does not permit the raising of a defence of diminished responsibility based on self-induced or voluntary intoxication by alcohol or drugs save in circumstances where as for example it is involuntary or has caused disease or injury to the brain due to long standing alcoholism or long standing heavy drug abuse. If evidence of voluntary intoxication is taken into consideration, it will simply allow an accused person to avoid liability that he lacked the mens rea for the offence.

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