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Seminar 13 Intoxication

Date post: 14-Apr-2018
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  • 7/30/2019 Seminar 13 Intoxication




    Sections 85 and 86 of the Penal Code

  • 7/30/2019 Seminar 13 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?

  • 7/30/2019 Seminar 13 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

  • 7/30/2019 Seminar 13 Intoxication



    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?


    D and V take LSDtrips D thinks he is fighting with

    snakesstrangles V to death

    No murder, intoxication taken into accountmanslaughter

    (culpable homicide)

  • 7/30/2019 Seminar 13 Intoxication



    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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    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


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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.

  • 7/30/2019 Seminar 13 Intoxication



    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


    abnormal state of mind diseases and deficiencies that areinvariably permanent conditions


    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.