Citation(2004) 16 SAcLJ 488
Date01 December 2004
Published date01 December 2004

This note seeks to simplify and rationalise the law of intoxication by highlighting the distinction between transient and underlying effects of intoxication. Where intoxication operates independently of any other defence, it need only be transient. But where it operates in combination with the defence of unsoundness of mind or diminished responsibility, the intoxication must be shown to have had a longer term effect on the accused. Case studies are conducted to illustrate the unnecessary confusion and complexity created when judges fail to take cognisance of this distinction.

1 Intoxication can affect criminal responsibility in several ways. In some cases, it could result in a complete acquittal while in others, the accused could receive a qualified acquittal. In still others, the accused may have her or his charge of murder reduced to culpable homicide not amounting to murder. There may also be some cases where the law will disregard the accused’s intoxication and convict her or him of the crime charged. This note seeks to explain these different possible outcomes by reference to whether the accused was suffering from the transient effects of intoxication or from an underlying condition caused by longstanding substance abuse. It will be suggested that, whenever intoxication is featured in the mental disorder defences of unsoundness of mind and diminished responsibility, the law as pronounced in the Penal Code1 requires the intoxication to have affected the accused in a more than transient manner. However, with regard to the defence of intoxication standing alone, the law permits transient states of intoxication without more to negate criminal responsibility.

2 The aim of this note is to show that this suggested approach to the provisions on intoxication in the Penal Code (namely, ss 85 and 86) is attractive on account of its simplicity and rationality. The failure by some judges and commentators to view the provisions in this way has led to unnecessary complexity in the interpretation and application of the law. Additionally, such a failure has meant that the law governing the defences of unsoundness of mind and diminished responsibility has not been properly followed.

3 At this juncture, it would be useful to reproduce in full the provisions on intoxication in the Penal Code.

85.—(1) Except as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and —

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of such act or omission.

86.—(1) Where the defence under section 85 is established, then in a case falling under section 85(2)(a) the accused person shall be acquitted, and in a case falling under section 85(2)(b), section 84 of this Code and sections 314 and 315 of the Criminal Procedure Code shall apply.

(2) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

(3) For the purposes of this section and section 85 “intoxication” shall be deemed to include a state produced by narcotics or drugs.

4 The first section of this note will explain why the defence of intoxication standing alone only considers the transient effects of intoxication. Section II goes on to provide arguments as to why the law requires longer lasting effects of intoxication when the defence of unsound of mind is involved. Section III rounds off the discussion thus far by dealing with intoxication and automatistic states. In the final section, the arguments will be made for requiring longer lasting effects of intoxication to support the defence of diminished responsibility.

I. The defence of intoxication standing alone

5 There are only two circumstances where intoxication operates as a defence in its own right. They are spelt out in ss 85(2)(a) and 86(2) and have several common features. First, the primary rationale for rendering the accused blameless is because he or she lacked fault. Thus, under s 85(2)(a), it was the malicious or negligent act of a third party which caused the accused to become intoxicated, while under s 86(2), the accused was so heavily intoxicated as to lack the ability to form the requisite fault element of intention.

6 A second common feature is that neither circumstance requires the effects of the intoxication to be long lasting. This is implicit in the wording of the subsections themselves where no mention whatsoever is made of such a requirement. In this regard, the courts have correctly enabled the defence of intoxication as spelt out in ss 85(2)(a) and 86(2) to succeed where the effect of intoxication was merely transient.2

7 A third feature shared by these subsections is that the outcome of a successful plea is a complete acquittal.3 This outcome is consonant with the previously stated features of an absence of fault and the transient effect of intoxication. Since the accused was found not to be at fault in committing the offence charged, and since this was due to the effects of intoxication which no longer influence the accused, it is quite proper for her or him to be unconditionally acquitted and released back into society.

II. Intoxication and the defence of unsoundness of mind

8 The operative words connecting intoxication with unsoundness of mind are found in s 85(2)(b). They are that “the person charged was by reason of intoxication insane, temporary or otherwise, at the time of such act or omission” constituting the offence charged. At first blush, it may be thought that the condition of insanity envisaged by the subsection can, like the intoxication which caused it, be temporary (that is, transient). However, a closer examination shows that this conclusion is only partially correct. It is permissible to contend that the phrase “temporary or otherwise” merely provides that the symptoms of the insanity may be transient. Subsection 85(2)(b) will operate so long as those symptoms were present at the time of the commission of the alleged act or omission constituting the offence charged. This is different

from saying that s 85(2)(b) permits the condition (as opposed to symptoms) of insanity to be transient.

9 This contention is supportable clinically as it is not uncommon for people suffering from a mental disorder to experience normalcy in between bouts when the symptoms of their illness are rife.4 Where intoxication has played a part in causing the mental disorder, the ingestion of alcohol or drugs may serve as a catalyst for the symptoms of the illness to surface, only to become dormant again when the effects of the intoxicant wears off. Accordingly, while the symptoms of insanity may be transient, the condition of insanity is more long lasting. But why, it may be asked, should s 85(2)(b) be read in this way? The answer is because the concept of insanity appearing in the subsection denotes a more deleterious and longer lasting effect on the accused than the temporary effects of intoxication. Were this not so, the subsection need not have included a reference to insanity and could simply have read that “the person charged was intoxicated at the time of such act or omission”.

10 Of course, a case may be made for removing the requirement of insanity under s 85(2)(b) so as to acquit persons whose temporary intoxication had deprived them of the cognitive capacity to know the nature of their conduct or that it was wrong. It could be contended that satisfaction of this formidable test of cognition should suffice to discharge the accused of criminal responsibility, without the added requirement that the effects of the intoxication had to be long lasting. However, until s 85(2)(b) is so amended, significance has to be given to the concept of insanity contained in the provision.

A. Equation with section 84

11 The preponderance of judicial5 and academic commentary6 favours equating “insanity” under s 85(2)(b) with the concept of “unsoundness of mind” under s 84.7 The main obstacle standing in the

way of this interpretation is finding an explanation for why the drafter chose to use a new term for s 85(2)(b). The term “insanity” has conventionally been regarded as originating from the English common law defence of that name as articulated in the M’Naghten R...

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