Ms Starosta’s Class 2011
CRIMINAL LAW
LAWS2001
INTOXICATION
GENERAL
 We know that there are two kinds of general defences:
o Those that exclude mens rea and
o Those that exclude unlawfulness
 Some defences like INTOXICATION fall into both of these categories
 Historically, CAPACITY could only be excluded by mental illness and
youth.
 In 1981 this position changed with the decision of Chretien
 Capacity is a 2-fold enquiry
o Could the accused appreciate the wrongfulness of his conduct
and
o Could he act in accordance with that appreciation
 Chretien envisaged intoxication affecting either or both of these
enquiries.
WHAT IS INTOXICATION?
 Usually understood as the intake of alcohol but includes the intake,
injection or inhalation of drugs
EFFECT?
 A can be dead drunk rendering him INVOLUNTARY
 Assuming A was voluntary, he may lack criminal CAPACITY as discussed
above
 Assuming A has capacity, the intoxication can exclude intention
(usually in the form of a mistake of law.
 Assuming that intoxication had no effect on A, it may still mitigate
or aggravate his sentence (depending on facts)
VOLUNTARY v INVOLUNTARY INTOXICATION
 Voluntary intoxication would warrant a higher degree of moral
blameworthiness as it involves an element of intention (antecedent
liability)
 So, there is an antecedent fault in voluntarily getting into a
potentially dangerous state.
INVOLUNTARY INTOXICATION:
 A becomes intoxicated as a result of the administration of a
substance to him without his knowledge.
 Examples are forced use, a trick or a spiked drink
 This usually poses no problem, Courts use normal principles to
determine whether A is voluntary or not ect.
S v Hartyani ‘80
 A charged with drunken driving.
 He voluntary consumed 4 bottles of beer and then some coffee
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 Unbeknown to him, the coffee was laced with a substantial amount of
brandy
HELD:
 It was reasonably possible that A did not know that there was brandy
in the coffee and that he could not appreciate the wrongfulness of his
conduct and to act accordingly.
 He was held to have no criminal capacity and acquitted.
VOLUNTARY INTOXICATION:
 Relevant here in determining liability under the common law is the
ACTIO IN LIBERIA CAUSA or ANTECEDANT LIABILITY.
 You know how this operates from our voluntariness discussions.
 In short, even if we find that the Acc was involuntary or lacked
capacity, we may still attribute liability if we find that at a time
immediately prior to his intoxicated state, the actus reus and the mens
rea co-incided.
 So, if an Acc gets drunk to gain courage in order to commit a crime
knowing that he will perpetrate the crime of which he is not capable
while sober, intoxication will afford him no defence due to antecedent
liability.
 Remember always to consider in such cases whether the Acc is DEAD
DRUNK in which case Chretien will apply and there will be no question of
liability.
 To this effect you MUST know that Chretien has not changed the law
relating to the actio in Libera causa. It relates only to
INVOLUNTARINESS and ONLY when the person is DEAD DRUNK.
 So, it is apparent that 3 stages in our law are relevant to
intoxication:
o The law BEFORE 1981
o The law as stated in CHRETIEN ’80 and
o The law under the 1988 ACT
 It will be of benefit to you to know EACH for the exam
THE LAW BEFORE 1981
 Voluntary Intoxication (V.I.) did not ordinarily negate liability.
 The general rule was that if you committed a crime and raised
intoxication as a defence you could not escape liability ENTIRELY.
 So, you wouldn’t be convicted of certain crimes, but there would
always a lesser crime of which you would be convicted if your defence
was successful.
 To give effect to this principle, the law distinguished between two
types of crimes
o Those for which SPECIFIC INTENT was required and
o Those requiring ORDINARY INTENT
 So, if a crime required specific intent, the enquiry would be whether
the intoxication negated that specific intent.
 If it did, the Acc would be convicted of the lesser crime for which
only ordinary intent was required.
 Example: murder and culpable homicide (CH requiring an ordinary
intent)
 You are already familiar with a case law example illustrating this:
S v Johnson ‘69
 See facts from previous lecture notes
 In essence an intoxicated Acc was arrested and put into a cell with
an elderly man who was sleeping.
 The Acc beat this man to death with a metal bucket.
HELD
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 Not guilty of murder as he lacked SPECIFIC INTENT due to his
intoxication
 Convicted of CH for which ordinary intent sufficed
 Apart from this, Court readily accepted that the Acc was so
intoxicated that it is unlikely that he was voluntary BUT
 On policy grounds, the Court was prepared to find guilt at least in
the form of negligence (See previous Notes under voluntariness)
PROBLEM WITH THIS POSITION:
 Specific intent was never really defined
 These rules were contrary to the basic principle that liability must
be based on mens rea
 Fundamental to this is also an infringement of the fact that Judges
are not supposed to make the law (See previous notes)
 In a way this was a defunct application of versari doctrine
 Rules were inconsistent and vague
 This PUBLIC POLICY ground upon which Johnson was based dates back to
1916
R v Bourke ‘16
 Here the Court held that to allow drunkenness to negate liability
would repel the community
 It would mean that a regular drunkard was more immune to criminal
liability than the average sober person.
 Even here however the Courts did recognise that a certain measure of
intoxication could negate capacity particularly if the intoxication was
involuntaru.
THE LAW UNDER CHRETIEN ‘1981
FACTS:
 Acc consumed a lot of alcohol at a party
 During the party there had been some discontent
 In a drunken rage, the Acc purported to speed off in his car
 He drove into a group of guests who were standing outside where the
party had been killing 1 and injuring 5
 Charged with 1 count of murder and 5 counts of attempted murder
 His defence was that in his intoxicated state, he believed that the
ppl would move out of the way
HELD
 It was reasonably possible that he didn’t foresee the possibility of
the people not moving out of the way
 Trial Court acquitted him of murder and attempted murder and even
common assault (for which specific intent was required)
 A question of law was referred to the AD:
Whether on the facts, the learned Judge was correct in holding that the
Acc on a charge of attempted murder could not be convicted of common
assault where the necces intention for the offence had been influenced
by the voluntary consumption of alcohol
RUMPFF:
 Even common assault requires intention to assault and such intention
is lacking due to the intoxication. Because of this there can be no
conviction.
 Basically the AD comes to the conclusion that intoxication on the
facts did not affect the Acc’s capacity but that it affected his
formulation of an intent.
 The intoxication caused him to believe that the ppl would move away.
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 AD upheld the trial court’s conclusion
 Accord to Rumpff, when the Attorney General sent the question up for
consideration, they were relying on the precedent in Johnson.
 Accord to the Court, bec this case is based on policy, it is not pure
and based on legal rules.
 The court OVER-RULED Johnson and held that intoxication CAN in fact
negate intention, voluntariness and capacity and CAN be a complete
defence.
 This however will depend on various STATES or degrees of intoxication
 Where one is DEAD DRUNK, lawfulness, voluntariness, intention and
capacity may be negated (there can be no question of liability)
EFFECT ON VOLUNTARINESS: See Notes in first part of the year
EFFECT ON INTENTION:
 Intoxication is now a factor like any other to be looked at in
consideration of whether an Acc made a mistake and therefore lacked MR.
 Eg: Bec intoxicated, X may mistakenly take a bag that he believes is
his own even if it was materially different from his.
 According to Chretien, it is possible for a drunk accused to argue
that his intoxicated state prevented him from being able to formulate
intent i.e. it prohibited him from foreseeing the real possibility of
harm (much like a mistake would).
 Intoxication can inhibit foresight (as a drunk person may foresee
less than what he would have if he was sober) or if there is foresight,
it may prevent the Acc from foreseeing harm as a REAL possibility (if
you are drunk you may foresee harm as only a remote possibility as your
inhibitions are substantially lower).
 According the Burchell and Milton (Casebook at pg 212-3) A court can
hold that the Acc as a result of the intoxication had not foreseen a
particular consequence which he WOULD have foreseen had he been sober
and that therefore he is liable of a lessor offence – negligence.
EFFECT ON CULPA:
 The test is objective
 Problem: what is the standard? Are we looking at the standard of a
sober man or an intoxicated man – does a reasonable man get
intoxicated??
 If we use the intoxicated man then intoxication will have a bearing
but of we use the former then it will not.
 According to Snyman, a reasonable man knows when to stop and is not
prone to over-indulgence.
 Is this tantamount to SPECIFIC INTENT rule? Not if we substitute
SHOULD with would.
EFFECT ON CAPACITY:
 Person must be so intoxicated that he does not realise that he is
acting unlawfully or that his inhibitions have been substantially
diminished.
 2-fold enquiry
 Problem: with culpa crimes: Remember capacity is a subjective enquiry
yet culpa is an objective one
 In capacity we are concerned with what the Acc was able to appreciate
and in culpa we are concerned with what he ought to have appreciated.
 Thus, ask:
o Does the intoxication prevent the Acc from appreciating what
is right and what is wrong or
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o
Assuming the Acc can still tell right from wrong, does the
intoxication prevent the Acc from acting in accordance with
that appreciation?
THE CRIMINAL LAW AMENDMENT ACT 1 OF 1988
 It seems obvious that any amount of intoxication could potentially
have the effect of
preventing a person from acting in accordance with what is right and
what is wrong.
 Thus ANY drunk Acc would be able to negate capacity with
intoxication/
 The Legislature stepped in to prevent this and to repair the damage
created in Chretien
o The realisation that intoxicated persons may too easily
escape conviction due to the lenient approach to
intoxication as a defence as laid down in Chretien, led to
the legislature passing the Act.
o It was argued that the legislature ought to enact a
provision to the effect that a person commits a crime if he
voluntarily becomes intoxicated and while the intoxicated
person commits an act which would have been a crime but for
the rules relating to intoxication laid down in Chretien.
o
In s 1 of the Act the legislature created such a crime.
The section reads as follows:
‘1(1) Any person who consumes or uses any substance which
impairs his or her faculties to appreciate the wrongfulness
of his or her acts or to act in accordance with that
appreciation, while knowing that such substance has that
effect, and who while such faculties are thus impaired
commits any act prohibited by law under any penalty, but is
not criminally liable because his faculties were impaired as
aforesaid, shall be guilty of an offence and shall be liable
on conviction to the penalty [except the death penalty]
which may be imposed in respect of the commission of that
act.
‘(2) If in any prosecution for any offence it is found that
the accused is not criminally liable for the offence charged
on the account of the fact that his faculties referred to in
subsection (1) were impaired by the consumption or use of
any substance, such accused may be found guilty of a
contravention of subsection (1), if the evidence proves the
commission of such contravention.
Take notes on the Elements of this Offence.
Take notes on the questions raised by this offence.
Take notes on what the best defence for an intoxicated accused is? Is it
a defence negating voluntariness, fault or capacity?
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