Thailand Law Journal 2013 Spring Issue 1 Volume 16

However, Beard is no longer regarded as good law14. Even more importantly, the actual (and, incidentally, obiter dicta) language used in Beard is not matched by the terms utilised in the reformulated Penal Code¹⁵. Reference to incapacity was removed in the 1935 revisions. Under both common law and the Singaporean Penal Code, if D's intoxicated state is to result in acquittal, it rests on the proposition that he in fact lacked the necessary mens rea for the offence, not on any finding about his capacity to form it. To be sure, s. 85(2) contains further criteria. As will be discussed below, the absence of mens rea is not by itself sufficient to warrant acquittal in cases falling within the terms of s. 85(2). But even that section now begins by asking whether D "did not know" rather than whether D not know. Therefore, the primary question is whether D the mens rea for the offence, not whether D has the capacity to formulate the mens rea required. This point was seen clearly by the Privy Council, in the context of s. 86:¹⁶

Under subsection [86(2)] it would appear that drunkenness is to be taken into account for the purpose of determining whether the person charged had in fact formed any intention necessary to constitute the crime. The corresponding proposition laid down in Director of Public Prosecutions Beard is that evidence of drunkenness which renders the accused incapable of forming the specific intentessential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.mention in the Code of incapacity. The proposition stated in Director of Public  Prosecutions Beard is not altogether easy to grasp. If an accused is rendered incapable of forming an intent, whatever the other facts in the case may be, he cannot have formed it; and it would not therefore be sensible to take the incapacity into consideration together with the other facts in order to determine whether he had the necessary intent...

But superficially, at any rate, section [86(2)] of the Code and case  approach differently the problem of proving intent. One way of approaching the  problem is to say that it is always for the Crown to prove that the accused actually   had the intent necessary to constitute the crime; and that that proof may emerge  from evidence or statements made by the accused about his own state of mind or may be made by way of inference from the totality of the circumstances. Prima  facie intoxication is one circumstance to be taken into account, and on this view  all that section [86(2)] is doing is to make it plain that intoxication is not to be excluded. On the other hand, the sort of approach that is contemplated in  case is that there must be proof (or at least some suggestion) of incapacity in order  to rebut the presumption that a man intends the natural consequences of his acts.

Indeed, the former common law presumption that a man intends the natural consequences of his acts is no longer good law either.¹⁷ Hence, even that alternative explanation of Beard cannot now be persuasive.

II. The Problem(s): Not an Affirmative Defence

It seems then that what matters for the intoxication provisions is whether D actually had mens rea rather than whether she had the capacity to form it. Still, that leaves a puzzle. How do these provisions actually work?

This question is not the only one that arises regarding these provisions. There are many issues to be debated concerning the burden of proof, the extent of intoxication required for the provisions to be invoked, and their application to knowledge rather than intention, amongst other matters. However, those issues are secondary. In order to address them, we need first to understand the basic nature and operation of the intoxication rules. It is at this fundamental stage that there is the greatest potential for misunderstanding, not least by the drafters themselves of the Indian Penal Code and its revisions.

Misunderstanding is liable to spring from the idea that intoxication operates in law as a defence or general exception. Yeo, Morgan and Chan, for example, characterise it as a defence.¹⁸ Koh, Clarkson and Morgan do so too.¹⁹ Indeed, the courts have ruled that it is a 'defence' when allocating the burden of proof,²⁰ acknowledging that ss. 85 and 86 appear alongside the provisions allowing for self-defence, necessity, mistake, and the like within Chapter IV of the Penal Code which sets out 'General Exceptions'.

However, in terms of substantive law, it is submitted that this description is apt to mislead. With only minor exceptions,²¹ the intoxication rules in the Indian, Singaporean, and similar Penal Codes do not create an affirmative defence. Indeed, one can go further. Given the fundamental structure of modern criminal law, logically impossible for the core intoxication doctrine to operate as an affirmative, substantive-law defence. This holds equally under the common law as it does under the Indian Penal Code and its regional variants. It holds, as will be argued below, notwithstanding that ss. 85 and 86 of the Penal Code themselves describe intoxicationas a 'defence'.

III. The Fundamental Structure of Criminal Liability

It is tempting to start talking about intoxication with reference to ss. 85 and 86 of the Penal Code. But those sections do not work in isolation; they qualify and amend   the general rules governing criminal liability. They come second, not first. In order to understand them, we need to understand what they qualify. We should begin, therefore, with some more foundational distinctions.

 The possibility of 'General Exceptions' depends upon a basic division in the criminal law between offences and defences.²² The offence elements are comprised of two main types: actus reus and mens rea. If a person performs the actus reus of an offence with the requisite mens rea, she commits a prima facie offence. But a primafacie offence will not be a crime if the defendant has what I will call a 'supervening'defence-sometimes called an 'affirmative' defence.²³ Hence, as Lanham observes,"as matter of analysis we can think of a crime as being made up of three ingredients,    actus reus, mens rea and (a negative element) absence of a valid defence."²⁴

Normally, the actus reus and mens rea requirements (if any) are specified within the provision that creates the offence, whereas the supervening defences are available at large.²⁵ There may also be evidential differences. For example, in Singapore and Malaysia, supervening defence elements are subject to a reversed burden of proof,in contrast with actus reus and mens rea elements which must usually be proved by the prosecution beyond reasonable doubt.²⁶

Supervening defences are distinct affirmative defences of substantive law. They should be distinguished from failure of proof defences, such as 'alibi'. Admittedly, lawyers are often inclined to say that a person has an 'alibi defence'. There is nothing wrong with that as a broader, non-technical usage, one familiar to judges and academics. However, it is important to recognise what kind of 'defence' it is. As a matter of substantive law, alibi is not a supervening defence. Rather, it supplies a reason to think that the defendant did not satisfy the requirement. If the alibi succeeds, the prosecution has failed to prove the elements of the beyond reasonable doubt.

Contrast general exceptions such as necessity²⁷ and private defence.²⁸ These are genuine supervening defences,which deny neither nor mens rea. Rather, they arise after the prima facie offence is proved, and seek to defend it by reference to the circumstances or condition of the actor who performs the actus reus.

Comprehended within this classic framework, the core rules of intoxication do not indeed cannot operate as a supervening defence. Defences only arise once mens rea is established. However, once mens rea is established, intoxication has very little role to play.²⁹ The main legal problems surrounding intoxication arise in situations where the defendant lacks mens rea (because of intoxication). And if the defendant lacks mens rea, supervening defences are irrelevant.

IV. Intoxication as an alternative koute to Finding Mens Rea

There are two sides to this claim. First, consider a case under the Indian or Singaporean Penal Codes where the defendant does actually have mens rea. Suppose that D is (involuntarily) intoxicated. Someone has spiked his drink or his food. While in that condition, D attacks and injures V with intent to do so. Suppose further that D would not have acted as he did but for being intoxicated. None the less, in such a case, D straightforwardly commits the offence of voluntarily causing hurt. He satisfies the actus reus and mens rea of the offence. Subject to one special case,³⁰ that is the end of the matter. The provisions of ss. 85 and 86 need not be invoked and D can be convicted straightforwardly.³¹

The same is true at common law. In R v. Kingston³² D went to P's fiat by invitation to discuss a business proposition. Once there, he was given coffee that P had deliberately laced with drugs. D was then led by P to a bedroom where a young boy, also drugged, lay unconscious on the bed. D indecently assaulted the boy. P filmed the activity and subsequently sought to blackmail D. When the matter came to light, D was charged with indecent assault. His conviction was upheld by the House of Lords on the basis that D had mens rea at the time. D was aware of what he was doing; his claim was only that, but for being surreptitiously drugged, he would not have acted as he did. On these facts, intoxication was held to be irrelevant to the substantive law: a drugged intent is still an intent. No doubt the circumstances of the offence called for some mitigation of sentence. However, given that the respondent had mens rea and no supervening defence was available, D's conviction was inevitable.

Supervening defences are capable of exculpating when the prima facie offence is proved. The core intoxication doctrines do not do that. What, then, do they do?

To answer that question, consider now the opposite case. Suppose that D is intoxicated and while in that state, attacks V and causes him bodily injury, this time without thinking about the likelihood of doing so. In this case, D lacks the required for the offence of voluntarily causing hurt. It is not that he has a distinct substantive law defence. D simply does not satisfy the elements of the offence as specified in s. 321 of the Penal Code.³³ The burden to prove the mens rea requirement specified in s. 321 falls on the prosecution. Ex hypothesis, the prosecution cannot discharge that burden because D did not, in fact, have mens rea. D's 'defence' hisplea in answer to the prosecution is not, 'I was intoxicated,' but rather, 'I did not have mens rea; I do not fall within the terms of s. 321.'³⁴ Intoxication is just a background fact that makes such a plea plausible.

So far, D is entitled to an acquittal. Now, however, the core intoxication rules come into play. Where they apply, their legal effect is to allow the courts to treat D as if he has mens rea even though, in fact, he does not. Inevitably, what this means is that the core intoxication doctrines art inculpatory, not excusatory. They give the prosecution an alternative route to establish the requirement. If the doctrinal elements are satisfied, the law will deem D to have a legal fiction. As such, the intoxication rules aid the prosecution, not the defendant. Where they apply, they relieve the prosecution of the need to prove that D actually had mens rea. It follows that those rules are not, in terms of substantive law, a defence.

14 See e.g., Director of Public Prosecutions v. Majewski  [1977] A.C. 443 (H.L.); R v. Sheehan [1975] 2
All E.R. 960 (CA.) [Sheehan]; A. P. Simester et at,Simester and Sullivan's Criminal Law: Theory and
Doctrine, 4th ed. (Oxford: Hart, 2010) at18.3.

15 The revision drafters appear to have been influenced by, but to have misunderstood, M. Cheang,   Criminal Law of Malaysia and Singapore: Principles of Liability (Kuala Lumpur: Professional Books,1990) at 160-1.

16 Broadhurst v. R [1964] A.C. 441 (P.C.) at 461  [Broadhurst] (emphasis added). The relevant provision in      the Maltese Criminal Code is identical to that found in the Singaporean Penal Code.

17 Cf. Frankland R [1987] A.C. 576 (P.C.) and Parker v. R (1963) 111 C.L.R. 610 (H.C.A.),rejecting Director of Public Prosecutions Smith [1961] A.C. 290 (H.L.). In Yeo Ah Seng v. Public Prosecuto [1967] 1 M.L.J. 231 at 234, the Malaysian Federal Court agreed that "judges in this country should   avoid using this maxim in their summings-up to the jury when dealing with the question of intention in murder trials". Unfortunately, the presumption recently resurfaced in Public Prosecutor v. AFR [2011] 3 S.L.R. 653 (H.C.) at 672, in the context of s. 300(c) of the Singaporean Penal Code. However, the weight of authority is clearly against it.

18 Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore, ed. (Singapore: LexisNexis, 2012) at para. 25.2 et passim [YMC].

 19 K, L. Koh, C. M. V. Clarkson & N. A. Morgan, Criminal Law in Singapore and Malaysia: Text and Materials (Singapore: Malayan Law Journal, 1989) at 239: "the defence of [involuntary] intoxication".

20 See e.g., Juma'at bin Samad Public Prosecutor [1993] 3 S.L.R(R) 338 (H.C.) [Juma'at bin Samad];   Francis Antonysamy v. Public Prosecutor [2005] 3 M.L.J. 389. See also Part DC, below.

21 See Parts Vn and VIH,below.

22 Cf. A. T. H. Smith, "On Actus Reus and Mens Rea" in P. R. Glazebrook, ed., Reshaping the Criminal
Law: Essays in Honour of Glanville Williams (London: Stevens and Sons, 1978) at 98.

23 A.P.Simester "Mistakes in Defence" (1992) 12 Oxford J. Legal Stud. 295 at 296. While I do not draw  a distinction between these two terms here, for clarity I will generally prefer the term 'supervening',   because the meaning of 'affirmative defence' can vary across jurisdictions and is sometimes used to refer  to matters that the accused must prove-which is not quite the same thing and not what I have in mind.

24 D. Lanham, "Larsonneur Revisited" [1976] Crim  L. Rev. 276 at 276.

25 Although there may also be offence-specific defences ('special exceptions'), such as those available to
murder within s. 300.

26 See Evidence Act(Cap. 97, 1997 Rev. Ed. Sing.), ss. 103, 107; Evidence Act 1950 (Malaysia), ss. 101,105.

27 Singaporean Penal Code, supra note 5, s. 81.

28 Singaporean Penal Code, supra note 5, s. 96.

29 This is not to deny that it has any role to play at all. In particular, there is a residual, supervening-defence function where D has mens rea but is intoxicated to such a degree that he does not know his conduct is wrong. This and other special cases will be addressed later in the text

30 See Part VIT below.

31 Contrast this with Stanley Yeo, Neil Morgan & Chan Wing Cheong.,Criminal Law in Malaysia and
Singapore, 1st ed. (Singapore: LexisNexis, 2007) at para.  25.18: "What of a situation where the
Intoxication was involuntary but the degree of intoxication was not so severe as to render absent the
Knowledge specified in s. 85(2)(a), or the intention referred to in s. 86(2)? The answer is that the accused will be convicted of the crime charged since the requirements of the defence of intoxication were not satisfied'' No: D will be convicted because he has mens rea. The intoxication is irrelevant. In its second edition,  KMC rightly amends this analysis (see KMC, supra note 18 at para. 25.19): "The answer is that the accused will none the less be convicted of the crime charged since he or she possessed the fault element.".

32 [1995] 2 A.C. 355 (H.L.); reversing [1994] Q.B. 81 (C.A.).

33 Supra note 6.

34 Compare the more straightforward provision in the American Law Institute's Model Penal Code (Philadelphia: 1962),2.08( 1): except when involuntary or pathological, "intoxication of the actor is not a defence unless it negatives an element of the offense".