Thailand Law Journal 2013 Spring Issue 1 Volume 16

V. Reconciling the Inculpatory Role of Intoxication with the Language of the Penal Codes

Looking at the scheme of the statute, this claim is obviously counterintuitive. The Penal Code itself situates the intoxication rules within the 'General Exceptions' chapter, alongside true supervening defences such as duress and private defence. Of course, as a matter of interpretation, placement alongside true defences within the structure of the Penal Code is not decisive; neither are the headings of individual sections.³⁵ Yet the inculpatory role claimed here for intoxication must still be reconciled with the language of the statute. It must be a permissible reading of the Penal Code provisions themselves.

As such, it needs to be explained how ss. 85-86 can exempt the prosecution from having to prove the statutory elements of an offence. Recall the text of s. 321:

Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

Section 321 requires proof of intention or knowledge of likelihood. How does the   intoxication doctrine allow the courts to dispense with this explicit requirement? The primary work, it is submitted, is done by s. 85(1) in the Singaporean Penal Code:  "Except as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge". 

This subsection takes over the role that is (and was) discharged by s. 86 of the Indian Penal Code. It implements the deeming part of the intoxication doctrine: where D lacks mens rea owing to intoxication, he shall be treated as if he has mens rea, unless some other part of ss. 85 and 86@notably ss. 85(2) or 86(2) in the  Penal Code come to his aid and exempt him. In outline, the order of analysis is therefore as follows:

(A)Check whether the mens rea elements are satisfied. If they are, proceed to consider the supervening  defences. If they are not:
(B) Ask whether the lack of mens rea was because of intoxication. If it was:
(C)Check whether any other part of ss. 85-86 (specifically, ss. 85(2) and 86(2)  of the Singaporean Penal Code) applies to exempt D from the application of s. 85(1 )³⁶ If not:
(D)Conclude that D is deemed to have mens rea, and proceed to consider any relevant supervening defences.

The statutory intent of these provisions, which this analysis articulates, is that where  D lacks mens rea by reason of intoxication, he should none the less be convicted unless ss. 85(2) or 86(2) apply. It can readily be seen from this analytical sketch how natural it is to think of s. 86(2), in particular, as coming to D's aid in stage (C) by supplying a 'defence'. Yet this manner of thinking remains misleading. Section 86(2) is not generous in creating a defence for an otherwise guilty offender. It simply carves out an exception from the broader inculpatory doctrine, a space where the deeming provision in s. 85(1) does not apply. The role of s. 86(2) is merely to restrict the prosecutorial tool created by s. 85(1).

Stage (B) is also important. If D lacks mens rea, we must always ask, why? The question is not one of degree of how intoxicated the defendant must be for the doctrine to apply. Some writers have suggested that the degree of intoxication may itself be important³⁷.That thought is understandable and broadly appropriate. However, it lacks sufficient precision to be workable and, more importantly, it does not quite capture the statutory intent. What counts is whether D's lack of mens rea(when perpetrating the actus reus) was attributable to his intoxication. Perhaps D had only been drinking a little. Or perhaps he had drunk quite a lot, but the intoxication was irrelevant to the lack of mens rea.(Suppose that D collided with V, causing injury, but the collision was a genuine accident caused by E, a sober person who had tripped and fallen, pushing D into V's path.) In such cases, the deeming provisions of the intoxication doctrine do not and should not apply. They apply only when, ass. 85(1)Contemplates, the denial of mens rea rests upon D's is being intoxicated that is, when D lacks mens rea because he was drunk or drugged.

Admittedly, this reading of s. 85(1) is not straightforward. One might reasonably doubt whether the subsection really does operate in the same way as s. 86 of the Indian Penal Code.³⁸ The Indian section is clearly a deeming provision on its face, whereas the same is not evident on the wording of s. 85(1). Its effect is not explicit, but a matter of inference. Thus, reconciliation with the statute is perhaps the weakest link in the argument for reading ss. 85 and 86 of the Singaporean Penal Code being inculpatory in nature.

However, this objection is not specific to the argument made in this article. Reconciliation with the statute presents exactly the same challenge for those who think of intoxication as a supervening defence. Subscribers to that view also have to explain how and where the Penal Code authorises the court to disregard the clear terms of statutory offences such as s. 321. Section 321 explicitly requires proof by the prosecution of intention or knowledge on the part of the defendant before he can
be convicted of voluntarily causing hurt. Where, if not by implication of s. 85(1), does the Penal Code allow a court to convict without satisfying that requirement? If intention or knowledge is not proved, s. 321 is not made out. There is no other provision in the Penal Code that can be read as allowing the essential mens rea elements set out in the statute to be bypassed.

VI. Explaining the 'Defence' Label

Why then do we tend to think of intoxication as a defence? We have noted already that it appears in the 'General Exceptions' chapter of the Penal Codes. The most plausible explanation for this classification, and for our intuitions, resides in the ambiguity of the word 'defence'. As was noted earlier, there is a wider non-technical sense in which any grounds for an acquittal can be 'called a defence. In that wider sense, intoxication is a 'defence'. It is an evidential consideration which may be relevant to finding that D had no metis rea, and that prima facie D should be acquitted. It is a 'defence' in the sense that alibi is a 'defence'.

However, in terms of substantive legal doctrine, neither alibi nor intoxication is a defence. They do not supervene to generate an acquittal despite proof of the reus and mens rea elements of an offence. In the case of intoxication, indeed, it is quite the opposite.³⁹ The of intoxication generates a denial of mens rea, but the legal doctrine is inculpatory.

Writers sometimes fail to draw this distinction clearly. Consider the following passage:⁴⁰

[Some] cases which would be entitled to the protection of the defence of intoxication under the Indian Penal Code are excluded from its protection under the   Penal Codes of Malaya. Thus, if a person unused to alcohol were to drink a powerfully intoxicating substance under the genuine belief that it was non-alcoholic and harmless, and as a result became drunk and committed a he would be entitled, under the Indian Penal Code, to plead the defence of intoxication; but under the Malayan Codes he would [not] be entitled to plead the defence of intoxication ... if he had drunk it as the result of a pure accident.

The use of 'defence' here is the broader one intoxication merely supports the denial of mens rea. However, the writer slides from that non-technical usage toward the supervening sense of 'defence' when he suggests that D is being 'protected' from liability. That's exactly what substantive-law defences do: they supervene, following proof of the prima facie offence {actus reus and mens rea elements), to protect D from liability. But intoxication is not like that at all. The core intoxication doctrines kick in when D lacks mens rea. We would not naturally say that 'the defence of alibi is protecting D from liability'. Rather, D is not guilty because he didn't commit the actus reus; or at least, the prosecution cannot prove that he did. In the same way, neither should we say that the defence of intoxication is 'protecting' him. If D is not guilty, it is because he didn't have mens rea.

Notice, too, how the writer clouds this point by hypothesising that D, "as a result became drunk and committed a crime". Until the intoxication doctrines are deployed to aid the prosecution, there is no crime. Not even a prima facie one. The elements
of the offence (say, of voluntarily causing hurt in s. 321) have not been satisfied. No doubt it would be correct to say that D, as a result, became drunk and com mitted the actus reus of a crime. However, except for strict liability offences, that has never been enough to show that D has committed a crime, even facie.

VII. The Exception: Sometimes (Rarely) a Supervening Defence

In general, the main role of ss. 85(2) and 86(2) of the Singaporean Penal Code to specify the cases where the inculpatory intoxication doctrine will not be applied; that is, where the deeming rule in s. 85(1) will not be invoked. That said, there are two situations where s. 85(2) can potentially operate as a true supervening defence, preventing conviction even though D does in fact have mens rea. Recall the terms Of s. 85(2):

(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.

Under this subsection, intoxication is available as a defence under certain circumstances if D did the actus reus when he "did not know that such act or omission was wrong or did not know what he was doing". Normally, if D "did not know what he was doing",he would lack mens rea. However, it is possible for D to have mens rea, yet fall within the scope of s. 85(2), when he does not know that his conduct is In that event, D will be entitled to a supervening defence if either the intoxication is 'involuntary' under paragraph (a), i.e. "caused without his consent by the malicious or negligent act of another person"; or if, under paragraph (b), D is, "by reason of intoxication, insane, temporarily or otherwise, at the time", in which case D falls to be dealt with as if he were of unsound mind.⁴¹

Such scenarios are likely to be rare in the extreme. In practice, the only kinds of cases where D might advertently do the actus reus, yet be entitled to a supervening defence of intoxication, are those where the intoxication triggers a condition analogous to insanity.

35 See e.g., Francis Alan Roscoe Bennion, Statutory Interpretation, 5th ed. (London: LexisNexis, 2008) at ss. 215-6; John Bell and George Engle, eds., Cross on Statutory Interpretation, 3rd ed. (London: Butterworths,1995) at 131-1.

36 More on this below, here and in Part DC.

37 See e.g., J. Brabyn, "Intoxication in Singapore: An Alternative to MajewskT' (1986) Lawasia 60 at 61.
I would not adopt Brabyn's suggestion that the intoxication must be "substantial". A better term, if one
is needed to capture the approach here, would be 'material'.

38 See Part I,above.

39 Subject to the special case noted in Part VH

40 W. E. D. Davies, 'The Defences of Insanity and Intoxication in Malayan Criminal Law" (1958) M.L.J. lxxvi at Ixxix (emphasis added).

41 Singaporean Penal Code, supra note 5, s. 86(1).