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Vill. A Defence to Negligence?
There appears to be one further case that may be open to a supervening defence vias. 85(2). Suppose that D is charged with a negligence-based offence, which does not require awareness of the actus reus. If D inadvertently perpetrates the actus reus while drunk, prima facie he "does not know what he is doing". Yet he is likely to have mens rea, assuming that a sober, reasonable person would have recognised the risk. Should D none the less satisfy the involuntariness or insanity conditions in
ss. 85(2)(a) or (b), a defence appears to be available to him.
Perhaps needless to say, this possibility is problematic. It arises only because of looseness in the phrase "does not know what he is doing". In contrast with the unsoundness of mind defence in s. 84, there is no requirement in s. 85(2) that D has to be incapable of knowing what he is doing. It seems to be sufficient that he does not notice the implication of his conduct. Given the opaque and unsatisfactory language
of the provision, it is questionable whether this result was intended by those drafting the 1935 revision.
IX. Technical Issues, the Burden of Proof, and Reform
More generally, interpretation of the intoxication provisions gives rise to numerous technical difficulties, especially within the revised s. 85.42 There is no good reason why the 1935 revisions should be expressed as obscurely as they are. Reform of both the original and revised versions is clearly desirable43, beginning with clearer recognition that the core intoxication doctrine is not a defence at all. A stronger conceptual grasp of the philosophical foundations of the doctrine might help to settle many of the issues surrounding its application, including the burden of proof.
Because intoxication is so often said to be a defence, it comes as no surprise that the courts have ruled that the burden of proving its application falls on the defendant:44
Another aspect of s. 86(2) on which there is some controversy is whether the burden of proof falls on the accused person to prove on a balance of probabilities that he was so intoxicated that he did not form the necessary intention, or whether the burden remains on the prosecution to prove beyond reasonable doubt that, in spite of the intoxication, the accused person did form the requisite intention I am inclined to favour the former view. Sections 85 and 86 are.found in Ch 4 of the Penal Code which deals with general exceptions, for which the burden of proof falls on the accused persons by virtue of s 107 of the Evidence Act (Cap 97). Furthermore, s. 85(1) expressly refers to s. 86 as dealing with the "defence" of intoxication. Therefore, any evidence of intoxication does not affect the prosecution's case; in proving beyond reasonable doubt that the accused had the necessary metis rea the prosecution is entitled to treat the accused as if he were sober. The court may no doubt have to answer some rather hypothetical and artificial questions in the process, but this is preferable to a solution which is completely out of accord with the general scheme of the Penal Code and the Evidence Act. Furthermore, the scope of s. 86(2) generously extends to voluntary intoxication, a legal excuse which, in my view, can never put an accused in a more favourable position than another accused who pleads any of the other defences.
It was argued earlier that any analysis of s. 86 as creating an affirmative, substantive-law defence is problematic. Section 86(2), in particular, does not create any sort of defence at all. It merely restricts the scope of the inculpatory doctrineset up in s. 85(1). It follows that the onus should remain on the prosecution to show either that D in fact had mens rea (in the normal way), or that D would have had metis rea but for being intoxicated. (These represent stages A and B of the analysis in Part V above. Since the operation of s. 86(2) is purely legal merely stating which offences the deeming rule in s. 85(1) applies to it has no implications for the burden of proof The Privy Council saw this clearly in Broad hurst, in the passage quoted earlier45:
One way of approaching the problem is to say that it is always for the Crown-tc 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 accuse 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 taker 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.
That leaves s. 85(2), which sometimes (albeit rarely) creates a supervening defence and sometimes limits the operation of s. 85(1). It is certainly undesirable for the burden in s. 85(2) to fall differently depending on which of those two roles it plays. Moreover, provided that the prosecution must prove that D would have had rea but for being intoxicated (thereby triggering the deeming rule in s. 85(1)), it is reasonable to then apply the Evidence Act and place the onus on D to show that he satisfies the conditions in subsection (2). This reading would avoid anomalies by leaving s. 85(2)(b) aligned with the burden of proof in unsoundness of mind cases. Further, it is arguably appropriate to require D to establish any claim that the intoxication was involuntary under s. 85(2)(a), since the question of how he got drunk seems to lie especially within D's own knowledge and experience. After all, D was there: as such, it need not be unreasonable to require D to explain himself.
Numerous anomalies remain. One is the requirement under s. 85(2)(a) that 'involuntary' intoxication be induced "by the malicious or negligent act of another person".46 This restriction, much more severe than the one found in the Indian Penal Code, is profoundly unfair. If the cause of the intoxication (and
Remember that the degree of intoxication must be so great that D does not know what he is doing) is
an 'innocent' one for which D is not culpable, it seems harsh to condemn him for performing forbidden acts while in such a state. The best examples of this problem are cases of unforeseen adverse reactions to medicines. Suppose, for example, that D is taken to hospital for surgery and is anaesthetised by a qualified person. Whilst under the influence of the anaesthetic, he punches the surgeon, being unaware of what he is doing. He lacks mens rea for any offence. Surely he ought not to be convicted?
Another anomaly is the restriction of s. 86(2) to offences involving intention. The matter was helpfully discussed in Juma'at bin Samad:47
It is to be noted that an anomalous consequence of the drafting in s. 86(2) is that it applies only where the mens rea for an offence is intention, in contradistinction to offences requiring other forms of mens rea specified in the Penal Code, for example, knowledge or rashness. The result is somewhat disturbing; for example, s. 86(2) would apply to a charge of murder under s 300(a), (b) or (c) but not to charge of murder under s 300(d). However, the words of the provision are clear and the consequences though discomfiting are not of such degree of absurdity as would justify the court departing from a literal interpretation.
Disturbing indeed. A conviction under s. 300(d) leads to severe penalties, including execution in Singapore. Yet, if s. 86(2) is taken literally, this penalty would be imposed on persons who had no idea what risks their conduct entailed. That surely was not the purpose of the 1935 drafters. Indeed, it seems probable that they missed altogether the point that while intention is a required element under the
common law of murder (as in Beard itself), it is not always required under the Penal Code.
A purposive approach to the interpretation of s. 86(2) might suggest that the subsection applies also to knowledge, which for practical purposes is the cognitive equivalent of intention under the Penal Code. Just as "intending" a consequence sets a higher threshold than foreseeing it, so does "knowing" something to be true set a higher threshold than believing or suspecting it. Even in 1935, it was thought
that the inculpatory intoxication doctrine should not be applied to the most serious offences of violence; hence the enactment of s. 86(2). That same purpose supports an extensive interpretation of 'intention' to include 'knowledge'. It still allows drunken offenders to be convicted but of an offence that
Reflects their lesser culpability, rather than of the most serious offence available.
In closing this section, it is also worth noting that reform by abolition is a real option. Not every common law jurisdiction has special intoxication rules, and it is an open question whether such special rules, with all their complexity and confusion, are really needed. In a typical drunken assault, the defendant is hardly an automaton. He is severely disinherited and, no doubt, his chosen course of conduct is influenced by the alcohol (or other substances) he has taken. But he still intends to hit someone:48
[I]n cases where drunkenness and its possible effect on the defendant's is in issue, we think that the proper direction to a jury is, first to warn them that the mere fact that the defendant's mind was affected by drink so that he acted in away in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.
There seem to be very few cases where drunken violence occurs without mens rea,49 and it is arguable that the confusion caused by the intoxication rules is not worth the true value they deliver. In Australia and New Zealand, for example, there are no special rules for deeming mens rea50. The absence of such deeming rules does not appear to prevent courts in those jurisdictions from convicting for alcohol-fuelled violence.51
X. Conclusion
Writers and judges are sometimes exercised by their concern to argue that (voluntary) intoxication should never excuse wrongdoing. This worry misses the fact that, so far as the core intoxication doctrines are concerned, it does not. However, to see this, we must start from the basic principles of criminal law, and not lose sight of them. nonfacit reum nisi mens sit rea nowadays means that, before convicting, the court must be satisfied that the defendant fulfilled both actus reus and mens rea elements of the offence charged.
Centuries ago, the common law regarded the absence of mens rea as an excuse.52 It no longer does so, and mens rea is now a fundamental positive requirement of criminal liability. Once we accept that foundational precept as modern criminal law does it becomes logically impossible for the core intoxication doctrines to be a supervening defence, whether under the original Indian Penal Code, its 1935 revision, or even at common law. The 'defence' is no more than an assertion that D lacked mens rea; that the positive requirements of the offence have not been satisfied. The main function of our intoxication doctrines, both at common law and under ss. 85-86, is to secure D's conviction despite the fact that he does not fulfil the mens rea requirements specified for the offence. It enables the prosecution to override the statutory and common law requirement to prove the elements of the offence. This cannot serve a supervening defence function. And if the legislators ever thought Otherwise, they were conceptually, necessarily, mistaken. But it seems more likely that they meant the language of defences in the same non-technical sense in which an alibi is a defence not in terms of substantive legal doctrine. |
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42 For example, the Singaporean Courts have recently had to grapple with the overlap between s. 85(2) and the unsoundness of mind defence in s. 84, holding in Tan Chor Jin v. Public Prosecutor [2008] 4 S.L.R.(R) 306 (C.A.) [Tan Chor Jin] that insanity by reason of intoxication under s. 85(2)(b) is distinct from unsoundness of mind. It is submitted that the conclusion in is compatible with the argument made in this article, and can be .supported by viewing s. 85(2)(b) as an exception to the inculpatory nature of the core intoxication provisions
43 See especially Ferguson, supra note 8. Ferguson also considers the effect of intoxication on true defence elements such as self-defence (at 279-281) a matter beyond the scope of this article.
44 Juma'at bin Samad, supra note 20 at 345. See also Suradet v. Public Prosecutor [1993] 3 S.L.R.(R.)
265; Indra Wijaya Ibrahim v. Public Prosecutor [1995] 2 S.L.R.(R.) 442.
45 Supra note 16 at 461.
46 In this context, 'malicious' is an old common-law term meaning rash or reckless. Thus s. 85(2)(a) requires that the third party be aware of the risk: cf. R v. Cunningham [1957] 2 Q.B. 396 (C.A.)- Contra YMC, supra note 18 at para. 25-11, it does not require that the third party act with an attitude of malice.
47 Supra note 20 at 344-5.
48 Sheehan, supra note 14 at 964 (per Lane L.J.)(emphasis added).
49 R v. lipman [1970] 1 Q.B. 152 (C.A.) may be one such case, although in that case D was arguably negligent.
50 R v. O'Connor (1980) 146 C.L.R. 64 (H.C.A.); R v. Kamipeli [1975] 2 N.Z.L.R. 610 (C.A.).
51 Compare G. Orchard, "Surviving without Majewski@A View from Down Under" [1993] Crim. L. Rev. 426 and A. P. Simester & W. J. Brookbanks, Principles of Criminal Law, 3d ed. (Wellington: Brookers, 2007) at 11.2 with S. Gough, "Surviving without MajewskiT [2002] Crim. L. Rev. 719.
52 One vestige of this can be seen in the Criminal Code Act 1899 (Qld.), s. 24 (the 'Griffith Code'), which omits mens rea requirements from most of its offence definitions but admits a general defence of reasonable mistake. |
