Lecture 2 - 25 1 2018 Intoxication PDF

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Lecture 2: Automatism, Denial of MR, and Intoxication Automatism - Refers to voluntary acts Automatic element is a necessary element of every offence even AL offences (Hill v Baxter) o Better put it in AR since it is applicable to AL Note - For automatism, we generally refer to cases where the drive...

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Lecture 2: Automatism, Denial of MR, and Intoxication Automatism -

Refers to voluntary acts Automatic element is a necessary element of every offence even AL offences (Hill v Baxter) o Better put it in AR since it is applicable to AL

Note -

For automatism, we generally refer to cases where the driver blacks out. Intoxication is different from automatism and intoxication was initially not a defence.

Law on automatism Strict definition -

Non-insane automatism Automatism not caused by disease of mind

Bratty, per Lord Denning -

An act which is done by muscles without any control by the mind or an act done by a person who is unconscious of what he is doing Test: “Total destruction of voluntary control” Substantial destruction is not sufficient (Coley) Such as black out Partial control of a vehicle negated finding of automatism (Hill v Baxter)

AG’s Ref (no 2 of 1992) -

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Facts: A driver was charged with offence of causing death by reckless driving Legal principle: Insufficient if the control is merely impaired or reduced, i.e. ability to respond to external stimuli is greatly compromised. Yet, as long as the defendant has certain degree of control and can respond to low degree of stimuli, no automatism Held: In such case, the driver has only reduced or imperfect awareness since his mind can sense stimulus.

R v Chan Tak Kwong -

Facts: Consumption of drugs. His mind is confused after the consumption of drugs. Held: He was having some control over his body such as where to throw the chair at.

Coley -

Facts: Defendant suffered from illusion. He assumed one of the characters of the game and bits up his neighbor. He might have thought that he was the video character

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Held: Despite the delusional belief and confusion, as long as he knows he is biting someone, he has some degree of control over his body although the ability to control is compromised. Comatose (in a coma) is not necessary. No insanity since he has knowledge as to nature and quality of his act

Raising automatism Three questions arise for consideration (Burgess) 1. Whether a proper foundation for the defence of automatism has been laid (No MR) 2. Whether the evidence shows the case to be one of insanity or one of non-insane automatism 3. Whether, in the case of non-insane automatism, the state is self-induced a. If self-induced, intoxication Burden of proof -

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Once automatism is raised, P bears the legal burden to disprove automatism, i.e. retain some control over his body. D only bears evidential burden. o Proper evidential foundation is nonetheless necessary. o Medical foundation is needed to raise the defence of automatism (Burgess) If the evidence is not rebutted by P, then D is entitled to a simple acquittal since P has failed to satisfy the legal burden that D’s conduct is voluntary or the requisite MR, unless the state of automatism is self-induced or voluntary.

Similar to denial of MR -

Sometimes denial of MR and automatism are both relevant in a case. o Imagine a person who shot another person in an unconscious state. o We may say is that he was not acting voluntarily or he may lack mens rea for the relevant offence (e.g. intent to cause GBH for murder).

Intoxication In the MR part -

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In the present case, P has to prove that D (mens rea) BRD. D took some drugs or alcohol before the commission of offence. Although D was in a drunken/ intoxicated state at the time of offence, intoxication is irrelevant in determining his criminal liability if P can prove BRD that D acted with the necessary mens rea for “a drunken intent is still an intent” (Kingston). Where AR and MR are present, D would still be convicted even if he is involuntarily intoxicated (Kingston). In the present case, P could argue that he has the requisite MR since he … (retained voluntary and conscious control under Bratty and was not entirely unconscious.) Yet, D could argue that he lacked the requisite MR and voluntariness elements at the time of offence since his mind was affected by alcohol or drugs and as a result he does not know what he is doing/ loses total voluntary control over her body (Bratty). The fact that she has no recollection of the events in the shop supports the absence of MR. (Here, D only bears evidential burden. The burden is on P to prove BRD that he has the requisite MR or that the intoxication is reckless)

(Establishing there is no MR) -

The general principle is if D lacks some of the MR/ voluntariness elements at the time of offence, he would be completely acquitted Intoxication rule: According to intoxication doctrine set out in Majewski, if one is charged of basic intent offence and his intoxication is reckless and voluntary, he would still be convicted of the offence despite a lack of MR/ voluntariness.

(1st issue): Whether his intoxication is voluntary -

If involuntary, he shall be acquitted

(2nd issue): whether the offence is a basic or specific intent offence -

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It is settled in case law that the offence is one of xxx. Try the three tests to confirm your choice – do not have to do that in details, just one or two sentences will do o Applying ulterior intent, the offence is a specific intent offence since the mens rea (does not) goes beyond the AR If specific intent offence, he is not liable. o Exception: Dutch courage cases

(3rd issue): whether the intoxication is reckless -

Identify the nature of the drugs or alcohol or medicine If reckless, intoxication substitutes his lack of mens rea to found liability

Intoxication rule in Majewski

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Rule: If he becomes intoxicated because of reckless intoxication AND he is charged of basic intent offence, he cannot avoid liability despite a lack of MR/ voluntariness

Majewski -

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Facts: M was convicted of assault occasioning ABH and assaulting a police officer in the execution of duty (contrary to Sec 36(b) of the Offences against Person Ordinance). Held: the rule is that voluntary intoxication is relevant in specific intent offence. If D is charged with a basic intent offence such as the present two offences, then voluntary intoxication cannot be relied on to negate and avoid liability.

Doctrine or defence? -

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Intoxication as a defence can be misleading. Intoxication doctrine is a special rule for enabling conviction of D in cases where D would be acquitted if the normal rules for criminal liability were applied (absence of MR) It is indeed a doctrine to hinder the defence’s case. It is a tool for the P to establish liability even in the absence of mens rea. P. Chau: prefer referring it as a doctrine

Where intoxication is irrelevant to liability -

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Actus reus and mens rea are present: Intoxication has no significance if the intoxication did not prevent D from forming MR/voluntariness (or enable D to raise defences like self-defence/duress). This is the case even he is involuntarily intoxicated. The mere fact that he is involuntarily intoxicated did not necessarily entitled him to be acquitted: If P can prove BRD that D acted with the necessary mens rea for the offence charged, then he may be convicted – “a drunken intent is still an intent”. (Sheehan)

Kingston Facts - The defendant was homosexual. He had a drink with his friend who secretly put some alcohol in his drink. The effect of drink is to compromise his ability to control his behaviors. D would not have committed the sexual assault against the boy if he had not taken the drink. This is caused by involuntary intoxication. - D: he acted with the necessary intent this intention was formed under intoxication, it should not suffice as mens rea. Held -

Rule for supplying conviction when there is a lack of elements, does no work when the defendant has all the elements in place. A drugged intent is still an intent, where intent proved to have been present, D is not allowed to say that he would not have done what he did had he been sober, involuntariness of the intoxication does not matter.

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There is nothing in Majewski to suggest that where intent is proved, involuntary intoxication adds a further defence. Majewski applies. He is convicted since his act is voluntary and he knows what he is doing so MR and voluntariness elements are present.

Note -

This illustrates that intoxication is not pro-defendant tool. Rather, P can use this rule as a tool when MR elements and voluntariness are absent.

Where intoxication is relevant to liability -

D lacked mens rea or voluntariness and it is due to intoxication at the time of the offence

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No: He is not liable; D can deny MR/voluntariness and hence acquittal

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Yes for all questions: D is liable and he cannot rely on the lack of MR/voluntariness due to intoxication [i.e. conviction despite the fact that D did not have MR/voluntariness at the time of offence]

Question 1: whether the intoxication is voluntary -

Voluntary intoxication: If D knowingly consumes or uses alcohol and drugs even if he did not know the precise nature or likely effect of the intoxicating substance (Allen) Drunkenness can be caused by me voluntarily drinking the wine or being tied on the chair and being fed with wine o How the defendant becomes intoxicated

Question 2: whether the offence charged is one of basic intent offence Distinction between basic intent offences and specific intent offences -

Look at case law No general principle

Case law

Examples of specific intent offence -

Theft (Ruse v Read) Robbery Burglary with intend to steal (Durante) Wounding or causing GBH with intent to cause GBH (Bratty v AG for Northern Ireland) causing criminal damage where only intention to cause damage or only intention to endanger life is alleged (Caldwell) Murder (Beard) An attempt to commit any offence requiring specific intent possibly some forms of secondary liability in any offence (Clarkson) indecent assault capable of being indecent but not inherently so

Examples of basic intent offence -

Maliciously wounding or inflicting GBH (Bratty) Assault occasioning actual bodily harm (Bolton v Crawley) Common assault Assault occasioning ABH (Majewski) Assaulting a police officer in the execution of duty (Majewski) Rape (Majewski) and attempted rape (Khan) Manslaughter (all forms) (Beard) Criminal damage where intention or recklessness or only recklessness is alleged Attempt to commit an offence where recklessness is a sufficient element in mens rea Inherently indecent – indecent assault

Proposed distinction between specific and basic intent offence 1. Specific intent offence requires ulterior intent (Majewski, per Lord Simon) -

Ulterior intent: MR elements go beyond AR (the act and its consequence) Non-ulterior intent: every MR element can find a corresponding AR element.

Example -

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Common battery o AR: infliction of violence o MR: recklessness and intention to cause infliction of violence o So, it is a basic intent Trespass with intent to cause criminal damage o MR: to cause criminal damage o AR: not required that he has caused the criminal damage, only that he has committed trespass. o This is a specific intent offence.

Problem -

Classify murder wrongly. Murder would be a basic intent offence under this definition

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AR (conduct causing death or the killing) goes beyond MR. definition (intention to cause death or GBH)

2. Specific requires an element of purpose/ purposive intent (Majewski, per Lord Simon/ Heard) -

Usually in the presence of purpose

Problem -

Classify murder wrongly; murder is treated as a basic intent under this definition. Since murder does not require purpose, only intention to cause GBH. Intention is not equivalent to purpose. Intention could be satisfied in two ways either purposive (act in the purpose of killing) or oblique intent.

3. Specific requires intention/knowledge -

For basic intent, recklessness would be sufficient Classify common assault correctly since recklessness is sufficient (intention is sufficient but not necessary) Classify murder correctly since recklessness to cause murder is not sufficient (Requires intention to cause GBH)

Problem -

Seems more promising but face difficulty in Heard o Facts: He faces the charge of indecent assault. Requires an intentional touching. A reckless touching is insufficient. The defendant may be acting under reckless intoxication. o D: argues that the Majewski rule does not apply since the charge is one of specific intent offence. o Held: The distinction between the two offences does not lie on the requirement of knowledge/ intention. This case rejected this simple and established classification, although the comments are obiter. The court aligns specific intent as an ulterior or purposive mens rea. o Held: In drawing the distinction, it is wrong to look at the offence as a whole. An offence may have certain elements that amount to basic intent offence and some may amount to specific intent offence. So, it really depends on which element the defendant is arguing when deciding whether Majewski rule he is relying on.

Deciding whether the offence is a specific and basic intent offence -

Starting point: look at case law (Smith and Hogan: since the distinction is based on no principle but policy) In case we do not have such benefit: if all three tests point to the same answer, then this would be a strong argument.

Dutch courage

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D formed intent to kill at t1. He took a drink at t1 to “fortify his nerves”, and he killed in a drunken state at t2. At t2, he has no intention to kill and lacks voluntariness because of his drunkenness If we apply the Majewski intoxication, since murder is a specific intent offence, D should be acquitted Mnes rea does not coincide with the conduct which causes the actus reus

Gallagher - exception to Majewski rule -

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Legal principle: If a sober and sane man forms an intention to kill but lacks courage and makes himself drunk and later perform the act whilst drunk, he cannot rely on this self-induced drunkenness as a defence of a charge of murder, nor even reduce it to manslaughter since the wickedness of his mind before he got drunk is enough to convict him of murder Held: He cannot use intoxication to deny MR and would still be convicted of murder even it is a specific intent offence (Majewski intoxication doctrine does not apply.)

Smith and Hogan’s view on non-coincidence of acts and mens rea -

The conduct of murder was actually committed at t1, and the conduct by D’s drunken self at t2 did not break the chain of causation Analogy: if D induces X to kill, D is guilty of murder if X is an innocent agent It is the case where a man uses a drunken self as an innocent agent or instrument to kill V with the intention that he shall kill while in the drunken state. He should be liable for the foreseen and intended acts of the drunken self.

Question 3: whether intoxication is reckless 1. Taking drugs in bona fide compliance with medical prescription -

Not reckless

2. Taking alcohol/drugs commonly known to create states of unpredictability / aggression -

Reckless intoxication

3. Consumption of other drugs which may cause drowsiness and no doctor prescription but the medicine is not commonly known to create states of unpredictability / aggression -

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Whether he is subjectively reckless in taking the drugs? Test: depends on whether D is aware of the risk that he or she might become aggressive, uncontrollable or unpredictable as a result of [failure to take food or taking the drug], yet deliberately took that risk or disregarded it (Bailey) There must be an actual awareness of the risk of becoming aggressive Risk is general in nature, need not be a particular risk of a particular offence or foresight of the actus reus of any particular crime

Bailey: Failure to take food after insulin injection is not necessarily reckless

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Facts: After taking insulin, he did not take food and he attacked victim under a state of automatism caused by low level of sugar. Legal principle: His failure to eat is not reckless unless the P can prove that he appreciated or realized his failure to eat might lead to aggressive and unpredictable conduct and deliberately ran that risk or otherwise disregard it. Held: Defendant is taking some risk and he may appreciate the risk of being drowsy. Yet, he did not know the risk of being unpredictable and aggressive with the result that he may cause some injury to others.

Hardie: Taking of sedative drugs is not reckless for arson -

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Facts: He was convicted of aggravated arson. He started the fire, knowing the risk of drowsiness after taking sedative and knowing the woman and her daughter were inside the room. Held: There is no evidence that it was known to the defendant that the consumption of such drug in the quantity taken might make a person aggressive and incapable of appreciating risks to others. He could defend himself by relying on self-induced intoxication.

Drunk driving -

It may well be that the taking of a sedative or soporific drug will be no answer in offences like drunk driving Being aware that one may lose consciousness may be sufficient where failure to exercise control may result in the actus reus of a crime as in the case of careless or dangerous driving (Smith and Hogan)

Distinguishing between acute and non-direct reaction -

Direct and acute reaction: accident happens right after the drinking Non-direct reaction: not drunk at the time of black-out. D’s drinking in the past that caused a lack of MR now without an intoxicated state at the time of offence?

Harris -

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Facts: D drank a lot in the past. He stopped drinking for 5 days before the offence. The sudden cessation of his excessive drinking had in the past resulted in episodes of alcohol psychosis or alcohol-induced hallucinosis. As a result of the cessation of drinking, D did not foresee the risk of injury at the time of offence. Issue: Can he rely on intoxication to deny MR for a basic intent offence? Held: Majewski rule does not apply as D was not suffering from a direct or acute reaction to the voluntary taking of intoxicants. He can rely on intoxication to deny MR

HK position -

Essentially follows Majewski rule, but open to challenge? Tang Yuk Wah o D: Majewski rule is unjust and should not be applied in HK since this defendant should not be convicted in the absence of MR

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Leave to appeal to CFA granted by CFA: [2007] HKCFA 85 but no further news Majewski rule still represents the rule in HK

Interaction between intoxication and automatism -

They may overlap where the consumption of drugs caused D to blackout, i.e. lose control over his or her action. This denies both AR and MR. This is alternatively viewed as automatism. Majewski rule applies.

Interaction between intoxication and insanity 1. Intoxication and insanity as concurrent causes: Defect of reason is a transitory effect caused by both intoxication and disease of the mind (intoxication causes insanity) (Burns) -

Facts: D took alcohol and some drugs before he committed the act. D had history of clinical ...