Chapter 12 - The effect of intoxication and provocation on liability

Question 1

Explain involuntary intoxication and give examples

Answer 1

By involuntary intoxication, we mean intoxication brought about without Thabo’s conscious and free intervention, as in the following examples: Thabo is forced to drink alcohol against his will, or Thabo’s friend Mandla, without Thabo’s knowledge, pours alcohol or a drug into Thabo’s coffee, which results in Thabo becoming intoxicated and committing a crime while thus intoxicated. It is beyond dispute that involutary intoxication is a complete defence.

Question 2

Explain voluntary intoxication

Answer 2

As far as voluntary intoxication is concerned, three different situations have to be clearly distinguished:

1. The actio liberia in causa
2. intoxication resulting in mental illness
3. the remaining instances of voluntary intoxication

Question 3

Explain the actio leberia in causa and give examples

Answer 3

The first situation is where Thabo intends to commit a crime, but does not have the courage to do so, and takes a drink in order to generate courage, knowing that he will be able to perpetrate the crime once he is intoxicated. In this instance, intoxication is no defence whatsoever, in fact, it would be grounds for imposing a heavier sentence than normal.

Question 4

Explain how intoxication results in mental illness

Answer 4

Secondly, certain manifestations of mental illness, such as delirium tremens, can be the result of a chronic abuse of alcohol. If the consumption of alcohol results in mental illness or a mental defect, the ordinary rules regarding mental illness set out must be followed.

Question 5

Explain the remaining instances of voluntary intoxication and give an example

Answer 5

This is the instance where alcohol is taken voluntarily, does not result in mental illness, and Thabo does not partake of the alcohol with the exclusive purpose of generating the courage to perpetrate a crime. For example, Thabo has a couple of drinks at a social gathering and then behaves differently from the way he would have behaved had he not taken any liquor; he takes offense too readily at a rude remark made by Mandla and then assaults him, or damages property.

Question 6

What is the lenient and unyielding approach to voluntary intoxication?

Answer 6

Through the years, there have been two opposing schools of thought regarding the effect that intoxication ought to have on criminal liability. On the one hand, there is the approach that may be described as the unyielding one, which holds that the community will not accept a situation in which a person who was sober when he committed a criminal act is punished for that act, whereas the same criminal act committed by someone who was drunk is excused merely because he was drunk when he committed the act.

On the other hand, there is the lenient approach, which holds that if we apply the ordinary principle of liability to the conduct of an intoxicated person, there may be situations in which such a person should escape liability, the basis being that because of his intoxication, he either did not perform a voluntary act or lacked either criminal capacity or the intention required for a conviction.

Question 7

What was the law saying regarding intoxication before 1981?

Answer 7

During this time, intoxication was never a complete defence, that is, a defence that could lead to a complete acquittal.

Question 8

Give an example of a crime requiring a specific intent

Answer 8

Examples of crimes requiring specific intent were murder and assault with intent to do grievous bodily harm. The theory entailed the following: If Thabo was charged with a crime requiring a specific intent, the effect of the intoxication was to exclude the specific intent. He could be convicted of the specific intent crime with which he was charged, but for a less serious crime, including one in respect of which an ordinary intent was required.

Question 9

What was the law after 1981 based on the Chretien case?

Answer 9

The legal position as set out before 981 was drastically changed by the Chretien case. In this case, X, who was intoxicated, drove his motor vehicle into a group of people standing in the street. The court found that owing to his consumption of alcohol, X expected the people in the street to see his car approaching and move out of the way, and therefore, he had no intent to drive into them. On the charge of murder, he was convicted of culpable homicide, because the intention to kill was lacking.

Question 10

What was the summary of the legal points in the Chretien case?

Answer 10

1. If a person is drunk and her muscular movements are involuntary, there can be no question of an act, and although the state in which she finds herself can be attributed to an excessive intake of alcohol, she cannot be found guilty of a crime as a result of such muscular movements.
2. In exceptional cases, a person can, as a result of the excessive intake of alcohol, completely lack criminal capacity and, as a result, not be criminally liable at all. This will be the case if she is so intoxicated that she is not aware that what she is doing is unlawful, or that her inhibitions have substantially fallen apart.
3. The specific intent theory in connection with intoxication is unacceptable and must be rejected. It is precisely because of the rejection of this theory that, in this case, Thabo could not even be convicted of common assault. Intoxication can, therefore, even exclude Thabo’s intention to commit the less serious crime, namely assault.
4. Chief Justice Rumpff went out of his way to emphasize that a court must not lightly infer that, owing to intoxication, Thabo acted involuntarily or lacked criminal capacity or the required intention, since this would discredit the administration of justice.

Question 11

What were the results of the Chretien case as far as X’s liability is concerned?

Answer 11

Intoxication may have one of the the three effects:

1. It may mean that the requirement of a voluntary act was not complied with
2. It may exclude criminal capacity
3. It may exclude intention

Question 12

What are the 3 degrees of intoxication?

Answer 12

1. Intention excluded: Less Drunk
2. Criminal capacity excluded : Moderately drunk
3. Voluntary act excluded : More drunk

Question 13

State section 1 of the Criminal Law Amendment Act,1988

Answer 13

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 or her faculties were impaired as aforesaid, shall be guilty of an offence and shall be liable on conviction to the 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 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.

Question 14

What are the effects of Section 1 on the judgment in the Chretien case?

Answer 14

If X commits an act that would otherwise have amounted to the commission of a crime (i.e. which, “viewed from the outside”, without taking into account X’s subjective mental predisposition, would have amounted to the commission of a crime), but the evidence brings to light that, at the time of the performance of the act, she was, in fact, so intoxicated that she lacked criminal capacity, the court would, in terms of the Chretien judgment, first have to find her not guilty of the crime with which she has been charged (i.e. the crime she would have committed, had she not been drunk), but must then, nevertheless, convict her of the statutory crime created in section 1(1), that is, the crime known as “contravention of section 1(1) of Act 1 of 1988”. In other words, she is convicted of a crime, albeit not the same one as the one she had been charged with initially.
The section further provides that when the court has to decide what punishment to impose for the statutory crime of which she had been convicted, the court is empowered to impose the same punishment it would have imposed had she been convicted of the crime she was originally charged with. In this way she is prevented from “walking out of court” unpunished.

Question 15

Give an example of contravention of section 1(1) of Act 1 of 1988

Answer 15

Let’s consider a practical EXAMPLE X is charged with having assaulted Y. The evidence reveals that, although she had hit Y in the face with her fists, she was so intoxicated when she struck Y that she lacked criminal capacity. Consequently, the court must do the following: They must find X not guilty of assault, but guilty of another crime, namely “contravention of section 1(1) of Act 1 of 1988”. The punishment the court then imposes for this crime will be the same as the punishment the court would have imposed had it convicted her of assault. Also, if X is charged with culpable homicide and acquitted on the basis that she lacked criminal capacity at the time of the commission of the offence, she must be found not guilty of culpable homicide, but guilty of a contravention of section 1(1) of Act 1 of 1988.

Question 16

List the elements of crime created in section 1 (1)

Answer 16

1. the consumption or use by X
2. of “any substance”
3. that impairs her faculties to such an extent that she lacks criminal capacity
4. while she knows that the substance has that effect

The second group of requirements (indicated below by the letter B) refers to the circumstances surrounding the commission of the act “prohibited … under penalty”, which is the event that takes place secondarily. This group of requirements comprises the following:

1. the commission by X of an act prohibited under penalty
2. while she lacks criminal capacity and
3. who, because of the absence of criminal capacity, is not criminally liable

Question 17

Explain intoxication in relation to culpable homicide

Answer 17

If X, who is charged with murder, raises as a defence the fact that she was intoxicated, she can, in terms of the judgment in Chretien, be acquitted on the murder charge (because intoxication negates the required intent), but may nevertheless be found guilty of culpable homicide if the court finds that she had criminal capacity at the time of the commission of the offence and that she was also negligent

Question 18

Explain the effect of intoxication on punishment

Answer 18

In all the instances where X, notwithstanding her intoxication, is found guilty of the crime she is charged with, the intoxication can be taken into account by the court in sentencing her, resulting in a more lenient punishment. This is a daily practice in our courts. Intoxication cannot, however, result in a more lenient punishment in the case of a crime in which intoxication is an element of the crime, such as driving a motorcar under the influence of liquor (Kelder 1967 (2) SA 44 (T)).
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Nothing prohibits a court from using intoxication as a ground for imposing a heavier punishment in certain circumstances, for example, in the case of a person who knew, before she started drinking, that alcohol made her aggressive (Ndlovu 1972 (3) SA 42 (N); s 2 of the Criminal Law Amendment Act 1 of 1988). Where the form of culpability involved in the commission of the offence is negligence, the fact that the negligence was induced by the voluntary consumption of alcohol or drugs will generally be regarded as an aggravating factor.

Question 19

What is the effect of provocation in criminal liability?

Answer 19

1. Provocation is not a defence on a charge of murder. Provocation in fact confirms the existence of intention. However, provocation may be relied upon as a ground for mitigation of punishment. A court may find that X’s responsibility was diminished in terms of section 78(7) of the Criminal Procedure Act 51 of 1977.
2. If Thabo is charged with culpable homicide, the provocation will exclude Thabo’s negligence only if it is clear that a reasonable person would also have lost his temper and would also have reacted in the way Thabo did.
3. If Thabo is charged with assault with intention to do grievous bodily harm, provocation will not lead to conviction of a lesser offence of assault.
4. If Thabo is charged with common assault, provocation cannot serve as a complete defence leading to a complete acquittal. Again, provocation may serve as a ground for mitigation of punishment.