INTOXICATION

− General rule: whenever there is a defence in criminal law it goes towards attacking one of the elements of a
crime
− Some defences may be able to negate more than one element of a crime – e.g. intoxication
− We’ve already done intoxication as in sane automatism (which negates voluntariness). But it can also
negate capacity and, more importantly, fault
− Capacity is a 2-fold enquiry:
− 1. Can the accused appreciate the wrongfulness of his conduct?
− 2. Is the accused able to act in accordance with that appreciation

How has the law dealt with intoxication?

− What is it?
− For criminal purposes, intoxication includes the intake, injection or inhalation of any drug, as well as the
intake of alcohol
− What is its effect?
− It can render an accused involuntary
− It can cause an accused to be doli incapax (unable to have capacity)
− It can also affect his intention (fault)
− You would have to prove DE (foresight, a real possibility and recklessness)
− Therefore it would mean that the intoxication would have to affect your ability to foresee
− Intoxication would attack fault in that it would render an accused unable to foresee something as
if he was sober
− The law makes a distinction between voluntary and involuntary intoxication
− The idea was that voluntary intoxication would warrant/carry a higher degree of moral blameworthiness
− Why? There’s an element of antecedent conduct in that you voluntarily consume the alcohol
− Involuntary intoxication → you are not liable at all
− S v Hartyani 1980
− Accused charged with drunken driving. He had voluntarily consumed 4 bottles
of beer, and then some coffee. But, unbeknownst to him, the coffee was laced
with a substantial amount of brandy
− Held: it was reasonably possible that H did not know that there was brandy in
the coffee (What about the smell??? As long as it’s “possible”, then the
element of doubt is introduced)

Voluntary intoxication

− The first way that you can find a drunk accused liable for his actions is by disproving sane automatism (e.g. by showing
antecedent liability)
− SA law on intoxication is divided into 3 phases
− Before 1981 → Johnson
− Chretien
− Post-Chretien – Criminal Law Amendment Act
− Before 1981, voluntary intoxication did not ordinarily negate liability
− The general rule was: if you committed a crime and raised intoxication as a defence, you could potentially
escape liability BUT not entirely
− The courts followed the “specific intent” approach. The idea was that if you were affected by alcohol you
may not be found liable for certain crimes that require a specific intent. But you would have still been found
liable for crimes that require ordinary intent
− E.g. murder requires a specific intent. If you could show that intoxication affected that specific
intent then you would still be found liable for culpable homicide (which requires a lesser form of
fault)
− S v Johnson 1969
− Drunk guy who killed elderly man in a jail cell with a bucket
− Held: J was not guilty of murder as he had lacked specific intent due to the fact that he was so
heavily intoxicated. But he was still convicted of culpable homicide, for which ordinary intent
sufficed. On policy grounds – an accused who voluntarily consumes alcohol should be found liable
 − [Aside] If the court accepts that a person is not acting voluntarily when they are not acting in their
own conscious will, then how could J have been found guilty of culpable homicide? Because they
find him guilty on policy grounds, not because of a fact of law
− Problem/criticism with Johnson: specific intent was never really defined because it wasn’t a criminal law
rule. Also, judges should not create law or rules – parliament should. So they shouldn’t have just found him
guilty on policy grounds just because they “felt like it”
− R v Bourke 1916
− Johnson relied on this case in their judgement
− The court here voiced its concerns that to allow drunkenness to negate liability would repel the
community. It would mean that a regular drunkard was more immune to criminal liability than a
sober person
− The position then changes – the law after 1981
− S v Chretien 1981
− This case overruled Johnson, and held that there can be no question of liability if someone has
acted involuntarily. Ratio: In order to be involuntary through or by intoxication, you would have to
be dead-drunk
− Facts: The accused had consumed a substantial amount of alcohol at a party, and during this party
there had been some discontent among the guests. The accused purported to speed of in his car –
he just wanted to leave the party. While leaving he drove into a group of guests who were
standing outside where the party had been, killing one and injuring 5. He was charged with 1
count of murder and 5 counts of attempted murder
− His defence was that in his intoxicated state, he believed that the people would move out of the
way (i.e. his defence was one of proximity – he thought he was further away than he actually was)
− Held: it was reasonably possible that he didn't foresee the possibility that the people wouldn’t
move out of the way. The trial court acquitted him of all charges – including one of common
assault (following the ordinary vs. specific intent approach)
− A question of law was referred to the AD – whether the trial court was correct in holding as they
did, in a situation where intention was affected by intoxication
− Rumpff (majority): even common assault requires intention to assault, and if this intention is
lacking, even due to something as morally questionable as intoxication, there can be no
conviction. Therefore the AD confirmed that it’s possible for intoxication to affect the formulation
of intent. It was probable that the intoxication caused C to believe that the people would move
out of the way. So could he foresee the real possibility of harming them? Not if he was intoxicated
− Ratios from Chretien
− That in order to be involuntary, you would have to be dead-drunk
− It is possible to have another defence under intoxication – that the intoxication has affected the
formulation of your intent
− Intoxication can be a full defence

Intoxication can also have an effect on capacity

− Intoxication will only affect capacity when a person is so intoxicated that he does not realise that he is acting
unlawfully, or his inhibitions in the way he acts are substantially diminished
− Note the distinction between capacity and culpa
− In capacity we are concerned with what the accused was able to appreciate
− In culpa we are concerned about what the accused ought to have appreciated

The Criminal Amendment Act 1 of 1988

− “1(1): Any person who consumes or uses any substitute which impairs his faculties to appreciate the wrongfulness of
his acts or to act in accordance with that appreciation [i.e. capacity], while knowing that such substance has that
effect [i.e. voluntary intoxication], and who, while such faculties are thus impaired, commits any act prohibited by law,
but is not criminally liable because his faculties are impaired as aforesaid…shall be guilty of an offence”
− This section is therefore saying: any person who voluntarily becomes intoxicated to such an extent that he lacks
capacity, and has done something criminal but cannot be convicted because he lacks capacity, shall be guilty in terms
of this Act
− The Act effectively prevents an intoxicated person from using capacity as a defence
− Because this is a statute creating a crime, it has certain elements which can be found from the definition of
the crime
− The elements of the offence are thus
− 1) Consumption
− 2) Impairment of faculties (no capacity)
− 3) Knowledge of the effect of the substance
− 4) Committing of an act punishable by law (a crime)
− 5) No liability because no capacity
− Element 2 is really interesting
− Generally, if an accused is going to rely on intoxication as a defence, particularly a negation of
capacity, he has to prove that he has no capacity. The onus is therefore on the accused to put
forward some kind of evidence to show that he had no capacity
− In terms of the Act, because incapacity is an element of the crime, the state has to prove the
incapacity
− Thus the Act makes it implausible to argue incapacity as a defence, because since you AND the
state have to prove incapacity, you would be helping the state in its prosecution
− So, would voluntariness be a good defence for the accused?
− It’s open to argument, but Chretien is the authority for having to be dead-drunk, so you’d have to
adduce evidence of such
− But in adducing such evidence, you’d also prove that you lacked capacity because you were dead-
drunk
− Therefore, in terms of the Act, voluntariness is also extremely difficult to use
− People won’t risk arguing lack of voluntariness, because then they won’t have capacity (ITO the
Act), and ITO the Act the lacking of capacity makes them liable for whatever they’re being charged
with
− Therefore it’s a tricky situation… there’s no case precedence so still largely untested
− The practical effect of the Act is to remove Capacity as an element of a crime with regards to intoxication
− Therefore, as an accused, you’d rather rely on the lack of fault to escape liability
− Differing degrees of intoxication affect intention in varying degrees as well
− Thus you would use the fact that intoxication affects your ability to foresee
− A number of questions arise out of the Act
− 1) Will a person who becomes involuntarily intoxicated be liable under the Act?
− No – he would have actually had to have consumed, and had knowledge of what he was
consuming
− 2) Will the person who has capacity but who, like Chretien, as a result of intoxication lacks
intention to commit the crime be liable under the Act?
− No – the Act only applies to a person who has no capacity as a result of intoxication, not
fault
− 3) Would it be sufficient for the accused to have been initially acquitted, or does the prosecution
under the Act have to prove incapacity de novo?
− This relates to the lack of capacity becoming an element of the offence
− S v Mbele 1991
− Held: if an accused was acquitted of the common law crime on the basis that a
reasonable doubt existed whether he had criminal capacity, this would not be
sufficient for a conviction of contravening section 1
− So the prosecution must still prove all the elements of the offence, including
the lack of capacity
− S v September 1996
− S v Lange 1990
− Accused was charged with housebreaking with the intent to steal and theft
itself. He raised the defence of intoxication. He succeeded in his defence, but
the trial court went on to convict him in terms of the Act
− On appeal, the AD confirmed the conviction, and confirmed that as long as the
state can prove incapacity beyond a reasonable doubt, the accused can be
found liable in terms of the Act
− Paizes believes that it is wrong to use something that was canvassed for the accused against the accused.