INTOXICATION

( Sec 85 & Sec 86)

&
CONSENT
(Sec 87 - 92)
 Intoxication
 Section 85 and Sec 86.
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Under the Penal Code, the defense of intoxication

operates as a complete defense and not merely as a
mitigating factor.
 Intoxication
Section 85(1) – The general rule is intoxication shall
not constitute a defense in criminal liability.
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Exception : Unless it falls under Sec. 85 and Sec. 86.

 Intoxication
Confusion of Sec 84 and Sec 85:

Wrong
• :
Sec 85 only requires the accused do not know that his
act is ‘wrong’, not ‘contrary to law’.
Sec 84 requires the accused should not know his act
‘wrong or contrary to law’.

**It is suggested that wrong in S85(2)(a) means

contrary to law (not morally wrong as in S84)
 Intoxication
Confusion of Sec 84 and Sec 85:

Did •Not know what he was doing :

Sec 85(2) uses phrase ‘do not know what he was
doing’
Sec 84 uses phrase of “being incapable of knowing
the nature of his act.’

**Despite the difference in wording (from S84) this

phrase should also mean the physical nature of the act
 Intoxication
Intoxication can be categorized into

Involuntary Voluntary
•
Intoxication Intoxication
(3rd party) (causing insanity)
Sec 85 (2) (a) Sec 85 (2) (b)

Sec 86(1) further provides that:

a) If the intoxication caused by malicious and
negligent act of another, accused shall be
acquitted.
b) If the intoxication was reasoned of insane, the
accused shall be acquitted (under s.347 CPC) and
kept in custody at the pleasure of the Ruler of
The State ( s. 348 CPC)
 Intoxication

SECTION 85
 Intoxication
To succeed under Sec 85(2)(a), an accused must prove
that :
- He did not know that his act or omission was wrong or
that he did not what he was doing,
-The intoxication was caused without his consent by the
malicious or negligent act of another person.

**Under Sec 85(2)(a), The intoxicant must be administered to the

accused by the malicious and negligent act of a third person.

**Thus, “Consumes intoxicants at birthday party given by third party”

OR “Wrongly prescribed drugs by doctor (who was not malicious or
negligent)”, will not succeed under Sec 85(2).
 Intoxication
Sec.85(2)(b) provides for the situation where the
accused, by his own hand, becomes intoxication and
intoxication produces a state of insanity.

Under PC, distinction is made between insanity produced

by :
-Intoxication Sec85(2)(b)
-Unsoundness of mind (Sec 84)

Thus, state of insanity can be dealt with under

-Sec. 84 if resulting from unsoundness of mind
-Sec 85(2)(b) if produced by intoxicants.
 Intoxication
ALADIN V. PP
Aladin v PP
The appellant consumed too much alcohol at a wedding,
later quarreled with an ‘O’ but was separated by his
•
brother. Then, appellant took parang and slashed 7 other
persons including ‘O’.

He appealed for Sec 85(2)(b) – Insanity caused by

intoxications.

HELD : The appellant knew what he was doing and knew

that was wrong.
 Intoxication

SECTION 86
 Intoxication
** Sec 86(2) may cover situations not encompassed by
Sec 85(2). If the accused is unable to bring himself within
the provisions of sec. 85, sec. 86(2) is still available.

Sec. 86 takes into account the intoxication in determining

whether the accused had formed an intention, specific
or otherwise, of committing an offence.
- This provision is wide enough to cover situations where
there is:
a) Involuntary Intoxication, other than a state caused
by the malicious or negligent act of a third party
b) Voluntary Intoxication in offences that require
specific mens rea
 Intoxication
Under Sec 86(2), intoxication shall be taken into account
to determine whether the person charged had formed an
intention, specific or otherwise to do the act.

Drunkenness which allows an accused to form the

necessary intent, and also inflames his passion and
warps his moral judgment, is NO DEFENSE.

Court will look whether the accused was so intoxicated

as to be incapable of forming an intention.
 Intoxication
PP V BEARD (1920)

Arthur Beard was indicted for murder having ravished a 13-year-old girl
and in• furtherance of the act of rape placed his hand upon her mouth
and his thumb upon her throat thereby causing death by suffocation.

The defense was drunkenness.

HELD : There was no evidence that he was too drunk to form the
intention of committing rape

It is not question of whether appellant was capable of forming the

necessary intent, but of considering his intoxication as one of the
circumstances in which to reach a decision as to whether he had in fact
form the intent
 Intoxication
Sec 86(2) will not provide a defense where :

a) The Accused has formed an intention to commit the

offence and he drinks in order to give himself ‘false
or Dutch courage”
b) The Accused drinks so that he will be more readily
give way to some violent passion.

This is because the accused has already formed the

intention before taking the drink.
 Intoxication
PAST YEAR QUESTIONS :

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APRIL 2010. PART B. QUESTION 2

APRIL 2009. PART A . QUESTION 5.

OCTOBER 2008. PART B. QUESTION 2.