Evi, Regina v [1975] PGSC 13; [1975] PNGLR 30 (4 December 1974)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 30 - Regina v Allan Evi of Bereina

[1975] PNGLR 30

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

ALLAN EVI OF BEREINA

Bereina & Port Moresby

Prentice J

27-28 November 1974

4 December 1974

CRIMINAL LAW - Criminal responsibility - Intoxication as defence - Intention to cause own intoxication - Onus of proof - Criminal Code (Queensland adopted), s. 26[xxv]¹, s. 27[xxvi]2 and s. 28[xxvii]3.

Held

That where intoxication based on ss. 26, 27 and 28 of the Criminal Code (Queensland adopted) is raised as a defence to an offence under the Code, the onus is on the accused of establishing on the balance of probabilities that (a) he was suffering a disorder of the mind, (b) induced by intoxication, (c) of such a nature as to raise a defence under s. 27, and (d) that he had no intent to cause his own intoxication.

Per curiam, s. 28 of the Criminal Code (Queensland adopted) provides a code as to the extent to which intoxication may be used as a defence to all offences under the Code and semble s. 23 cannot apply once a defence under s. 28 has been rejected.

R. v. Corbett, [1903] Q.S.R. 249, and Parker v. The Queen [1915] WALawRp 10; (1915), 17 W.A.L.R. 96 referred to.

Trial

The accused was charged with rape and two counts of attempted rape upon a twelve year old girl, on 10th August, 1974, and raised as a defence thereto, intoxication based on ss. 26, 27, and 28 of the Criminal Code (Queensland adopted).

Counsel

C. Maino, for the prosecution.

N. R. Cowdery, for the accused.

Cur. adv. vult.

4 December 1974

PRENTICE J: An indictment was presented against the accused charging him with rape and two counts of attempted rape upon a twelve year old girl, Veronica, a distant relative of his, on 10th August, 1974. No admissions were made by the accused as to the alleged incidents.

[His Honour then dealt with the prosecution evidence from which it was clear that the accused had been drinking heavily all afternoon, at a cousin’s house which he left at 6.30 p.m. in company with Veronica and was seen at about 11.30 p.m. on a road by a witness to whom the girl made complaint. The medical evidence was consistent with rape and the girl’s evidence was that the accused, after twice attempting to rape her and being twice interrupted by approaching motor vehicles, dragged her into big bush and there had intercourse with her against her will.

His Honour then continued:]

In view of his instructions, defence counsel was really unable to challenge the prosecution evidence. I see no reason why I should not accept the girl’s evidence as reliable — corroborated as it is in many particulars by that of other witnesses. I am satisfied beyond reasonable doubt that Allan Evi had sexual intercourse (which included penetration) with the prosecutrix, after several unsuccessful attempts (I do not here use the word in its legal sense), and that such was by force and against her will.

The defence rests primarily on the application to the facts of ss. 26, 27 and 28 of the Criminal Code. It is said that such was the degree of intoxication of the defendant in association with a state of chronic alcoholism, that his mind was so disordered by intoxication, as to constitute a state of mental disease in which he was deprived at the relevant time of the capacity to understand what he was doing. Mr. Cowdery accepted that the onus lay on him to establish on the civil onus — that of a preponderance of probability:

N2>(a)      that the accused was suffering a disorder of the mind,

N2>(b)      induced by intoxication,

N2>(c)      of such a nature as to raise a defence under s. 27, and

N2>(d)      that there was no intent on the accused’s part to cause such intoxication.

There had been some discussion as to whether once (a), (b) and (c) were shown, the onus ought to shift back to the Crown to establish beyond reasonable doubt that the intoxication was intentionally caused. After further study of the section, Mr. Cowdery resiled from such a position. I am of the opinion that Mr. Cowdery in his final statement of what he considered lay on him to establish was correct — viz. that the onus lay on him to show on the balance of probabilities that the accused had no intent to cause his own intoxication.

I proceed to consider first whether in the course of raising this defence, Mr. Cowdery has established on the balance of probabilities that the accused’s undoubted intoxication on this occasion, was caused without intention on his part.

The accused on examination by Dr. Burton-Bradley was found to have a face and voice beginning to show characteristics of chronic alcoholism, and to have an “alcoholic personality”. Dr. Burton-Bradley goes so far as to describe him as a “pathological inebriate” with a background of chronic alcoholism.

The accused admits to having been a heavy drinker for years. He stated in evidence in this Court that he has known for some time it’s a bad thing for him to drink. He lives away from Bereina, being a D.A.S.F. employee; when he calls into Bereina, (after a month or two) he gets shock from heavy drinking. He has known for some years that it is bad for him to drink. He has known for some years he is likely to have blackouts from drink. Asked “in spite of this you continue drinking”, he replied, “occasionally when I want to drink — some times I go without”. Asked how much he took when he did drink he replied, “when on my own, down at the Club, I take up to my limit seven or eight bottles. If I go with others, they influence me to have drink, I have less on my own”.

In a statement to the police he said regarding Saturday the 10th of August, “I was dead drunk and I didn’t exactly know what I was doing so whatever information comes from you I’ll accept it”. But in this Court he indicated that he did not accept the girl’s story of what had happened and that he would not believe that he had raped her unless a man had been there and actually seen him lying on top of her. He continued in his statement to the police to relate that with six others he shared two cartons of beer at the Bereina Club; that about 2.00 p.m. they bought two more cartons to a friend named Joe’s place, and a bottle of Johnny Walker, a 26 ounce bottle, of which he drank half, was produced. And that then Joe bought another carton of which he the accused apparently had none. In a statement to the District Court he gave similar figures as to the liquor consumed and there he said of the expedition to Joe’s place, “we decided to take some more cartons out to Joe’s place. We (bought) two more cartons and a 26 ounce bottle of Johnny Walker. We went by a car to Joe’s house, it was about 2.30 we started drinking. At about 5.30 we ran out of beer”. This was the time apparently when the last carton was bought. In this Court he spoke of commencing drinking at 12.30 and of consuming sixteen bottles of beer himself and half a bottle of Johnny Walker whisky before going to Allan Bera’s house somewhere about 5.30 to 6.00 p.m.

To Dr. Burton-Bradley he stated that he had often drunk up to a carton of beer a day along with rum and whisky. On occasion he had drunk methylated spirits (to this Court he confirmed that, saying “I’ve nearly drunk all the alcohol — including methylated spirits”). In answer to questions by me he informed me that he was aware of the extremely dangerous nature of methylated spirits and how it can destroy the brain and body. He also stated to Dr. Burton-Bradley that he had drunk two bottles of beer on this occasion before his friends arrived. I have no reason to doubt that the computations of Dr. Bradley based on the accused’s account, that he had that afternoon himself drunk some eighteen bottles of beer and thirteen ounces of whisky, is substantially correct.

The picture painted is a familiar one — distressingly prevalent in Papua New Guinea, where it is notorious that a party of drinkers likes to command a large quantity of beer around it — members of it then setting out deliberately to get drunk. It is common practice in the course of such a party to add spirits to the drinks of beer. The setting here—the election on the club bar being closed, to move to purchase more cartons of beer and to move to another location — the long hours of drinking with fellow-topers, apparently without food; the attempt to purchase yet more beer, the drinking of spirits in addition; I’m afraid convince me to the opposite of that contended for by Mr. Cowdery — and that to a degree beyond reasonable doubt. I note the accused did not drink all the whisky though remaining in possession of the bottle the remaining contents of which he gave away. I note that he left before his companions began to drink the fifth carton. I note his statement that about this time he began to feel the effects of drunkenness, but I am satisfied that the accused continued the drinking session with the knowledge based on past experience of possible consequences in the shape of drunkenness and blackout. I note a decision of the Full Court of Western Australia in Parker v. The King[xxviii]⁴, in which it was said:

“the large majority of men who get drunk do not wish to get into that condition, but they drink voluntarily, and they must be taken to expect the usual result of excessive drinking”.

But, I remind myself of the recent decisions of the High Court of Australia that the old adage that a man is presumed to intend the natural consequences of his acts is no longer to be applied. (Stapleton v. The Queen[xxix]⁵, Parker v. The Queen[xxx]⁶). Overall on consideration of the accused’s circumstances and history and of all the evidence of the facts of this case and from my observation of him throughout his evidence in the witness box, I find myself compelled to the conclusion that he not only must have known he was becoming intoxicated but desired and intended to become intoxicated.

Having formed this view contrary to the submission of Mr. Cowdery, I consider I must reject the defence based upon ss. 26, 27 and 28. The first paragraph of s. 28 provides that disorder of the mind induced by intoxication can be a defence provided the intoxication is caused without intention on the accused’s part and the second paragraph specifically states the provisions of the section do not apply in the case of a person who has intentionally caused himself to become intoxicated, whether in order to afford excuse for the commission of an offence or not.

It was nevertheless faintly suggested that s. 23 should be considered as remaining open; though Mr. Cowdery felt constrained to express the opinion that the section might not be considered capable of being brought into effect by intoxication — for which s. 28 should probably be regarded as providing special and restricted reliance. I think that this must be so. The law has always proceeded with reluctance to entertain extensions of the operation of drunkenness as a defence, where the intoxication was knowingly induced. Because of inconsistencies in the accused’s accounts as to when he says his recollection cut out on this evening, and his denial that a blackout in fact occurred, I have a very real doubt whether he is telling the truth when he says that he has no remembrance of the facts of the assault.

The question of whether a man knew at the time of happenings the nature and quality of what he was doing, is quite distinct from that of whether afterwards he recollected what he had done. The precautions which the accused took against discovery and disturbance during the commission of this act of intercourse militate in my mind to showing that he was then aware of what he was doing and that it was a wrongdoing. The medical evidence on the other hand tends to show the possibility of a blackout during the events.

However as to this aspect the Crown would seem to bear the onus of establishing beyond reasonable doubt if s. 23 applies, that the act was not one which occurred independently of the exercise of the accused’s will. Can s. 23 apply once a defence raised under s. 28 has been rejected?

Counsel was unable to point to any case in which such a defence was raised successfully. I have endeavoured myself to research the records of this Court and I have found none in which such a defence was raised. In the case of R. v. Forsyth[xxxi]⁷, (Gore J), a defence of drunkenness was raised to a charge of attempting unlawfully to kill. Such a charge is one on which the third paragraph of s. 28 may be relied upon, in that an intention to cause a specific result is an element of the offence (see the later decision of Ollerenshaw J) Reg. v. Bena-Forepe[xxxii]⁸. Mr. Justice Gore noting that the defence raised was drunkenness stated:

“Such a defence is only compelling when it can be shown that the drunkenness amounted to unsoundness of mind. A person cannot escape liability because he is intoxicated. If he intentionally caused himself to become intoxicated, the defence of drunkenness is not open to him. It cannot be said in this case that whatever state the accused was in through the consumption of liqour, his condition was the result of anything but his own act.”

His Honour appears to have been speaking obiter as he found in that case that the accused was not intoxicated. In the case of Reg. v. Robert Kirkland[xxxiii]⁹, Mr. Justice Bignold, in another case of attempt unlawfully to kill, gave judgment as follows:

“The accused has pleaded drunkenness in his defence.... The evidence required of the accused to support an absolute defence of drunkenness must go so far as to show that he was so drunk as to come within the provisions of s. 27 of the Criminal Code and the burden of proving that the degree of his drunkenness reached insanity is upon him, owing to the presumption prescribed by s. 26 of the Criminal Code, but the standard of proof required of him is only upon the balance of probabilities.... The law is that if persons choose to drink to excess so that their degree of self-control is affected they must, subject to what has been said previously, put up with the consequences”.

Again in this case the Court allowed reliance upon paragraph three of s. 28 and found that the facts did not prove an intent to attempt to kill. In Reg. v. John Montgomery Harvey-Hall,[xxxiv]¹⁰ (Mann C.J), intoxication was raised but the question of the act being independent of the will of the accused was not raised. A defence of accident based upon manner of driving was raised and dismissed, his Honour saying that the accused should have realised that danger was likely to ensue from his deliberate intoxication. In the case of Reg. v. Bena-Forepe[xxxv]¹¹ a defence of intoxication was raised but again under s. 28, on the basis that the intoxication was such that the accused was incapable of forming the necessary intent, that of intent to kill. The Chief Justice of Western Australia in Parker’s case[xxxvi]¹² stated that s. 28 of the Criminal Code of Western Australia:

“only states the general law as laid down in The Queen v. Doherty, (16 C.C.C. 306) and I can find nothing new in it”.

The first paragraph of s. 28 of the Criminal Code of Papua (Queensland adopted) is in the following terms:

“the provisions of the last preceding section apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor or by any other means”.

The second paragraph takes up the exception contained in the first paragraph and amplifies it in the following terms:

“they do not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied whether in order to afford excuse for the commission of an offence or not”.

The third paragraph however does not relate to the question of disorder of the mind caused by intoxication. It is in the following terms:

“When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed”.

The whole of the section therefore is seen as containing two provisions basically as to intoxication. It is said that intoxication, provided it is not intentionally caused, may provide a defence if it results in a disorder of the mind of a certain character; and in paragraph three it provides that it may whether complete or partial, intentional or unintentional, set up a defence to those crimes in which intention to cause a specific result is an element of the offence. The content and layout of the section is such as to carry to my mind the intention that it is to provide a code as to the extent to which intoxication may be used as a defence in regard to all the offences of the Code. That this was the understanding of the draftsman of the Code, Sir Samuel Griffiths, appears from the direction which his Honour gave to the jury in 1903, in R. v. Corbett[xxxvii]¹³. His Honour summarised the effect of the Code provisions as to intoxication in the following words:

“It was suggested by counsel that if the prisoner was so intoxicated that he did not know what he was doing at the time, he is not criminally responsible ... That is not the law and never was the law. Drunkenness is never a defence unless it amounts to unsoundness of mind. No one can escape liability merely because he is intoxicated. If you come to the conclusion that the prisoner was so intoxicated that his mind was absolutely disordered, and he was thus deprived of capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act with which he is charged, you may be able to find him not guilty on the ground of insanity. But if he intentionally caused himself to become intoxicated, that defence is not open to him. It is, however, a defence if his mind was so disordered as to be unsound within the meaning of s. 27 of the Criminal Code, and if this condition was caused by intoxication which arose without any intention on his part”.

Sir Samuel Griffiths’ understanding of the effect of the Code as shown in this his summing up, was expressly approved by the Full Court of Western Australia in regard to the similar provision of the Western Australian Code in Parker’s case[xxxviii]¹⁴.

I am therefore of the opinion that the accused has no defence open to him on the charge of rape under s. 23 of the Code. Mr. Cowdery submits that there should be no conviction on either of the other counts as to attempted rape, these being laid in relation to the earlier ineffectual attempts to gain penetration each of which were interrupted by the presence of a motor vehicle. If it were necessary for me to consider this point I think it would have been well taken, in that a specific intent is an ingredient of the offence of attempting to rape viz. the intent to gain penetration against the will of the woman concerned as contrasted with an intent merely to indecently assault. However I do not think the facts here are such as to require the conclusion that the two earlier attempts to gain intercourse viz. those under the workshop and on the second location on the heap of grass, should properly be considered as separate from the ultimate rape which occurred in the “big bush” some distance further away from those two spots. The three incidents are so related in location and time as in my opinion, to amount to the one attempt to rape, which was completed and finally successful at the third locality. From the point of view of conviction and possible punishment I do not think the incidents should be treated as separate and distinct.

I come to the conclusion therefore that the prosecution has established beyond reasonable doubt that intercourse was had with the prosecutrix by the accused forcefully and against her will, that it included penetration, and that though this was effected in a state of intoxication by the accused, that the intoxication had been caused with intention on his part, and that therefore no defence is open to him.

I convict the accused on the first count of rape, I make no finding on the second and third counts of attempted rape.

Verdict: Guilty of rape.

Solicitor for the Crown: P. J Clay, Crown Solicitor.

Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[xxv]Section 26 of the Criminal Code (Queensland adopted) provides that every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question till the contrary is proved.

[xxvi]Section 27 of the Criminal Code (Queensland adopted) provides as follows:—

a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

[xxvii]Section 28 of the Criminal Code (Queensland adopted) provides as follows:—

The provisions of the last preceding section apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor or by any other means.

They do not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not. When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

[xxviii][1915] WALawRp 10; (1915) 17 W.A.L.R. 96, at p. 99.

[xxix][1957] A.L.R. 441.

[xxx][1963] HCA 14; (1963) 111 C.L.R. 610, at p. 632.

[xxxi](1948) Unreported Judgment No. 20.

[xxxii](1966) Unreported Judgment No. 394.

[xxxiii](1954) Unreported Judgment No. 61.

[xxxiv](1963) Unreported Judgment No. 295.

[xxxv](1966) Unreported Judgment No. 394.

[xxxvi](1915) 17 W.A.L.R. 96.

[xxxvii][1903] Q.S.R. 249.

[xxxviii][1915] WALawRp 10; (1915) 17 W.A.L.R. 96.