Date: 24th October 1980
Criminal law - Determination of Question Reserved under section 279 of Criminal
Procedure Code - mens rea- unlawful wounding - voluntary intoxication- specific intent,
general intent.
Penal Code sections 9,13, 222
Constitution of Solomon Islands
Schedule 3 para 2 (1) (a)
Facts:
The accused was involved in a fight during the course of which he inflicted wounds with
a knife upon another man. No question
of self defence arose. The accused claimed that as a
result of alcohol voluntarily consumed he had no memory of the events and
that, although
he accepted the physical act of inflicting the wounds, he did not have such mental state
as the law required
to make him guilty of the offence of unlawful wounding. There was
evidence of eye witnesses as to the accused's conduct during
and after the fight. The
accused was convicted of unlawful wounding contrary to section 222 of the Penal Code.
Held:
1. Where a crime is one which requires proof of a specific intent drunkeness can
exculpate if the Court is not satisfied that
the accused had the requisite state of mind;
S 13(4) Penal Code considered.
2. For this purpose all forms of intoxication should be taken into account by the Court
whether voluntary intoxication or involuntary
intoxication.
3. Where a crime is one which requires proof of "basic intent", at least an
intention to do the physical act involved
in the crime charged is indispensible to
criminal responsibility.
4. Evidence of the state of the body and mind of an accused tendered to assist in
raising a doubt as to the voluntary character
of the physical act involved in the crime
charged is admissible on the trial of an accused for any criminal offence, whether
an
offence at common law or by statute, with the exception of such statutory offences as do
not require the existence
of an actual intent, the so-called absolute offences;
5. Evidence of intoxication, if accepted, if not such as to be capable of raising a
doubt as to either of the basic elements,
voluntariness or actual intent, that evidence
can be disregarded. It will have no more than a tendency to establish that though
the
accused acted voluntarily and with the requisite intent, he was influenced in what he did
by a state of insobriety.
A court should consider that if the evidence does not raise in
its mind a doubt as to voluntariness or actual intent it may
put that evidence out of its
mind in considering the accused's guilt or innocence;
6. If the evidence is capable of raising a doubt either as to voluntariness or the
existence of actual intent, and that evidence
raises in the mind of the court a reasonable
doubt as to voluntariness or actual intent, it is for the Crown to remove that
doubt and
to satisfy the court beyond a reasonable doubt that the accused voluntarily did the act
which he is charged
with and that he did so with the actual intent appropriate to the
crime charged;
7. The fact that a man does not later remember what he did does not necessarily
indicate that his will did not go with what
he did do or that he did not have the
necessary intent.
Cases referred to:
DPP -v- Majewski [1976] UKHL 2; (1976) 2 All ER 142
R. -v- O'Connor [1923] ArgusLawRp 94; 29 ALR 449
DPP -v- Beard (1920) AC 479
Bratty -v- AG for Northern Ireland (1961). 3 All ER 532
The Longford [1888] UKLawRpPro 42; (1889) 14 PD 34
DPP -v- Morgan [1975] UKHL 3; (1975) 2 All ER 347
For the accused: A Radclyffe
For the Crown: F Mwanesalua
Reported by: R. Koehowiec
Daly CJ:
DETERMINATION OF QUESTION RESERVED UNDER SECTION 279 OF CRIMINAL PROCEDURE CODE
In this case the court convicted the accused Peter Teutau Kauwai on 17th day of
October, 1980 of one offence of unlawful wounding
contrary to section 222 of the Penal
Code. Under section 279 (1) of the Criminal Procedure Code a question arising in the trial
was reserved for further consideration. This question was:
How should a Solomon Islands court direct itself when drunkeness is raised as a defence
to crimes which require no proof of
specific intent?
The facts of the case were in short compass. The accused was involved in a fight during
the course of which he inflicted wounds
with a knife upon another man. No question of self
defence arose. The accused claimed that as a result of alcohol voluntary
consumed he had
no memory of the events and that, although he accepted the physical act of inflicting the
wounds, he did
not have such mental state as the law required to make him guilty of the
offence of unlawful wounding. There was evidence of
eye witnesses as to the accused's
conduct during and after the fight.
Prosecuting counsel submitted that the evidence of the accused's self induced
intoxicated state was irrelevant to the case and
should be ignored. Reliance was placed
upon the decision of the English House of Lords in DPP v. Majewski [1976] UKHL 2; (1976) 2
All ER 142 (the "Majewski" case). The basis if this submission was that the
offence of unlawful wounding required no proof of specific intent and
that decision
confirmed the common law rule that, in the case of such an offence, evidence of self
induced intoxication
was not admissible to assist an accused and should be regarded as
irrelevant.
Counsel for the defence submitted that in this jurisdiction the terms of our Penal Code
make it clear that the approach adopted in Majewski was not applicable in Solomon
Islands and that, in any event, this court should prefer to follow the decision of the
High
Court of Australia in R. v. O'Connor [1923] ArgusLawRp 94; 29 ALR 449 ("O'Connor").
In that case the Full Court refused to follow the Majewski Case. As both judgments
purport to declare the Common Law in their respective jurisdictions this court, if it
needs to declare
the Common Law in respect of Solomon Islands on this point, would be left
in the individious situation of having two conflicting
authorities both of great
persuasive weight.
However the starting point must be the express statutory provision: the Common Law does
not apply if it is "inconsistent
with ... any Act of Parliament" (Constitution
Schedule 3 para. 2(1)(a)).
Section 13 of the Penal Code provides as follows:-
"(1) Save as provided in this section intoxication shall not constitute a defence
to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the
person charged at the time of the act or
omission complained of did not know that such act
or omission was wrong or did not know what he was doing and-
(a) the state of intoxication was caused without his consent by the malicious or
negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise,
at the time of such act or omission.
(3) Where the defence under the preceding sub-section is established, then in a case
falling under paragraph (a) thereof the
accused shall be discharged and in a case falling
under paragraph (b) the provisions of this Code and of the Criminal Procedure Code
relating to insanity shall apply.
(4) Intoxication shall be taken into account for the purpose of determining whether
the person charged had formed any intention,
specific or otherwise, in the absence of
which he would not be guilty of the offence.
(5) For the purpose of this section "intoxication" shall be deemed to include
a state produced by narcotics or drugs".
For present purposes subsection (4) is the relevant subsection, subsection (2) on the
facts being inapplicable.
It will be seen from the form that the reserved question takes that there is no
difficulty where a crime is one which requires
proof of a specific intent. It is agreed by
the House of Lords in Majewski and the High Court of Australia in O'Connor
that in relation to such crimes "drunkeness can exculpate" (see Lord Elwyn-Jones
L.C. Majewski at p. 149).
In view of the clear terms of section 13(4) the approach to be adopted in relation to
such crimes is that the court should ask
itself:
(a) what is the state of mind that the prosecution must prove?
(b) am I satisfied so to be sure that the accused did in fact have that state of mind
taking into account all the evidence
including evidence as to the accused's intoxication?
If the court is not sure that the accused had the requisite state of mind when the
offence is not made out against him and he
would be entitled to acquittal. It should be
noted that section 13(4) Penal Code refers to "intoxication"; no distinction is
to be made as to whether such intoxication is voluntary or involuntary.
Therefore all
forms of intoxication should be taken into account.
The question reserved deals with the cases where no specific intent is necessary.
Although both judicial and academic opinions
have questioned the validity of the division
of crimes into crimes of specific intent and other crimes and cited borderline
cases where
it is debatable into which category a crime will fit, there are some crimes about which no
dispute can be raised.
For example, unlawful wounding with intent to do some grievous
bodily harm to a person contrary to section 217(a) Penal Code embodies a specific intent;
on the other hand unlawful wounding contrary to section 222 Penal Code (the offence
alleged
in the present case) requires no specific intent to be proved.
However section 13(4) Penal Code is widely drafted; it refers to "any intention,
specific or otherwise, in the absence of which (the accused) would not
be guilty of the
offence". In my judgment that subsection must be construed against. the background of
the Common
Law rules existing at the time the subsection was enacted, to see if the
legislature was merely codifying those rules or modifying
them in relation to Solomon
Islands. The Penal Code came into effect on 1st April, 1963 and section 13(4) was included
in that Code in its present form. Prior to that enactment
criminal jurisdiction of the
High Court had, in accordance with Order 15(1)(b) of the Western Pacific (Courts) Order
1961,
been exercised "upon the principles and in conformity with ... the substance of
the English Common Law." In 1963 the
English Common Law on the subject of
intoxication and crime was as declared in DPP v. Beard (1920) AG. 479 which was
expressly approved in. Bratty v. A.G. for Northern Ireland (1961) 3 All ER 532. In
the latter case Lord Denning summarised the position thus. (at p. 533):
"Take first an involuntary act which proceeds from a state of drunkeness. If the
drunken man is so drunk he does not know
what he is doing, he has a defence to any charge,
such as murder or wounding with intent in which a specific intent is essential,
but he is
still liable to be convicted of manslaughter or unlawful wounding for which no specific
intent is necessary,
see Beard's Case."
Thus before 1963 the dichotomy between crimes of specific intent and other crimes was
well established.. When the Legislature
came to enact the Penal Code in 1963 it must, be
taken to have known the law at that time and to be using words in the sense they have at
the time the
Code was enacted (see Lord Esher in The Longford [1888] UKLawRpPro 42; (1889) 14 PD. 34 at p. 36).
On this basis the only construction that can be placed on the words "specific or
otherwise" was that
the legislature was extending the Common Law rules to enable
drunkeness to exculpate in relation to offences where no specific
intent had to be proved
but where there was nevertheless an "intention in the absence of which (the accused)
would
not be guilty. of the offence."
Thus one must consider what, if any, is the intention falling within this description
which must be proved in relation to offences
which embody no specific intent? Section 9 of
the Penal Code provides a starting point. This provides:-
"Subject to the express provisions of this Code relating to negligent acts and
omissions, a person is not criminally responsible
for an act or omission which occurs
independently of the exercise of his will, or for an event which occurs by accident.
Unless the intention to cause a particular result is expressly declared to be an
element of the offence constituted, in whole
or in part, by an act or omission, the result
intended to be caused by an act or omission is immaterial.
Unless otherwise expressly declared, the motive by which a person is induced to do or
omit to do an act to form an intention
is immaterial so far as regards criminal
responsibility."
Thus if an accused claims that the act or omission which forms the. ‘actus
reas’ of the offence charged occurred independently
of his will then it will be for
the prosecution to establish beyond reasonable doubt that his will went with the act.
Although
in the body of section 9 there is no reference to this being an intention as such
(although the side note to that section refers
to "Intention") in my judgment
the proper way to construe this section as read with section 13 is to say that the
concept
of voluntariness is basic to the mental state of an accused; if it is in issue it must
involve a consideration
of whether or not the accused intended, in the wider sense, to
perform the act alleged. That being so section 13(4) would oblige
a court to take into
account intoxication in deciding this question of intention, that is, have the prosecution
established
that it was by virtue of the exercise of the will of the accused that he
performed the act alleged?
It may, perhaps, be argued that this is an extension of the defence of intoxication
which is by section 13(1) expressly restricted
to the matters set out in that section and,
further, as section 13(2) limits a defence of lack of knowledge of the nature of
the act
to cases where the intoxication was without consent (i.e. not self-induced), then it would
be inconsistent to permit
a self-intoxicated person to take advantage of section 9. There
is force in this argument that there appears to be a measure
of inconsistency in the Penal
Code. It will be noted that the Common Law expressly removed from the concept of
voluntariness being an essential ingredient of a
crime "an involuntary act which
proceeds from a state of drunkeness" (see Lord Denning in Bratty
ab.cit..
Approved in Majewski Lord Elwyn-Jones at p. 150 although such a course was
disapproved by Barwick C.J. in O'Connor at p.461). But I must interpret the
provisions of the Penal Code and the relevant passage of section 9 is only made 'subject
to the express provision of the Code relating to negligent acts
and omissions.' No
reference is made to intoxication or section 13. I must therefore conclude that, despite a
measure of
inconsistency, the general terms of section 9 apply equally to all cases where
the question of the voluntariness of the act
is raised whatever the suggested basis of the
lack of will.
Is there a further intention which must be proved to establish a crime where no
specific intent is necessary? These crimes have
been described as crimes of "basic
intent". In DPP v. Morgan [1975] UKHL 3; (1975) 2 All ER 347 Lord Simon said at p.363:
"By 'crimes of basic intent' I mean those crimes whose definition expresses (or,
more,. often, implies) a mens rea which
does not go beyond the actus reus. The actus reus
generally consists of an act and some consequence The consequence may be
very closely
connected with the act or more remotely connected with it; but with a crime of basic
intent the mens rea
does not extend beyond the act and its consequence, however remote, as
defined in the actus reus. I take assault as an example
of a crime of basic intent where
the consequence is very closely connected with the act. The actus reus of assault is an
act which causes another person to apprehend immediate and unlawful violence. The mens rea
corresponds exactly. The
prosecution must prove that the accused foresaw that his act
would probably cause another person to have apprehension of immediate
and unlawful
violence, or would possibly have that consequence, such being the purpose of the act. or
that he was reckless
whether or not his act caused such apprehension. This foresight (the
term of art is 'intention') or recklessness is the mens
rea in assault. For an example of
a crime of basic intent where the consequence of the act involved in the actus reus as
defined in the crime is less immediate, I take the crime of unlawful wounding. The act is,
say, the squeezing of a trigger.
A number of consequences (mechanical, chemical, ballistic
and physiological) intervene before the final consequence involved
in the defined actus
reus – namely, the wounding of another person in circumstances unjustified by law.
But again
here the mens rea corresponds closely to the actus reus. The prosecution must
prove that the accused foresaw that some physical
harm would ensue to another person in
circumstances unjustified by law as a probable (or possible and desired) consequence
of
his act, or that he was reckless whether or not such consequence ensued."
However Barwick C.J. in O'Connor [1923] ArgusLawRp 94; 29 ALR 449 at p. 458:-
"In the present case, for example, the conviction is of unlawful wounding. But the
physical act which supported it was
the stabbing with a knife. Doubtless, such an act
would be likely to wound. But in relation to intent, it is important, none
the less, I
think, to distinguish between an intent to use the knife and an intent to wound. In a
sense, wounding is
a result of the stabbing; perhaps an immediate result. In what follows,
I have taken a minimal position in relation to intent
and say that at the least an intent
to do the physical act involved in the crime charged is indispensable to criminal
responsibility. It thus becomes unnecessary for me to discuss in relation, for example, to
a charge of unlawful wounding,
whether or no there must be an actual intent to wound; that
is to say an intent to produce the described result of the physical
act which is intended
to be done. This is not to say that, in my opinion, an intent to produce a result is not
included
in the relevant mens rea. In relation to many charges of what are styled crimes
of "basic intent" an intent to produce
a result will be found to be necessary
from the very description of the crime. It may be that such an intent is universally
required. But, for the purpose of the present discussion it seems to me to be unnecessary
to explore that question.
It suffices for my present purposes that at least an intention
to do the physical act involved in the crime charged is indispensable
to criminal
responsibility.
I might mention in passing however, that in his speech DPP v. Morgan [1975] UKHL 3; (1976) AC
182, Lord Simon treats an intent to assault, i.e. to produce the result of the physical
act, as a necessary element in that crime:
see p. 216 of the report. He treats, as it
seems to me, the actus reus as consisting both of the physical act and its immediate
consequence. The necessary intent is treated as involving both physical act and
consequence. For my present purposes,
as I have indicated, I have not done so."
In Solomon Islands the view of Barwick C.J. is given statutory authority by the second
paragraph of section 9 Penal Code which expressly makes, in the case of crimes where an
intention to cause a particular result is not an ingredient, the result
intended to be
caused irrelevant. Thus if a basic intent is accepted as an ingredient of every offence it
would, in Solomon
Islands, amount to an intent to do the physical act involved in the
crime charged. In my judgment basic intent should be accepted
as such an ingredient.
As from what I have already said, it is apparent that the Common Law principle declared
in Majewski has been excluded by the Penal Code in its application to Solomon
Islands, then it is unnecessary for me to consider the reasoning advanced for supporting
or opposing the application of that principles. We are left in the position held to obtain
in Australia by the majority of the
Full Court in O'Connor. I can therefore
respectfully adopt the words of Barwick C.J. as applicable equally to Solomon Islands with
the necessary
alteration to fit them to our system of trial by judge or magistrate alone
or with assessors. The learned Chief Justice said
at p. 466:-
"In my opinion, evidence of the state of the body and mind of an accused tendered
to assist in. raising a doubt as to
the voluntary character of the physical act involved
in the crime charged is admissible on the trial of an accused for any
criminal offence,
whether an offence at common law or by statute. Further, in my opinion, such evidence
tendered to
raise a doubt as to the actual intention with which the physical act involved
in the crime charged, if done, was done is admissible
on the trial of an accused for any
offence whether at common law or by statute, with the exception of such statutory offences
as do not require the existence of an actual intent, the so called absolute offences.
As I earlier indicated, however, the jury needs careful and special instruction. If the
evidence, if accepted, is not such
as to be capable of raising a doubt as to either of the
basic elements, voluntariness or actual intent that evidence can be
withdrawn from the
jury's consideration. It will have had no more than a tendency to establish that though
the accused
acted voluntarily and with the requisite intent, he was influenced in what he
did by a state of insobriety. They should be
told that if the evidence does not raise in
their minds a doubt as to voluntariness or actual intent they may put that evidence
out of
their minds in considering the accused's guilt or innocence. But if the evidence is
capable of raising a doubt
either as to voluntariness of the existence of an actual
intent, the jury should be told that if that evidence raises in their
minds a reasonable
doubt as to voluntariness or actual intent, it if for the Crown to remove that doubt from
their
minds and to satisfy them beyond reasonable doubt that the accused voluntarily did
the act with which he is charged and that
he did so with the actual intent appropriate to
the crime charged. They should be instructed as to the meaning and scope of
voluntariness
and as to the precise intent which the crime charged requires. It would be proper in these
cases to tell
a jury that the fact that a man does not later remember what he did not
necessarily indicate that his will did not go with
what he did do or that he did not have
the necessary intent."
In the present case I asked myself two questions in reaching my judgment. There being
no dispute that the accused stabbed the
victim these questions were, have the prosecution
made sure:
(1) that the act of stabbing did not occur independently of the will of the accused;
and
(2) that the accused decided to perform the act which wounded the victim that is the
act of making the stabbing motion with
the knife against the body of the victim?
These two questions encompass both the concept of voluntariness and the concept of
basic intent which I have decided apply in
the Solomon Islands. As on the facts I answered
each question 'yes' then the conviction entered thereafter is in accordance
with the law
which, on this further consideration, I find to be applicable in Solomon Islands.
That conviction is therefore affirmed.
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