Criminal Law Tutorial Week 4

Question 7:

The word ‘intoxication’ is nowhere defined in the Brunei Penal Code. The Oxford Learner’s Dictionary
defines the term ‘intoxication’ as the state of being under the influence of alcohol or drugs. Intoxication
is also a condition of stupefaction induced by alcohol or a narcotic. The word ‘intoxication’ is used
interchangeably with the term ‘drunkenness’. An intoxicated state is not necessarily caused by alcohol
or intoxicating liquor. Intoxication may be caused by narcotics or drugs. In Brunei Darussalam, the
defence of intoxication is spelt out in sections 85 & 86 of the Brunei Penal Code.

Section 85 provides that: (1) Save as provided in this section and in section 86, 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.

Section 86 provides that: (1) Where the defence under section 85(2) is established, then in a case falling
under paragraph (a) thereof, the accused shall be acquitted, and in a case falling under paragraph (b)
thereof, the provisions of section 84 and sections 319 and 320 of the Criminal Procedure Code (Chapter
7) apply. (2) 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. (3) For the purpose of this and the preceding section ‘intoxication’ shall be deemed to
include a state produced by narcotics or drugs.

In order D to successfully plead drunkenness as a defence, he must show the three forms of the defence
of intoxication which was extracted from the provisions under section 85 & 86. (i) Where a third party
had maliciously or negligently caused the accused to become intoxicated to the extent of not knowing
the act to be wrong or what he/she was doing. This is sometimes called involuntary or non-self-induced
intoxication. (ii) Where the accused was so severely intoxicated as to have been insane at the time of
the alleged crime. (iii) An accused will be acquitted of a crime which has intention as an element, should
intoxication have prevented him from having that intention.

It is important to note that there are only two circumstances where intoxication operates as a defence
in own right, that is, without being connected with any other defence. They are involuntary intoxication
under section 85(2)(a) and intoxication negating intention under section 86(2). The onus of proving the
defence of intoxication lies on the party that raises this defence. In PP v Mohamed Jantan, the court
stated that: “…the burden proof to establish intoxication is on the accused. This is in line with the
provision of section 105 of the Evidence of Act 1950. It is a settled law that, where a burden is placed on
the accused person, it can be discharged by the evidence of witness for the prosecution as well as
witness for the defence…”