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CRW2601 Study Unit 12 The Effect of Intoxicationa ND Provocation On Liability
CRW2601 Study Unit 12 The Effect of Intoxicationa ND Provocation On Liability
Case law
Legislation
Learning outcomes:
Understand the effect of intoxication on liability, and whether the accused should:
o Be convicted of the crime she is charged with
o Or convicted under contravention of section 1 of Act 1 1988
Understand the effect of provocation, and whether an accused can rely on it as an excuse in
cases of killing or assaulting another person
12.1 Background
Intoxication and provocation may play a role in respect of the following elements of a crime:
12.2 Introduction
What we say here about intoxication from alcohol can be applied to other drugs, like dagga or opium
etc.
The law has swung to the lenient approach (which angered people), which prompted legislation in
1988.
Specific intent crimes were demoted. Murder became culpable homicide and grievous bodily harm
became assault.
Criticism of this approach was that if someone was too drunk to form a specific intent, how could
they form any intent at all?
12.5.2 The law after 1981 – the decision in Chretien and the rules enunciated therein
Read in the case book: Chretien 1981 (1) Sa 1097 (A)
X, who was drunk, drove his car into a group of people standing on the sidewalk. 1 Person died and 5
were injured. X expected the people to see him coming and move. He was found guilty of culpable
homicide as he lacked intent.
Summary of legal points decided by the Appellate Division (Rumpff CJ) in Chretien
1. If a person is so drunk that they cannot move voluntarily, she cannot be found guilty.
2. In exceptional cases as a result of intoxication they can lack criminal capacity, and thus not
be criminally liable at all.
3. The specific intent theory is unacceptable and must be rejected. Which is why X could not be
convicted of common assault.
4. Went out of his way to emphasise that a court must NOT lightly infer that owing to
intoxication, X acted involuntarily or lacked criminal capacity.
Actio Liberia in causa and intoxication resulting in mental were not altered by this judgment.
As a result of the Chretien case, intoxication may have the following effects:
Parliament enacted a provision in 1988 aimed at preventing a person raising the defence of
intoxication from walking out of court a free person too easily.
1. Least intensive – intoxication that has the effect of excluding the intention required for
conviction. Not sufficient enough to render her actions involuntary or exclude capacity, but
sufficient enough to exclude intention.
2. Situation where X is so intoxicated she lacks criminal capacity (but NOT render her act
involuntary).
3. X is so intoxicated she is not capable of performing a voluntary act.
A1 consumption or use by X
A2 of any “substance”
A3 that impairs her faculties to such an extent that she lacks criminal capacity
A4 while she knows that the substance has that effect
You must be able to state the above bullet points in the exam!
This is the only provision in our law where the state needs to prove that the accused lacked capacity.
Intoxication cannot result in more lenient punishment in a crime which intoxication is an element of
the crime. I.e Driving under the influence.
Nothing prohibits a court from using intoxication as aground for a harsher punishment.
Don’t waste time on involuntary intoxication or action Liberia in causa, the specific intent theory,
and a discussion on the unyielding and lenient theories.
Don’t ignore the other types of intoxication (just don’t mention them when talking about voluntary
intoxication).
Summary
As far as the effect of provocation on criminal liability is concerned, the effect may be as follows:
Theoretically speaking, it may exclude X’s voluntary act. This will rarely occur in practice. See
the discussion of the Eadie decision in study unit 7, subsection 7.4.3.
It may operate as a ground for the mitigation of punishment.
It may reduce murder to culpable homicide on the basis that, as a result of intoxication, X
lacked the intention to kill, but was nevertheless negligent.
It may reduce qualified assault to ordinary assault.
If X is charged with common assault, the evidence of provocation cannot result in X’s being
found not guilty of the crime charged. The courts are unwilling to treat provocation as a
reason to completely acquit a person of common assault. This approach is based on policy
considerations and does not necessarily accord with legal theory.
It may serve to confirm the existence of intention.