Abstract
In the main, a jurisdiction can take one of two approaches to intoxication as a defence in criminal law: the lenient or the unyielding approach. According to the lenient approach, the rules of criminal liability apply to intoxication as they would to any other crime. Perpetrators of crime who were intoxicated to such an extent that they did not act in the juristic sense of the word, were not accountable or could not form intent and may therefore be found not guilty of the offence charged. Thus intoxication may serve as a complete defence. On the other hand, the unyielding approach is based on the premise that it is unacceptable for a sober person to be punished for a crime while an intoxicated person who commits the very same crime goes scot-free. Therefore intoxication does not constitute a complete defence in countries which take the unyielding approach. In a crime-ridden country such as South Africa, which has some of the highest crime statistics in the world, choosing the correct approach is of the utmost importance.
Historically, South African criminal law followed the unyielding route, but later adopted the rule of specific intent from English law, which constituted a middle course between the unyielding and more lenient approach. However, after the notorious Chretien judgment in essence disposed of the rule of specific intent, South Africa leaned towards the lenient approach. The legislature had no choice but to promulgate legislation in an attempt to contain the effects of that judgment.
This article explores whether that legislation, the Criminal Law Amendment Act 1 of 1988, and in particular section 1, has been optimally formulated to provide a sober criminal law approach to intoxication as a defence. This occurs by way of analysing and comparing the historical and current legal positions and legislation in South Africa and Canada, as the development of this aspect of the law in the two jurisdictions shows certain striking similarities. In both jurisdictions the rule of specific intent was abolished following radical court rulings – Chretien in South Africa andR v Daviault 1994 3 SCR 63 (1994) in Canada – which paved the way for the defence of intoxication to be raised both in respect of crimes that require specific intent and in respect of those that require only general intent. For the sake of order, both jurisdictions had to promulgate legislation: The South African Criminal Law Amendment Act has created a statutory crime in section 1, of which an accused who committed a crime while intoxicated may be convicted. The amended Canadian Criminal Code, in turn, has codified the defence of voluntary intoxication, clearly stipulating the requirements for its use.
In summary, the current position on intoxication as a defence in South Africa is as follows: (a) Where the accused was too intoxicated either to have acted voluntarily or to have criminal accountability, he cannot be found guilty of the primary offence charged, but may be found guilty of the violation of section 1 of the Criminal Law Amendment Act. In both instances intoxication may, however, serve as an aggravating circumstance in terms of section 2. (b) Where the accused was not sufficiently intoxicated to have been regarded as unaccountable, but intoxicated enough not to have been able to form intent, he cannot be found guilty of a crime requiring intent, nor of a violation of section 1, as the current phrasing of the law does not provide for it. However, the accused may still be convicted of criminal negligence, the elements of which could be proven should such an option exist. If not, complete acquittal may follow. (c) Where an accused is charged with a crime requiring negligence and is proven to have been intoxicated when the crime was committed, such intoxication will not exclude the accused’s negligence. In fact, the intoxication may be used precisely to prove it. (d) Where an accused committed a crime while intoxicated, but still displayed all the elements of criminal liability, he can be found guilty of the primary offence charged, although the intoxication may serve as a mitigating factor.
In Canada pre-Daviault the defence of voluntary intoxication was not available in respect of a crime requiring only general intent. This position changed when the Canadian court in Daviaultruled the exact opposite. Eventually forced to intervene, the Canadian government promulgated section 33.1 of the Canadian Criminal Code. In contrast to the South African legislature’s intervention creating the section 1 statutory crime, the Canadian section 33.1 has placed a restriction on the use of voluntary intoxication as a defence. It provides that this defence still excludes specific intent, but can also be raised against a crime requiring general intent only where the accused did not deviate from a “standard of reasonable care”. In essence, therefore, the defence cannot be raised at all against a crime that involved any element of violence or assault, irrespective of the degree of intoxication.
A comparison of the South African and Canadian laws reveals the following key shortcoming in the former: section 1 of the Criminal Law Amendment Act seems overly broad in scope. From its phrasing, the provision is clearly not limited to violent crimes, but includes any act prohibited by criminal law. Additional shortcomings of section 1, a result of the poor formulation of the section, include the following: (a) The uncertainty as to whether section 1 applies to involuntary intoxication also. Nowhere in the Criminal Law Amendment Act is it clearly stated that section 1 is applicable only where the intoxicating substance is taken voluntarily. (b) In the second instance, the degree of intoxication to which section 1 applies requires clarification. Can an accused be found guilty of violation of section 1 only if his faculties were impaired (second degree of intoxication), which rendered him unaccountable, or does this also include the worst (first) degree of intoxication, which renders a person incapable of acting voluntarily, and/or the lightest (third) degree of intoxication, which simply makes one incapable of forming intent? (c) Finally, the South African law also poses certain problems in respect of the onus of proof. While according to the general principles of criminal law the state must prove beyond reasonable doubt that an accused was accountable at the time of committing a crime, the state finds itself in the peculiar position of having to prove the converse where a violation of section 1 is concerned, that is, having to prove that the accused was beyond all doubt unaccountable when he committed the crime while intoxicated.
In each of these instances the suggested amendments to section 1 proposed by De Chermont in 1998, which are supported by authors such as Burchell, offer a way to overcome the key shortcomings and to bring the South African law more in line with the (perhaps more sober) Canadian legislation. In further strengthening De Chermont’s proposals the article concludes by adding other recommendations, namely that greater clarity should be provided on whether section 1 applies to a person who could not act voluntarily due to intoxication as well as that a pertinent provision should be inserted that section 1 should be applied to crimes committed during the lightest degree of intoxication only where a lesser competent verdict requiring negligence does not exist.
Keywords: Canada; Criminal Law Amendment Act 1 of 1988, section 1; criminal liability;culpability; intent; South Africa; voluntary act; voluntary intoxication
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