This is prima facie
a case of intoxication, intoxication is also known as drunkenness or
inebriation[1].
Drunkenness is not a defense[2].
Alcohol is a drug which is capable of altering mood, perception or
consciousness, of loosening inhibitions and self-control, and of impairing
movements, reactions, judgment and ability to foresee consequences. The courts
however are not concerned with intoxication mainly but whether it was in such a
way that it was capable of forming the required intent or mens rea[3].
The Kenyan Penal Code under section 13(2) states
that intoxication is not a defense except when it was involuntary and when the
intoxication made the accused insane temporarily or otherwise at the time of
the act. The Defense must prove that the intoxication made the accused incapable
of forming an intention then he will be excused for reason of absence of intent
and not for intoxication. The law has formulated various rules of uncertain
ambit in seeking to strike the balance between on the one hand, imposing
criminal liability on a party who did not have the mental element of the crime
and on the other, protecting the public from those who deliberately put
themselves in a position where they are unable to control their actions. For
this reason the law draws a distinction between voluntary intoxication and
involuntary intoxication.
Involuntary intoxication: This is where one consumes alcohol or any other mood altering drug without his or her consent the most common form is where one has had their food spiked and unknowingly consume it .If a party be made drunk by stratagem, or the fraud of another, he is not responsible[4]. The law takes a liberal view when to comes to these category, where one is involuntarily intoxicated evidence of this may be taken into account in deciding whether he had the requisite mens rea, however involuntary intoxication is not a defense in itself provided that he acted voluntarily with the requisite mens rea , the fact that the intoxication led the defendant to have a blurred perception of morality or to commit an offense which he would not have committed when sober dos not afford him a defense, this is so because of his intoxication he acted under an irresistible impulse[5]. Involuntary intoxication can also take the form of taking drugs that have been administered by a doctor and where it is caused by the consumption of a non-dangerous drug[6].
Involuntary intoxication: This is where one consumes alcohol or any other mood altering drug without his or her consent the most common form is where one has had their food spiked and unknowingly consume it .If a party be made drunk by stratagem, or the fraud of another, he is not responsible[4]. The law takes a liberal view when to comes to these category, where one is involuntarily intoxicated evidence of this may be taken into account in deciding whether he had the requisite mens rea, however involuntary intoxication is not a defense in itself provided that he acted voluntarily with the requisite mens rea , the fact that the intoxication led the defendant to have a blurred perception of morality or to commit an offense which he would not have committed when sober dos not afford him a defense, this is so because of his intoxication he acted under an irresistible impulse[5]. Involuntary intoxication can also take the form of taking drugs that have been administered by a doctor and where it is caused by the consumption of a non-dangerous drug[6].
Voluntary intoxication: this is where the defendant
knowingly taking alcohol or some other drugs it is relevant to criminal
liability in a few cases;
1. If
a specific intent is an essential element of the offence charged and the defendants intoxication
affords evidence that he lacked the mens rea for the offense, criterion to be
fulfilled is;
a. Where
a statute expressly provides that a particular belief shall be a defense to the
offence charged
b. If
it causes insanity[7]
this is the one that is applicable to Kenya by virtue of section 13(2)(b)
Where the defendant has voluntarily put themselves
in the position of being intoxicated to the extent that they are not capable of
forming the mental element of the crime the law is less forgiving. The law
draws a distinction between crimes of basic intent and crimes of specific
intent.[8] In
Kenya by virtue of section 13(4) it matters not whether intent is specific or
otherwise, all that matters is whether the intoxication negatived the requisite
mens rea.
In Buhekela
Buzoya and another v the Republic[9]
the Appellants had drunk too much alcohol and one of them had grabbed a woman
trying to sexually assault her, the deceased came to the rescue and was hit on
the head this resulted in his death. Court held that Appellants were too drunk
to have the intention to kill as instead of fleeing, the appellants remained at
the scene of the crime beside the deceased's body the whole night which was
unusual.
In Anthony
Ndegwa Ngari v The Republic[10]
Judge Visram was of the view that since the accused was very drunk when he
without provocation took the deceased’s knife and stabbed him in the neck
without any previous altercation between them and that when the police went to
his house they found him dead asleep drunk, it was held that the prosecution
had failed to prove that the accused had the intent to kill. The burden of
proving mens rea regardless of the intoxication lies with the prosecution[11],
however if the defense tends to allege that they committed the crime and that
due to the intoxication it rendered him insane then the burden of this rests on
him to prove it[12].
In Joshua
Matata Ndonye v the Republic[13]the
accused went home and ordered his wife to make him food, specifically chicken.
While in the course of making this food the husband demanded for anything that
was ready that had remained, displeased at the service his wife was offering he
attacked her, she let out a scream and the man’s mother cam and separated them
the wife fled for the night. On going back home the next morning she found that
the accused had murdered their five children as well as his own mother. When
police came they found a wooden rod stained with blood this was the murder
weapon, on trial the accused plead intoxication as he claimed that he had been
drinking and that he doesn’t even remember going home, the court found that
since there was a use of a weapon the accused had developed the intent to kill
when he picked up the weapon and considering that there was one victim whose
head had been shattered open, brains hanging out. He was convicted. The courts
will look at the weapon issue keenly in finding for the mens rea however it has been held that the use of a lethal weapon
is evidence of malicious intent but not conclusive of an intent to murder[14].
When it comes to the issue where the accused pleads
intoxication caused him to be insane temporary or otherwise it is trite law
that the burden of proving the insanity rests on the defense. This burden is
lesser in that it is on a balance of probabilities[15],
it is determined by proving that that the accused lacked intention or was
incapable of forming the intention required to commit the offence[16].
Intoxication may often lead to a drunken brawl where
death may occur, in Rex v Makandi s/o
Kalonga[17]the
court stated that where death occurs from a drunken brawl or chance medley, the
accused may depending on the circumstances be excused of murder but convicted
of manslaughter, however it would be murder if the accused entered into a
contest with an unarmed person intending to avail himself of a deadly weapon.
Intoxication and Dutch courage: Where a person forms
the intention to commit a crime and then drinks in order to enable them to
carry out the crime, they cannot then claim the intoxication prevented them
from forming the mens rea[18],
this are the type of people that the law looks to punish.
Intoxication in conjunction with other defenses:
Mistake, Drunken mistakes are generally no defense to crimes[19]
However,
where a statute provides a limited defense based on a genuine belief the
mistake may be relied on even where the mistake was induced by voluntary
intoxication[20]
Self-defense: Where a defendant is laboring under a
mistaken belief that they are under attack and acting in self-defense, they cannot
rely on such mistaken belief where it was induced by voluntary intoxication[21].
Subject to the exceptions outlined above any reasonable trier of fact, law and logic would conclude with the phrase that ‘He that killeth a man when he is drunk shall be hanged when he is sober’, the law cannot accommodate such people as life is sacred and thus deserves all the protection it deserves especially when it comes to scenarios where one’s state of mind was influenced negatively.
Subject to the exceptions outlined above any reasonable trier of fact, law and logic would conclude with the phrase that ‘He that killeth a man when he is drunk shall be hanged when he is sober’, the law cannot accommodate such people as life is sacred and thus deserves all the protection it deserves especially when it comes to scenarios where one’s state of mind was influenced negatively.
[2]
Lord Birkinhead in DPP V BEARD [1920]
AC 479
[3] Criminal
law 19th edn, Card, Cross and Jones, Oxford Press Pg 679
[4]
Judge Park, Pearson's case 2 Lew.
C.C. 144
[5] R v Kingston [1995] 2 AC 355 H.L
[6] R
v Hardie [1985] 1 WLR 64
[7]
Supra (n 3) Pg 681
[10] Criminal
Appeal No. 352 of 2012, [2014] eKLR
[11] Sheehan and Moore (1975) 2 ALL ER 960,
CA.
[12] Kongoro s /o Mrisho v Republic (1956), 23 EACA 532
[13] Criminal
Appeal no. 122 OF 1991, [2001] eKLR
[14] Nyamweru s/o Kinyaboya v Republic (1953)
20 EACA 192
[15] Manyara s/o Malakoni v Reginam (1955)
EACA 502
[16] Cheminingwa v Reginam (1956) 23 EACA 451
[17]
1948
[18] A-G for N. Ireland v. Gallagher [1963]
AC 349 HL
[19] R v Fotheringham (1989) 88 Cr App R 206
[20]
Section 10(1) Penal Code
[21] R
v O'Grady [1987] QB 995 CA
No comments:
Post a Comment