Court rejects intoxication defense for manslaughter, holding voluntary drunkenness does not negate criminal liability.

COURT OF CRIMINAL APPEAL

111/02

McCracken J

Laffoy J

Kearns J

The People at the Suit of the Director of Public Prosecutions

Respondent

V

John Reilly

Applicant

Judgment of the Court delivered the 21st day of May 2004 by McCracken J.

______________________________________________________

The Facts

On 4th June 2000 the Applicant, who had been working abroad, was home on holidays and it had been arranged that he

would stay the night at the house of his cousin Hugh Reilly. That evening he went out with some friends and they visited

two public houses and would appear to have had five or six drinks. He returned to his cousin’s house shortly before

midnight where his cousin Hugh Reilly and his wife Siobhan, and another cousin Thomas Reilly and his partner Grainne

Murphy were playing cards in the kitchen. The latter couple had an eighteen month old child Oisín Reilly, who was asleep

on the sofa in the sitting room. The Applicant joined the party in the kitchen where there was a variety and considerable

quantity of alcoholic drinks consumed. At some time in the early hours of the morning the two mothers retired to bed and

subsequently, all other alcohol in the house having been consumed, a bottle of poitin was produced. It is not clear how much

poitin the Applicant drank, but he certainly had at least one glass.

At about 4.30 am the three men decided to go to bed. It was arranged that the Applicant would sleep on the sofa in the

sitting room and accordingly two armchairs in the sitting room were put together to make a kind of cot for the baby Oisín

and the Applicant was given a sleeping bag to sleep in on the couch.

At about 8.30 am on the morning of 5th June Grainne Murphy, Oisín’s mother, came downstairs to see how the baby was.

At first she could not see the baby but saw the Applicant in a very deep sleep on one of the chairs and it would seem that at

some stage the furniture had been moved back into its normal position. She then saw Oisín lying on the armchair beside the

Applicant. He had been stabbed eight or nine times in the back of the neck and was dead. She got assistance from the other

persons in the house but the Applicant was still in a very deep sleep and they had to pour water on him to waken him up. A

Leatherman’s knife which he always carried in a pouch was on the floor beside him. When he eventually woke up he was

very dazed and it is common case that he had no memory of what had occurred.

The Applicant was charged with murder and on 16th May 2002 he was found not guilty of murder but guilty of

manslaughter by a jury. The Applicant is appealing that conviction.

The Defence Case

It should be said at the outset that the defence are not challenging the general principle that intoxication is not a defence to a

charge of manslaughter. However, they are contending that the facts of this case are such as to give rise to a defence of

automatism. The defence makes the case that there was evidence from which the jury could have found that the Applicant’s

actions occurred while he was in a state of automatism brought about by a sleep disorder the result of which was that the

actions of the Applicant were automatic, and therefore the Applicant never had any intent to carry out any of the acts which

may have led to Oisín’s death. The defence concedes that the deep sleep would have been brought about as a result of the

very large quantities of alcohol consumed. However, it is argued that while the effect of the alcohol was to put the Applicant

into the deep sleep, it was the deep sleep that caused the automatism. The defence argues that this ought to have been put

before the jury as a possibility, and if the jury had found that this was a correct analysis, they ought to have acquitted.

Defence Evidence

The defence called a number of expert witnesses. Dr Catherine Crowe is a sleep expert and she gave evidence of a state

which she called “confusional arousal” and that it was reasonable to say that the combination of alcohol and emerging from

deep sleep contributed to a state of confusion at the time of the events and she gave evidence that:-

“I cannot say that he was totally unconscious of his acts but I think he was severely incapacitated

to be voluntarily in control of his acts.”

Professor Hindmarch gave evidence as to the amount of alcohol which would have been in the Applicant’s body at the time

he went to sleep. He said that a person with that concentration of alcohol would be at an almost anaesthetised level and

there would be profound sleep and profound disturbances of memory so that really such a person was functioning almost on

automatic pilot.

Dr Mohan, who is a psychiatrist, gave evidence that the Applicant was not suffering from any form of mental illness.

Mr Hugh Staunton, a neurologist, described a condition which he called “sleep drunkenness” and said he would have called

it an act of sane automatism. He explained this phrase as being a situation where someone who has no psychiatric

disturbance commits a purposeless act of which he has no memory.

The Judge’s Charge

In the course of his charge the trial Judge stated:-

“So you acquit if he didn’t kill Oisín or if there is a doubt about that. You acquit if he wasn’t in

control of his actions and couldn’t prevent himself doing what he did. But that contemplates a free

standing situation of not being in control of himself. If that situation came about through the

voluntary consumption of alcohol you have to look at the place of intoxication in the criminal law.

By voluntary consumption of alcohol I mean taking a drink when one chose to take it and had a free

choice about taking it or not. That contrasts with the situation where your drink is spiked. The

situation about drink is that intoxication is not a defence in the criminal law. It is incapable of

amounting to a defence but it is material to the question of intent. …. Intoxication could prevent the

accused person having the intent that is necessary to sustain the crime of murder. If he didn’t have

that intent, you would be concerned with the crime of manslaughter.”

In response to a request from the jury for clarification of the options open to them, the learned trial Judge said:-

“You had a lot of expert evidence in relation to things happening during sleep and if you do

something that you have no control over, say the epileptic or the diabetic in a hypo or a hyper as

the case may be, if they do something that they absolutely have no control over then they do not

have criminal liability for that. You must do something by having a free choice, even a drunken free

choice, to incur criminal liability for it. So we had evidence from these experts in relation to the

various conditions that can arise ….. matters depend on what view you take of the facts. The

experts canvassed all sorts of possibilities now maybe some of it was academic theorising which is

not rooted in the facts of this particular case, that is a matter for you. But I left it open to you that if

you found a free standing situation in which the accused had no control over his actions, then he

would not be criminally liable and he would be entitled to a verdict of not guilty. But if that

situation has come about because of his voluntary consumption of alcohol then you look instead to

the law of intoxication …. If you think whatever condition arose in this case arose from the

voluntary consumption of alcohol then you look at the law of intoxication and that does not afford a

defence against manslaughter.”

The Issue in this Appeal

There is in fact a very net issue in this appeal. The trial Judge made it quite clear to the jury that there can be a defence of

automatism, but that it only arises in what he called a free standing situation. His direction to the jury was that even if they

found that there was a condition of automatism, this afforded no defence if it was brought about through the consumption of

alcohol. The net issue in this case is whether that was a correct view of the law.

The Law

There is, curiously, very little law on the subject in this jurisdiction. In The People (Attorney General) v. Manning [1953]

89 ILTR 155 the direction to the jury in a murder case was upheld where the trial Judge, in considering whether the charge

could be reduced to manslaughter, directed the jury:-

“Drink is no defence if the only effect of the drink is to more readily to allow a man to give way to

his passions. That is insufficient. The effect of drink has to go much further. It has to go so far as

either to render him incapable of knowing what he is doing at all, or, if he appreciated that, of

knowing the consequences or probable consequences of his actions.”

He made it quite clear that the only effect of a defence related to alcohol in a murder case may be to reduce it to

manslaughter even if it has rendered him incapable of knowing what he is doing at all. It is a strong affirmation of the

general principle that intoxication is not a defence except in the rare cases where a specific intent is required.

The case primarily relied upon by the prosecution is Director of Public Prosecutions v. Majewski [1977] AC 443. The

basic principle in that case was set out in the speech of Lord Elwin Jones at page 150:-

“If a man of his own volition takes the substance which causes him to cast off the restraints of

reason and conscience, no wrong is done to him by holding him answerable criminally for any

injury he may do while in that condition. His course of conduct in reducing himself by drugs and

drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly

sufficient for crimes of basic intent.”

In that case, as in the present case, there had been scientific evidence relating to the possibility of automatism brought about

by drugs and alcohol. However, it made a clear distinction between crimes such as murder requiring a specific intent, and

crimes such as manslaughter which do not require such a specific intent. The House of Lords in the Majewski decision

recognised that this was not a particularly logical distinction and Lord Salmon in his speech at page 157 said:-

“There are many cases in which injuries are caused by pure accident. I have already given

examples of such cases: to these could be added injuries inflicted during an epileptic fit, or while

sleep walking and in many other ways. No one, I think, would suggest that any such case could give

rise to criminal liability.

It is argued on behalf of the appellant that a man who makes a vicious assault may at the material

time have been so intoxicated by drink or drugs that he no more knew what he was doing than did

any of the persons in the examples I have given and that therefore he too cannot be found guilty of a

criminal offence.

To my mind there is a very real distinction between such a case and the examples I have given. A

man who by voluntarily taking drink and drugs gets himself into an aggressive state in which he

does not know what he is doing and then makes a vicious assault can hardly say with any

plausibility that what he did was a pure accident which should render him immune from any

criminal liability. Yet this in effect is precisely what counsel for the appellant contends that the

learned judge should have told the jury.”

He then continued to comment on the question of the logicality:-

“A number of distinguished academic writers support this contention on the ground of logic. As I

understand it, the argument runs like this. Intention, whether special or basic (or whatever fancy

name you choose to give it), is still intention. If voluntary intoxication by drink or drugs can, as it

admittedly can, negative the special or specific intention necessary for the commission of crimes

such as murder and theft, how can you justify in strict logic that it cannot negative a basic

intention, e.g. the intention to commit offences such as assault and unlawful wounding? The answer

is that in strict logic this view cannot be justified. But this is the view that has been adopted by the

common law of England, which is founded on common sense and experience rather than strict

logic.”

The House of Lords in the Majewski case did not seek to justify its decision on the basis of logic, but on far more pragmatic

reasons grounded on public policy. The duty of the Courts to protect the public from harmful actions of others was

emphasised, and this is undoubtedly a consideration which ought to be in the minds of any Court which is seeking to do

justice between the rights of an accused and the rights of the citizens of the State to be protected from violence. While it is

certainly to some degree illogical that a person should be afforded a defence of intoxication to crimes regarding one type of

intent but not to crimes requiring another type of intent, surely it is equally illogical that a person should be guilty of a crime

if they have consumed some alcohol, and yet should be innocent of the crime if they consume a much greater amount of

alcohol. It appears to this Court that it is not possible to determine an issue of this nature based on pure logic.

The question of logicality was also considered in the speech of Lord Edmund Davies in the Majewski case at page 167,

where he said:-

“Are the terms of logic, then, so compelling that a man behaving as the Crown witnesses testified

the appellant did must be cleared of criminal responsibility?”

As to this, Lawton LJ rightly said (in the Court of Appeal in the same case):-

“Although there was much reforming zeal and activity in the 19th century, Parliament never once

considered whether self-induced intoxication should be a defence generally to a criminal charge. It

would have been a strange result if the merciful relaxation of a strict rule of law has ended, without

any parliamentary intervention, by whittling it away to such an extent that the more drunk a man

became, provided he stopped short of making himself insane, the better chance he had of an

acquittal.

If such be the inescapable result of the strict application of logic in this branch of the law, it is

indeed not surprising that illogicality has long reigned, and the prospect of its dethronement must

be regarded as alarming.”

The question of the possible illogicality of the Majewski case was considered in several other common law jurisdictions. In

Leary v. The Queen [1977] 74 D.I.R. (3 d) 103 the Supreme Court of Canada followed the Majewski decision, quoting with

approval the passage from the speech of Lord Edmund Davies which I have referred to above.

The decision in the Leary case was further considered by the Canadian Supreme Court in R v. Bernard [1988] 2 S.C.R.

833. In the course of the majority judgment refusing to overrule the Leary case, McIntyre J said at paragraph 65 of the

judgment:-

“If the policy behind the present law is that society condemns those who, by the voluntary

consumption of alcohol, render themselves incapable of self control so that they will commit acts of

violence causing injury to their neighbours, then in my view no apology for such policy is needed,

and the resulting law affords no affront to the well established principles of the law or to the

freedom of the individual. Furthermore, the existing law is not divorced from logical underpinnings

as suggested in some academic writings. Not all the academic literature has been critical. A strong

statement in support of the law on utilitarian or policy grounds made shortly after Majewski is by

Sir Rupert Cross in ‘Blackstone v. Bentham’ [1976] 92 L.Q.R. 516 where he said (at pp 525-26):-

“In reply to Bentham and the academics I would ask why it is ‘hard and unthinking’ to refuse to

allow people to exempt themselves from criminal responsibility for harm done by their bodies by

incapacitating their minds from controlling them. Why should the requirement that intention or

recklessness must be proved in order to establish liability for an assault not be the subject of what

appears to be the wholly reasonable retributive principle that it is unjust to those who remain sober

to allow those who become drunk to allege that they were unaware of consequences of their bodily

movements of which all sober people would have been aware? That is what Blackstone meant when

he said that the law would not suffer any man ‘to privilege one crime by another’.

Punishment is an evil and the less of it the better. But the evil of inflicting punishment is justified if

the harm which is thus avoided is greater than that caused by the punishment. It may be asceticism

to blame people for simply getting drunk, but it is sound utilitarianism to seek to prevent people

from doing certain kinds of harm while they are drunk. Insofar as this object can be achieved by

punishment, it is achieved more economically by singling out for punishment those who commit the

kind of harm which the law seeks to prevent while they are drunk.”

The Leary case was ultimately overruled by the Canadian Supreme Court in R v. Daviault [1994] 3 S.C.R. 63. The basis

for overruling Leary was that the rule offended sections 7 and 11 (d) of the Canadian Charter of Rights and Freedoms

which provided:-

“7. Everyone has the right to life, liberty and security of the person and the right not to be deprived

thereof except in accordance with the principles of fundamental justice.

11. Any person charged with an offence has the right ….

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an

independent and impartial tribunal.”

In the course of his judgment Cory J said that these principles would be infringed in situations where an accused could be

convicted despite the existence of reasonable doubt pertaining to one of the essential elements of the offence and he

continued:-

“That would be the result if the Leary rule was to be strictly applied. For example, an accused in

an extreme state of intoxication akin to automatism or mental illness would have to be found guilty

although there was reasonable doubt as to the voluntary nature of the act committed by the accused.

This would clearly infringe both sections 7 and 11(d) of the Charter. In my view, the mental element

of voluntaryness is a fundamental aspect of the crime which cannot be taken away by a judicially

developed policy. It simply cannot be automatically inferred that there would be an objective

foresight that the consequences of voluntary intoxication would lead to the commission of the

offence. It follows that it cannot be said that a reasonable person, let alone an accused who might

be a young person inexperienced with alcohol, would expect that such intoxication would lead to

either a state akin to automatism, or to the commission of a sexual assault. Nor is it likely that

someone can really intend to get so intoxicated that they would reach a state of insanity or

automatism.”

In Australia the same problem was confronted in The Queen v. O’Connor [1980] 146 CLR 64. The High Court of Australia

refused to follow the Majewski decision, but on a different basis to that put forward in the Canadian cases. In that case the

court refused to follow the Majewski decision on the basis that the supposed distinction between specific and general intent

should not in fact be made, and that as virtually all criminal prosecutions required proof of mens rea, the evidence of

drunkenness should be left to the jury to determine whether in fact mens rea existed. Barwick CJ said at paragraph 62 of his

judgment:-

“Thus, if the evidence of intoxication is sufficient to raise a doubt as to voluntaryness or as to the

presence of recklessness with intent, I can see no logical ground for determining its admissibility

upon a distinction between a crime which specifies only the immediate result of the proscribed act

and a crime which in addition requires a further result dependant on purpose.”

Conclusion

It should be made very clear what this Court is being asked to decide. The question is not whether intoxication is in itself a

defence to a charge of manslaughter, and indeed if that were the question this Court would have no hesitation in answering

‘No’. Neither is the question whether automatism may ever be a defence to a charge of manslaughter. This Court accepts

that there are circumstances in which it may be a defence, and indeed this was clearly the direction given by the learned trial

Judge to the jury in the present case. He emphasised that the jury should acquit if there was a free standing situation where

the Applicant was not in control of himself. The issue is whether the jury could or should acquit if there was a situation

where the Applicant at the time of the death of Oisín was in a condition where he could not control himself or prevent the

actions that led to the death of Oisín, but where such condition was brought about by the Applicant’s excessive consumption

of alcohol. If those circumstances afford a defence to the Applicant, then clearly the issue of whether the facts supported

that defence should have been left to the jury.

The learned trial Judge directed the jury quite clearly in accordance with the Majewski decision. His charge can only be

challenged if that decision, which is not binding on this Court, ought not to be followed in this jurisdiction. This Court has

carefully considered the reasoning in the O’Connor case in Australia and in the more recent Canadian cases rejecting the

Majewski decision. The O’Connor case, which it should be said was only determined by a majority of four to three in the

High Court of Australia, rejects the distinction between a specific intent and a general or basic intent. It can certainly be

argued that it is illogical to have such a distinction or to have what appear to be two levels of mens rea in relation to different

types of crimes. However, that distinction, both in theory and in practice, has been present in the common law since before

the foundation of this State and has been the basis of numerous decisions, particularly in the realm of unlawful killings and

unlawful assaults. If such a distinction is to be removed, that can only be done by the Legislature. This Court would reject

the basis of the majority decision in the O’Connor case.

With regard to the Canadian cases, the Court much prefers the arguments in the Leary and Bernard cases to those in the

Daviault case. In particular, the Court would reject the view that the implementation of the Majewski decision in any way

jeopardises the right of an accused to a fair trial or offends the principles of fundamental justice.

As has been pointed out the issues in this case cannot be determined by pure logic. The Majewski decision is undoubtedly

illogical in that it could be said that it ignores the question of mens rea, although this is an essential element of manslaughter.

It is indeed reasonable to ask whether a person should be punished for an action which he was incapable of preventing,

whatever may be the reason for such incapacity. It is equally illogical that a person should escape the consequences of an

action which he performed while drunk, while he would be liable for the results of such action had he been less drunk,

provided of course that his consumption of alcohol was voluntary. However, whatever may be the logic, the Court is here

concerned with the commission of actions of violence by one person against another. It is not sufficient to make decisions

on such issues in a purely theoretical manner. The Court must have regard to the rights of an accused person, but it must

also have regard to the interest of the public at large who are entitled to be protected from acts of violence. If a person by

consuming alcohol induces in himself a situation in which his likelihood to commit acts of violence is increased, particularly

to the stage where he commits an act which he would not have committed had he not consumed the alcohol, then surely the

Courts would be failing in their obligations to the public if they allowed the cause of his violence, namely the alcohol, to

excuse his actions. The reasoning behind the Majewski decision appears to this Court to achieve the balance between the

rights of the accused, who would be entitled to be acquitted if the jury found automatism which was, in the words of the

trial Judge, “Free standing”, as against the rights of the public to ensure that the Applicant will be held liable for actions

which were induced by alcohol voluntarily consumed.

This is a tragic case, and the Court has great sympathy for everybody concerned, including the Applicant. However, the

Court is satisfied that the charge by the learned trial Judge, based on the Majewski decision, was perfectly correct and that

leave to appeal must be refused.