S V HURLE & ORS (2) 1998 (2) ZLR 42 (H)

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S v HURLE & ORS (2) 1998 (2) ZLR 42 (H)

Flynote

Criminal law — defences — voluntary intoxication - extent to which it may be a defence to charge of murder — crimes requiring "special intent" — inconsistency of approach in previous judicial decisions — why policy considerations demand that voluntary intoxication should never be a complete defence to a charge of murder, in spite of apparent illogicality of such a conclusion

Criminal law — general principles — intention — "special intent" doctrine — whether has any place in our law

Evidence — affidavit — medical report — proper procedure for recording — impropriety of commissioner of oaths signing in absence of deponent

Headnote

The three accused were charged with murder. In respect of the second and third accused, the majority of the court found that they had a constructive intent to kill the deceased. In respect of the first accused, the evidence was that he had consumed extravagant quantities of alcohol, the toxic effect of which was exacerbated by his smoking a dangerous drug. The fatal assault was motiveless and senseless and shocking in its brutality. The court found that at the time he committed the acts in question, the first accused was rendered temporarily incapable by reason of intoxication of appreciating the consequences of his actions; or even if capable of appreciating the consequences, he was incapable of directing and restraining his conduct in accordance with his appreciation. The question arose for decision as to the appropriate verdict in law. During the trial, a post mortem report was produced, in the form of an affidavit. The pathologist who produced the report admitted that the affidavit was typed by another person from his notes, placed on his desk for his signature, then taken to a policeman who was a commissioner of oaths. The policeman signed the document in the absence of the pathologist.

Held, that this was a most serious dereliction on the part of the commissioner of oaths. The deponent should have appeared before him and been duly sworn. The deponent should have signed in the commissioner's presence. The commissioner's signature is an assurance that all these procedures have been complied with. The gross dereliction of duty revealed here called into question the applicability to such documents of the maxim omnia praesumuntur rite esse acta.

Held, further, that under Roman and Roman-Dutch law, intoxication was not an excuse for criminal liability, though it might be mitigating. However, the development of the principle actus not facit reum nisi mens sit rea brought this ancient principle into conflict with the law's desire to punish only those who form criminal intent. This led to the introduction into our law of the English doctrine of "special intent", though in later judgments the courts of South Africa began to doubt whether the doctrine had any place. An important result of the relevant judgments has been to show that, although initially grounded in the doctrine of "special intent", the rationale for allowing any scope to voluntary intoxication as a defence was swiftly placed on a policy ground. Nonetheless, the courts of South Africa repeatedly departed from the Roman-Dutch law, by holding that where the accused is charged with a crime requiring "special intent" (eg murder, rape, assault with intent to do grievous bodily harm), voluntary intoxication of a degree sufficient to negative that special intent is a defence and the accused will be found guilty of a less serious crime for which such a verdict is competent.

Held, further, that once the principle is acknowledged that the perpetrator of a crime must be doli capax and must have acted with mens rea, the fundamental inconsistency in principle between this and the law that voluntary intoxication is no defence becomes starkly apparent. But for several years the courts in South Africa accepted that a departure from logic was justified on policy grounds, it being unacceptable that drunkenness should be allowed to be pleaded as a defence. However, in S v Chretien the Appellate Division held that where the degree of intoxication does leave reasonable doubt as to the existence of criminal capacity, then an acquittal must follow. The decision in Chretien has been much criticised by academic writers, on the grounds that pure logic can go too far. Justice, the maintenance of a true balance of interests between the accused and society, convenience and common sense also have their place, and the court should have in the forefront of its mind the desire to do justice in such a way as satisfies the expectations of the general populace and the hopes and circumstances of the accused.

Held, further, that the doctrine of special intent has no place in our law and has never been accorded any place of substance. It has at most been a convenient rationalisation for the long-standing practice of allowing voluntary intoxication to justify, on a charge of murder, alesser verdict of culpable homicide.

Held, further, that the conclusion in Chretien is correct if the court were to disregard policy considerations, but the court could not properly disregard the policy of generations not to extend a complete defence to a charge of murder on the grounds of voluntary intoxication. Recognising the need to pass a verdict that will satisfy ordinary members of the public that justice is done and that the law protects the public from death at the hands of violent drunken louts, and acknowledging the real undesirability of convicting of an offence a person who lacks the necessary elements of volition, capacity and intent, the conviction should be for an appropriate verdict, rather than murder. There is a perfectly good common law offence which has been resorted to for generations, that of culpable homicide. To the objection that a person should not be convicted even of culpable homicide if he lacks the necessary mental elements of criminality, the answer is that here theory must yield to policy. The policy is clear and persuasive and more conducive to justice, and must prevail.