S v MASINA 2010 (2) ZLR 498 (H)

Flynote

Criminal law - defences - intoxication - whether can ever reduce murder to culpable homicide - mitigatory effect of intoxication -provocation - when may reduce murder to culpable homicide -person being provoked while intoxicated - such provocation mitigatory

Headnote

Diminished responsibility due to drunkenness and provocation, according to the non-statutory Roman Dutch criminal law, though capable of leading to a reduction of a murder charge to culpable homicide or an acquittal, does not ordinarily lead to such results, but to the accused being convicted of murder, the drunkenness and provocation being merely mitigatory.

Under the codified criminal law set out in the Criminal Law (Codification and Reform) Act [Chapter 9:23], the legislature altered the common law position on voluntary intoxication to the extent that that defence can never result in the reduction of a murder charge to that of culpable homicide. Section 222 of the Code introduced a new offence of voluntary intoxication leading to unlawful conduct, where the effect of the intoxication leads to the accused lacking the requisite intention, knowledge or realisation required to commit the crime originally charged. This new offence is not the same as culpable homicide, as culpable homicide does not attract the same sentence as murder (the crime originally charged).

Under the Code, intoxication is not a defence unless it is such that the accused lacked the requisite intent to commit the crime charged; it may be mitigatory (s 221(1)).

For provocation to reduce murder to culpable homicide, it must be such as would lead the accused to act without intention, or with intention but having completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances to lose his or her self-control (s 239(1)). If the provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control, the accused is not entitled to a partial defence but the court may regard the provocation as mitigatory (s 239(2)). Similarly, if a person, while in a state of voluntary intoxication, is provoked into any conduct by something which would not have provoked that person had he or she not been intoxicated, the court shall regard such provocation as mitigatory when assessing the sentence (s 224).