Crime CXXXV– Intoxication XI

If the defendant makes a mistake as to the potency or the strength of the drugs or alcoholic beverage he has taken or consumed, and then commits a crime and seeks to rely on intoxication, the defense will not be made available to him and the fact that he was intoxicated will not reduce the severity of the crime or the offence. The rules with regards to self-intoxication will apply as they are.

In R v Allen (1988) the defendant drank some home-made wine, and the drink was stronger than normal or the alcoholic content in the drink was higher than normal. The defendant in his intoxicated state committed sexual assault and during the trial sought to rely on the defense of intoxication.

It was held that regardless of the strength of the drink or the fact that the defendant had made a mistake as to its potency, the consumption of the drink was still voluntary and thus the defense of intoxication would not avail itself to him especially in light of the fact that sexual assault is a basic intent crime.

The decision in R v Allen (1988) was reaffirmed by the Court of Appeal in R v Fotheringham (1989). In R v Fotheringham (1989), the defendant and his wife had hired a babysitter to take care of their child while they were out, and the babysitter was told to sleep in their bed. The defendant returned home, intoxicated, found the babysitter in bed and raped her. At the trial, the defendant sought to rely on the defense of intoxication and claimed that he thought the babysitter was his wife.

It was held that the rules with regards to self-intoxication will apply and the defense of intoxication would not avail itself to the defendant. Rape was a basic intent crime, and thus there was no scope for the defendant to rely on intoxication.

Copyright © 2018 by Dyarne Ward

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