LECTURE 8: INSANITY AND INTOXICATION

INTRODUCTION

In this lecture you are going to study the nature of two main defenses viz, insanity
and intoxication.

OBJECTIVE

By the end of the lecture you should be able to explain the operation of the
defenses of insanity and intoxication in criminal Law.

INSANITY
The defense of insanity is based on the premise that there is absence of mens rea
because of insanity. Every person is presumed to be of sound mind and to have
been of sound mind at any time which comes into question until the contrary is
proved (Section 12 of the Penal Code). Section 13 of the Penal Code provides for
absolute non-responsibility if it is reasonably proved that at the time he committed
the act or omission in question the person wa5 incapable of understanding what he
was doing or of knowing that he ought not to do the act or make the omission .

The law in Tanzania on the subject is based on the case of R v. Daniel M’ naghten
(1843), 10 CL and F. 200. In this case the accused had been charged for the murder
of one Edward by shooting him in the back, as he was walking up whitewall on 20th
January 1843. The accused pleaded not guilty . After evidence had been given of the
shooting of Mr. Edward and of his death in consequence thereof , witnesses were
called on the part of the accused , to prove that, at the time of committing the act ,
he was not in a sound state of mind. Some of the medical witnesses who gave
evidence had previously examined the accused; others had never seen him until he
appeared in court and they formed their opinions on hearing the evidence given by
other witnesses. The accused was acquitted on the ground of insanity.
In consequence debates took place in the House of Lords and it was decided to
take the opinion of the judges as to the nature and extent of the unsoundness of
mind which woud excuse the commission of a felony of this sort .

The final decision in the house also gave the test of insanity . To plead the defence
of insanity successfully three conditions must be fulfilled:

1) It must be proved that the accused was suffering from a disease of mind at
the time of doing the specified act or making the omission;
2) It must be proved that the accused did not know the nature and quality of
the act he was doing or

3) If the accused knew the nature or the quality of the act , then it must be
proved that he did not know that he was doing wrong . The disease of mind
must have given rise to a defect of reason.

Take note that the effect of insanity on understanding should be of high degree. It
is for this reason that Section 13 of the Penal Code provides:- "But a person may be
criminally responsible for an act or omission although his mind is affected by
disease, if such disease does not in fact produce upon his mind one or other of the
effects above mentioned in reference to that act or omission"

In the case of Philip Musele v. R EACA 622 the appellant had been convicted of the
murder of his wife and the sole issue on appeal was whether the trial judge was
wrong in refusing to bring in a special verdict of guilty but insane . The appellant
had given evidence that when he killed his wife he did not know what he was doing .
A psychiatrist gave evidence that he thought the appellant was very depressed and
thought that he was justified in killing his wife , but that his belief as to what was
right or wrong was colored by the belief just his wife was practicing witchcraft on
him. The court of Appeal stated that it would not be a defense to prove that
although the accused knew that what he was doing was legally wrong he believed
that it was morally right. It must be proved that, if he was capable of understanding
what he was doing, he was incapable of knowing that his act was contrary to law.
The court finally held that the evidence fell short of establishing even the probability
that the appellant through a disease effecting his mind was incapable of knowing
that what he did was contrary to the law . His appeal was dismissed.
In addition where the defense raises the issues of insanity, it is for the defense to
prove, on the balance of probabilities, that the accused was insane and not merely
to raise a reasonable doubt as to the sanity of the accused. See the case of Nyinge
s/o Suwatu v. R (1959) EA 974. The expression "insane" has a particular legal
meaning and it must not be thought that the word is used in the medical sense The
purpose of classifying an accused as an "insane" in the legal sense is twofold. First,
if the person has no mens rea because he is suffering from a disease of the mind , it
is right that he should be treated differently from an ordinary criminal . Second a
person may have Mens Rea and yet, due to disease of the mind be utterly unaware
that what he is doing is wrong . In the case of R v. Tomson s/o Msumali (1969) HCD
n. 26 the accused, who was subject to epileptic fits slept in the same house as his
father so that he could be taken care of if a fit came on. On the night in question
he was found by his mother and others outside the house, standing by the dead
body of his father with a heavy stick alongside. He told his mother that he had
killed a thief. While under observation in hospital after the killing he suffered three
epileptic fits, remaining in a confused state for about two hours after each one.
Medical evidence was given that the accused could not at the time of the killing
have been able to appreciate the nature of his act. After examining the evidence
and the circumstances of the killing the court stated that the accused, by reason of
the deceased affecting his mind, was unable to understand what he was doing and
that he ought not to have done the act. As a consequence the court found him
guilty but insane.

From the beginning McNaughton's rules have been subjected to vigorous criticism,
primarily by doctors, but also by lawyers . The main points raised against these
principles include;

i). That the rules are based on the outmoded theory that partial insanity is
possible;
ii). That the rules are limited to cognitive factors excluding all matters concerning

volition, or emotions, and thus make no allowance for the so-called

iii). That it is not clear whether the rules apply to cases in which the mental
development of the accused is incomplete since it is so uncertain whether
mental deficiency is the disease of the mind.

iv). The burden of proof on the accused to prove his insanity is higher than in
ordinary criminal case i.e. balance of probabilities instead of merely raising a
reasonable doubt.

INTOXICATION
Intoxication is not and never has been a defense as such . However among the
effects of alcohol is to weaken the restraints and inhibitions which normally govern
our conduct or impairs a person perceptions and judgment in such a way that a
man may do things when drunk that he would never do while sober . So intoxication
may be the reason why the accused is said to lack Mens Rea of the crimes charged.

As already stated above intoxication, generally, is not a defence in criminal cases

a) The state of intoxication was caused without his consent by the malicious or
negligent act of another person; or
b) The person charged was by reason of intoxication insane , temporarily or
otherwise at the time of such act or omission.

The most lucid explanation of the subject of drunkenness in relation to criminal

i). that drink may impair a man's powers of perception so that he may not be
able to foresee or measure the consequences of his actions as he would if he
were sober;
ii). that drink may impair a man's power to judge between right and wrong so
that he may do a thing when drunk which he would not dream of doing
while sober;

iii). That drink may impair a man's power of self-control so that he may more
readily give way to provocation than if he were sober.
It is for these reasons section 14(4) of the Penal Code enacts that intoxication
should be taken into consideration in determining whether or not the person
charged had Mens Rea. The section adds that the term intoxication shall be deemed
to include a state produce by narcotics or drugs . In addition although the law in
Tanzania distinguishes between voluntary and involuntary intoxication yet a view has
been expressed in the courts of Britain (R v. Lipman (1970), QB 152) that for the
purpose of criminal liability there is no reason to distinguish between the effects of
voluntary and involuntary intoxication. This also seems to be the view of the courts
in Tanzania. In the case of R v. Stanislaus (1969) HCD n. 32, the accused and the
deceased had gone for a drinking spree at the house of one , Mshamba. Sometimes
later the deceased left the place. The accused after some minutes followed her
(deceased). When he came up to her he had his hands folded across his chest but
then, all of sudden he drew a knife and stabbed her. She died later of stab wounds.
The court found that the accused was intoxicated and was found guilty of a lesser
offence of manslaughter. The reasoning of Lord Denning in the case of Att. General
for Northern Ireland v. Gellagher (Supra) was adopted in the case of R v. Danson
(1967) HCD No. 71 In this case the fact that the accused was intoxicated at the time
he killed the deceased was taken into account in determining whether the killing
was premeditated or not in this case the accused was convicted of manslaughter on
the ground of intoxication. For further clarification on the law regarding intoxication
read the following cases:

1. DPP v. Beard (1920) AC. 479

SUMMARY
Insanity and intoxication are some of the defenses that attract substantial arguments
in the Courts of this country. There is need to understand their principles thoroughly
well and ensure that their application is adapted wisely to the Tanzania situation.