18
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.
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