-
1
-
-
57649171594
-
-
[1977] A.C. 443
-
[1977] A.C. 443.
-
-
-
-
7
-
-
25844493402
-
Intoxication and Criminal Liability
-
Compare LCCP No. 127 with Law Com. No. 229. See E. Paton, "Reformulating the Intoxication Rules", [1995] Crim. LR. 382; S. Gough, "Intoxication and Criminal Liability", (1996) 112 L.Q.R. 335.
-
(1996)
L.Q.R.
, vol.112
, pp. 335
-
-
Gough, S.1
-
8
-
-
25844490687
-
Roulston
-
Hart [1986] 2 N.Z.L.R. 408, at 413
-
[1975] 2 N.Z.L.R. 610. The case was decided before Majewski so that its status remains unclear. See, e.g., Roulston [1976] 2 N.Z.L.R. 644, at 653-4; Hart [1986] 2 N.Z.L.R. 408, at 413. The Kampeli approach has, though, been supported both by the New Zealand Criminal Law Reform Committee in its Report on Intoxication as a Criminal Defence to a Charge (1984) and more recently by the Crimes Consultative Committee in its Report on Crimes Bill 1989, 1991.
-
(1976)
N.Z.L.R.
, vol.2
, pp. 644
-
-
-
9
-
-
25844446378
-
Surviving Without Majewski - A View from Down Under
-
See generally G. Orchard, "Surviving Without Majewski - A View from Down Under" [1993] Crim. L.R. 426.
-
(1993)
Crim. L.R.
, pp. 426
-
-
Orchard, G.1
-
11
-
-
57649233649
-
-
(1980-81) 146 C.L.R. 64
-
(1980-81) 146 C.L.R. 64.
-
-
-
-
12
-
-
25844508704
-
-
J.H. Burns and H.L.A. Hart (eds), Clarendon Press, Oxford
-
Stephen J. cites a variant of Bentham's argument that those who act inadvertently cannot be deterred, against which it suffices to cite Hart's response that their punishment may nevertheless help to deter others from similar conduct. (See per Stephen J., ibid., at p. 103; J. Bentham, in J.H. Burns and H.L.A. Hart (eds), An Introducton to the Principles of Morals and Legislation (Clarendon Press, 1996, Oxford), p.161;
-
(1996)
An Introducton to the Principles of Morals and Legislation
, pp. 161
-
-
Bentham, J.1
-
13
-
-
0041567637
-
Prolegomenon to the Principles of Punishment
-
Clarendon Press, Oxford
-
H.L.A. Hart, "Prolegomenon to the Principles of Punishment", in Punishment and Responsibility (Clarendon Press, 1968, Oxford), p. 19. Barwick C.J. suggests that Majewski rules need to be invoked so rarely that they are not worth having (see ibid. p.79; also per Stephen J. at pp.99-100), but the truth of that statement is not self-evident and empirical evidence is not adduced.
-
(1968)
Punishment and Responsibility
, pp. 19
-
-
Hart, H.L.A.1
-
14
-
-
57649159237
-
-
note
-
As Gibbs J. notes, talk of an essential component of "basic intent" "suggests that intent is an essential ingredient of a crime, when one question to be decided is whether that is so". Ibid. p.91.
-
-
-
-
15
-
-
25844481807
-
Hardgrave
-
Thomas (1937) 59 C.L.R. 279: in the former, Griffiths C.J. noted (at p.237)
-
Tolson (1889) 23 Q.B.D. 168. Neither are the Australian authorities cited by the High Court unambiguous. Stephen J., for example, cited the early rulings in Hardgrave (1906) 4 C.L.R. 232 and Thomas (1937) 59 C.L.R. 279: in the former, Griffiths C.J. noted (at p.237) that "The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident"; in the latter Latham C.J. expressed the view (at p.309) that "ordinarily speaking a crime is not committed if the mind of the person doing the act in question is innocent". Even taken out of context these views do not provide strong support for the O'Connor approach, for there is a good deal more to having "an accident" or an "innocent mind" than merely acting inadvertently. Is it an "accidental" or "innocent" act if a joy-rider inadvertently knocks down a child while careering around a housing estate at 70 mph? Taken in context, though, it is apparent that neither judgment supported acquittals based on unreasonable inadvertence.
-
(1906)
C.L.R.
, vol.4
, pp. 232
-
-
Stephen, J.1
-
16
-
-
57649178988
-
-
note
-
As Gibbs J. noted in his dissenting opinion in O'Connor, "Majewski involved no departure from the settled rules of the common law - the effect of the decision was that the relaxation of the original common law principles should proceed no further". Ibid., p.93. See also the dissenting judgments of Wilson J. (at p.134) and Mason J. (at p.106).
-
-
-
-
17
-
-
21844504874
-
A Critique of the Correspondence Principle in Criminal Law
-
See J. Horder, "A Critique of the Correspondence Principle in Criminal Law" [1995] Crim. L.R. 759;
-
(1995)
Crim. L.R.
, pp. 759
-
-
Horder, J.1
-
18
-
-
25444487209
-
In Defence of a Principle of Correspondence
-
cf. B. Mitchell, "In Defence of a Principle of Correspondence" [1999] Crim. L.R. 195.
-
(1999)
Crim. L.R.
, pp. 195
-
-
Mitchell, B.1
-
19
-
-
57649180498
-
-
(1980-81) 146 C.L.R 64 at 87. See also Stephen J. at p.103; Murphy J. at pp.113-14; Aickin J. at p.126
-
(1980-81) 146 C.L.R 64 at 87. See also Stephen J. at p.103; Murphy J. at pp.113-14; Aickin J. at p.126.
-
-
-
-
20
-
-
57649174774
-
-
note
-
Although that is surely a weak basis for challenging long-established common law rules that Parliament has had ample opportunity to modify.
-
-
-
-
21
-
-
57649180506
-
-
note
-
This seems at least to have been the approach that Murphy J. had in mind, for he notes that "I find it unacceptable to create judicially a species of constructive crimes and conceal these under the label of other crimes from which they differ essentially, thus extending to those accused of them liability to the same punishment". Ibid, p.113. He later notes the "confusion of two different crimes in one charge" resulting from the English approach to the intoxication rules. Ibid. p.114.
-
-
-
-
22
-
-
57649199693
-
-
note
-
The Criminal Codes of Queensland (s.28), Western Australia (s.28) and Tasmania (s.17) adopt Beard-style rules to limit the availability of the intoxication defence to crimes of specific intent (although the Tasmanian provisions should now be read in the light of Weiderman (1998) 7 Tas. R. 293 which seems to adopt an interpretation more consistent with O'Connor than with Majewski). The Criminal Code of the Northern Territory contains no equivalent to these provisions, although under section 7 there is an evidential presumption that voluntarily intoxicated offenders intended the natural and probable consequences of their conduct while, under sections 318 and 154, those found not guilty of violent offences as a result of voluntary intoxication may be found guilty of an alternative offence of "committing a dangerous act".
-
-
-
-
23
-
-
25844431896
-
-
para. 10.19
-
The Committee noted the 1986 report of the Victorian Law Reform Commission which, although supportive of O'Connor, indicated that it had resulted in at least thirty acquittals. The Gibbs Committee felt that "Thirty acquittals can hardly be regarded as insignificant and the possibility exists that as time goes on the defence, particularly if incorporated in a statute, will prove more popular and that defendants will exaggerate the extent of their intoxication in order to avail themselves of it". Attorney-General's Department, Review of Commonwealth Criminal Law (1990), para. 10.19.
-
(1990)
Review of Commonwealth Criminal Law
-
-
-
26
-
-
0003991395
-
-
Clarendon Press, Oxford, especially at chapters 9-11
-
Hence, paragraph 8.2(1) of the Criminal Code Act provides that "evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed". As is often the case with attempts to codify Majewski, a major difficulty lies in defining the term "basic" intent. The 1995 Act settles on a particularly awkward approach by providing in section 8.2(2) that "A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct." A note to the section adds that "A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent". The specific-basic distinction consequently turns on a distinction between acts, circumstances and consequences that many would consider highly problematical. See, for example, A. Duff, Criminal Attempts (Clarendon Press, 1996, Oxford), especially at chapters 9-11.
-
(1996)
Criminal Attempts
-
-
Duff, A.1
-
27
-
-
57649232365
-
-
note
-
Although it is binding as far as offences falling within federal jurisdiction are concerned.
-
-
-
-
28
-
-
57649232482
-
Victorian Law Reform Committee's Report
-
para. 3.16
-
Unreported. See the Victorian Law Reform Committee's Report, Criminal Liability for Self-Induced Intoxication (1999), para. 3.16.
-
(1999)
Criminal Liability for Self-Induced Intoxication
-
-
-
30
-
-
25844446525
-
-
op cit., para. 3.20 et seq.
-
Hence section 428D of the Crimes Act 1990 provides that "in determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced - cannot be taken into account or (b) if the intoxication was not self-induced - may be taken into account". As with the Criminal Code Act 1995 (Cth), the difficulties relate to the definition of "specific intent", with the Act stating in relatively vague terms in section 428B(1) that "An 'offence of specific intent' is an offence of which an intention to cause a specific result is an element". Would that, for example, make "assault" a crime of specific intent? Interestingly, though, section 428(2) supplements this definition by providing a non-exhaustive list of offences that can be taken to require specific intent. On the New South Wales provisions more generally see the editorial in (1998) 22 C.L.J. 137; Victoria Law Reform Committee, Criminal Liability for Self-Induced Intoxication, op cit., para. 3.20 et seq.;
-
Criminal Liability for Self-Induced Intoxication
-
-
-
31
-
-
25844505603
-
Intoxication and Criminal Liability in New South Wales: A Random Patchwork?
-
J. Tolmie, "Intoxication and Criminal Liability in New South Wales: A Random Patchwork?" (1999) 23 C.L.J. 218.
-
(1999)
C.L.J.
, vol.23
, pp. 218
-
-
Tolmie, J.1
-
32
-
-
25844472912
-
-
at para. 1.11
-
S.C. Small v. Noa Kurimalawai (aka Nadruku), Australian Capital Territory Magistrates' Court, Matter No. CC97/0194, October 22, 1997, Transcript of Proceedings, p.11. Cited in the Report of the Victoria Law Reform Committee, Criminal Liability for Self-Induced Intoxication (1999), at para. 1.11.
-
(1999)
Criminal Liability for Self-Induced Intoxication
-
-
-
33
-
-
57649238369
-
-
note
-
Representative newspaper headlines include "When drunkenness means disorderly law" (The Australian, October 28, 1997), " 'Drunken thug' acquitted" (The Herald Sun, October 23, 1997) and "Time to change drunk defence" (The Herald Sun, October 28, 1997).
-
-
-
-
34
-
-
57649243420
-
-
note
-
The Attorney-General was particularly sensitive to the implications of the case in domestic violence actions. As he noted: "women in particular have expressed concern at the use of this defence and I share that concern. Nobody should be subject to violence and it must be especially disconcerting to women, as the most frequent victims of domestic violence, to have any such trauma exacerbated by outmoded legal considerations". Attorney-General's Media Release, "States urged to drop drunk's defence", October 29, 1997.
-
-
-
-
35
-
-
57649243419
-
-
note
-
Criminal Code Amendment Act 1998 (Cth), coming into operation on April 13, 1998. Senator Amanda Vastone noted of the successful passage of the legislation that it "sends out a strong message to the community that intoxication is no excuse for violent behaviour" and that it was "consistent with the Government's commitment to stamp out domestic violence." Minister for Justice and Customs Media Release, "Drunk's Defence Removed", March 25, 1998.
-
-
-
-
36
-
-
57649232492
-
-
note
-
Crimes (Amendment) Bill (No. 4) 1998. The bill is currently under consideration by the ACT Standing Committee on Justice and Community Safety.
-
-
-
-
37
-
-
57649238354
-
-
Criminal Law Consolidation (Intoxication) Amendment Bill 1996
-
Criminal Law Consolidation (Intoxication) Amendment Bill 1996.
-
-
-
-
38
-
-
57649243414
-
-
note
-
South Australia, House of Assembly, Debates, December 2-4, 1997, p.74. The Bill, which was subsequently amended to provide for a special intoxication offence, failed to secure sufficient support. Further developments seem unlikely for the immediate future.
-
-
-
-
39
-
-
84866971489
-
-
See section 269(1): "On the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant's consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility - (a) is not to be put to the jury by the judge, the prosecutor or the defendant; and (b) if raised by the jury itself, is to be withdrawn from the jury's consideration - unless the defendant specifically asks the judge to address the jury on that question".
-
See section 269(1): "On the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant's consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility - (a) is not to be put to the jury by the judge, the prosecutor or the defendant; and (b) if raised by the jury itself, is to be withdrawn from the jury's consideration - unless the defendant specifically asks the judge to address the jury on that question".
-
-
-
-
40
-
-
57649243279
-
-
See, for example, the cases of Keogh [1964] V.R. 400, Haywood [1971] V.R. 755, and Bugg [1978] V.R. 251. The point is noted in particular by Stephen J. in O'Connor (1981) 29 A.L.R. 449 at 475
-
See, for example, the cases of Keogh [1964] V.R. 400, Haywood [1971] V.R. 755, and Bugg [1978] V.R. 251. The point is noted in particular by Stephen J. in O'Connor (1981) 29 A.L.R. 449 at 475.
-
-
-
-
41
-
-
33750213089
-
-
at paras 39-43.
-
Law Reform Commission of Victoria, Criminal Responsibility: Intention and Gross Intoxication (1986) at paras 39-43. The commission was, it may be added, divided on the question whether O'Connor should be supplemented by a separate statutory offence of "committing a dangerous act while grossly intoxicated." See para. 83.
-
(1986)
Criminal Responsibility: Intention and Gross Intoxication
-
-
-
43
-
-
57649188280
-
-
W. Morgan-Payler Q.C., Senior Crown Prosecutor, Victoria. Cited by the Committee, ibid., para. 6.80
-
W. Morgan-Payler Q.C., Senior Crown Prosecutor, Victoria. Cited by the Committee, ibid., para. 6.80.
-
-
-
-
44
-
-
57649243389
-
-
note
-
In particular the Committee invoked the old argument that "If a defendant did not intend to commit the criminal act or acted involuntarily, how can deterrence have any impact on such a defendant?" Ibid., para. 6.87. See note 6 above.
-
-
-
-
45
-
-
57649232472
-
-
Ibid., para. 6.85
-
Ibid., para. 6.85.
-
-
-
-
46
-
-
57649232412
-
-
M. O'Brien, Victoria Legal Aid. Cited at para. 6.85
-
M. O'Brien, Victoria Legal Aid. Cited at para. 6.85.
-
-
-
-
47
-
-
57649243355
-
-
Ibid. para. 6.86
-
Ibid. para. 6.86.
-
-
-
-
48
-
-
57649232445
-
-
Ibid. para. 6.89
-
Ibid. para. 6.89.
-
-
-
-
49
-
-
57649232429
-
-
Ibid, paras 6.97-6.101
-
Ibid, paras 6.97-6.101.
-
-
-
-
50
-
-
57649232442
-
-
Ibid. para. 6.104
-
Ibid. para. 6.104.
-
-
-
-
51
-
-
57649243342
-
-
Ibid. para. 6.105
-
Ibid. para. 6.105.
-
-
-
-
52
-
-
57649243333
-
-
See, e.g., paras 1.12, 6.81, 6.103
-
See, e.g., paras 1.12, 6.81, 6.103.
-
-
-
-
53
-
-
57649243347
-
-
[1978] 1 S.C.R. 27
-
[1978] 1 S.C.R. 27.
-
-
-
-
54
-
-
57649238297
-
-
See, especially, Dickson J.'s reasoning at p.34
-
See, especially, Dickson J.'s reasoning at p.34.
-
-
-
-
55
-
-
57649232428
-
-
(1995) 118 D.L.R. (4th) 469
-
(1995) 118 D.L.R. (4th) 469.
-
-
-
-
56
-
-
57649188297
-
-
Ibid. at P.508A-C
-
Ibid. at P.508A-C.
-
-
-
-
57
-
-
57649238302
-
-
Canada Act 1982, Schedule B, Part I
-
Canada Act 1982, Schedule B, Part I.
-
-
-
-
58
-
-
57649188300
-
-
note
-
Creighton (1993) 105 D.L.R. (4th) 632 at 665h-666a. The Daviault ruling forms a puzzling contrast to Creighton, and particularly so given that Lamer C.J.C. along with Cory, La Forest, L'Heureux-Dubé, McLachlin, and Iacobucci JJ. endorsed the majority view in both cases. A Creighton-style defence of Leary was mounted by Sopinka J. in his dissenting opinion in Daviault: "The first requirement of the principles of fundamental justice is that a blameworthy or culpable state of mind be an essential element of every criminal offence that is punishable by imprisonment. This principle reflects the fact that our criminal justice system refuses to condone the punishment of the morally innocent. As both McIntryre and Wilson JJ. pointed out in Bernard, individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs can hardly be said to fall within the category of the morally innocent. Such individuals possess a sufficient blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent". Ibid. pp.484H-485A.
-
-
-
-
59
-
-
57649188301
-
-
note
-
Although the messages are at best mixed. Cory J. notes, for example, the "understandable desire to ensure that accused persons should not escape criminal responsibility by the consumption of alcohol" (ibid. p.513), and also that "The appellant in this case is an elderly alcoholic. It is difficult if not impossible to present him in a sympathetic light" (ibid. P.516C).
-
-
-
-
60
-
-
25844441898
-
Intoxication in the Codification of Canadian Criminal Law
-
Ibid. p.496. See also p.516, where Cory J. notes that "I would add that it is always open to Parliament to fashion a remedy which would make it a crime to commit a prohibited act while drunk". The difficulty of explaining this comment is noted by P. Healey, "Intoxication in the Codification of Canadian Criminal Law" (1994) 73 Can. Bar Rev. 515 at 548.
-
(1994)
Can. Bar Rev.
, vol.73
, pp. 515
-
-
Healey, P.1
-
61
-
-
25844462116
-
Second Chances: Bill C-72 and the Charter
-
Although the weakness of this argument has been noted by at least one Canadian commentator. As I. Grant suggests in the context of the Daviault ruling: "It is not uncommon for different degrees of blameworthiness to be punished within one offence definition. For example, manslaughter includes within it someone who actually foresaw the possibility (but not the probability) of death, someone who ought to have foreseen death and someone who ought to have foreseen mere bodily harm. Similarly, sexual assault includes within it offences ranging from an improper touching to forced sexual intercourse and, under our new sexual assault law, covers persons who actually knew the victim was not consenting as well as those who failed to take reasonable steps to inquire as to consent. It is not a violation of section 7 to cover a range of blameworthy mental states within one offence definition". "Second Chances: Bill C-72 and the Charter", (1995) 33 Osgoode Hall L.J. 379 at 398-9.
-
(1995)
Osgoode Hall L.J.
, vol.33
, pp. 379
-
-
-
62
-
-
57649238309
-
-
Ibid. p.518c
-
Ibid. p.518c.
-
-
-
-
63
-
-
57649232403
-
-
Ibid. pp.505h-506a. Bernard is reported at [1988] 2 S.C.R. 833
-
Ibid. pp.505h-506a. Bernard is reported at [1988] 2 S.C.R. 833.
-
-
-
-
64
-
-
57649243334
-
-
Ibid. pp.515f-516a
-
Ibid. pp.515f-516a.
-
-
-
-
65
-
-
57649188291
-
-
note
-
This seems at least to have been the view of L'Heureux-Dube J. See her discussion of Daviault in the later case of Robinson (1996) 133 D.L.R. (4th) 42, at p.74c-d. It is, though, less clear that this was actually the view taken by Cory J. in Daviault, for the leading judgment consistently distinguishes "voluntariness" from "basic intent". See, e.g., at pp.496-7, and at p.498 where it is noted that a state of extreme intoxication might "render an accused incapable of either performing a willed act or of forming the minimal intent required for a general intent offence" [emphasis added].
-
-
-
-
66
-
-
0004245570
-
-
chapter 2
-
In fact it seems likely that intoxication is a partly psychological as well as physiological process - that the knowledge that one is taking an intoxicant may subjectively enhance its effects - although that argument would of course tend to show that involuntary intoxication is even less likely to defeat basic intent and so is as a matter of evidence even less relevant. An accessible discussion of the psychological dimension of intoxication is presented by Gossop, Living With Drugs (2nd ed., 1987), chapter 2.
-
(1987)
Living with Drugs 2nd Ed.
-
-
Gossop1
-
67
-
-
57649238304
-
-
note
-
As Isabel Grant notes, "The suggestion that someone could be too drunk to be convicted of sexual assault shocked the public's sense of justice and common sense. The facts of the case, that the victim was elderly and disabled, and that she was literally dragged from her wheelchair and sexually assaulted, brought the issue into stark focus for the public". See "Second Chances: Bill C-72 and the Charter", op cit., p.383. Representative newspaper headlines include "Drinking Ruled a Rape Defence, Feminists Outraged at Supreme Court Decision" (The Toronto Star, October 1, 1994) and "Criminal Defence of Drunkenness an Offence to Reason" (The Vancouver Sun, October 5, 1994).
-
-
-
-
69
-
-
57649188265
-
-
Department of Justice News Release (February 24, 1995)
-
Department of Justice News Release (February 24, 1995).
-
-
-
-
70
-
-
25844515970
-
Extreme Drunkenness
-
A. Mewett, "Extreme Drunkenness" (1995) 37 C.L.Q. 385.
-
(1995)
C.L.Q.
, vol.37
, pp. 385
-
-
Mewett, A.1
-
71
-
-
57649238300
-
-
note
-
The point excludes the issue of alcoholism. Drunken offenders are, after all, not necessarily alcoholics.
-
-
-
-
72
-
-
84866957949
-
-
Grant, "Second Chances: Bill C-72 and the Charter", op cit., at pp.384-5
-
Grant, "Second Chances: Bill C-72 and the Charter", op cit., at pp.384-5.
-
-
-
-
73
-
-
57649188288
-
-
note
-
The preamble to the (subsequently enacted) reform Bill contains a clear indication of Parliament's reasoning: "Whereas the Parliament of Canada recognizes that violence has a particularly disadvamaging impact on the equal participation of women and children in society and on the rights of women and children to security of the person and to the equal protection and benefit of the law as guaranteed by sections 7, 15 and 20 of the Canadian Charter of Rights and Freedoms. Whereas the Parliament of Canada recognizes that there is a close association between violence and intoxication and is concerned that self-induced intoxication may be used socially and legally to excuse violence, particularly against women and children". Bill C-72, An Act to Amend the Criminal Code (Self-induced Intoxication), 1995.
-
-
-
-
74
-
-
84866971066
-
-
Section 33.1(3): "This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person." This limitation may appear unusual to English eyes, but the reasoning was doubtless that a narrower rule would better resist future Charter attacks. See Grant, "Second Chances: Bill C-72 and the Charter", op cit., at pp.386-7
-
Section 33.1(3): "This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person." This limitation may appear unusual to English eyes, but the reasoning was doubtless that a narrower rule would better resist future Charter attacks. See Grant, "Second Chances: Bill C-72 and the Charter", op cit., at pp.386-7.
-
-
-
-
75
-
-
57649232422
-
-
note
-
Section 33.1(1) of the statute leaves the definition of "general intent" to the common law, and as such the Canadian legislation avoids the problems inherent in the Australian attempts to tie the specific-basic distinction to a general statutory formula.
-
-
-
-
76
-
-
25844515970
-
Extreme Drunkenness
-
A. Mewett, "Extreme Drunkenness" (1995) 37 C.L.Q. 385. The editorial does not, it should be added, consider the Parliamentary view of moral culpability to be entirely accurate.
-
(1995)
C.L.Q.
, vol.37
, pp. 385
-
-
Mewett, A.1
-
77
-
-
57649188216
-
-
Criminal Procedure (Scotland) Act 1995, ss.64(6), 138(4) and Sched. 3, para. 3
-
Criminal Procedure (Scotland) Act 1995, ss.64(6), 138(4) and Sched. 3, para. 3.
-
-
-
-
78
-
-
57649232404
-
-
para. 82
-
Stair Memorial Encyclopaedia: The Laws of Scotland (1995), vol. 7, para. 82. See, recently, Cameron v. Maguire, 1999 J.C. 63. Whether Scots law will continue to resist the subjectivism of England and other common law jurisdictions remains to be seen. The rape cases of Meek v. HM Advocate, 1983 S.L.T. 280 and Jamieson v. HM Advocate, 1994 J.C. 88, for example, adopt broadly the subjectivist approach to mistaken belief in the consent that was taken by the House of Lords in Morgan.
-
(1995)
Stair Memorial Encyclopaedia: The Laws of Scotland
, vol.7
-
-
-
79
-
-
57649232418
-
-
note
-
Hence Hume contrasted intoxication with insanity to note that: "[T]he law of Scotland views this wilful distemper with a quite different eye from the other, which is the visitation of Providence; and if it does not consider the man's intemperance as an aggravation, at least sees very good reasons why it should not be allowed as an excuse, to save him from the ordinary pains of his transgression." Commentaries on the Law of Scotland (1844), i, p.45. For a recent example of the Scottish approach to intoxication as a defence see Donaldson v. Normand, 1997 J.C. 200.
-
-
-
-
80
-
-
57649188278
-
-
1977 J.C. 38
-
1977 J.C. 38
-
-
-
-
81
-
-
57649232410
-
-
Ibid. at p.51
-
Ibid. at p.51.
-
-
-
-
82
-
-
57649243319
-
-
See ibid, at p.47
-
See ibid, at p.47.
-
-
-
-
83
-
-
57649243286
-
-
At least not an independent or free-standing excuse
-
At least not an independent or free-standing excuse.
-
-
-
-
84
-
-
57649243325
-
-
1921 J.C. 1
-
1921 J.C. 1.
-
-
-
-
85
-
-
57649238282
-
-
1944 J.C. 171
-
1944 J.C. 171.
-
-
-
-
86
-
-
57649243280
-
-
1977 J.C. 38 at 47
-
1977 J.C. 38 at 47.
-
-
-
-
89
-
-
84925920087
-
The Expulsion of Beard from Scotland: Murder North of the Border
-
J.W.R. Gray, "The Expulsion of Beard from Scotland: Murder North of the Border" [1979] Crim.L.R. 369.
-
(1979)
Crim.L.R.
, pp. 369
-
-
Gray, J.W.R.1
-
90
-
-
84866957948
-
-
See Paton v. HM Advocate, 1936 J.C. 19 which, with the mild circularity that equally characterises manslaughter in England, defines culpable homicide in terms of "criminal negligence"
-
See Paton v. HM Advocate, 1936 J.C. 19 which, with the mild circularity that equally characterises manslaughter in England, defines culpable homicide in terms of "criminal negligence".
-
-
-
-
92
-
-
57649243289
-
-
(1870) 1 Couper 457
-
(1870) 1 Couper 457.
-
-
-
-
93
-
-
57649238237
-
-
Ibid., pp.461-2
-
Ibid., pp.461-2.
-
-
-
|