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Can alcohol be used as excuse to mitigate crime?

Can alcohol be used as excuse to mitigate crime?

Dear mirror lawyer, is the consumption of alcoholic beverages before a crime a defence or mitigating factor to committing the crime?

Christian Tetteh, Somanya.

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Dear Christian, in the modern permissive society, it is within the right of anyone to have a drink either alone or with friends to relax, celebrate and have fun. Food and alcohol taken in reasonable quantities is permitted under the rights guaranteed persons in the society. 

However, each person must know his limits to alcohol consumption and know when to call it a day on such occasions. If alcohol is consumed in uncontrolled and unreasonable quantities, resulting in loss of power of self-control, any criminal act which is committed subsequently will be punishable at law, unless the offender can show by evidence that the act was not due to his recklessness and that the alcoholic beverage took a better part of him and disabled him from taking control of his intellect.

Section 28 of the Criminal and other Offences Act, 1960, Act 29 provides that generally, intoxication is not a defence to any criminal charge unless the person charged at the time of the act complained of did not know that the act was wrong or did not know what he is or was doing and the state of intoxication was caused without his consent by the malicious or negligent act of another person, or the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act.

In the English case of Regina v Banday [1957], the accused, Tallo Banday, was charged with the murder of his younger brother. The facts were that the accused, who had been drinking, started a wholly unprovoked quarrel with a passerby in the street while the deceased was sitting outside his house. 

In the course of this quarrel, the accused, who was then holding a machete, seized the passerby by the neck of his shirt and used some abusive language. The accused was eventually restrained by the deceased. He was then taken to his house by the deceased and his sister but he forced his way out, cutting his sister's finger in the act, and proceeded to create a further disturbance. At this point, the deceased came up behind the accused and seized him, whereupon the accused thrust his hand backwards and stabbed the deceased in the stomach. The deceased was seriously injured and his relatives, seeing that the intestines were protruding, rushed the deceased to the hospital but he died after a few hours.

Miles C.J. held that, on the evidence, the accused was not so intoxicated as not to know what he was doing or so as to be incapable of knowing that his action would probably cause death or grievous bodily harm: he was indifferent as to the results of his action and, therefore, the defence of intoxication will not avail him.

In the Ghanaian case of Ketsiawah v The State [1965] GLR 483, the accused was convicted of the murder of his former wife. On the day of the crime, the two of them had left their village together to go to a farm. A search party later discovered the dead body of the deceased in the bush covered with palm leaves. 
 

Later, the accused was arrested and he made a statement to the police that on the day of the crime he had drunk a bottle of akpeteshie, unknown to his former wife.  He further stated that he appealed to his former wife for reconciliation, but that his former wife replied with abuses.  Stung by these abuses and being totally drunk, he cut her with a cutlass he was holding. The medical evidence on the deceased's injuries showed that they were numerous, ghastly and barbarous. 

It was held that for the defence of intoxication to succeed, it must, in the first place, be proved that the person pleading it was so intoxicated at the time he did the act complained of that either he did not know that the act he was doing was wrong or he did not know what he was doing. Where the intoxication is self-induced, the person pleading it has the onus of proving that the intoxication had made him insane temporarily or otherwise at the time of the act. Bare evidence of the consumption of liquor was not enough.

Thus, the mere fact that one took intoxicating liquor a few hours before an incident was not enough evidence that he was drunk and had lost his memory at the time of the offence. Evidence would have to be led on the effect the consumption of the alcoholic beverage had on the accused.

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