Defence of intoxication under section 85 and section 86 of Penal Code Maggie, the accused in this case, has been

charged for murder under section 300(a) of the Penal Code. However, this offence was done by Maggie under the condition of intoxication. Intoxication is a general exception in criminal law which could be a defence for an accused from his or her criminal liability. In the defences for Maggie under the exception for, intoxication, as stated under section 85 of the Penal Code, in subsection (2), where intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained by of did not know that such act or omission was wrong or did not know what he was doing and(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. In this case, it is possible that Maggie did not know what had she actually done at the time of doing the act of murder, or she did not that what she had done to Mrs Frank, the deceased, was a crime, because she was in intoxication at that time, right after she came back from the night club, and was in the drunken condition. There were nothing in the fact of the case that could prove that she had actually realize about what she was doing or did not know that what she had done is wrong and thus rises a doubt. Furthermore, Maggie might be insane at that time when killing the deceased, which is her mother. This act is definitely unexpectable and could not be considered as ordinary due to the proximate relationship between the accused and the deceased, which is the daughter and mother. By reasonable thinking, a person would not do an act of harm towards his or her family members who have the close relationship to them unless there existed a certain reason such as a great hate. However, in this case, Maggie had done a cruel act by killing her mother, who was a closed family member to her , by using a knife. This act is definitely unexpected reasonably to be done by a daughter towards her mother as there was nothing which showed that the accused had a great hate to her mother in the fact of this case. In fact it had only showed the exists of misunderstanding and serious quarrel between Maggie and

Mrs. Frank, and that Maggie had changed from a fine daughter to a spoilt one, which is not reasonably sufficient to constituted a great hate from Maggie to her mother, which further creates an intention or a motive to murder the deceased. Therefore, this act could be considered as insane. Besides, Maggie did this act in the condition of drunken. Thus, the accused is said to be insane, due to intoxication, when committing the act of murdering as stated in section 85(2)(b) of Penal Code. In the case PP v Tan Ho Teck [1987] 2 CLJ 85, the accused was charged for murdering his brother. At that time of doing the act, he was actually experienced delirium tremens caused by drinking too much alchohol , which caused him unable to know that his act was wrong and did not know what he was doing. The court held that he had done the act of killing caused by unsoundness of mind and did not know that the act was wrong or contrary to law at that time of doing it. The court had actually refered to section 84 which is the conduct caused by unsoundness of mind. Similar to the present case, as Maggie had killed her mother because of her unsoundness of mind caused by intoxication. Thus, the act cannot be considered as wrong, and the intoxication could be a defence for her under section 85 (2) (b). In accordance to section 84, where nothing is an offence done by a person where at that time of doing it, by reason of unsoundness of mind he does not know that the act is either wrong or contrary to law. Thus, the act of killing could be considered being done by reason of unsoundness of mind of the accused caused by intoxication. Section 85 (2) is applicable for Maggie as a defence. Under section 86(1), when the defence under section 85(2) is applicable, for the event included in (b), thus section 84 of Penal Code and section 347 and 348 of Kanun Acara Jenayah have to be applied. This means, the conviction of murder under section 300(a) should be quashed.

By further proving that the accused had actually do not have intention to do the act of killing, according to section 86(2) of the Penal Code, intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

In the present case, Maggie would have no intention of doing this act of murder and she will not commit it if she was not in intoxication at that time. The public prosecutor cannot prove that Maggie had actually have the intention to kill her own mother. Although there existed a misunderstanding and serious quarrel between Maggie and her mother when her mother forced her to do the abortion and therefore she changed from a fine daughter to a spoilt one, this situation however, did not signify a great hate on Maggie to her mother and create an intention of murder in her mind. By reasonable thinking, an ordinary person would not hope his or her mother to die or do something cruel to her mother or family members unless she has a great hate to her mother. Thus, it rises a doubt where the act of killing her mother was not done without her intention in addition to the intoxication at that time when the act is done. In other words, Maggie would have no intention and would not do the act of killing her mother without the intoxication, which is in accordance to section 86(2).

The law has categorized the defences for intoxication into 2 parts which is voluntary intoxication and involuntary intoxication. In the fact of this case, it silent about the kind of intoxication and the accused is believed to had been voluntarily intoxicated herself as she had came back to her house to commit the act after drinking at the night club. In fact, voluntary or self-induced intoxication is not defined in the Penal Code. It involves the deliberate intentional taking of drinks or drugs to an amount that can produce a state of intoxication. According to the England law, voluntary intoxication does not give defence to release the accused from his or her criminal liability in general. Rule 2 of Beard (1920) established that self- induced intoxication can provide a defence only to crimes of specific intent. This was intended to circumscribe the defence of intoxication. Beard (1920) has undergone some development in England in relations to the category of crimes of specific intent and crimes of basic intent. Crimes of specific intent are those that only can be committed intentionally and in which the mens rea goes further than the actus reus. According to Lord Simon in the case DPP v Majewski, a crimes of specific intent needs proving of an element of specific intention. It means that the specific intention have to be existed in doing the said crime. It must also exist an ulterior intent on the accused side to commit that crime. Those crimes that had been categorised by the England courts as crimes of specific intent, includes murder, robbery, theft, and assault. Basically crimes of specific intent need only the proving of intention as the mens rea element in that crime.

In the case of Caldwell, the judge had given an example: the accused was charged for an offence of destroying the property with the intention to cause danger to the others life. This is considered as crimes of specific intent because it need to be proved the specific intention which is threatening life. Thus, the voluntary intoxication may be a defence. In the present case, Maggie, the accused, can actually rely on the defence under voluntary intoxication because the crime that she had committed, which is murder, is actually the crimes of specific intent. Thus, it is important to prove the intention of doing this act in order to convict her for murder. However, the accused cannot be proved that she had having the intention to kill the deceased. Therefore, she was incapable of forming the specific intent essential to constitute the crime. Thus, section 86(2) is applicable for the accused as a defence. Besides that, the prosecution has only to establish that the accused had the intent despite his intoxication. An intoxicated man may be capable of forming an intent but may not have done so in the particular alleged offence. In Sheehan and Moore (1975), the English Court of Appeal (criminal Division) quashed a conviction for murder and substituted a conviction for manslaughter. The court held that the onus of proof was on the Crown to establish that, notwithstanding the alleged intoxication, the accused did form an intent. As similar to the present case, it is need to prove by the prosecution that the intention of the accused to kill her mother, despite her intoxication. The conviction for murder shall be quashed due to the intent is unable to be proved by the prosecution.