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Olo v Police [1992] WSSC 1; S 050 of 1992 (1 January 1992)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

Crim No 5092

BETWEEN:

OPELOGE OLO
alias OPELOGE POALAGA PELE of Vaoala
Appellant

AND:

POLICE
Respondent

Counsel: T.K. Enari for Appellant
C.L. Nelson for Respondent

REASONS FOR JUDGMENT OF ST. JOHN, C.J.

By notice of general appeal, the appellant appeals against both conviction and severity of sentence imposed by a Stipendiary Magistrate on the 1st October 1980 on a charge of wilfully and without lawful justification cause actual bodily harm to Malo Siaosi on the 20th July, 1980. The appellant appeared on the 16th September 1980 underrepresented and at the end of that month appeared by counsel and on 1st October 1980 counsel confirmed the defendants plea of guilty. At the outset application is made to this court to allow change of plea from guilty to Not Guilty.

It is clear that an appellate court has power to entertain and accede to an application to change of plea after a plea of guilty to not guilty, in exceptional circumstances. A number of authorities pertinent to this question have been assembled and dealt with in a most useful judgment of T.A. Gresson J. of the New Zealand Supreme Court in UD v Police [1963] NZPoliceLawRp 17; [1964] NZLR 235. It is also clear that the list of exceptional circumstances summarised in that case is not exhaustive and they are merely examples of how the court’s discretion should be exercised.

A statement of facts made by the police to the learned magistrate shows that during the interview of the appellant by the police about the alleged offence, the defendant told the police that he did not know anything as he was very drunk, but "may be all the injuries which were received by Malo (the victim) were done by him (the appellant)." The law as to the effect of self-induced intoxication on mens reas has for many years been a subject of comment and doubt arising from the lack of clarity in the speech of Lord Birkenhead in DPP v Beard [1920] AC 479.

In England, the doubts were resolved by the decision of the House of Lords in DPP v Majewski [1976] UKHL 2; [1976] 2 All ER 142. Majewski had been convicted of a number of charges of assault occasioning actual boldly harm. He gave evidence to the effect that for a long period he had been under the combined influence of drugs and alcohol to the extent that he did not know what he was doing and had no memory of the events leading to the charges. The learned law Lords unanimously upheld the correctness of a charge to the jury which contained the direction that the fact that the accused had taken drugs and alcohol was irrelevant, there being no specific intent required as an ingredient of the crime. The Lord Chancellor at p.146 emphasized the seriousness of the consequences from a social and public stand-point if self-induced intoxication could afford a defence. His Lordship also emphasized that drug taking added a new dimension to the old problem.

The supposed distinction between a specific intent and a general intent has long been the subject of adverse criticism by such eminent academic lawyers as Glanville Williams (Criminal Law 1961 p.569). In R v Kamipeli [1957] 2 NZLR 610 Macarthy J. delivering the judgment of the Court of Criminal Appeal of New Zealand after commenting upon and analysing Beard’s case at p.616, said this:

"Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry. The alternative is to say that when drunkenness is raised in defence there is some special exception from the Crown’s general duty to prove the elements of the charge. We know of no sufficient authority for that, nor any principle which justifies it."

In June 1980 the High Court of Australia in R v O’Connor [1923] ArgusLawRp 94; 29 ALR 449, had before it precisely the same question as faced the House of Lords in Majewski’s case. A jury had acquitted O’Connor of wounding with intent to resist arrest, but convicted of an alternative charge of unlawful wounding, the trial judge having changed the jury in accordance with Majewski’s case, drawing the distinction between the "specific" intent in the first charge and the "general" intent in the alternative charge. The Victorian Court of Criminal Appeal upheld O’Connor’s appeal and entered a verdict of acquittal on the alternative charge. The Crown applied to the High Court of Australia for special leave to appeal against that decision. The High Court, by a majority dismissed the appeal and in doing so declined to follow the House of Lords in Majewski’s case, a course taken only after the most careful consideration of the principles involved.

The House of Lords, the High Court of Australia, the New Zealand Court of Appeal are tribunals, the decisions of which deserved the greatest respect. Those decisions are persuasive in their effect on the decisions of this court. In the case of conflicting decisions among them or between two of them this court has to choose which, if any, to follow.

The reasoning in O’Connor’s case, particularly of Barwick C.J. and Stephen J. is, exorably compelling in its logic. At page 459, the Chief Justice said this about the decision on Majewski.

"The House in substance decided that on the trial of an accused for a criminal offence which does not require that the proscribed act should be done to attain or to attempt to attain a specified result beyond the immediate consequence of the physical act involved, evidence as to the effect which self-induced intoxication has produced on the relationship of the accused’s will or intent to the activity of his body is irrelevant and therefore inadmissible, if tendered solely to raise a doubt as to the voluntariness of, or as to presence of intention to do, the physical act involved in the crime charged. Although, as I have said, no formally involved in the question certified by the Court of Appeal, in my opinion, the reasoning favoured by their Lordships extends to all the consequence of the self-induced intoxication by any means and is not limited to those which affect only the presence of an intent to do the physical act involved in the charge. The effect intoxication, as I have said, nay be so extensive as to render the acts of the accused involuntary or it may preclude the formation of an intent to do that physical act. In substance, therefore the decision in Majewski’s case is that in the case of such a charge the act of the accused is to be incontestably presumed to have been voluntary and to have been done with an intent to do the physical act involved in the crime charged. Evidence to call in question either position is irrelevant and inadmissible if the accused’s condition resulted from his own acts.

The decision was in part built upon acceptance of the dichotomy of crimes into crimes of "specific" intent and crimes of "basic intent". Although all of their Lordships did not specifically define the former, I think that they used the notion of a crime of specific intent in the sense in which I have used it in my summary of the substance of their decision. The purposive nature of the proscribed act is the indication of a crime of specific intent: hence the description I have used of what is involved in a crime of specific intent and by contrast what is not involved in a crime of so-called basic intent. My description is in line, I think, with Lord Simon’s definition of specific intent. Having made this distinction, i.e. between crimes of basic intent and crime of specific intent, their Lordships sought, as it seems to me, to bring their decision within the symmetry of the basic principles of criminal responsibility by treating the wantonness of becoming intoxicated as a form of recklessness or of wickedness of mind which satisfied the requirement of mens reas: see [1977] AC 433, per Lord Chancellor at pp474 and 475 of the report and Lord Simon at p479 of the report.

Along with this attempt to accommodate the decision to fundamentals of the common law as they have come to be understood, their Lordships appear to have based themselves on public policy, the policy of safeguarding the citizen and of maintaining social order. Indeed, such a policy was treated as paramount, even in the case of crimes of "basic intent" to the point of conclusively presuming voluntariness and the presence of intent.

A distrust of jurors and an anxiety that they may too readily be persuaded to an acquittal if evidence of the result of self-induced intoxication, particularly by drugs other than alcohol, were allowed, may have formed some part of the public policy on which the decision rests. I may say at once that I have, of course, no experience of English juries: but I have of juries in New South Wales. Starke, J., a most experienced judge in the hearing of criminal charges in Victoria, having had as well a long and distinguished career as an advocate, expressed himself in the present case in relation to the impact of evidence of intoxication upon Victorian jurors. He said: "I, of course, have no knowledge of how English juries react. But over nearly forty years’ experience in this State I have found juries to be very slow to accept a defence based on intoxication. I do not share the fear held by many in England that if intoxication is accepted as a defence as far as general intent is concerned the floodgates will open and hordes of guilty men will descend on the community." I share his view, as if they had been expressed about jurors in New South Wales, In my opinion, properly instructed jurors would be scrupulous and not indulged in deciding an issue of voluntariness or of intention. Indeed, I am inclined to think that they may tend to think that an accused who had taken alcohol and particularly other drugs to the point of extreme intoxication had brought on himself what flowed from that state of intoxication.

But I do not doubt that admission of evidence of intoxication, including as most likely it will expert evidence, would call for careful direction by the presiding judge, a matter to which I shall later refer. But whatever the risks in a trial by jury, they do not justify, in my opinion, such a departure from fundamental principles of criminal responsibility as to my mind is involved in the decision of Majewski’s case."

Stephen J. at p.474 dealt with the House of Lords concern lest self-induced intoxication negating intent should affect a public order by, inter alia, saying:

"Considerations turning upon a concern for public order, coupled with forecast of public outcry are, for me, answered by the experience of my own community in Victoria which has for some time now, lived with precisely that view of the law which is denied by Majewski. Since at least some time prior to 1964 some, perhaps many, Victorian judges have acted ad did Monhan J. in R v Keogh [1964] VicRp 52; [1964] VR 400. There his Honour, founding himself upon what was, in fact, his own long experience as counsel in criminal cases in Victoria, upon his own experience on the Bench and upon his knowledge of the practice of other judges of his court, said that he held "firmly to the view that a state of automatism, even that which has been brought about by drunkenness, precludes the forming of the guilty intent which is the fundamental concept in criminal wrong-doing."

I am of the opinion that the reasoning in O’Connor’s case compelling in its persuasiveness. Additionally, the comments made on the public policy considerations taken into account by the House of Lords accord with my own experience in the practice of criminal law.

The unstable state of the relevant law applicable to the appellant in the instant appeal afford the extra-ordinary circumstances to allow the appellant to change his plea to not guilty. I have already ordered that he have a new trial before a different magistrate.

I would add some cautionary words regarding the degree of intoxication necessary to negative mens rea. Fort he defendant to say that he does not remember what happened is not, of itself, the negation of mens rea. Amnesia is not the test, even if it be well established.

An intention may well be the result of intoxication, the sense that it would not have been formed had not intoxication occurred, but it is nevertheless an intention for the purposes of the criminal law. The physical capabilities of the accused demonstrated by precision of movement, dexterity, well-aimed blows, flight after the deed is done, are some of the facts that must be carefully looked at in deciding whether the will went with the deed.

ADDENDUM TO JUDGMENT

This addition to my judgment results from my failure to deal (as I intended to so) with that provision in the constitution of this country whereby the common law is adopted as part of the law governing Western Samoa.

Article 111 includes a definition of "law" in the following term:

"Law" means any law for the time being in force in Western Samoa; and includes this Constitution, any Act of Parliament and any proclamation, regulation, order, by-law or other act of authority made thereunder, the English common law and equity for the time being in so far as they are not excluded by any other law in force in Western Samoa, and any custom or usage which has acquired the force of law in Western Samoa or any part thereof under the provisions of any Act or under the provisions of any Act or under a judgment of a Court of competent jurisdiction:"

The question arises as to what sources of the common law are available to draw upon in order to apply the English common law. It is that as laid down by English courts only? If no direct authority on the point exists in English reported decisions can this court look elsewhere for guidance? What is the position where different courts declaring the common law differ in their views?

In my view the adjective English is descriptive of a system and body of law which originated in England and is not descriptive of the courts which declare such law. Many former British colonies, on gaining independence or some measure of it, have adopted the English common law, e.g. Australia and New Zealand. The superior courts of those countries have on occasions declared the common law differently to English courts, see for example Australian Consolidated Press Ltd. v Uren [1967] UKPCHCA 2; [1969] 1 AC 590; 117 CLR 221; Atlas Tiles Ltd. v Briera [1978] HCA 37; 52 ALJR 707.

Such difference of view as to what the common law should be declared to be are consistent with the very nature of the common law and its evolution. In some areas of the common law it has ceased to develop in England. Statute has replaced it. It would seem to me a distortion of constitutional interpretation to hold that atrophied areas of law be preferred to those which have continued to fulfil the essential characteristic of the common law system - adaptation to changing conditions of society.

The English common law as applied to Western Samoa is as declared by the courts. The only decisions absolutely binding on this Supreme Court are those of the Court of Appeal of Western Samoa. Decisions in superior courts of other countries are persuasive only. But obviously, where the courts of high reputation agree on the common law to be applied in particular circumstances, only a very bold judge would refuse to apply the same law in Western Samoa. In the case where inconsistent declarations have been made by courts of high reputations, it is for this court to determine which declaration is more sound as being consistent with established principle.