However, Children below the age of 10 cannot commit a crime in Malaysia and this is fully covered under Section 82 of Penal Code. This basically means, that a child younger than 10 is not required to attend any court proceedings for whatever crime he did. Now, there are some rules that the Malaysian law has laid out on how children can be punished for any crimes they do. 

The Child Act 2001 applies only if an accused is a “child”. Section 2 of the Child Act specifically defines a person to be a “child” as: 

As we mentioned earlier, children below 10 years old will not be tried in court for any offence. So the age group of children who can be tried in court for committing crimes are from 10-18 years old. After the age of 18, the child (technically a teenager now) will be tried in a normal court.

Unsoundness of mind can essentially categorised in 3: 

(i) due to external factor,

(ii) due to internal/mental functionality, and 

(iii) mental deficiency

Trigger/Duration of being categorised ‘crazy’:

1) during certain time

2) all the time

3)suddenly – due to some triggering factor (allergic, blood, shock)

Unsoundness of mind under Section 84 is a legal concept – concern with the question of the accused’s responsibility of his action.

If a person was in a state of intoxication at the time of the act or omission complained of and-;

(a) the state of intoxication was such that he did not know that the act or omission was wrong or he did not know what he was doing; and

(b) the state of intoxication was caused without his consent by the malicious or negligent act of another person, he shall be deemed to be a person of unsound mind.

Section 85 (1) is not a defence against Intoxication in court while;

Sec. 85 (2) and Sec. 86 is a defence against Intoxication that can be used in court.

Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is wrong and contrary to law

Under the Penal Code, the accused only requires to prove:

Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

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 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.

Where the defence under subsection 85(2) is established, then in a case falling under paragraph (a) thereof the accused person shall be acquitted, and in a case falling under paragraph (b), the provisions of section 84 of this Code, sections 347 and 348 of the Criminal Procedure Code [Act 593] shall apply.

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.

For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs.

Elements in Section 84 for automatism in Malaysia;

R v Sullivan [1994] ~ the accused kicked an 86 y/o man – the oldman was known in the neighbourhood as a kind person – accused had an epilepsy and kicked him – issue was whether accused can use insanity

HELD : court held that epilepsy is not automatism but a disease of mind because it is not due to external factors – it's due to internal factors – the epilepsy causes a defect of reasoning on the accused’s part-- can use this defence.

(a) the state of intoxication was such that he did not know that the act or omission was wrong or he did not know what he was doing; and

(b) the state of intoxication was caused without his consent by the malicious or negligent act of another person, he shall be deemed to be a person of unsound mind.

Section 85 (1) is not a defence against Intoxication in court while Section 85 (2) is a defence against Intoxication that can be used in court. If accused successful in proving the defence of intoxication, the effect is stated in section 86 of the Penal Code 16 which are:

(1) Where the defence under subsection 85(2) is formed, then in a case falling under paragraph (a) thus the accused person shall be released, and in a case falling under paragraph (b), section 84 of this Code, sections 347 and 348 of the Criminal Procedure Code [Act 593] shall affect.

(2) Intoxication shall be considered for the reason of deciding whether the person accused of had created any intention, specific or otherwise, in the absence of which he would not be blameworthy of the offence.

(3) For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs.

 

 

Types of Intoxication;

Involuntary Intoxication

Involuntary intoxication occurs when someone is tricked into consuming a substance like drugs or alcohol. It can also occur as a result of an allergy to, or the unintended effects of, a legal prescription medication. Involuntary intoxication can be a defence to criminal charges if it prevents the defendant from forming the intent that is required for a crime.

Voluntary Intoxication

Establishing a defence of voluntary intoxication is much more difficult than that of involuntary intoxication. Juries are less likely to accept a defence when the defendant brought the intoxication upon himself or herself. A defendant could argue voluntary intoxication as a defence to burglary because he was so intoxicated he was unable to form an "intent to commit a crime therein".

In general, for crime to occur, two elements must be present simultaneously. The first element is actus reus which is the conduct of a forbidden act or causing  harm. The second element can either be in the form of commission, an actual performance of an act or omission or failure to perform an act imposed by the law. Actus reus means that an act does not make a person guilty of committing an offence unless the act is followed by a guilty state of mind. The second requirement is mens rea, which refers to a blameworthy state of mind accompanied a guilty act. This mental element could exist in several forms such as the  intention   and  voluntariness to commit an act or the reckless conduct of the wrongdoer.

The   Respondent   was   an   aggressive psychopath   and   prone   to   violent   outbursts. This   was   particularly   so   if   he   had   taken alcohol. He was frequently violent towards his wife.   He   had   spent   some   time   in   a   mental hospital for which he blamed his wife. On his release he went out and brought a bottle of whiskey and a knife. He intended to use the knife to kill his wife and brought the whiskey as   he   knew   that   this   would   make   him aggressive to the extent that he would be able to kill. He drank the whiskey and killed his wife with   the   knife   and   a   hammer.   He   was convicted   of   murder   and   appealed   to   the Court of Criminal Appeal N.I on the grounds of a misdirection.  His conviction was quashed.

The Attorney General appealed to the House Of Lords on the grounds that the defence of insanity was not open to him because before taking the drink, when there was no defect in his reason, he had clearly evinced an intention to   kill   his   wife   and   any   temporary derangement of his reason at the time of the killing was the result of his own voluntary action taking the drink.

Held: Appeal allowed. The conviction restored. Where a person forms the intention to kill and drinks   in   order   to   give   themselves  courage,   they   cannot   then   rely   on   their intoxication to demonstrate they did not have the necessary mens rea.

As a result, the High Court on Friday (Sept 30) ordered a stay of the proceedings against Chinese national Wang Shuzhen, who allegedly killed Teh Hock Pine, a retired policeman, in their Ang Mo Kio flat in the early hours of Oct 27, 2019. Wang faces a charge of culpable homicide for allegedly hitting Teh on the head at least four times with a 2.6kg glass ball that measured about 40 cm in circumference. A soccer ball has a circumference of 68cm to 70cm.

The court also directed the case to be reported to the Law Minister and ordered Wang to be detained in Changi Prison pending further orders by the minister. Under the Criminal Procedure Code, the minister may order the accused to be confined in a psychiatric institution or any other suitable place of safe custody. In August, the prosecution applied for Wang to be remanded for psychiatric observation, for the purpose of obtaining a certificate on her fitness to stand trial.

In previous IMH reports, Wang was diagnosed with schizophrenia with psychotic symptoms. The details of IMH’s latest report, dated Sept 28, 2022, were not disclosed in open court in Friday’s remote hearing. At the hearing, Wang's assigned lawyer, Sadhana Rai, applied to discharge herself. Rai said Wang has a "delusional belief that my colleagues are involved in some way or another with her husband". The lawyer said Wang can apply for legal aid again if her mental state improves.

Wang was charged on Oct 28, 2019, with the murder of Teh. She was 54 years old at the time. Police said they responded to a case of unnatural death at Block 633 Ang Mo Kio Avenue 6 at 5.46am on Oct 27, 2019. Teh was pronounced dead by paramedics and Wang was arrested at the scene. The murder charge was reduced to one of culpable homicide in 2021.

During the preadmission radiographic examination, he repeatedly engaged in dangerous movements, for example trying to stand up on the stretcher, followed by periods of sleeping, shouting meaninglessly, sleeping again, and rising up. By permission obtained from the people accompanying the patient, restraint belts were applied to the patient, with his body in a lateral position to avoid airway obstruction in case the patient vomited. Considering his uncontrollable behaviour, a single room was selected without ECG monitoring.

Three hours after the admission, he was found with cardiopulmonary arrest with one of the restraint belts twined several times around his neck (Fig.​1). Several parallel lines were marked without scratch wounds, suggesting self-harm. The other end of the belt was tied to the steel bar of the bed. Another belt had been taken off and was on the floor. Thirty-five minutes before, he was shouting, and his body and all extremities were tied down by restraint belts. The method of restraining the patient is shown in (Fig.​2).

A threat is any communication indicating an intention to do harm. It can be communicated directly or indirectly either by words or by conduct or a combination of both

Sec. 94

Section 94 specifies that nothing short of a fear of death will suffice for the defence to be

applicable.

S.94 in Malaysia, requires the threat of instant death to be directed at the accused alone.

Tan Seng Ann v PP [1949]- Court of Appeal reaffirmed trial judge’s decision that ‘only fear of immediate death would be sufficient excuse’. Stated that for duress to be pleaded threat must be imminent, extreme and persistent. Imminent (pp v Nagaenthran a/l K Dharmalingam [2011] ) from when the threat was made to when the crime ordered by the coercer was to be committed.

Requires the court to consider what the accused’s belief as to the nature of the threat was, and then to decide whether such belief was reasonably held.

Derrick Gregory v PP [1988]

-accused pleaded duress for a charge of drug trafficking

-contended that his personality disorder caused him to take the threats from his coercer

seriously.

-Supreme Court reaffirmed trial judge’s decision that the accused’s personality disorder had no bearing on his conduct prior to his arrest.

Chu Tuk Fai v PP [1998]

The accused had ample time to escape from his coercer during his stay with the coercer for a period of 10 days.

Accused need to prove he did not on his own accord place himself in a situation whereby he had become a subject of threats’.

Mohamed Yusof v PP, the appellant was charged with trafficking cannabis. He relied on private defence as he claimed that he did it under threat of a Thai national who threatened to shoot him if he did not do as told. The appellant carried out the task. At the railway station he dropped the bags and went to purchase a train ticket, where he was arrested. The court held that he was not being coerced at this point as he had already completed the mission and the duress was not present or continued to be present. The defence of duress was rejected.

Cops arrest man for allegedly threatening to kill the king

Police have arrested a man in his 30s for allegedly threatening to kill the Yang di-Pertuan Agong, Sultan Abdullah Sultan Ahmad Shah. According to Harian Metro, the man posted a photo of the King on Instagram with a threatening caption.

A screenshot of the post had gone viral on social media, with many netizens urging authorities to take stern action against the account owner. It is understood that police detained the suspect in Kajang last night. Selangor police chief Arjunaidi Mohamed will issue a press statement after the man has been remanded.

In a statement on Monday, inspector-general of police Acryl Sani Abdullah Sani said the police had discovered social media posts that touched on racial and religious sensitivities following the elections on Saturday. He reminded social media users to refrain from misusing such platforms to circulate inflammatory content. Stern action will be taken against those who threaten security and public order, including under the Sedition Act

It is a complete defence that absolves any guilt even where the accused has voluntarily caused the death of a person. The right only available to one who is suddenly confronted with the immediate necessity of averting an impending danger that is not of his creation. The accused need to plead the defence upon the prosecution proving that the accused had committed an offence.

Sec 96 (Nothing done in private defence is an offence)

Sec 97 (Right of private defence of the body and of property)

 Sec 98 (Right of private defence against the act of a person of unsound mind)

Sec 99 (Acts against which there is no right of private defence )

Sec 100 (When the right of private defence of the body extends to causing death)

(a) such an assault as may reasonably cause the apprehension that death will otherwise be the

consequence of such assault;

(b) such an assault as may reasonably cause the apprehension that grievous hurt will

otherwise be the consequence of such assault;

(c) an assault with the intention of committing rape;

(d) an assault with the intention of gratifying unnatural lust;

(e) an assault with the intention of kidnapping or abducting;

Sec 101 (When such right extends to causing any harm other than death)

Sec 102 (Commencement and continuance of the right of private defence of the body)

Sec 103 (When the right of private defence of property extends to causing death )

(a) robbery;

(b) housebreaking by night;

(c) mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

(d) theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised

Sec 104 (When such right extends to causing any harm other than death )

Sec 105 (Commencement and continuance of the right of private defence of property)

(1) The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

(2) The right of private defence of property against theft continues till the offender has affected his retreat with the property, or till assistance of the public authorities is obtained, or till the property has been recovered.

(3) The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death, or hurt, or wrongful restrain, or as long as the

fear of instant death, or of instant hurt, or of instant personal restraint continues.

(4) The right of private defence of property against criminal trespass or mischief, continues as long as the offender continues in the commission of criminal trespass or mischief.

(5) The right of private defence of property against housebreaking by night continues as long as house-trespass which has been begun by such housebreaking continues

Sec 106 (Right of private defence against a deadly assault when there is risk of harm to an innocent person)

Neighbour attacked pensioner in extreme episode of violence, murder trial told

The badly beaten body of 66-year-old Timothy Dundon was found on April 27 this year laying on the floor of his ground-floor flat. He had sustained multiple traumatic injuries, and there was a heavy pine cabinet on his head. Mr Dundon's upstairs neighbour Emmet Morrison is accused of murdering him, and then of going to the home of a 74-year-old acquaintance who lived nearby and attacking him with a knife before headbutting him and gouging his eyes.

Morrison denies murdering Mr Dundon but has admitted a charge of manslaughter, saying he killed his victim after losing control. The 38-year-old also denies a charge of inflicting grievous bodily harm with intent in regard to the second incident, claiming he was acting in self defence.

The prosecutor said the body of Mr Dundon was not found until the afternoon of April 27 when a neighbour raised welfare concerns about him with their social housing provider. An officer from the housing association went to Mr Dundon's flat and found furniture had been upturned and the body of the tenant was laying face down on the floor in the living room. There was a pine cabinet laying on his bloodied and swollen head. Police were alerted and a murder scene was declared. The defendant was arrested at 3.40pm that day in his upstairs flat. Emmet Morrison, of Heol Catwg, Caewern, Neath denies murder and inflicting grievous bodily harm with intent, and the trial continues.

 

Mistakes of fact arise when a criminal defendant misunderstood some fact that negates an element of the crime. For instance, if an individual is charged with theft but believed that the property, he took was rightfully his, this misunderstanding negates any intent to deprive another of the property. One important qualification, however, is that this mistake of fact must be honest and reasonable. Thus, a defendant cannot later claim that he or she was mistaken when he or she actually knew the situation. Likewise, the mistake must be one that would appear reasonable to a judge or jury. If the same individual was repeatedly told that the property was not his, and he could not take it, it would no longer be reasonable for him to mistakenly have believed that he could rightfully take the property. 

 

Mistakes of fact may apply to a variety of crimes. Some crimes may set forth that mistake of fact is a defence. Otherwise, if the criminal defendant can prove that the mistake reasonably negated an element of the crime, the defence will usually be held to apply and absolve the defendant of liability.

 

 Mistake of law is a defence that the criminal defendant misunderstood or was ignorant of the law as it existed at the time. The onus is generally placed on individuals to be aware of the laws of their state or community, and thus this defence only applies in very limited circumstances. For example, while a defendant will not be able to claim that he was not aware that murder was a crime, he may be able to argue that he was not aware of some obscure traffic law.

Section 79. (Justified by Law)

Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.

   
Sulong bin Nain v PP [1947]

    

The accused was arrested while he was in possession of two hand grenades. He was charged with the offence of carrying arms under Section 3(1) of the Order and Safety Proclamation. The accused raised the defence of the mistake, claiming that he believed in good faith that he was bound or justified by law to surrender the grenades to the police. The court weighed the conduct of the accused with mistake of fact and found that ‘mistake’ is the use in the sense of misconception or error of judgement not intended to produce the result attained. Therefore, defence of a mistake of fact failed to be a mistake under Section 76 and or 79, as the accused had deliberately carried the hand grenades to the police station.

2. Mistake was one of fact not of law.

3. The accused mistakenly believes that he or she was bound or justified by law in doing the criminal act.

Bound by Law: having legal duty or obligation to perform the conduct complained of.

    

S.43 - a person is said to be “legally bound to do” whatever it is illegal in him to omit.

Justified by law: an act which is not prohibited by law is justified by law. (Abdullah v R

[1954])

4. Mistakes were believed by him or her in good faith.

Good faith:

S.52 - Nothing is said to be done or believed in good faith which is done or believed without due care and attention.

Whether there was due care and attention

The test is subjective - depending on the position of a person and varies from one case to another.

Sec. 82 - Nothing is an offence which is done by a child under ten years of age.

Sec. 83 - Nothing is an offence which is done by a child above ten years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion.

Sec. 113 Evidence Act - Boy who is below 13 years old is presumed to be not capable to conduct rape. It is rebuttable by way of proving his maturity.

   2. The act was done without criminal intent or knowledge

    3. The act must be lawful and must have been done in A lawful manner and by lawful means

    R V Ong Choon

    PP V Tan Chor Jin

   4. The act must have been done with proper care and caution.

    R V Ong Choon

Another category of protection for children between 10 to 12 years of age is provided in section 83 of the penal code. Children between the ages of 10 to 12 are also protected by the Malaysian Penal Code but the protection is conditional and partial. They can be made criminally liable but if there is a clear evidence that they have not attained sufficient maturity of understanding to judge the nature and consequence of their act, they may rely on this defence

Under Sec. 83:
In principle the burden of proof lies on the child to establish the insufficient maturity of understanding at the time of committing the offence. If they are proven to be immature and incapable of judging their conduct at the time of crime commission, then they may not be criminally liable. However, if they are mature enough, criminal liability may be imposed on them and the punishment is in accordance with the Child Act 2001.

Therefore, 2 things to consider before punishment:

Whether a child has attain sufficient maturity of understanding – shall be inferred from words and actions at the time of the offence

The child should also show that he does not know the natural and physical consequences of his conduct.

A Bernama report said the boy had admitted to the police after the girl’s mother lodged a report. She had taken her daughter to the clinic last Friday after the girl complained of pain in her private parts. The doctor found a broken hymen as well as other tears and advised the mother to report to the police.

Batu Gajah district police said the boy was released on Wednesday after bail was posted.

“We are currently investigating the case under the Child Act 2001 together with section 113 Evidence Act,” said Batu Gajah police chief ACP Ahmad Adnan Basri today.

“Due to the boy being 12 years old, we cannot investigate the case under Section 376 of the Penal Code because he is protected under section 113 of the Evidence Act on the presumption that a boy under the age of 13 cannot commit rape.”

He said the police were waiting for a medical report and further instructions from the deputy public prosecutor in Ipoh.

The boy was alleged to have raped the girl who was under the care of his mother, who was a babysitter at a nursery in Batu Gajah.

However, the accused, aged 17 years and 11 months, pleaded not guilty after the charge under Section 79 was read by a court interpreter in front of Magistrate Zuhainie Zull Kafli.

According to the charge sheet, the teenager was charged with causing the death of her younger brother, which he realised could cause death at their home in Johor Bahru, at 1:50pm, 19 Oct last month.

The accused is charged under Section 304(b) of the Penal Code which carries a maximum prison sentence of 10 years or a fine or both, if convicted.

The prosecution was represented by Johor state prosecution director Tengku Amir Zaki Tengku Abdul Rahman and Deputy Public Prosecutor Hayatul Mirdah Mohd Yunos. They proposed a bail amount of RM10,000 for the accused.

Meanwhile, defence counsels Abd Rahim Ali, Jihad Syahida Nadia Zakaria and Nur Zafirah Norizan applied for the bail amount to be reduced as the accused is still a minor and there is no reason for her to flee.

“In addition, we also take into account the family’s income and schooling background, which means that by next year the accused will sit for the Sijil Tinggi Pelajaran Malaysia (STPM),” said Abd Rahim.

The magistrate allowed the accused to post bail at RM10,000 with one surety, in addition to having to report to the nearest police station monthly.

The court also set December 5 as the date for mention of the case.

He burst into the Serangoon flat on the dawn of Feb 15, 2006, armed with a knife and Beretta pistol. It was the home of his long-time friend and nightclub owner Lim Hock Soon. The gunman first ordered Mr Lim to tie up his wife, maid, and teenage daughter. He then aimed his pistol at 41-year-old Lim, firing five shots into his left thigh, left arm, back, right cheek and right temple before fleeing with accomplice Ho Yueh Keong, a Malaysian.

And so began an international manhunt for Tan Chor Jin, dubbed by the media as the One-eyed Dragon because he is blind in his right eye.

It took just 10 days before he was caught after police stormed a room at the five-star Grand Plaza Parkroyal hotel in Kuala Lumpur - launching a murder trial in which Tan conducted his own defence, before being found guilty. He was hanged in 2009 at the age of 42.

The High Court rejected Tan's multi-pronged defence: that he had been drunk, that the shots were fired accidentally, and that he had acted in self-defence after Mr Lim threw a chair at him.

Labelling his actions as those of an "assured and accomplished assassin", he was sentenced to death. Justice Tay dismissed Tan's claims of an accidental shooting as a "laughable fantasy", because pulling the trigger required strength and a firm grip.

After the judge read out the sentence, Tan's first question was: "Will I be hanged tomorrow?" Again, he asked if he could smoke in prison. Veteran criminal lawyer Subhas Anandan represented Tan in his appeal, which was rejected in January 2008.

Before facing the noose on Jan 9, 2009, he requested that his kidneys, liver and cornea be donated.

It is believed that the 42-year-old asked for one of his kidneys to go to retail magnate Tang Wee Sung, the second son of Tangs' late founder Tang Choon Keng.

Although necessity may seem like a defense that would be commonly invoked by defendants seeking to avoid criminal charges, its application is limited by several important requirements:

Only if all of these requirements are met, will the defense of necessity be applicable. It is also important to note that in some jurisdictions, necessity is never a defense to the killing of another individual, no matter what threat they may present.

Sec. 81 Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property

Under the defense of necessity, an individual must reasonably believe, first and foremost, that there is an imminent and actual threat that requires immediate action. Thus, for instance, a school bus driver may be driving a bus of school-aged children when he loses control of his brakes as he is approaching a steep turn on a mountain road. He is faced with an actual and immediate threat that the bus may go out of control and drive off the road, risking the lives of countless children on the bus.

Like other crimes, most states require that this threat would be reasonably apparent to the average individual and is not a threat that the defendant experienced only subjectively. Here, a reasonable person would certainly agree that an out of control bus with children on it is an actual threat to safety.

Because the defense of necessity is essentially a justification for the criminal act, it is imperative that the defendant had no other realistic options available to him at the time the criminal act was committed. If he did, his criminal actions would not be justified. This does not mean, however, that no alternative whatsoever must exist. Generally, the individual will always have the option to simply let the greater harm occur and refrain from acting criminally, but courts have determined that this is not a “realistic” option.

In the example, for instance, if the bus driver had access to an emergency braking device that was designed to stop the bus when the regular brakes failed, he would not be justified in committing a criminal act to prevent collision because he had a realistic alternative available to him.

When an individual is evaluating whether it is necessary to undertake a criminal act in order to avoid a more serious problem from arising or occurring, the individual must be certain that no greater harm will arise from his or her criminal act than from the situation that would be avoided.

For instance, if, in order to avoid driving off the mountain road and plunging down the steep incline, the bus driver elects to drive the bus into a barn in order to stop the bus, he must be certain that no greater harm will come from this choice. Because it is a barn and perhaps appears empty to him, his criminal act of destroying the barn and any property inside will likely be considered less harmful than the lives lost if the bus careens over the road. However, if the bus drivers only alternative was to drive the bus into an area crowded with other people, he might, in fact, cause more harm through this alternative than would be prevented.

any defendant claiming the defense of necessity cannot have contributed to or caused the threat that they were later seeking to avoid by committing the criminal act. Thus, if the bus driver had been advised by his mechanic that the brakes on his bus were failing, but decided not to have them replaced, he could have difficulty claiming the defense of necessity because his failure to act responsibly contributed to the threat he faced.

According to an Amherst provincial court decision released on Tuesday, Roger Pleau and friend Eldon Deegan were drinking beer at Deegan's apartment in Upper Nappan on Oct. 4, 2012, while their wives went to bingo in Amherst.

They weren't allowed to smoke in the apartment, so Pleau and Deegan went outside for a cigarette. The apartment was on the second floor of a complex and Deegan stumbled down the stairs, gashing his scalp on an iron rail and sustaining a concussion.

The men were locked out of the apartment building and both keys for the building — the main and the spare — were with their wives. Neither man had a cellphone.

Deegan was incoherent and having difficulty breathing. Pleau, 54, from Maccan, panicked and drove his friend to the local hospital, according to court documents.

At the hospital, the nurse noticed Pleau appeared drunk so she called police. Pleau was found to have blood alcohol readings of 110 and 100 milligrams of alcohol per 100 millilitres of blood.

Amherst provincial court Judge Paul Scovil noted in his decision, "Obviously, if Mr. Pleau and Mr. Deegan were non-smokers none of this would have occurred."

"There are any number of reasons for individuals to quit the habit of smoking. This case outlines another one."

In acquitting Pleau on the drunk driving charge, Scovil said, "Mr. Pleau thought his friend was going to die. I accept what Mr. Pleau testified to. He gave evidence in a forthright and credible manner. No doubt credibility is key in cases like this.

"His inability to call 911, the panic of being locked out of the apartment building with someone in obvious medical distress would lead the accused to take the action he did."

Scovil warned his decision should not be taken lightly.

"This should not be taken as condoning impaired driving. Nor should the public think that the defence of necessity is an easy one to make out," he wrote.

"Rare is the case that such evidence would be accepted, but this is such a case."