Legal Analysis of Criminal Liability in Cases of Intoxication and Aberration Ictus, Exams of Law

Download Legal Analysis of Criminal Liability in Cases of Intoxication and Aberration Ictus and more Exams Law in PDF only on Docsity! CRW2601 EXAMINATION PACK PAST PAPER SOLUTIONS 2024 [Document subtitle] [DATE] [COMPANY NAME] [Company address] 1 | P a g e CRW2601 CRW2601 EXAMINATION PACK PAST PAPER SOLUTIONS 2024 4 | P a g e CRW2601 impose any sentence other than the one legally authorized. This is the nulla poena sine lege rule, which can be further abbreviated to the nulla poena rule. (b) For the defence of impossibility to be successful, (1) the legal provision that is infringed must place a positive duty on X (2) it must be objectively impossible for X to comply with the relevant legal provision (3) X must not himself be the cause of the impossibility (c) In YG v S 2018 (1) SACR 64 (GJ), the South Gauteng High Court ruled that the reasonable chastisement defence as currently recognised in the common law is not constitutionally justifiable (at par [85]). X was charged in the regional court with assault to do grievous bodily harm in respect of 13-year- old son, M, as well as of his wife. The two assaults occurred, allegedly, at the family home on the same day. X was convicted on both charges and appealed to the Gauteng High Court on the ground that he was exercising his right as a parent to chastise M by meting out reasonable corporal punishment for M’s indiscipline. X had caught M using one of the family’s IPads and accused M of watching pornographic material. M denied it and when M refused to admit as required by X, he (X) hit him a number of times. X told the court that they are a Muslim family and that pornography was strictly forbidden. The court of appeal (High Court) was of the view that it was in the interests of justice for it to determine the constitutionality of the defense (par [30]) because the constitutional rights implicated are the rights of children, “who are afforded particular protection under the Bill of Rights” (par [28]). The court also emphasized its duty under sections 8(1) and 39(2) to develop the common law in line with the Bill of Rights (par [28]). The court identified the following relevant rights in this matter: the right to human dignity (section 10); the right to equal protection (section 9(3)); the right to be free from violence (section 12(1)(c)); the right not to be punished in a cruel, inhuman or degrading way (section 12(1)(e)); the right of children to be protected from 5 | P a g e CRW2601 maltreatment, neglect, abuse or degradation (section 28(1)(d) and the constitutional principle that a child’s best interests are of paramount importance in every matter concerning the child (section 28(2)). The court ruled that the defense of reasonable and moderate parental chastisement undermines a child’s right to dignity and also does not give children equal protection to the law since it allows for adult victims of assault and children victims to be treated differently (par [74]). The court could find no justification for such infringement of the relevant rights. Because the principle of legality prohibits retrospective application of the law, the ruling on the unconstitutionality of the defense was not applied to the accused. However, the merits of his conviction was considered and the court upheld the trial court’s finding that X had exceeded the bounds of reasonable or moderate chastisement. Or An act that would otherwise be unlawful is justified if X, by virtue of her holding a public office, is authorized to perform the act, provided the act is performed in the course of the exercise of her duties. Possessing drugs amounts to the commission of a crime. Nevertheless, the clerk of the court whose official duty it is to exercise control over exhibits at a court will not be guilty of unlawfully possessing drugs if she exercises control over drugs that are exhibits in a current court case. To touch or search another inappropriately without her consent amounts to the commission of crimes such as assault, indecent assault or crimen iniuria. Nevertheless, X does not commit any crime in the following circumstances, despite the fact that she has searched Y without Y’s consent: X is a member of the security personnel at a custom-post or international airport. It is her duty to physically search people crossing international borders in order to ascertain whether they have hidden prohibited articles (such as drugs or weapons) on their bodies or in their clothing. Y is someone who intends crossing the international border and who is searched by X, who is acting in her official capacity. 6 | P a g e CRW2601 (d) (i) formally-defined crimes, the definitional elements proscribe a certain type of conduct (commission or omission), irrespective of what the result of the conduct is. Examples of crimes falling into this category are perjury and the possession of drugs. Whereas materially-defined crimes, on the other hand, the definitional elements do not proscribe a specific conduct, but rather any conduct that causes a specific condition. Examples of this type of crime are murder and culpable homicide. (ii) Tembani: accused shoots girlfriend twice in chest. She was then admitted to hospital. The medical personnel where negligent in taking care of her. The lady ended up dying from wounds. Deliberate infliction of an intrinsically dangerous wound from which death likely to occur without medical intervention must generally lead to liability. It was irrelevant whether wound was treatable or whether treatment was negligent or sub-standard. Only exception: if recovered to such an extent that the original injury no longer posed a danger to her life. Approach justified because of 2 policy considerations: 1) Deliberate fatal wound; conscious that death might ensue – intervening persons do not diminish moral culpability of perpetrator 2) Legal liability cannot be imputed on supposition that efficient/reliable medical attention would be accessible, especially in our country The accused was found guilty of murder. In the facts of the scenario X and Y cannot rely on the negligence of the hospital because. They deliberately inflicted a lethal wound whilst knowing death might ensue. Question 2 9 | P a g e CRW2601 has to decide what punishment to impose for the statutory crime of which she had been convicted, the court is empowered to impose the same punishment it would have imposed had she been convicted of the crime she was originally charged with. In this way she is prevented from ``walking out of court'' unpunished. In this set of facts X was not so drunk that he lacked criminal capacity. The intoxication only excluded his intention, and therefore his case fell into category (3) of the “meter” The section applies only to cases falling in categories (1) and (2) of this “meter”. It is not applicable to a situation such as in the present set of facts in which the accused did have criminal capacity, but to cases falling into category (3) of the”meter”. As a result, the answer to the question is that X cannot be convicted of “statutory intoxication”. Neither is he guilty of theft under common law. This fact is mentioned in the description of the set of facts in the question. X is therefore not guilty of any crime. (d) Section 78(1) of the Criminal Procedure Act 51 of 1977, which reads as follows: A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable (a) of appreciating the wrongfulness of his or her act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission. Or A child who commits an offence while under the age of ten years is irrebuttably presumed to lack criminal capacity and cannot be prosecuted for an offence. A child who is ten years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity. The State must prove beyond reasonable doubt the capacity of a child who is ten years or older but under the age of 14 to appreciate the difference between right and wrong at the time of the commission of an alleged offence and to act in accordance with that appreciation. 10 | P a g e CRW2601 (e) In interrupted attempt, X’s actions are interrupted so that the crime cannot be completed. In these cases, X is guilty, provided that her actions are no longer mere acts of preparation, but, in fact, constitute acts of consummation. Schoombie 1945 AD 541. In the latter case, X had gone to a shop in the early hours of the morning and had poured petrol around and underneath the door, so that the petrol fl owed into the shop. He placed a tin of inflammable material against the door, but his whole scheme was thwarted when, at that moment, a policeman appeared. The Appellate Division confirmed his conviction of attempted arson and, in the judgment, authoritatively confirmed that the test to be applied in these cases was to distinguish between acts of preparation and acts of consummation. Question 3 (a) The possible effects of that provocation may have on criminal liability 1. Theoretically speaking it may exclude X’s voluntary act. This will, however, seldom occur in practice. 2. It may exclude X’s intention. Depending on the specific facts of the case, provocation may have the effect that, at the time of the commission of the unlawful act, X did not act with knowledge of unlawfulness. 3. It may also have the opposite effect, that is, to confirm the existence of X’s intention. Evidence of provocation is then nothing more than evidence of the initial reason for X’s conduct. 4. After conviction it may serve as a ground for the mitigation of punishment (b) (i) Offence or crime (ii) Necessity (iii) Provocation, sane automatism (iv) Material (v) Concrete figure (vi) De Blom (vii) Unlawfulness, culpability 11 | P a g e CRW2601 (ix) Active association 14 | P a g e CRW2601 considerations – X’s act too remote from result. Y’s own unreasonable failure = immediate cause of his death. X guilty of attempted murder only. Tembani: accused shoots girlfriend twice in chest. Admitted to hospital. Medical personnel negligent. Dies from wounds. Deliberate infliction of an intrinsically dangerous wound from which death likely to occur without medical intervention must generally lead to liability. Irrelevant whether wound was treatable or whether treatment was negligent or sub-standard. In facts of the scenario, X can also be regarded as the legal cause of Y’s death because his pushing of Y of the cliff was more likely to inflict serious wounds which death would occur without medical treatment. In such instances the Tembani case dictates X must be found that he is the legal cause of Y’s death irrespective of whether treatment was negligent or sub- standard. (c) The consent must be (1) given voluntarily (2) given by a person who has certain minimum mental abilities (3) based upon knowledge of the true and material facts (4) given either expressly or tacitly (5) given before the commission of the act (6) given by the complainant herself (d) (i) Steyn 2010 1 SACR 411 (SCA) Steyn (supra) serves as a good example in this regard. X shot and killed her former husband (Y) in the following circumstances: Y drank heavily and continuously abused X, both mentally and physically over a long period of time. He often told her that he would slit her throat and regularly locked her in her bedroom. X eventually divorced her husband (Y). X got her own fl at, but because of fi nancial difficulties, she returned to the matrimonial home, although she no longer shared a bedroom with Y. Y continued to abuse her and, at times, she locked herself in her bedroom to prevent Y from assaulting her. One evening, X, who was suffering from depression and anxiety, told Y that she had contacted the medical aid to find out whether it would pay for treatment for her anxiety at a nearby clinic. Y, who had been drinking, lost his temper, verbally abused X, claiming she was mad, and then grabbed her by the throat and 15 | P a g e CRW2601 began to hit her. She managed to escape and ran to her bedroom, where she locked herself in. Later that evening she went to the kitchen to find something to eat before taking some prescribed medicine for an ulcer. Because she was overcome with fear, she armed herself with her.38 revolver, which she hoped would dissuade Y from attacking her again. On seeing her, Y shouted that he had told her to stay in her room and that she was not to get anything to eat. Holding a steak knife, he jumped to his feet and rushed at her, shouting that he was going to kill her. X then fired a shot at Y and immediately returned to her room, where she phoned a friend. She was charged with culpable homicide and her plea that she had acted in self-defense was rejected. The trial court held that a reasonable person in X’s position would have foreseen the possibility that Y might attack her and would not have left the room. It concluded that she (X) had acted unreasonably and that the fatal incident could have been avoided if she had telephoned for help. The Supreme Court of Appeal rejected this reasoning of the trial court. The court recognized that there must be a reasonable balance between the attack and the defensive act. However, strict proportionality is not required, the proper consideration being whether, in the light of all the circumstances, the defender acted reasonably (at 417e-f). The court was of the view that it could not have been expected of X to gamble with her life by turning her back on the deceased who was very close to her and about to attack her with a knife, in the hope that he would not stab her in the back. Leach AJA commented that “she would have had to turn around in order to get back to her room, by which time the deceased would have been upon her and flight would have been futile” (418c). Her assumption that Y would catch her was a reasonable one and therefore “she could not be faulted for offering resistance to the deceased rather than attempting to flee from him” (418d). The court added that X was entitled to leave her bedroom, in her own home, and go to the kitchen to find something to eat. Her life was under threat and she was entitled to use deadly force to defend herself. Her plea of self-defence was accordingly upheld (ii) Thebus 2003 (2) SACR 319 (CC) Liability for murder on the basis of active association with the execution of a common purpose to kill was challenged on the grounds that it unjustifiably limits the constitutional right to 16 | P a g e CRW2601 dignity (s 10 of the Constitution), the right to freedom and security of a person (s 12(1)(a)) and the right of an accused person to a fair trial (s 35(3)). The Constitutional Court rejected these arguments and declared constitutional the common-law principle that requires mere “active association” instead of causation as a basis of liability in collaborative criminal enterprises. (iii) S v Mtshiza 1970 X and Y drank a lot. Started quarrelling. Y is bigger than X and provoked him. X aimed a pocket knife at him. At that moment Z a friend of X moved forward to intervene. X stabbed Z in the chest but it was aimed at Y. Court found X guilty of culpable homicide and sentence him to 10 years in prison and 8 strokes. X appealed the sentences only. Culpability 2 of the 3 judges found it unnecessary to analyze the rules applicable to case of aberration ictus. Thus theoretically the appellant was free to depart from that approach. Court found in favor of appellant. His 10 year imprisonment and 8 strokes was set aside. Only 5 years imprisonment. Question 2 (a)(i) private defense. (ii) Private defence requirements Requirements of attack The attack (a) must be unlawful (b) must be against interests that ought to be protected (c) must be threatening but not yet completed Requirements of defense The defensive action (a) must be directed against the attacker (b) must be necessary (c) must stand in a reasonable relationship to the attack (d) must be taken while the defender is aware that he is acting in private defense 19 | P a g e CRW2601 • the conduct of the person whose negligence has to be determined differed from the conduct expected of the reasonable person The test for negligence is in principle objective, namely the foreseeability of the result or circumstances by the reasonable person. However, this rule is subject to the following subjective factors: 1. Children: the test is that of a reasonable child. 2. Experts: here the test is that of a reasonable expert. 3. Where an accused has more knowledge of a particular situation than the reasonable person Question 3 (a) A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable (a) of appreciating the wrongfulness of his or her act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission. (b) (i) 1 of Act 1 of 1988 (ii) culpable homicide (iii) intention (iv) furthers (v) hands or body, somebody else (vi) acts, imputed (vii) prior agreement, active association and participation 20 | P a g e CRW2601 CWR2601 May/ le hoice questions (1) (4) (2) (3) (3) (2) (4) (3) (5) (3) (6) (5) (7) (3) (8) (1) (9) (5) (10) (1) Section B Question 1 1. (a) Four elements of criminal liability: (i) Act or conduct (ii) Complies with the definitional elements of the crime (iii) Unlawful (iv)Culpable (b) In Director of Public Prosecutions, Western Cape v Prins 2012 9 SACR 183 (SCA), it was contended that no crime is created in the absence of a penalty clause in the particular legislation (prescribed punishment). In other words, the contention was that a person accused of a statutory offence cannot be charged and found guilty of such an offence if there is not also a sentence or punishment prescribed for the offence in the particular legislation. The Supreme Court of Appeal rejected this contention. The court found that there was no support for this contention in the case law. Although the presence or absence of a penalty clause (prescribed punishment) is an important factor in determining whether a crime has, in fact, been created 21 | P a g e CRW2601 (at par 15), the court was of the view that it is not an essential factor, since it may otherwise be very clear from the particular legislation that a crime was actually created. Apart from focusing upon the language used in the Act, a court must consider, in particular, the objectives of the particular legislation. If it is clear from the objectives of the legislation (expressed in the title and preamble to the Act) and the entire context of the Act that the intention was to create a crime or crimes, then a person may be charged with such (a) crime(s) and be found guilty, even if no penalty is prescribed in the particular Act. The imposition of punishment is then left to the discretion of the court, as has always been the position in the common law. (c) (i) “Ius strictum” literally means “strict law”. Freely translated, it means “a legal provision that is interpreted strictly (i.e. the opposite of ‘widely’)”. (ii) Yes it did. (iii). The Court explained that this meant that the rules of criminal law should be clear and precise, so that an individual may easily behave in a manner that avoids committing crimes. In other words, fairness to the accused required that the extended meaning of the crime of rape not apply to him, but only to those cases that arose after judgment in the matter had been handed down. X could therefore be convicted of indecent assault only, and not of rape. (iv) Ius Praevium, creation of a crime with retrospective effect (i.e. the ex post facto creation of crimes) is at variance with the principle of legality, not legal. (“Praevium” means “previous”. Freely translated, ius praevium means “the law that already exists”.) (v) Masiya case, taking into account the Ius Praevium principle, Constitutional Court ruled that the extended definition of the crime of rape be applied prospectively only. Meaning, because the field of application of the crime was extended only after the accused had performed the prohibited act (i.e. non-consensual penetration of the anus of a female), he could not be convicted of rape, but only of indecent assault. 24 | P a g e CRW2601 A person acts with indirect intention if the causing of the forbidden result is not his main aim or goal, but he realizes that, in achieving his main aim, his conduct will necessarily cause the result in question. Dolus eventualis A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result, and he reconciles himself with this possibility. (c) (i) Doctrine of common purpose: If two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the acts of each of them in the execution of such a purpose are imputed to the others. (ii) X3 cannot succeed with this argument because he will be found to have committed the robbery under the doctrine of common purpose. X3 in the facts of the scenario drove the gate away car, thus he was aware that X1 and X2 where going to rob a jewelry store. He acted in common purpose with X1 and X2. He is guilty of robbery. (iii) In Molimi 2006 (2) SACR 8 (SCA), X1 and X2 appealed to the Supreme Court of Appeal against their convictions. They conceded the existence and proof of a common purpose (between X1, X2 and Z) to rob the store, but argued that the actions of the bystander, which resulted in the kidnapping and death of the hostage and injury to an employee in the other store, were not foreseeable by them (X1 and X2) as part of the execution of the common purpose. It held, however, that the kidnapping of the hostage by Z and the hostage’s eventual murder were acts that were so unusual and so far removed from what was foreseeable in the execution of the common purpose that these acts could not be imputed to X1 and X2. They were therefore acquitted on these charges (murder and kidnapping in respect of the hostage). 25 | P a g e CRW2601 Thus X argument of the manner in which the death of the bystander, A occurred was not foreseeable because he was killed by the gunshot fired by Z. They can be acquitted (iv) X1 and X3 cannot succeed in this defense because in the Molimi case where the facts of the case are similar to the scenario which state The court held that the attempted murder of the employee in the other store was foreseeable, for, once all the participants in a common purpose foresaw the possibility that anybody in the immediate vicinity of the crossfire could be killed, regardless of who actually shot the fatal bullet, then dolus eventualis was present. Thus X1 and X3 cannot succeed in their plea of that the wounding of B was too far removed from what was foreseeable in the execution of common purpose. Question 3 Had to choose one of the two: (a) The test for negligence: The test for negligence is always objective except for a few exceptions. A person’s conduct is negligent if: a reasonable person in the same circumstances would have foreseen the possibility, that the particular circumstance might exist, or that his conduct might bring about the particular result, and a reasonable person would have taken steps to guard against such a possibility, and the conduct of the person whose negligence has to be determined differed from the conduct expected of the reasonable person. (b) Define an accessory after the fact: A person is an accessory after the fact to the commission of a crime if, after the commission of the crime, he unlawfully and intentionally engages in conduct intended to enable the perpetrator of, or accomplice to, the crime to evade liability for his crime, or to facilitate such a person’s evasion of liability. (b)(i) non-pathological criminal incapacity, sane automatism. (ii) conditio sine qua non. (iii) concrete-figure. 26 | P a g e CRW2601 (iv) intention, criminal capacity and voluntary act. (v) 10. (vi) definitional elements. (vii) accomplice. 29 | P a g e CRW2601 said an act may comply with the definational elements but it does not necessarily unlawful, its only unlawful when they are no grounds of justificatio n. Question 2 a.i. Aberratio ictus means the going astray or missing of the blow. It is not a form of mistake. In legal literature the concept has a two way approach namely the (a) The transferred culpability - according to this approach the question whether X in an aberratio ictus situation had the intention to kill Z, when he missed Y and the blow killed Z. X's intention to kill Y is transferred to her killing of Z, even though X might perhaps not even have foreseen that Z might be struck by the blow. (b) The concrete-figure approach accepts that X intended to kill Z if it can be proven that X knew that her blow could strike Z, or if she had foreseen that her blow might strike Z and had reconciled herself to this possibility. ii. a mistake can exclude intention only if it is material and if; -X does not know that her conduct is not covered by a ground of justification. - X does not know that her conduct, is punishable by the law as a crime. Mistake maybe relied on as a ground of justification if a persons labours under a misconception or material mistake. Before X could be deemed to have culpability in the form of intention (dolus), it must be clear that she was also aware of the fact that her conduct was unlawful. This aspect of dolus is known as knowledge (or awareness) of unlawfulness. In Sam 1980, X was charged with pointing a firearm at Y in contravention of the law. However, the evidence revealed that X pointed the firearm at Y in the honest yet erroneous belief that Y was a thief whom he had caught red-handed. X was acquitted, the court holding that in a crime requiring intention (dolus) the state must prove beyond reasonable doubt that X acted with knowledge of unlawfulness, and found that X had lacked such knowledge. In Masago 1935 it was held that X was not guilty of rape if he was under the impression that Y had consented to intercourse. 30 | P a g e CRW2601 Secondly according to our present law, ignorance of the law excludes intention and is therefore a complete defence in crimes requiring intention. The effect of a mistake regarding the law is therefore the same as the effect of a mistake regarding a material fact as it excludes intention. (De Blom 1977) b.i. The doctrine of common purpose holds that if a number of people have a common purpose to commit a crime and in the execution of this purpose, act together, the act of each of them in the execution of this purpose is imputed to the others. ii. A, B and C may all be convicted of murder of Y in terms of the doctrine of common purpose because the intention to commit a murder together with another may consist in the intention actively to associate yourself with the conduct of somebody else which causes the victim's death. There must be a prior agreement and active association and participation in a common criminal design. In terms of the Mgedezi case, if no proof of a previous agreement between the perpetrators, the following requirements must be met to be found guilty based on common purpose: • Must have been present at the scene of the crime (not a passive spectator) • Must have been aware of the assault on Y • He must have intended to make common cause with others • He must have performed an act of association • He must have had the intention to kill or to contribute to the death iii. An act is a novus actus interveniens if a new intervening event which is unexpected, abnormal or unusual occurrence; in other words, an occurrence which, according to general human experience, deviates from the normal course of events, or which cannot be regarded as a probable result of X's act. Although the shot that hit and killed Y the bystander was not fired 31 | P a g e CRW2601 by B, the shot fired by the police was a novus actus interveniens in terms of Judge Trengrove in Daniels 1983, the person who fired it acted completely independently of X; it was this person's act (and not that of X) that caused Y to die when he did. Thus B may succeed on this line of reasoning. c. The three forms of intention are; direct intention (dolus directus), indirect intention (dolus indirectus) and what is usually described as dolus eventualis A person acts with direct intention if the causing of the forbidden result is his aim or goal, for example X wants to kill Y. X takes his revolver, presses it against Y's head and pulls the trigger. The shot goes off and strikes Y in the head. Y dies instantly. A person acts with indirect intention if the causing of the forbidden result is not his main aim or goal, but he realises that, in achieving his main aim, his conduct will necessarily cause the result in question.Example X shoots through a closed glass window at a target. His main purpose is to hit the target, but he realises that by doing this he must necessarily also shatter the window. If he decides nevertheless to act to attain his main purpose, he naturally also wills those consequences which he realises must invariably accompany his main purpose. If he shoots at the target and shatters the window, he cannot be heard to say that he never intended toshatter the window. A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result and he reconciles himself with this possibility. d. An act or an omission is only punishable if it is voluntary.The conduct is voluntary if X is capable of subjecting his bodily movements to his will or intellect. Question 3 34 | P a g e CRW2601 June 2017 Question 1 2 2 5 3 3 4 2 5 3 6 2 7 5 8 3 9 3 10 1 PART B Question 1 a) Three factors that excludes voluntariness are; Absolute force – Refer to a person's is not able to subject his bodily movements to his will or intellect but is caused to act by some other force. This is different to relative force where someone is forced to act involuntarily because they is a bigger threat against them although it remains possible for them to behave differently Natural forces – is an act that is propelled by natural forces, thereby causing others damage or harm. Automatism – Is an involuntary act where a person behaves in a mechanical fashion for example reflex movements such as heart palpitations or a sneezing fit; somnambulism; muscular movements such as an arm movement of a person who is asleep, unconscious or hypnotized, or having a nightmare, an epileptic fit, or a black-out. 35 | P a g e CRW2601 b) i. Factual causation also referred as to conditio sine qua non refers to the act that cannot be thought away without the situation disappearing at the same time. In determining the cause of a particular outcome the court has developed a test where the ii) The test that the courts will use to determine legal causation is a test to determine the proximate cause, the adequate cause, or whether an event constituted a novus actus intervenienss. In Mokgheti, X shot Y, a bank teller into a paraplegic state. Y recovered and resumed work, but was told to move around often in order not to develop pressure sores. Y didn’t do this, got pressure sores and died. X was then convicted of murder in regional court. He appealed on the grounds that he should not have been convicted of murder as there was not a sufficient causal connection between the bullet wound and Y’s death. Argument: bullet was the factual cause of death, it was not the legal cause. Judge upheld the appeal confirming that if only the conditio sine qua non test has been complied with, at most there is factual causation. Only if there has been compliance with the criterion which further restricts the operation of the sine qua non test can there be legal causation. X was sentenced to 10 years for attempted murder and not murder. In light of the factual and legal causation together with the application of the Mokgheti case, Z is the factual cause of Y’s death but not the legal cause. Therefore Z cannot be convicted of murder of Y but only culpable homicide. iii) factual and legal causation use Mokghethi to decide. c) An act that complies with the definitional elements is unlawful only if it cannot be justified d) Actual private defense a person who acts in private defense acts lawfully provided his conduct satisfy the requirements laid down for such defense and did not exceed limits. (The defensive action is necessary to protect the threatened interest, is directed against the attacker, and is no more harmful than is necessary to ward off the attack). 36 | P a g e CRW2601 On the other hand a defense of putative private defense implies rational but mistaken thought or genuine belief of an imminent attack or danger acts to repel the imagined danger (private defense which existed only in X's thoughts) Question 2 a) A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result and he reconciles himself with this possibility. b) In Humphreys 2013 the court said the test for dolus eventualis was held to be two fold; that is whether the person foresaw the possibility of the death of his passengers as a possible consequence of his conduct, and whether he reconciled himself with that possibility. Thus the court held that the driver although it could not be denied that subjectively he foresaw the possibility of fatal injury to one or more of his passengers the question was whether he reconciled himself to the possibility of his own death. The court concluded that there was no evidence he reconciled himself to death. The test for negligence; b. A person’s conduct is negligent if: • a reasonable person in the same circumstances would have foreseen the possibility • that the particular circumstance might exist, or that his conduct might bring about the particular result, and • a reasonable person would have taken steps to guard against such a possibility, and • the conduct of the person whose negligence has to be determined differed from the conduct expected of the reasonable person In Chretrien 1981 the facts were that X drank a lot at a party, got into his car and mowed down some people, killing 1 and injuring 5. X was found not guilty of murder but was convicted of 39 | P a g e CRW2601 rage''. On a charge of murder, X relies on the defense of non-pathological criminal incapacity. The court rejects his defense and convicts him of murder. The court discusses previous decisions dealing with this defense extensively, and then holds that there is no distinction between non pathological criminal incapacity owing to emotional stress and provocation, on the one hand, and the defense of sane automatism, on the other. More specifically, there is, according to the court, no difference between the second (conative) leg of the test for criminal capacity (ie, X's ability to act in accordance with his appreciation of the wrongfulness of the act, in other words, his ability to resist temptation) and the requirement which applies to the conduct element of liability that X's bodily movements must be voluntary. If X alleges that, as a result of provocation, his psyche had disintegrated to such an extent that he could no longer control himself, it amounts to an allegation that he could no longer control his movements and that he therefore acted involuntarily. Such a plea of involuntary conduct is nothing else than the defense of sane automatism. The court does not hold that the defense of non-pathological criminal incapacity no longer exists, and in fact makes a number of statements which imply that the defense does still exist. At the same time, it nevertheless declares that if, as a result of provocation, an accused person relies on this defense, his defense should be treated as one of sane automatism (a defense which can also be described as a defense by X that he did not commit a voluntary act). The court emphasizes the well-known fact that a defense of sane automatism does not succeed easily, and is in fact rarely upheld ii. S v Goliath 1982 In Goliath 1972 (3) SA 1 (A) however, the Appeal Court conclusively decided that necessity can be raised as a defense against a charge of murdering an innocent person in a case of extreme compulsion. 40 | P a g e CRW2601 In this case, X was ordered by Z to hold on to Y so that Z might stab and kill Y. X was unwilling throughout, but Z threatened to kill him if he refused to help him. In the trial court, X was acquitted on the ground of compulsion on appeal, Appeal Court held that compulsion could, depending upon the circumstances of a case, constitute a complete defense to a charge of murder. added that a court should not lightly arrive at such a conclusion, facts would have to be closely scrutinized and judged with the greatest caution. Principles dealt with: Necessity Compulsion as an act of necessity Outline: Y threatened to kill X if X did not help kill Z. X could not run away or Y would have killed X. Y was convicted of murder and X was acquitted, but the state appealed to the appellate on a question of law. The question asked was whether compulsion could ever be a complete defence to a charge of murder. Outcome: Rumpff, AJ All 5 judges held that compulsion is a valid defence to a charge of murder. b. Four different forms of attempts are; Completed attempt 41 | P a g e CRW2601 Attempt to commit the impossible Voluntary attempt c. i. ignorance of the law ii. doctrine of common purpose iii. Moderate and reasonable iv. Manifestly v. Already 44 | P a g e CRW2601 law. Although the defence of obedience to orders usually arises in a military context, its application is not exclusive to soldiers. For the proper functioning of the police and the protection services it was essential that subordinates obey the commands of their superiors. The court held that there were three requirements for this defence, namely: (1) the order must emanate from a person in lawful authority over the accused; (2) the accused must have been under a duty to obey the order; and (3) the accused must have done no more harm than was necessary to carry out the order. Regarding the second requirement the test was whether or not the order was manifestly and palpably unlawful. Therefore, the court applied the principle laid down in the Constitution of the Republic of South Africa, 1996 (section 199(6)), namely that the defence of obedience to orders will be successful, provided the orders were not manifestly unlawful. Question (c) Legal duty: specific instances 1.) Statute (eg income tax) 2.) Common law (eg treason – must report) 3.) Agreement (eg railway crossing – Pitwood) 4.) Responsibility for control of dangerous or potentially dangerous object (eg failed to repair cage of baboon that bit child – Fernandez) 5.) Protective relationship (eg parent/guardian – B) 6.) Previous positive act (eg lights fire in veldt then walks away without extinguishing) 45 | P a g e CRW2601 7.) Office (eg police – Ewels) 8.) Order of court (eg omits to pay maintenance) QUESTION 2 Question (a) i. No. Only Z is the direct perpetrator because a person is a perpetrator if his conduct, the circumstances in which it takes place and the culpability with which it is carried out are such that he satisfies the requirements for liability contained in the definition of the offence. X is an indirect perpetrator because he uses Z to commit the murder of Y ii. This question deals with causation. In order to find that there is a causal link between Z's act and Y's death, X's act must first be the factual cause and secondly, the legal cause of Y's death. It is clear that Z's act is the factual cause of Y's death because it is a conditio sine qua non of Y's death, that is, if X's act cannot be thought away without Y's death (the prohibited result disappearing at the same time. If Z had not fired a shot in Y’s neck, the latter would neither have suffered an injury nor taken to the hospital. Z's act is the legal cause of Y's death if a court is of the view that there are policy considerations for regarding X's act as the cause of Y's death. By ``policy considerations'' is meant considerations which would ensure that it would be reasonable and fair to regard X's act as the cause of Y's death. In Mokgheti, X shot Y, a bank teller into a paraplegic state. Y recovered and resumed work, but was told to move around often in order not to develop pressure sores. Y didn’t do this, got 46 | P a g e CRW2601 pressure sores and died. X was then convicted of murder in regional court. He appealed on the grounds that he should not have been convicted of murder as there was not a sufficient causal connection between the bullet wound and Y’s death. Argument: bullet was the factual cause of death, it was not the legal cause. Judge upheld the appeal confirming that if only the conditio sine qua non test has been complied with, at most there is factual causation. Only if there has been compliance with the criterion which further restricts the operation of the sine qua non test can there be legal causation. X was sentenced to 10 years for attempted murder and not murder. In light of the factual and legal causation together with the application of the Mokgheti case, Z is the factual cause of Y’s death but not the legal cause. Therefore Z cannot be convicted of murder of Y but only culpable homicide. iii. A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result and he reconciles himself with this possibility. In the set of facts it is obvious that Z had the possibility that an accident would occur but nevertheless he proceeds to shoot Y while he was driving his car. In the eyes of law z is the cause of A’s death. Question (b) X hears the sound of a door opening in the middle of the night. He/she thinks it is a burglar who threatens his/her life. X fires a shot in the direction of the “burglar” and “he” is killed instantly. It appears afterwards that it was X’s daughter who had unlocked the door and whom X had killed. X is charged with murder. X can rely on the absence of intention because he was under the impression that he had acted in a situation of private defence (a ground of justification). The criminal liability which is excluded if X is successful with the defence is intention. 49 | P a g e CRW2601 The court discusses previous decisions dealing with this defence extensively, and then holds that there is no distinction between non pathological criminal incapacity owing to emotional stress and provocation, on the one hand, and the defence of sane automatism, on the other. More specifically, there is, according to the court, no difference between the second (conative) leg of the test for criminal capacity (ie, X's ability to act in accordance with his appreciation of the wrongfulness of the act Ð in other words, his ability to resist temptation) and the requirement which applies to the conduct element of liability that X's bodily movements must be voluntary. If X alleges that, as a result of provocation, his psyche had disintegrated to such an extent that he could no longer control himself, it amounts to an allegation that he could no longer control his movements and that he therefore acted involuntarily. Such a plea of involuntary conduct is nothing else than the defence of sane automatism. The court does not hold that the defence of non-pathological criminal incapacity no longer exists, and in fact makes a number of statements which imply that the defence does still exist. At the same time, it nevertheless declares that if, as a result of provocation, an accused person relies on this defence, his defence should be treated as one of sane automatism (a defence which can also be described as a defence by X that he did not commit a voluntary act). The court emphasises the well-known fact that a defence of sane automatism does not succeed easily, and is in fact rarely upheld. ii. Thebus 2003 2 SACR 319 (CC) Question (c) i. contravening section 1 of Act 1 of 1988 ii. culpable homicide iii. furthers 50 | P a g e CRW2601 iv. appreciate the wrongfulness / conduct himself in accordance with such an appreciation of the wrongfulness v. knowledge or awareness / will vi. definitional elements 51 | P a g e CRW2601 JUNE 2015 SECTION A 1. 5 2. 3 3. 5 4. 3 5. 1 6. 2 7. 1 8. 1 9. 5 10. 3 SECTION B QUESTION 1 i. Criminal capacity means that at the time of the commission of the act X must have had certain mental abilities. A person cannot legally be blamed for his conduct unless he is endowed with these mental abilities. The mental abilities X must have are: 54 | P a g e CRW2601 intention to kill is absent, but if, as a reasonable person, she nonetheless ought to have foreseen that she could cause the death of the victim (Z). In that event, X will be guilty of culpable homicide. (c) Only if it is established that both intention (in these instances mostly in the form of dolus eventualis) and negligence in respect of Z's death are absent on the part of X, will X be discharged on both a count of murder and one of culpable homicide. iii. The legal points in Chretien 1. If a person is so drunk that her muscular movements are involuntary, there can be no question of an act, and although the state in which she finds herself can be attributed to an excessive intake of alcohol, she cannot be found guilty of a crime as a result of such muscular movements. 2. In exceptional cases a person can, as a result of the excessive intake of alcohol, completely lack criminal capacity and as a result not be criminally liable at all. This will be the case if she is “so intoxicated that she is not aware that what she is doing is unlawful, or that her inhibitions have substantially fallen apart”. 3. The “specific intent theory” in connection with intoxication is unacceptable and must be rejected. It is precisely because of the rejection of this theory that in this case X could not even be convicted of common assault. The intoxication can therefore even exclude X's intention to commit the less serious crime,namely assault.. 4. The Chief Justice went out of his way to emphasise that a court must not lightly infer that, owing to intoxication, X acted involuntarily or lacked criminal capacity or the required intention since this would discredit the administration of justice. OR The “principle of contemporaneity” in culpability 55 | P a g e CRW2601 In order for a crime to be committed, there must have been culpability on the part of X at the very moment when the unlawful act was committed. There is no crime if culpability only existed prior to the commission of the unlawful act, but not at the moment the act was committed, or it came into being only after the commission of the unlawful act. S v Masilela 1968 Principles dealt with: 1. Culpability 2. Mens rea 3. Principle of contemporaneity Outline: X and another strangled Y and, believing him dead, set his house on fire. It turns out that Y was not dead and that the fire killed him. X and another were then convicted of murder. They appealed on the basis that they lacked culpability: the act of burning down the house killed Y, but they had no intention of killing Y with this act. Outcome: Judge turned down appeal: found that strangling and burning were part of the same act. iv. A person acts with direct intention if the causing of the forbidden result is his aim or goal. A person acts with indirect intention if the causing of the forbidden result is not his main aim or goal, but he realises that, in achieving his main aim, his conduct will necessarily cause the result in question. A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result and he reconciles himself with this possibility. 56 | P a g e CRW2601 QUESTION 2 Question (a) i. The defense of sane automatism. A person who acts in a state of automatism does not act voluntarily. ii. The onus on state to prove the act was voluntary iii. I would advance on his behalf, by calling medical or other expert evidence to create a doubt whether the act was voluntary. iv. X is not guilty of murder because he lacks the intention to kill. v. No. X is not guilty of culpable homicide because he can successfully rely on the defence of automatism. vi. Yes X would then be guilty of culpable homicide. In Victor 1943 TPD 77, for example, X was convicted of negligent driving despite the fact that the accident he had caused had been due to an epileptic fit: evidence revealed that he had already been suffering epileptic fits for the previous thirteen years, and that he had had insufficient reason to believe that he would not again suffer such a fit on that particular day. Question (b) The state will have to prove that X’s act was the factual, as well as the legal, cause of Y’s death. Factual causation is easy to prove: had X not shot Y in chest and the abdomen, he would not have been admitted to hospital. Therefore, X’s act is a conditio sine qua non of Y’s death. X’s act can also be viewed as the legal cause of Y’s death. The relevant authority is S v Tembani 2007 (1) SACR 355 (SCA). In this case, the Supreme Court of Appeal held that the deliberate infliction of an intrinsically dangerous wound from which the victim is likely to die without 59 | P a g e CRW2601 The defensive action (a) must be directed against the attacker (b) must be necessary (c) must stand in a reasonable relationship to the attack (d) must be taken while the defender is aware that he is acting in private defence b) Discuss any one of the following i. De Oliviera Principles dealt with: • Mistake relating to a ground of justification • Putative private defence Outline: X lived in an area where many housebreaks occurred. He thought someone wastrying to break into his house, when in fact they were just trying to gain the maid’s attention. He fired 6 shots directly at the men without firing a warning shot, killing one of them. He was convicted of murder and attempted murder and here appealed on the basis that the state had not proved beyond a reasonable doubt that he had subjectively had the necessary intent to commit the crimes. Outcome: The appellant was held to have had the necessary intention to kill in the form of dolus eventualis and his appeal failed. ii. S v Goliath 1982 Principles dealt with: 60 | P a g e CRW2601 • Necessity • Compulsion as an act of necessity Outline: Y threatened to kill X if X did not help kill Z. X could not run away or Y would have killed X. Y was convicted of murder and X was acquitted, but the state appealed to the appellate on a question of law. The question asked was whether compulsion could ever be a complete defence to a charge of murder. Outcome: Rumpff, AJ All 5 judges held that compulsion is a valid defence to a charge of murder. iii. S v De Blom 1977 (3) SA 513 (A). Principles dealt with: • Mistake relating to law Outline: X was charged with contravening an obscure foreign exchange law with regards to exporting jewelry out of the country and pleaded ignorance of the law. She was convicted and appealed. Outcome: Rumpff, HR Defence of ignorance of the law was upheld and the conviction was set aside. “If, owing to ignorance of the law, X did not know that her conduct was unlawful, she lacked dolus; if culpa 61 | P a g e CRW2601 was the required form of culpability, her ignorance of the law would have been a defence if she had proceeded, with the necessary caution, to acquaint herself with what was expected of her” The test for negligence; A person’s conduct is negligent if: • a reasonable person in the same circumstances would have foreseen the possibility • that the particular circumstance might exist, or that his conduct might bring about the particular result, and • a reasonable person would have taken steps to guard against such a possibility, and • the conduct of the person whose negligence has to be determined differed from the conduct expected of the reasonable person c) Although the test for negligence is objective, subjective factors are taken into account in the following instances: 1. Children: the test is that of a reasonable child. 2. Experts: here the test is that of a reasonable expert. 3. Superior knowledge: where an accused has more knowledge of a particular situation than the reasonable person