Chapter 35 Participation before the crime

Question 1

What is a perpetrator?

Answer 1

A perpetrator is one who with the men’s rea commits the unlawful conduct and thereby satisfies the definitional elements of the crime in question.

Question 2

What are the three kinds of perpetrators in criminal theory?

Answer 2

1. Where they personally satisfy the definitional elements of the crime and are therefore a perpetrator in their own right
2. Where they, although possessing the requisite capacity and the men’s rea for the crime in question, does not personally comply with all the elements of the unlawful conduct in question, and the conduct of the perpetrator is imputed to them, by virtue of their prior agreement or active association in a common purpose to commit the crime in question
3. Where a person procures another person, who may be an innocent or unwilling agent, to commit a crime.

Question 3

What happens in the case of the 3rd category perpetrator?

Answer 3

The conduct of the actor can be attributed to the person who uses the agent to commit the crime for them and the qui facit principle applies.

Question 4

What is the qui facit principle?

Answer 4

He who does an act through another, does it himself.

Question 5

What is important when examining the potential criminal liability of a participant in a crime?

Answer 5

Whether the participant falls into one of the above three categories and is therefore a perpetrator. If not, then the possibility of accomplice liability arises.

Question 6

What is the doctrine of common purpose?

Answer 6

Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.

Question 7

Which case defines the doctrine of common purpose?

Answer 7

S v Thebus.

Question 8

What happens if the participants are charged with having committed a consequence crime?

Answer 8

1. It is sufficient that it is established that they all agreed to commit a particular crime or actively associated themselves with the commission of the crime by one of their number with the requisite men’s rea.
2. If this is established, then the conduct of the participants who actually causes the consequence is imputed or attributed to the other participants.
3. It is not necessary to establish precisely which member of the common purpose caused the consequence, provided that it is established that one of the group brought about the result.

Question 9

What is common purpose liability?

Answer 9

Where there is a prior agreement, expressed or implied, to commit a crime.

Question 10

What are the caveats to common purpose liability?

Answer 10

1. There must be a specific agreement to commit a crime
2. Similarity in nature between crimes and active association in the second crime.

Question 11

What are the requirements for common-purpose liability?

Answer 11

1. Fault (mens rea)
2. Unlawful conduct

Question 12

What is common purpose based on active association?

Answer 12

Where no prior agreement has been reached.

Question 13

What are the prerequisites that have to be satisfied before the principle of imputation can apply in the case of death?

Answer 13

1. Presence at the scene of the violence
2. Awareness of the assault
3. Intention to make common cause with those who were actually perpetrating the assault
4. Manifestattion of a sharing of a common purpose with the perpetrators of the assault by performing some act of association with the conduct of the others and possession of the requisite mens rea.

Question 14

Which case lays down the prerequisites for the principle of imputation?

Answer 14

S v Mgedezi

Question 15

How is disassociation from common purpose determined?

Answer 15

It is a value judgment with relevant factors attached to it which must be weighed in the balance by the court in reaching an equitable decision on whether disassociation is legally effective or not.

Question 16

What are the factors that are relevant to disassociation from common purpose for exoneration?

Answer 16

1. How far the crime has already progressed
2. Voluntariness of the withdrawal from the common purpose
3. Positive disassociating conduct
4. Whether the accused appreciated that the consequence might ensue
5. Absence of common intention and active association in the attainment of common purpose ( S v Singo)

Question 17

When is a withdrawal effective?

Answer 17

Upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose.

Question 18

What is an accomplice?

Answer 18

A person who takes part in the commission of the crime, other than the perpetrators and other than the accessory after the fact.

Question 19

What does accomplice liability consist of?

Answer 19

1. Accomplice’s own unlawful conduct and fault
2. Accessory liability

Question 20

Which case defines an accomplice?

Answer 20

S v Williams.

Question 21

What did the court state in S v Williams?

Answer 21

1. An accomplice associates themself with the commission of the crime by the perpetrator or co-perpetrator by knowingly affording the perpetrator co-perpetrator the opportunity, means or information which furthers the commission of the crime.
2. There must be a causal connection between the accomplice’s assistance and the commission of the crime by the perpetrator or co-perpetrator.

Question 22

What is the legal position regarding accomplice to statutory offence?

Answer 22

A person is an accomplice whether the crime committed by the principal offender is one against the common or statute law.

Question 23

What are the elements of accomplice liability?

Answer 23

1. Unlawful conduct
2. Fault (mens rea)

Question 24

What are the caveats for unlawful conduct irt accomplice liability?

Answer 24

1. Causal link
2. Omisison when there is a legal duty to act
3. Knowledge. accomplice is liable because of the part they play in perpetrator’s crime, accomplice’s knowledge is irrelevant.
4. Degree of accessoriness

Question 25

Is dolus eventualis sufficeint to establish mens rea ito accomplice liability?

Answer 25

Yes, if the accused foresaw the possibility that the principal offender’s crime was being or was about to be committed and accepting this risk into the bargain, went ahead and furthered or assisted in the commission of that crime.

Question 26

How is the punishment of accomplices determined?

Answer 26

It depends on the extent of the accomplice’s participation in the crime.

Question 27

What is an accessory after the fact?

Answer 27

A person who after the completion of the crime unlawfully and intentionally associates themselves with the commission of the crime by helping the perpetrator or accomplice to evade justice.

Question 28

What are the approaches to the definition of accessory after the fact liability have been identified?

Answer 28

1. Association approach
2. Obstructing the course of justice approach.

Question 29

What is the association approach?

Answer 29

Requires that an accessory after the fact is someone who unlawfully and intentionally assists the perpetrator after the completion of the crime by associating themselves with the commission of the crime.

Question 30

What is the obstruction approach?

Answer 30

A person is only an accessory after the fact if they have some specific objective,i.e. helping the perpetrator or accomplice evade justice.

Question 31

Which case favoured the obstruction approach?

Answer 31

S v Morgan.

Question 32

What are the elements of liability as an accessory after the fact?

Answer 32

1. Unlawful conduct
2. Fault

Question 33

What are the caveats to unlawful conduct irt accessory after the fact liability?

Answer 33

1. Wide or narrow test (approaches)
2. Ommission
3. Accessory nature of liability
4. Attempted accessory after the fact liability

Question 34

What are the caveats to fault irt accessory after the fact liability?

Answer 34

1. Intention to help the perpetrator or accomplice to evade justice
2. Dolus eventualis is sufficient
3. Knowledge or foresight of unlawfulness must be proved.

Question 35

What are the persons involved in the commission of a crime?

Answer 35

1. Perpetrators
2. Accomplices
3. Accessories after the fact.

Question 36

What is an accomplice?

Answer 36

Someone who unlawfully and intentionally furthers the commission of a crime by somebody else.

Question 37

What is furthering a crime?

Answer 37

Any conduct which facilitates, assists or encourages the commission of a crime, gives advice concerning its commission, orders its commission and makes it possible for another to commit it (S v Msomi).

Question 38

Which statutory provision criminalises being an accessory after the fact?

Answer 38

Section 257 of the CPA.