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Criminal Law A > Chapter 4- 16 > Flashcards

Chapter 4- 16 Flashcards

1
Q

What is voluntary conduct?

A

A human’s act must be voluntary in the sense that it is subject to the accused’s conscious will or self-control.

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2
Q

What is involuntary conduct?

A

Mechanical activity, unconsciousness, automatic activity, lack of self-control, automatism.

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3
Q

What are the two kinds of automatism?

A
  1. Automatism arising from pathological conditions
  2. Automatism due to some other cause.
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4
Q

What is the effect of automatism arising from pathological conditions ito criminal liability?

A

The accused is burdened with proving this condition on a balance of probability and the verdict of ‘not guilty’ by reason of the mental illness usually results in detention in a mental hospital or prision.

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5
Q

What is the effect of automatism due to some other cause ito criminal liability?

A

The onus of proving the elements of liability beyond reasonable doubt remains with the prosecution despite evidence of automatism and a verdict of ‘not guilty’ amounts to an unqualified acquittal.

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6
Q

When is an act involuntary?

A

Where it occurs as the result of the application of superior force upon the body of a person.

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7
Q

Which legal principle underpins liability based on prior voluntary conduct?

A

Actio libera in causa.

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8
Q

What is the actio libera in causa principle?

A

Criminal liability can arise from prior voluntary conduct coupled with the requisite mens rea or fault at that time which is causally linked to the unlawful consequence, even though at the time of the consequence resulting, the accused was in fact acting voluntarily.

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9
Q

What is the capacity to act voluntarily?

A
  1. Whether the accused is capable of controlling their conscious will
  2. Whether the conduct in question is in fact controlled by their conscious will
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10
Q

What constitutes actus reus?

A
  1. Unlawful conduct
  2. Human conduct
  3. Voluntary/Involuntary
  4. Act or omission
  5. Causation
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11
Q

What is positive conduct for criminal liability?

A

The manifestation of the evil mind must take the form of conduct that matches the description in the definition.

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12
Q

What is omission for criminal liability?

A

There was a legal duty to act in the circumstances and there was a failure to act.

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13
Q

What is the test for liability based on omission?

A

Whether there was a legal duty to act in the circumstances

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14
Q

What are the cases for involuntary conduct?

A
  1. S v Arnold
  2. S v Cunningham
  3. S v Chretien
  4. S v Eadie
  5. Sv Henry
  6. S v Humphreys
  7. R v Mkize
  8. R v Ngang
  9. DPP, KZN v Ramdass
  10. S v Viljoen
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15
Q

What are the cases for legal duty to act?

A
  1. Minister van Polisie v Ewels
  2. S v Fernandez
  3. S v Govender
  4. S v Russell
  5. S v Williams
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16
Q

What did the court hold in Minister van Polisie v Ewels?

A

A person is not under a legal duty to protect another from harm, even though they can easily and ought morally to do so but there are exceptions.

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17
Q

What are the exceptions to the general rule that there is no legal duty to protect another from harm?

A
  1. Prior conduct
  2. Control of a potentially dangerous thing or animal
  3. Special or protective relationship
  4. Public office or quasi-public office
  5. Statute
  6. Contract or other undertaking
  7. State duty to protect persons from violent crime
  8. Fault
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18
Q

What is a state of affairs?

A

A mere condition that is punishable by statute (drunk in public)

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19
Q

What comprises act/omission?

A
  1. Legal duty to act
  2. State of affairs
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20
Q

What is causation?

A

A causal link between the initial act or the omission of the accused and the ultimate unlawful consequence.

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21
Q

What are the requirements for causation?

A
  1. Factual cause
  2. Legal cause
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22
Q

What is the test for where the conduct in question takes the form of a positive act?

A

But-for test.

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23
Q

What is the test for where there is an omission?

A

A hypothetical is added to the factual complex, of the act which should have been performed ie. the act that should have been performed.

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24
Q

What is the test for legal causation?

A

Whether there is an absence of a novus actus/causa interveniens.

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25
Q

What is a novus actus/causa interveniens?

A

An abnormal intervening act or event which will serve to break the chain of causation which is judged according to general human experience

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26
Q

What are the cases for causation?

A
  1. Ex Parte Minister of Justice: In re S v Grotjohn
  2. S v Lungile
  3. S v Tembani
  4. Minister of Police v Skosana
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27
Q

When is unlawfulness excluded?

A

When the unlawful conduct is committed in circumstances that justify the performance of the conduct.

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28
Q

What are the defences excluding unlawfulness?

A
  1. Private defence
  2. Public authority
  3. Necessity and impossibility
  4. Disciplinary chastisement
  5. Superior orders
  6. Consent
  7. De minimis non curat lex
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29
Q

What are the cases for private defence?

A
  1. Ex Parte Minister van Justicie: In re S v Van Wyk
  2. R v Patel
  3. S v Engelbrecht
  4. S v Steyn
  5. S v Trainor
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30
Q

What is the case for public authority?

A

Govender v Minister of Safety and Security.

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31
Q

Which legislative provision relates to public authority?

A

Section 49 of Criminal Procedure Act

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32
Q

What is section 49 of the Criminal Procedure Act?

A

Use of force in effecting arrest.

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33
Q

What is the case for necessity and impossibility?

A

S v Goliath.

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34
Q

What is the case for disicplinary chastisement?

A

Freedom of Religion South Africa v Minister of Justice and Constitutional Development.

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35
Q

What is the case for superior orders?

A

S v Mostert.

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36
Q

What are the cases for consent?

A
  1. Clarke v Hurst
  2. Minister of Justice v Estate Stransham-Ford
  3. R v Peverett
  4. S v Hartmann
  5. S v Phiri
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37
Q

What are the cases for de minimis non curat lex?

A
  1. S v Visagie
  2. DPP v Klue
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38
Q

What is private defence?

A

A person who is the victim of an unlawful attack upon person, property or any other legal interest may resort to reasonable force to repel such attack.

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39
Q

What are the requirements of private defence?

A
  1. Attack
  2. Commenced
  3. Imminent
  4. Protected interest
  5. Unlawful
40
Q

What are the conditions relating to private defence i.e. the situation in which it should arise?

A

Show that it was:
1. Necessary to avert the attack
2. A reasonable response to the attack
3. Directed against the attacker.

41
Q

What kind of test is the test for private defence?

A

Objective test.

42
Q

What is putative private defence?

A

Relates to the mental state of the accused.

43
Q

What are the general principles relating to the private defence of property?

A
  1. Use of force to prevent a thief/robber from taking or making off with movable goods or for the purpose of recovering stolen property
  2. Infliction of physical harm in order to prevent damage to or destruction of movable or immovable property
  3. Physical resistance to intrusion of defender’s dwelling
  4. Placing protective devices that inflict physical harm to prevent anticipated intrusions into property or premises.
44
Q

What proof must be shown that justifies the situation for private defence of property?

A
  1. Property was;
  2. Presently;
  3. In danger of damage or destruction;
  4. That was unlawful.
45
Q

What must be present in order for a situation of private defence of property to arise?

A

Evidence that the defence was:
1. Necessary (and reasonable) to avert the danger
2. A reasonable response to the attack
3. Directed against the attacker.

46
Q

What is the defence of public authority excluding unlawfulness?

A

When officers of the courts, or of the law or the state generally and, in certain circumstances, even private persons acting as duly authorised instruments of the state and in the proper exercise of such authority commit crimes, including acts of aggression upon life, person and property, they may be immune from punishment.

47
Q

When does the defence of necessity arise?

A

When a person, confronted with a choice between suffering some evil and breaking the law in order to avoid it, chooses the latter alternative.

48
Q

What are the requirements of necessity?

A
  1. A legal interest of the accused must have been endangered
  2. By a threat which had commenced or was imminent
  3. Not caused by the accused’s fault
  4. Must be necessary for the accused to avert the danger
  5. Means used for this purpose have been reasonable in the circumstances
  6. Accused must not have been legally obliged to endure the necessity situation.
49
Q

When is the defence of impossibility relevant?

A

Where it is impossible for the accused to comply with a positive injunction of the law.

50
Q

When is necessity as a defence relevant?

A

Where the accused could not help doing an act prohibited by law.

51
Q

What are the requirements for the defence of impossibility?

A
  1. Positive obligation imposed by law, compliance with which was
  2. Physically impossible
  3. Through no fault on the part of the accused
52
Q

When does the superior orders defence arise?

A
  1. Where a soldier is ordered to perform an act that is not authorised by civil or military law
  2. Flows from the strict discipline enforced in military and paramilitary forces that demand absolute and unquestioning obedience to the orders of a superior officer.
    (Recognised as a case of duress).
53
Q

What are the essential elements of superior orders?

A
  1. Order must emanate from a person lawfully placed in authority over the subordinate
  2. Subordinate must have been under a duty to obey the order
  3. Subordinate must have done no more than was necessary to carry out the order.
54
Q

What is the defence of compulsion under superior orders?

A

Where a superior threatens the subordinate with harm, possibly serious bodily harm or death, if the subordinate does not carry out the superior’s command, then the subordinate could raise the defence of compulsion to the commission of a crime committed while carrying out the command.

55
Q

What are the requirements for defence of compulsion?

A

Same as necessity.

56
Q

What is the general rule in criminal law regarding consent?

A

Consent on the part of the victim will not serve to excuse the crime of the offender.

57
Q

What requirements must be satisfied for consent to succeed as a defence?

A
  1. The complainant’s consent in the circumstances must be recognised by law as a possible defence
  2. It must be real consent
  3. Must be given by a person capable in the law of consenting.
58
Q

What is real consent?

A

Voluntary with the necessary capacity, not impaired by duress, threat or fraud.

59
Q

What are the general limits on consent?

A

Consent cannot justify a crime which essentially harms the interests of the state rather than the interests of an individual.

60
Q

What is the de minimis non curat lex rule?

A

The law does not concern itself with trifles., not a defence which excludes unlawfulness of the accused’s conduct, but rather a decision of a court to allow unlawful conduct to go unpunished on account of its triviality.

61
Q

What are the facts of S v Arnold?

A

Accused shot wife in distress, at the time of the shooting he was in financial distress, had a disabled child and was very attached to his son. Couple had an unhealthy marriage, on the day of the murder wife announced return to stripping bare-chested, accused does not remember aiming the gun and pulling the trigger.

62
Q

What legal issues did the court consider in S v Arnold?

A
  1. Did the accused perform an act in the legal sense?
  2. If he did perform an act, did he have the necessary criminal capacity at the time of the act?
  3. If he did have the necessary criminal capacity, did he have the requisite intention?
63
Q

What did the court hold in S v Arnold?

A
  1. It cannot be found beyond a reasonable doubt that when the accused killed the deceased he was acting consciously and not subconsciously
  2. Incapacity caused by extreme emotional distress can lead to criminal incapacity.
64
Q

What are the facts of S v Cunningham?

A

Accused charge with murder, attempted murder and various contraventions of the Road Traffic Act as a result of a collision between a car driven y the accused and two moto cyclists. Accused raised defence of sane automatism.

65
Q

What did the court hold in S v Cunningham?

A
  1. Onus of proof for insane automatism rests on accused and is discharged on a balance of probabilities
  2. The onus of proof for sane automatism rests on the State to establish the voluntariness of the act beyond a reasonable doubt.
66
Q

What did the court further regarding the onus of the State?

A
  1. State is assisted by the natural inference that, in the absence of exceptional circumstances a sane person who engages in conduct which would ordinarily give rise to criminal liability does so consciously and voluntarily.
  2. Before inference is disturbed, a proper basis must be laid which is sufficiently cogent and compelling to raise a reasonable doubt as to the voluntary nature of the alleged acts reus and if involuntary, that this was attributable to some cause other than mental pathology.
  3. Showing that the actus reus was attributable to a cause other than mental pathology may require expert medical evidence to lay a factual foundation for the defence and to displace the inference.
  4. Court will have regard to the expert evidence, all of the facts of the case including the nature of the accused’s actions during the relevant period.
67
Q

What are the facts of S v Eadie?

A

Road rage incident led to death, Eadie charged with murder and obstructing the end of justice as he tried to dispose the murder weapon and show clean pair of jeans. Eadie raised defence of sane automatism resulting from a combination of emotional stress, provocation and a measure of intoxication.

68
Q

Which rule did the court apply in Eadie?

A

The rule in Cunningham.

69
Q

What are the facts of S v Chretien?

A

Accused drank at a party and while under the influence drove his car into a crowd of people; one killed and five injured. Chretien wanted charge of attempted murder to be changed to common assault.

70
Q

What is the holding in Chretien?

A
  1. Only when a consequence crime under the influence of alcohol occurs that the accused does not realise they are acting unlawfully or that their inhibitions have substantially integrated that they can be regarded as lacking criminal capacity.
  2. A dead drunk person who is unconscious of their actions is not liable because a muscle movement performed in this condition does not constitute an act for the purpose of criminal law.
  3. Where someone commits an act which is more than an involuntary movement of the muscles, but is so intoxicated that they do not realise what they are doing or do not appreciate the unlawfulness of actions, then they lack criminal capacity.
71
Q

What is the finding in Chretien?

A

Trial court was correct in murder conviction.

72
Q

What are the facts of S v Henry?

A

Henry shot his ex wife and mother in law, raised sane automatism claiming he had no recollection of the shooting or pointing firearm at complainant.

73
Q

What did the court hold in Henry?

A
  1. Amnesia is not necessarily indicative of automatism
  2. Nature of the stimulus/trigger mechanism that is required to induce a state of psychogenic automatism has to be some emotionally charged event/provocation of extraordinary significance to the person concerned and the emotional arousal it causes has to be of such a nature as to disturb the consciousness of the person concerned to the extent that it resulted in unconscious/automatic behaviour with consequential amnesia.
74
Q

What did the court find in Henry?

A

No evidence of trigger mechanism and expert evidence does not support accused’s defence.

75
Q

What are the facts of S v Humphreys?

A

Transport driver collided with a train, on the fatal day lights were flashing indicating that a train was approaching the level crossing. Despite these warning signs, Humphreys overtook the line of cars and proceeded into the level crossing on the wrong side of the road and raised defence of automatism.

76
Q

What for was Humphreys convicted?

A

Culpable homicide.

77
Q

What is the finding in R v Mkize?

A

Accused’s conduct was not voluntary.

77
Q

What are the facts of R v Mkize?

A

Mkize charged with murder of his sister, accused suffered an epileptic attack when he stabbed deceased, he suffered an epileptic confusion which is an ordinary fit replaced by a period of confusion.

78
Q

What are the facts of R v Ngang?

A

Ngang charged with assault with intent to do GBH by stabbing victim. Ngang claimed to be asleep during attack and thought it was a tokoloshe.

79
Q

What is the finding in Ngang?

A

Accused labouring under mistakes of fact, no reasonable man would make such mistake. Onus to prove accused acted with full knowledge and requisite intention not discharged.

80
Q

What are the facts of DPP, KZN v Ramdass?

A

Ramdass killed deceased by strangling while high on cocaine and drunk and claimed to have no recollection of events as he had been high and claimed to not have realised what he was doing and did it without intention to kill. Trial court acquitted Ramdass because State did not substantially challenge the accused’s claim of amnesia and did not show the claim was false, they did not bring in expert evidence.

81
Q

What did the court hold in Ramdass?

A

That the lower court did not err in applying the principles in Chretien and not applying the principle in Eadie.

82
Q

What are the facts of S v Schoonwinkel?

A

Accused suffered an epileptic fit, nature of fit that he would have realised the dangerous consequences attending upon him in driving the vehicle, he did not know he was subject to the fits. He was driving on the wrong side of the road and was charged with culpable homicide.

83
Q

What are the facts of R v Victor?

A

Victor was charged with negligent driving on a public road and his defence was that he suffered from epileptic seizures. Victor had attacks since he was a teenager and had generally warning feelings five to ten minutes before an attack. Victor had an attack on the morning of the accident which was proceeded by the usual warning.

84
Q

What was the finding in R v Victor?

A

Victor was negligent.

85
Q

What are the facts of Minister van Polisie v Ewels?

A

Plaintiff was assaulted by an off-duty police officer in a police station under the control of the police and in the presence of several other police officers who were on duty.

86
Q

What is the holding in Minister van Polisie v Ewels?

A
  1. Omission is regarded as unlawful conduct when the circumstances of the case are such that the omission not only occasions moral indignation but where the legal convictions of the community require that omission be regarded as unlawful and that the loss suffered be compensated by the person who failed to act positively.
  2. When determining unlawfulness, question is whether all facts considered, there was a legal duty to act reasonably.
87
Q

What are the facts of S v Fernandez?

A

Accused’s baboon got out of its cage and killed a baby.

88
Q

What is the holding in Fernandez?

A

Accused did not take steps whatsoever to see that the animal did not get out of its cage while he was engaged in repairing it and that he ought to have foreseen the possibility of the baboon attacking someone.

89
Q

What are the facts of S v Russell?

A

A colleague of the accused died because of overhead electric wire, which the accused failed to inform the deceased.

90
Q

What is the rule in Russell?

A
  1. Omission constitutes culpa when connected with prior conduct
  2. There are circumstances unconnected with prior conduct, which impose the duty to act in order to avoid reasonably foreseeable loss to another. Circumstances which give rise to such a duty may differ according to the conceptions prevailing in a particular community at a given time.
91
Q

What are the facts of S v Williams?

A

The three appellants, who were all police officers, and two other co-perpetrators were charged with 11 counts, including one of arson and four of murder. The appellants were convicted on several counts as accessories after the fact, on the basis that they had failed to report the offences in question.

92
Q

What did the court hold in S v Williams?

A
  1. Confirms narrower approach of an accessory in S v Morgan that it is a person who assists the perpetrator to evade justice.
  2. Intention to assist main offender in evading justice is important to accessorial liability
  3. Criminal liability as an accessory could not be present in the absence of a duty to act
  4. A person can only be liable as an accessory for failure to report the crime if they had the intention to assist the main perpetrator to escape conviction.
93
Q

What are the facts of S v Govender?

A

The deceased was arrested and held at a police station, collapsed during questioning, and later died. Medical evidence indicated that the effective cause of death was blunt force trauma to the head and a sustained beating.

94
Q

What was the holding in S v Govender?

A
  1. There was a legal duty, in the circumstances of the case, on the policemen who had been present and witnessed but did not participate in the attack, to put a stop of it.
  2. Policemen could have been convicted on the bases of common purpose, participated in the fatal assault in circumstances he ought reasonably to have foreseen the resultant death and legal duty to act.
95
Q

What are the facts of Ex Parte Minister of Justice: In re S v Grotjohn?

A

Accused handed his wife a loaded gun with which she committed suicide.

96
Q

What is the holding in Grotjohn?

A
  1. Person who assists/instigates another to commit suicide and whether he commits a crime must be decided on the applicable principles of criminal law
  2. Whether a person who instigates/assists another to commit suicide commits an offence depends on the facts.
  3. Mere fact that the last act of the person committing suicide is such person’s own, voluntary, non-criminal act does not necessarily mean that the other person cannot be guilty of an offence.

Criminal Law A (8 decks)

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