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Criminal Law B > Crimes against the person > Flashcards

Crimes against the person Flashcards

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1
Q

What is murder?

A

The intentional unlawful killing of another human being.

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2
Q

What are the elements of murder?

A
  1. Causing the death
  2. Of another human being
  3. Intent
  4. Unlawfulness
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3
Q

What is the authority for causation?

A

S v Tembani.

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4
Q

What is the two-stage enquiry for causation?

A
  1. Did the accused, in fact, cause the death of the deceased?
  2. Is the infliction of harm sufficiently linked to death to attract liability?
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5
Q

What is the requirement for the element of “a human being”?

A

Living human being i.e. a person born alive who is alive at the time of the conduct.

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6
Q

What is the authority for the element of “a human being”?

A

S v Mshumpa and section 239(1) of the CPA.

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7
Q

What does section 239(1) of the CPA hold?

A

At criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive if the child is proved to have breathed regardless of whether the child had independent circulation, proof of separation from the body of its mother is not necessary.

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8
Q

What is the authority for the element of intent for murder?

A
  1. DPP v Pistorius
  2. S v Siyaya (proof of subjective intent)
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9
Q

How can subjective intent of accused be proven?

A

By drawing inferences from the facts.

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10
Q

What is attempted murder?

A

An inchoate crime (the attempted intentional and unlawful killing of another human being)

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11
Q

What are the cases for attempted murder?

A
  1. S v Phiri
  2. S v Mshumpa
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12
Q

What is culpable homicide?

A

The negligent unlawful causing of the death of another human being.

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13
Q

What are the elements of culpable homicide?

A
  1. Causing the death
  2. Of another human being
  3. Negligence
  4. Unlawfulness
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14
Q

What is the test for negligence in culpable homicide?

A

Whether a reasonable person in the circumstances would have foreseen that death might be the result of a proposed course of conduct and would have taken steps to guard against death.

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15
Q

What is common assault?

A

The unlawful and intentional application of force to another person or inspiring a belief of imminent use of force.

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16
Q

What are the elements of common assault?

A
  1. Applying force or inspiring the apprehension of force
  2. Unlawfulness
  3. Intent
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17
Q

What is the element of applying force?

A

Application of force directly or indirectly.

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18
Q

What are the cases for indirect application of force?

A
  1. S v Marx
  2. R v Jolly
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19
Q

What is the enquiry for apprehension of force?

A
  1. The impression that the conduct of the accused created in the mind of the victim
  2. Apprehension must be that the attack is imminent
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20
Q

What is the element of unlawfulness for common assault?

A

Causing an impairment of X’s bodily integrity without justification.

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21
Q

What are the defences excluding unlawfulness for common assault?

A

De minimis rule.

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22
Q

What is the element of intent in common assault?

A

Dolus.

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23
Q

WHat are the cases for intent in common assault?

A
  1. S v Mdau
  2. S v R.
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24
Q

What happens if there is no application of force?

A

The State must prove that X intended to intimidate and frighten Y (apprehension of harm).

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25
Q

What is assault with intent to do GBH?

A

The application of force with the intention to cause GBH.

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26
Q

What are the elements of assault with intent to commit GBH?

A
  1. Assault
  2. Unlawfulness
  3. Intent
  4. GBH
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27
Q

What is the element of assault and unlawfulness?

A

Actual force must be used.

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28
Q

What are the factors taken into consideration to determine the element of intent for assault with intent to do GBH ito S v Bergh?

A
  1. Weapon used
  2. The way the weapon was used
  3. The degree of force
  4. The part of the body aimed at
  5. The persistence of the attack
  6. The nature of the injuries inflicted
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29
Q

What is grievous bodily harm?

A

Harm which seriously interferes with health, something more than an ordinary assault.

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30
Q

What is kidnapping?

A

Unlawfully and intentionally depriving a person of their freedom of movement and, if that person is under 18 years of age, the custodian/s of their control over the child.

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31
Q

What are the elements of kidnapping?

A
  1. Deprivation
  2. A person’s freedom of movement (and/or parental control)
  3. Unlawfulness
  4. Intent
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32
Q

What are the defences to the element of unlawfulness for kidnapping?

A
  1. Consent
  2. Official capacity.
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33
Q

Can a parent commit the crime iro their own child even if that parent does not have custody or control?

A

No.

34
Q

What is the element of intent in kidnapping?

A

Kidnapper must have intention to deprive a person of freedom
of movement or if a child, that the parents/custodians have not
consented.

35
Q

What is crimen iniuria?

A

Unlawfully and intentionally impairing the dignity or
privacy of another person.

36
Q

What are the elements of crimen iniuria?

A
  1. Impairment
  2. Dignity/privacy
  3. Unlawfulness
  4. Intent
37
Q

What is the element of impairment in crimen injuria?

A

The accused’s conduct must impair the dignity of the complainant, serious impairment.

38
Q

What is the authority for the test impairing dignitas under the common law?

A

De Lange v Costa.

39
Q

What is the test for impairing dignitas under the common law?

A
  1. Was the plaintiff’s self-esteem subjectively offended
  2. Would a person of ordinary sensibilities regard the conduct as objectively offensive?
40
Q

What is dignity/privacy?

A

Right to self-respect, mental tranquility and privacy.

41
Q

What are defences excluding unlawfulness for crimen injuria?

A
  1. Consent
  2. Necessity
  3. Statutory authority
42
Q

What is the element of unlawfulness crimen injuria?

A

Conduct unlawful only if considered unlawful according to the objective standards of society determined by persons of ordinary sensibilities.

43
Q

What is the element of intent for crimen injuria?

A

X must have known or foreseen that his conduct might
unlawfully impair Y’s dignity.

44
Q

Which crimes does Chapter 2 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act contain?

A

Rape and sexual assault

45
Q

Which crimes does Chapter 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act contain?

A

Statutory rape and statutory sexual assault.

46
Q

What is rape in terms of section 3 of the Sexual Offences Act?

A

Any person (A) who unlawfully and intentionally commits an act of sexual penetration with a complainant (B) without the consent of B, is guilty of the offence of rape.

47
Q

What are the elements of rape?

A
  1. Sexual penetration
  2. The complainant
  3. Unlawfulness
  4. Intent
48
Q

What is sexual penetration ito section 1(1) of the SOA?

A

Any act which causes penetration to any extent whatsoever by:
1. The genital organs of another person into or beyond the genital organs, anus, or mouth of another person
2. Any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or
3. The genital organs of an animal, into or beyond the mouth of another person

49
Q

What is a complainant ito section 1 of the SOA?

A

The alleged victim of a sexual offence.

50
Q

What is consent ito section 1(2)?

A

Voluntary or uncoerced agreement.

51
Q

Which provisions lists the circumstances where someone does not voluntarily or without coercion agree to sexual penetration?

A

Section 1(3).

52
Q

What kind of intent is required for sexual offences?

A

Dolus/eventualis

53
Q

What does section 5(1) deal with?

A

Actual sexual assault.

54
Q

Which provisions deal with sexual assault?

A

Section 5(1) and 5(2)

55
Q

What does section 5(2) deal with?

A

Inspired belief of a sexual assault.

56
Q

What does section 5(1) hold?

A

A person (A) who unlawfully and intentionally sexually
violates a complainant (B) without the consent of B, is guilty
of the offence of sexual assault

57
Q

What does section 5(2) hold?

A

A person (A) who unlawfully and intentionally inspires
the belief in a complainant (B) that B will be sexually violated,
is guilty of the offence of sexual assault.

58
Q

What are the elements of section 5(1)?

A
  1. An act of sexual violation
  2. The complainant
  3. Unlawfulness
  4. Intent
59
Q

What are the elements of section 5(2)?

A
  1. Inspiring a belief
  2. An act of sexual violation
  3. The complainant
  4. Unlawfulness
  5. Intent
60
Q

What is sexual violation in terms of section 1(1) of the SOA?

A

Any act which causes direct or indirect contact between the:
1. Genital organs/anus/breasts of one person and any part of the body of another person
2. Mouth of one person
3. Masturbation
4. Insertion of any object resembling the genital organs of a person or animal, into or beyond the mouth of another person

61
Q

What are the principles of a section 5(2) sexual assault?

A
  1. Imminent harm
  2. Threat must be personal violence
  3. Victim must subjectively believe that they will be sexually violated
  4. Can be physical act, gesture or verbal threat
62
Q

What are the defences to sexual assault?

A

Consent barring section 5(2)

63
Q

What did the court hold in Levenstein v Frankel?

A

The differentiation between rape and compelled rape and other sexual offences in section 18 is irrational.

64
Q

What is statutory rape?

A

In terms of section 15(1) of SOA:

○A person (A) who commits an act of sexual penetration with a
child (B) who is 12 years of age or older but under the age of
16 is, despite the consent of B to the commission of the act,
guilty of the offence of having committed an act of consensual
sexual penetration with a child, unless A was
(a) 12 years of age or older but under the age of 16 years; or
(b) Either 16 or 17 years of age and the age difference
between A and B was not more than two years

65
Q

What are the elements of statutory rape?

A
  1. Sexual penetration
  2. The child
  3. Unlawfulness
  4. Fault
66
Q

What is the element of unlawfulness for statutory rape?

A

Sexual penetration with a child between age 12 and 16 years with consent.

67
Q

What is the requirement of fault in statutory rape?

A

Intention to unlawfully and consensually sexually penetrate person between 12 and 16 years.

68
Q

What is the defence to the element of fault for statutory rape?

A

Section 56(2)(a).

69
Q

What is statutory sexual assault?

A

In terms of section 16(1) of the SOA:
○A person (A) who commits an act of sexual violation with a
child (B) who is 12 years of age or older but under the age of
16 is, despite the consent of B to the commission of the act,
guilty of the offence of having committed an act of consensual
sexual violation with a child, unless A was
(a) 12 years of age or older but under the age of 16 years; or
(b) Either 16 or 17 years of age and the age difference
between A and B was not more than two years

70
Q

What are the elements of statutory sexual assault?

A
  1. Sexual violation
  2. The child
  3. Unlawfulness
  4. Fault
71
Q

What is the defence to statutory sexual assault?

A

Section 56(2)(a) - deception

72
Q

When is the defence in section 56(2)(a) not applicable?

A

If the parties are related according to section 56(3).

73
Q

What is the element of fault in statutory sexual assault?

A

Intention to unlawfully and consensually sexually violate
a person between 12 and 16 years

74
Q

What is termination of pregnancy?

A

The separation and expulsion, by medical or surgical means, of the contents of the uterus of a pregnant woman.

75
Q

What is section 10 Choice Act?

A

Offences and penalties

76
Q

What does section 10(1)(a) and (b) of the Choice Act hold?

A

Any person who is not a medical practitioner/registered midwife/nurse who has completed the prescribed training course, and who performs the termination of a pregnancy under 12 weeks and beyond 13 weeks shall be guilty of an offence and liable on conviction for a period of not exceeding 10 years.

77
Q

What are the elements of termination of pregnancy?

A
  1. Termination of a pregnancy
  2. Termination not by a medical practitioner/registered midwife or nurse who has completed prescribed training
  3. Unlawfulness
  4. Fault
78
Q

What is the defence to the termination of pregnancy?

A

Necessity.

79
Q

What is the element of fault for TOP?

A
  1. Intention to perform abortion unlawfully
  2. Accused must know or foresee that the woman is pregnant and intend to bring about termination
  3. Accused must know or foresee that termination is unlawful
80
Q

What are the factors to determine intent in common assault as laid down by S v Mdau?

A
  1. What was used as a weapon and to which part of the complainant’s body was it directed
  2. What degree of force was used
  3. What injuries were caused
  4. What was the reason and object, if any, for the action of the accused
  5. What caused the accused to desist.

Criminal Law B (4 decks)

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