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Criminal Law A > Criminal capacity > Flashcards

Criminal capacity Flashcards

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1
Q

What are the principle elements of criminal liability?

A
  1. Voluntary unlawful conduct (actus reus)
  2. Criminal capacity
  3. Fault (mens rea).
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2
Q

What is the test for criminal capacity?

A

Did the accused have the mental ability to appreciate the wrongfulness of his conduct and to act in accordance with that appreciation?

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3
Q

What are the two psychological factors that aid in the determination of capacity?

A
  1. Ability to distinguish between right and wrong (cognitive)
  2. Ability to conduct yourself in accordance with insight into right and wrong (conative)
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4
Q

What are the cognitive (intellectual function) factors?

A
  1. Ability to appreciate wrongfulness
  2. Ability to distinguish right from wrong
  3. Ability to differentiate
  4. Related to person’s reason or intellect
  5. Subjective
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5
Q

What are conative (volitional function) factors?

A
  1. Ability to act in accordance with that appreciation
  2. Ability to act in accordance with that appreciation
  3. Ability to control and direct behaviour
  4. Power of resistance
  5. Related to person’s capacity for self-control
  6. Subjective
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6
Q

What is fitness to stand trial?

A

Capability to understand the trial proceedngs or conduct a proper defence.

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7
Q

Which statutory provision deals with fitness to stand trial?

A

Section 77 Crim Proc Act.

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8
Q

What does section 77 of the Crim Proc Act hold?

A

Fitness to stand trial:
1. Can be raised at any time before trial commences or at any stage in trial but before sentence

  1. Accused must be able to understand proceedings to make a proper defence
  2. Section 77(1) read with section section 79: If it appears that the accused has a mental illness or intellectual disability the court must order an enquiry= psychiatric hospital for observation.
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9
Q

What happens after sending the accused to a psychiatric hospital for observation?

A

The report is then submitted to the court who must decide whether or not the trial proceeds.

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10
Q

What happens if the accused is unfit to stand trial?

A

Accused is not released, but the court gives a special verdict.

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11
Q

What if the charge of the accused involves serious violence or in public interest?

A

Accused is sent to psychiatric hospital or prison, pending release by a judge ito section 47 of the Mental Health Care Act.

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12
Q

What happens if the charge does not involve a violent crime?

A

Accused is institutionalised as an involuntary mental health care use ito section 37 of the Mental Health Care Act, released conditionally/unconditionally or referred to Children’s court.

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13
Q

Which section of the CPA provides the test to determine criminal responsibility?

A

Section 78 (1).

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14
Q

What are the two legs to the test to determine criminal responsibility?

A
  1. Pathological leg
  2. Psychological leg
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15
Q

What is the pathological leg of test?

A

Whether the accused suffers from a mental illness or intellectual disability.

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16
Q

What is the psychological leg of test?

A

Whether the accused is incapable of:
1. Appreciating the wrongfulness of their act
2. Acting in accordance with an appreciation of wrongfulness

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17
Q

Which cases deal with the test to determine criminal responsibility?

A
  1. Ntshongwana v S
  2. S v Kavin
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18
Q

What does section 78(1A) of the CPA hold?

A

There is a rebuttable presumption that everyone is presumed not to suffer from mental illness or intellectual disability.

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19
Q

What does section 78 (1B) of CPA hold?

A

If a party raises defence of mental illness or intellectual disability, burden of proof rests on part who raises issue.

20
Q

What does sections 78 and 79 of CPA hold?

A

Mental illness or intellectual disability is determined with aid of psychiatric evidence.

21
Q

What does section 78(2) read with section 79 hold?

A

If a party alleges lack of criminal responsibility by reason of mental illness or intellectual disability the court must order an enquiry → psychiatric hospital for observation → report to court (if in dispute viva voce evidence s78(4)).

22
Q

According to section 78(6) what happens if defence succeeds?

A

A special verdict is given.

23
Q

What does section 78(7) of the CPA hold?

A

If defence does not succeed but capacity diminished because of mental illness or intellectual disability, court can take this into account for purposes of sentencing.

24
Q

To what situations is the defence of mental illness/intellectual disability limited?

A

Where accused suffered from a pathological disturbance of his mental abilities.

25
Q

Which case recognised that provocation or emotional stress can be a defence?

A

S v Chretien.

26
Q

What is domestic violence?

A

Persistent psychological and physical abuse that makes life a living hell for the victim.

27
Q

What is Burchell’s opinion about criminal law treating cases of domestic abuse resulting in severe emotional stress in the same way as Eadie-type provocation?

A

It is an open question whether the law should do so

28
Q

What is Burchell’s response to the question of criminal law treating cases of domestic abuse resulting in severe emotional stress in the same way as Eadie-type provocation?

A
  1. Admissibility of evidence of abuse and battered woman syndrome= Substantial and compelling reason for imposing a lighter sentence (Ferreira)
  2. Private defence = notion needs to be expanded because the element of an attack that is imminent or has commenced is problematic, evidence of abuse is relevant in determining that further violence was imminent or inevitable.
  3. Incapacity and putative private defence (lack of intention)= non-pathological emotional stress involving a combination of fear and provocation.
  4. Protection orders under Domestic Violence Act= effectiveness and realisticness is questionable.
29
Q

What is intoxication?

A

Caused by ingesting drugs, alcohol or any other intoxicating substance with an intoxicating effect.

30
Q

Which case distinguishes between voluntary and involuntary intoxication?

A

S v Hartyani.

31
Q

What are the symptoms of intoxication?

A

1.Impairment of cognitive functions
2. Impairment of conative functions.

32
Q

What is the impact of Chretien ito intoxication?

A
  1. Voluntary intoxication is not a complete defence, but could be a mitigating factor for sentencing
  2. Voluntary intoxication can be a complete defence to any crime
  3. There’s three stages of intoxication
  4. drunkenness could be a complete defence.
33
Q

What happens if you are dead drunk?

A

Not criminally liable because an involuntary muscle movement in this condition does not constitute unlawful conduct (i.e. no actus reus).

34
Q

What happens if you are less drunk and commit an unlawful act but cannot appreciate the wrongfulness of the act or act in accordance with that appreciation?

A

Not criminally liable because of lack of criminal capacity.

35
Q

What is criminal capacity?

A

Psychological capacities for insight and self-control.

36
Q

What is the cognitive inquiry for criminal capacity?

A

Whether the accused had the capacity to form mens rea (fault)

37
Q

What is the conative inquiry for criminal capacity?

A

Whether the accused had the capacity to control irrational acts or act voluntarily (voluntariness)

38
Q

What are the defences excluding criminal capacity?

A
  1. Youth
  2. Pathological incapacity
  3. Non-pathological incapacity
39
Q

What constitutes non-pathological incapacity?

A
  1. Provocation and emotional stress
  2. Domestic violence
  3. Intoxication
40
Q

What are the cases for pathological incapacity?

A
  1. Ntshongwana v S
  2. S v Kavin
41
Q

What are the cases for provocation and stress?

A
  1. DPP, KZN v Ramdass
  2. S v Arnold
  3. S v Eadie
  4. S v Marx
  5. S v Moses
  6. S v Nursingh
  7. S v Wiid
42
Q

What are the cases for domestic violence?

A
  1. S v Engelbrecht
  2. S v Ferreira
43
Q

What are the cases for intoxication?

A
  1. DPP, KZN v Ramdass
  2. S v Chretien
  3. S v Hartyani
  4. S v Lange
44
Q

What is the statutory authority for pathological incapacity?

A

Sections 77 v 79 CPA.

45
Q

What is the statutory authority for intoxication?

A

Sections 1 and 2 of the Criminal Law Amendment Act.

Criminal Law A (8 decks)

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