Criminal capacity Flashcards
How is criminal capacity assessed?
Subjectively
Define capacity
Capacity refers to the ability of one to appreciate the wrongfulness of conduct (insight/cognitive) and one’s ability to act in accordance with that appreciation (self-control/conative). The rationale behind this inquiry is that only persons who have the capacity to appreciate that what they are doing is wrong, and that they are able to act differently, ought to be held criminally liable.
What are some of the defences to the assumption that everyone has capacity?
1) intoxication
2) pathological incapacity
3) provocation or emotional stress
4) youthfulness
Elaborate more on 1) intoxication
If one voluntarily intoxicates themselves, then under common law they are not criminally liable. The Criminal Law Amendment Act sought to remedy this, but instead it just required that the state must prove beyond reasonable doubt that the accused’s self-induced intoxication was sufficient to impair capacity, not just intent.
Provide a case summary of S v Chretien
Accused attended a party, drank, and the party broke up in circumstances of discontent. Under the influence, C drove into a crowd of people at the party, killing one. The accused was found guilty of culpable homicide, not attempted murder or common assault.
Could voluntary intoxication exclude capacity?
Yes. Voluntary intoxication can affect criminal liability in the same way as youth, insanity and provocation. However, in this instance, it only impaired intention. The accused was found guilty of culpable homicide, because he thought that the people would move out of his way.
What does the Criminal Law Amendment Act seek to do?
Sought to hold those who voluntarily intoxicated themselves as liable. Hence, someone whose drink was spiked or who was forced to consume it cannot be held liable under the Act. The Court will only use this Act when the accused has been acquitted under the common law defence of intoxication negating capacity. The state will have to prove beyond reasonable doubt that the accused lacked criminal capacity.
Elaborate more on b) pathological incapacity
When this defence is raised, the accused has to prove on a balance of probabilities (reverse onus) that:
a) they were suffering from a legally recognised pathological condition
b) at the time that the prohibited conduct was committed, and
c) that this condition impaired their criminal capacity for insight into wrongfulness, or the capacity to control their actions in accordance with this insight.
What is a pathological condition?
A mental illness/insanity/pathological incapacity is one that affects cognitive or conative capacities so as to deprive the victim of insight into the wrongfulness of their conduct or capacity to control their actions according to that insight. It must be a pathological (disease) disturbance of the accused’s mental capacity and not a mere temporary mental confusion which is not attributable to a mental abnormality (endogenous) but rather to external stimuli such as alcohol, drugs or provocation.
What are some examples of recognised pathological conditions that may exclude capacity?
Mental retardation
Delirium/dementia/amnesia
Schitzophrenia
Depressive or bipolar disorders
What are some examples of conditions that usually won’t exclude capacity?
Epilepsy (affects voluntariness)
Anxiety
Phobias
Personality disorders (like psychopathy)
What must happen when the defence of pathological incapacity is raised?
When this defence is raised, the court is obliged to order that an inquiry be held into the accused’s mental state. They must be committed to a mental hospital for 30 days for psychiatric examiniation. After examination and a psychiatrist’s report, the court must decide whether the accused is insane or not.
What would a verdict be for someone who did not have pathological capacity?
Not guilty by reason of mental illness or mental defect.
Will an accused person be imprisoned?
The order of detention must commit the accused to a mental hospital. However, this detention may be indefinite. Hence, a judge must make a determination as to whether the accused is still a danger to society and must be committed, or unconditionally released.
Elaborate more on 3) provocation or emotional stress
Only a valid defence if it leads to automatism. It is not valid if it led the accused to enter into a voluntary act.
Provide a case summary of S v Eadie
Appellant had assaulted and killed a person in a fit of road rage. He then disposed of the hockey stick used to commit the crime and misled the police in terms of evidence. He was found guilty of murder and obstruction of justice. He appeals his murder charge.
Was the appellant’s defense valid — one of non-pathological incapacity resulting from a combination of severe emotional stress, provocation and a measure of intoxication, thus placing in dispute that at the material time he could distinguish between right and wrong and that he could act in accordance with that distinction?
It was conceded that the appellant was able to distinguish between right and wrong, and act in accordance with that appreciation. The state is burdened with proving that the appellant had capacity. He had a history of road rage and mental illness before. There is a difference between loss of control and loss of temper. Non-pathological incapacity is only a defence if it leads to sane automatism. The appeal is dismissed. Conflated the conative aspect of capacity with voluntariness.
