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Criminal Law A > FAULT > Flashcards

FAULT Flashcards

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1
Q

What are the forms of fault?

A
  1. Dolus
  2. Negligence
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2
Q

What is the legal question for dolus?

A

Is the accused blameworthy?

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3
Q

What is the subjective test for dolus?

A

What the accused’s state of mind was

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4
Q

What is dolus?

A

Intention to conduct oneself unlawfully.

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5
Q

What is motive?

A

Reason for unlawful conduct.

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6
Q

What is the difference between dolus and premeditation?

A

Intention to conduct oneself unlawfully is formed at the time of committing the crime whereas premeditation is a decision made in advance to commit a crime.

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7
Q

What are the three forms of dolus?

A
  1. Directus
  2. Indirectus
  3. Eventualis (legal intention)
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8
Q

What are the requirements of dolus directus?

A
  1. Commission of the crime was accused’s aim and objective
  2. Accused’s objective and legal intention coincide
  3. Result or act is accused’s goal
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9
Q

What are the requirements of dolus indirectus?

A
  1. Commission of the crime was not accused’s aim and objective but he foresaw it as a certain or virtually certain consequence of achieving that objective and persisted anyway
  2. Accused’s objective and legal intention do not coincide
  3. No specific intention to cause that harm but intention is present even if accused did not desire the result.
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10
Q

What are the requirements of dolus eventualis?

A
  1. Commission of the crime was not accused’s aim and objective but he foresaw it as a possible consequence of achieving that objective and persisted anyway
  2. Accused’s objective and legal intention do not coincide
  3. No specific intention to cause that harm but intention present even if accused did not desire the result.
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11
Q

When does a persona ct with intention in the form of dolus eventualis?

A
  1. When they subjectively foresee the possibility that the unlawful act may be committed or unlawful result caused
  2. They nevertheless accept the possibility into the bargain
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12
Q

What kind of test is the test for intention?

A

Subjective.

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13
Q

How does a court determine what an accused foresaw?

A
  1. Direct evidence
  2. Indirect evidence.
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14
Q

What kind of indirect evidence will the court employ?

A
  1. Eyewitnesses or medical evidence
  2. Inferential reasoning.
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15
Q

What is inferential reasoning?

A

Where the court must consider all the facts and circumstances of the case such as history between parties, accused’s individual characteristics which may have a bearing on his state of mind.

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16
Q

What are the degrees of possibility that the accused foresaw the possibility?

A
  1. Strong
  2. Slight
  3. Remote
  4. Exceptional
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17
Q

When does an accused lack dolus eventualis?

A

When the accused may foresee a result as possible but decides that the result will not follow.

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18
Q

What is the difference between dolus indirectus and eventualis?

A
  1. Certainty v Possibility
  2. Level of intent.
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19
Q

What is certainty in dolus indirectus?

A

The harmful outcome is certain and inevitable.

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20
Q

What is possibility in dolus eventualis?

A

The harmful outcome is a possible but not certain result of the person’s actions.

21
Q

What is the level of intent in dolus indirectus?

A

A higher level of intent because the person knows the outcome will definitely occur.

22
Q

What is the level of intent in dolus eventualis?

A

A lower level of intent, as the person only foresees and accepts the risk of the outcome.

23
Q

What is negligence?

A

A failure to act as a reasonable person would have acted.

24
Q

What kind of test is the test for negligence?

A

Objective.

25
Q

What is the test for negligence?

A

Would a reasonable person in the same circumstances have acted in the same way?

26
Q

Which case sets out the test for determining negligence?

A

Kruger v Coetzee.

27
Q

What is the test for determining negligence?

A
  1. Would a reasonable person in the same circumstances as the accused, have foreseen the reasonable possibility of the occurrence of the consequence or the existence of the circumstance in question, including its unlawfulness?
  2. Would a reasonable person have taken steps to guard against that possibility?
  3. Did the accused fail to take steps which he should reasonably have taken to guard against it?
28
Q

What is the simple version of the test for negligence?

A
  1. Reasonable foreseeability
  2. Duty to guard against possibility
  3. Failure to take reasonable steps
29
Q

What are the two possible situations of negligence?

A
  1. The accused did not subjectively foresee the possibility of conducting himself unlawfully, but ought to have foreseen it
    because a reasonable person in the same position would have
    foreseen the possibility.
  2. The accused did foresee the possibility of conducting himself
    unlawfully, but failed to take the steps that a reasonable person
    in the same position would have taken to prevent the possibility
    from materialising.
30
Q

What is reasonable foreseeability?

A

Whether the reasonable person would, in the circumstances in which the accused found himself, have foreseen the possibility
in question.

31
Q

Who is a reasonable person?

A

A fictitious person who represents a norm against which an accused’s foresight and conduct are measured, who is an ordinary person using his powers of reason and common sense.

32
Q

What must the State prove?

A
  1. That a reasonable person in the circumstances in which the accused found himself would have foreseen the possibility
  2. That a reasonable person in the same circumstances would have taken steps to guard against the possibility.
33
Q

What is the general rule for duty to guard against?

A

The greater the risk of the possibility coming to pass and the greater the harm/danger inherent in that possibility, the greater the duty placed on a person to prevent the possibility from materialising.

34
Q

What are the defences excluding fault?

A
  1. Mistake
  2. Putative justification
  3. Aberratio ictus
  4. Youth
  5. Mental illness/defect
  6. Intoxication
  7. Emotional stress
35
Q

What is the definition of murder?

A

The intentional unlawful killing of another human being.

36
Q

What is the definition of theft?

A

The intentional unlawful appropriation of another person’s property, with the intention of depriving them permanently of that property.

37
Q

What is mistake?

A

A misapprehension, an erroneous or incorrect impression or state of mind, possibly leading to inappropriate action being taken.

38
Q

What is an accident?

A

A chance occurrence, an unintended or unforeseen event in which something goes unexpectedly wrong.

39
Q

What is the general rule regarding mistake?

A

A person who is genuinely unaware of the fact that they may be committing a crime cannot be said to have criminal intention.

40
Q

Which case recognised a mistake of law as a valid defence?

A

S v De Blom.

41
Q

What are the requirements for mistake for a crime requiring dolus?

A
  1. Genuine
  2. Essential
42
Q

What are the requirements for mistake for a crime requiring culpa?

A
  1. Genuine
  2. Essential
  3. Mistake must be reasonable
  4. Accused must have acted reasonably.
43
Q

What is putative justification?

A

A species of mistake of fact occurs when an accused makes a mistake of fact, which leads them to believe that their conduct is justified and therefore lawful, when it is not.

44
Q

What are the cases for dolus?

A
  1. R v Peverett
  2. S v Hartmann
  3. S v Humphreys
  4. S v Maarohanye
  5. S v Makgatho
  6. S v Qeqe
  7. S v van Aardt.
45
Q

What are the cases for negligence?

A
  1. Kruger v Coetzee
  2. S v Humphreys
  3. S v Mkwanazi
  4. S v Ngema
  5. S v van Aas.
46
Q

What is the case for the contemporaneity rule?

A

S v Masilela.

47
Q

What are the cases for mistake?

A
  1. S v De Blom
  2. S v Naidoo.
48
Q

What are the cases for putative justification?

A
  1. DPP v Pistorius
  2. S v De Oliviera
  3. S v Ferreira
  4. Tuta v the State.
49
Q

What is the case for the defence of intoxication?

A

S v Chretien.

Criminal Law A (8 decks)

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