SU 6: Fault (mens rea) third element of crime..

Question 1

Intention definition

Answer 1

Intention means that a person commits an act:
1. while his will is directed towards the commission of the act or the causing of the result
2. in the knowledge of:
(a) the existence of the circumstances mentioned in the definitional elements of the relevant crime and
(b) in the knowledge of the unlawfulness of the act

Question 2

Elements of Intention

Answer 2

1. Cognitive element (intellectual)
2. Conative element (voluntative)

Question 3

Cognitive element

Answer 3

• Consists of x’s knowledge of the act.
• X’s knowledge of the existence of the circumstances mentioned in the definitional elements of the relevant crime
  -x’s knowledge of the unlawfulness of the act

Question 4

Conative element

Answer 4

• Consists in directing the will towards a certain act or result
• X to accomplish in practice what he has previously pictured himself in his imagination.

Question 5

forms of Intention

Answer 5

1. Dolus directus
2. Dolus indirectus
3. Dolus eventualis

Question 6

Dolus directus

Answer 6

when a person directs his will towards achieving the prohibited result or towards performing the prohibited act. The result or act his goal/ he desires the act or result.
E.g X intends on killing his wife and to achieve this he heads to the kitchen to get a knife which he sharpens and stabs her. The conduct than achieves the desired result.

Question 7

Dolus Indirectus

Answer 7

when the prohibited act is not x’s goal but he realizes that in order to achieve his goal, the prohibited act will of necessity materialize.
E.g X wants to shoot B but sees that in order to get to B he must first shoot C as C is standing in the way and blocking the view for him to achieve his goal, which is to shoot B

Question 7

Dolus Indirectus

Answer 7

when the prohibited act is not x’s goal but he realizes that in order to achieve his goal, the prohibited act will of necessity materialize

Question 8

Dolus eventualis

Answer 8

A person acts with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful act result is not his main aim but
(a) he subjectively foresees the possibility that in striking towards his main aim, the unlawful act may be committed or the unlawful result may be caused and
(b) he reconciles himself to that possibility

Question 9

Test for intention

Answer 9

Test is subjective.
the court must determine what the state of mind of that particular person- the accused was when he committed the act.
The court must try to imagine itself in x’s position when he committed the act and determine whether he had the intention then.

Question 10

Test for Negligence

Answer 10

Test is objective.
A person’s conduct is negligent if:
1. the reasonable person in the same circumstance would have foreseen the possibility
(a) that a particular circumstance might exist or
(b) that his conduct might bring about the particular result
2. the reasonable person would have taken steps to guard against such a possibility and
3. the conduct of the person whose negligence has to be determined differed from the conduct expected of the reasonable person.

Question 11

Difference between Negligence and Intention

Answer 11

Negligence
-x is blameworthy because he did not know, willed or foresaw that something might happened but according to the law he should have foreseen that something might have happened
- always a negative character, x did not know or foresaw something
-test is object, the court measures x with a reasonable person

Intention
-X, is blameworthy because he knew or foresaw that his conduct is forbidden and unlawful but nevertheless proceeded with the act
- always a positive character, x knew or foresaw that something with happen
-test is subjective, court measures x state of mind and knowledge