CRW2601 Summary Study Notes

CRW2601 Summary Study Notes. Introductory Topics Criminal Liability General For a person to be convicted, the following requirements must be satisfied: 1. Their conduct must be recognised in our law as a crime a. Principle of Legality b. Not regarded as an element of a crime The 4 elements of criminal liability 1. Act or conduct 2. Compliance with the definitional elements of the crime 3. Unlawfulness 4. Culpability Act or Conduct (By conduct we mean and act or omission) Was there conduct on the part of X (the accused)? Usually ‘the requirement of an act”. Conduct can only lead to liability if it is voluntary. X must be capable of subjecting his movements to his will or intellect. Therefore the movements of a sleepwalker are NOT considered to be acts. An omission can only lead to liability if the law imposed a duty on X to act positively and X failed to do so. Compliance with the definitional elements of the crime Definitional elements of the crime means: the concise definition of the type of conduct and the circumstances in which they must take place in order to constitute and offence. E.g. definitional elements of robbery are: “the violent removal and appropriation of movable property corporeal property belonging to another”. X’s conduct must comply with or correspond to the definitional elements. Unlawfulness Just because it complies with the definitional elements does NOT mean it is a crime. E.g. parent hitting child or policeman knocking down a robber are not assault (even if they correspond with the definitional elements of assault). Must be seen in reference to the law in its entirety. Instances when a seeming unlawful act is actually are called grounds of justification (e.g. selfdefence). Downloaded by tabisa dyonase () lOMoARcPSD| Culpability There must be grounds on which X can be blamed for his conduct. Shift here from the actual act to the accused’s personal abilities and knowledge (or lack thereof). Culpability requirement comprises 2 questions (sub-requirements): 1. Criminal Capacity a. Ability to appreciate the wrongfulness of his act (distinguish between right and wrong) b. Ability to act in accordance with such appreciation 2. Intent a. X’s act must be intentional or negligent Sequence of investigation into presence of elements Investigation into the presence of the 4 requirements of criminal liability must be done in a specific order. E.g. was it voluntary? If not, no further investigation needed, and so on in order mentioned above. Remember the boy with the table, chair and stick trying to retrieve the kite. Hints on answering problem-type qestions 1. Be able to identify the 4 elements and follow the sequence of investigation into the presence of the elements. (this requires knowledge and understanding of the definitions of concepts (e.g. dolus eventualis)) 2. Discuss the legal principles that are relevant. Most of the principles come from case law. Therefore refer to decided cases whenever a principle is stated. (if you don’t know the case name then just say “it has been decided”…) 3. Apply the relevant legal principles to the facts of the problem. 4. Provide a conclusion to the problem. Address the question you have been asked. The Principle of Legality as entrenched in the Constitution of South Africa The Concept of Legality Read case book 3 – 22 First question of criminal liability is whether the act was recognised by the law as a crime. If something is prohibited by law, it MAY NOT be considered a crime. Not every contravention of a legal rule constitutes a crime. Principle of legality also known as: nullum crimen sine lege (no crime without a legal provision) Principle of legality is in section 35(3)(1) of the Constitution. Downloaded by tabisa dyonase () lOMoARcPSD| Rules embodied in the principle 5 rules: 1. Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’. 2. Ius praevium – court can only find someone guilty if the crime was a legal crime at the time of the commission of the act 3. Ius certum – crimes cannot be formulated vaguely 4. Ius strictum – court must interpret the definition narrowly rather than broadly 5. Nulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must be applied in the sentence Judges function is not to create law, but to interpret it. Ius Acceptum – conduct must be recognised by the law as a crime RSA criminal law is not codified, therefore it comes mainly from common law. Even though we use common law, it must be clear that the conduct is considered a crime in common or statutory law. If this is not so, the court cannot convict the accused. In RSA ius acceptum refers to common and statutory law. Common-law crimes There can be no crime where provision has not been made for such a crime/act in common-law. Case law: Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC) • Legislature (not courts) has mandate of law reform • Balance of powers and functions should be recognised and respected Statutory crimes If parliament wants to create a crime, the act will best comply with the principle of legality if it expressly declares that: 1. That particular type of conduct is a crime 2. What punishment must be imposed upon a person convicted of that crime When the wording in an act is unclear if a crime has been created: • Court should assume a crime has been created only when it appears unambiguously in the text • If the act does not expressly declare that a crime has been created, it should be slow to interpret the conduct as such • Consideration of ambiguous wording in acts should be interpreted in the favour of the accused (Hanid 1950 (2) SA 592 (T)) Legal norm – provision creating a legal rule that does NOT simultaneously create a crime Criminal norm – provision that makes clear certain conduct is a crime Criminal sanction – provision of what punishment a court must impose A simple legal norm will not without strong and convincing evidence to the contrary create a criminal norm. Downloaded by tabisa dyonase () lOMoARcPSD| Before we can accept that a crime has been created, the provision must contain a criminal norm. What if a criminal norm is created, but not a sanction? Supreme court of appeal rejected the contention that conduct that breaks a criminal norm that has no sanction attached to is not a crime. – Director of Public Prosecutions, Western Cape v Prins 2012 9 SACR 183 When there is no sanction but clearly the Act means to create a specific crime, it is up to the court to decide the punishment. Ideal is that the legislature will create a maximum punishment for a crime. Ius Praevium - Crimes should not be created with retrospective effect Crime cannot take place if it is not recognised as a crime at the time. Retrospective effect (ex post facto) is contrary to the principle of legality. Ius Praevium is expressly set out in the Constitution Section 35(3). Any law that violates the Bill of rights may be declared null and void. Masiya – Rape was defined as penetration of the penis into the vagina. Constitutional Court rules that penetration of the penis into the anus would only be applied proactively (going forward). Ius Certum – Crimes must be formulated clearly Even if ius acceptum (accepted as a crime) and ius praevium (not in retrospect) are complied with the principle of legality can still be undermined by the creation of criminal norms which are created vaguely or unclearly. The Constitution contains no express provision with regards to ius certum. Section 35(3) can however be read to include this rule. • Right to a fair trial • Conduct may be seen as breaking a criminal norm Ius Strictum – provisions creating crimes must be interpreted strictly Even if Ius Acceptum, Ius Praevium, and Ius Certum have been complied with, Ius Strictum not complied with can still undermine the principle of legality. The court would be free to interpret he law in any which way they liked – as broadly as they wanted. Well known that crime creating provisions should be interpreted very strictly. Underlying idea is that when an Act is unclear it should be interpreted in favour of the accused (given the benefit of the doubt). In Mayisa the Con Court held that a High Court may in exceptional circumstances, extend the field of application of a crime in order to promote the Constitution. Read Masiya case in casebook 3-15, and Mshumpa 2008 (1) SACR 126 (E) casebook 264-275 (compare with decision in Masiya) Downloaded by tabisa dyonase () lOMoARcPSD| Principle of Legality in Punishment In dealing with punishment the previous rules (ius acceptum, ius praevium, ius certum ,and ius strictum) also apply. Application of the principle of leglaity to punishment is often expressed by the maxim nulla poena sine lege – no penalty without a statutory provision or legal rules. • Court cannot impose a punishment that is not recognised in statutory or common law • Court cannot impose a punishment retrospectively • Legislature cannot create vague or unclear punishment • Where the provision of a punishment is described, the court must interpret it strictly The Act Background The requirement of an act that corresponds with the definition of the proscription is often referred to as actus reas. Introduction Once it is clear that the principal of legality has been complied with (the alleged conduct is a crime etc.) you need to determine criminal liability. The act is the first requirement. There must be some form of act (comissio) or omission (omissio) by the accused. See also: Criminal Law 51-58; Case book 22-28 The Act “Conduct”, “act’, and “omission” Strictly, “act” does NOT include “omission”. Act is the opposite of an omission. Use the word “conduct” to refer to either of them. We speak of an act or omission when referring to the first basic element of liability. Non-technically/non-strictly, “act” is used for acts and omissions – as a synonym for “conduct”. Thoughts not punishable Merely thinking of committing a crime is not punishable. In order to be criminally liable X must have started to convert thoughts into actions. Not only can the completed crime be punishable, although some act is required to go from merely thinking or deciding. Attempt to commit a crime is also punishable. Act must be a human act or omission Perpetrator of the act must be a human. A human being can be punished if he commits a crime through the agency of an animal (urging his dog to bite someone). Eustace 1948 (3) SA 859 (T); Fernandez 1966 (2) SA 259 (A). Downloaded by tabisa dyonase () lOMoARcPSD| Act or conduct must be voluntary Criminal law 54-58; case book 22-28 A conduct is only punishable if it is voluntary. The conduct is voluntary if X is capable of subjecting his bodily movements to his will or intellect. If they are not in control it is not them committing an act but rather something that is happening to them. Voluntary act must NOT be confused with a willed act. Conduct that is not willed (like negligence) is still punishable. Intention is taken into account in culpability. Factors that exclude the voluntariness of an act: 1. Absolute force X is slicing an apple. Z grabs X’s hand (and is much stronger) and stabs Y in the chest. X was too weak for the act to be voluntary because of absolute force. Relative force is when the person had the power to refrain, but was facing the possibility of harm themselves. E.g. you will get shot if you don’t shoot someone else. 2. Natural forces If a hurricane blows X through Y’s window, X has committed no act for which he can be punished. 3. Automatsim o Meaning: When a person behaves in a mechanical fashion. E.g. reflex movements, heart palpitations, sneezing fit. Somnambulism, unconscious or hypnotised movements, epileptic fit or so-called blackout. o Cases: Mkize 1959 (2) SA 260 (N) – stabbing from an epileptic fit; Du Plessis 1950 (1) SA 297 (O) – 72 year old driver experienced a blackout as a result of blood pressure and found not guilty Sane and insane automatism Sane automatism relies on the defence that there was no voluntary act on his part because of momentary automatism. Does NOT rely on mental illness. Insane automatism relies on the defence of mental illness (insanity). Actually a completely different defence to automatism. He difference between sane and insane automatism is import for 2 practical reasons: 1. Onus of proof o If X relies on sane automatism as defence, onus of proving act was performed voluntarily rests on the state (Trickett 1973 (3) SA 526 (T) 537) o If X relies on insane automatism, the onus of proving mental illness rests on the accused NOT the state 2. Outcome of the case (will X leave the court a free person?) o Successful defence using sane automatism means X goes free o Successful defence using insane automatism X will probably be ordered to go to a psychiatric facility and will thus lose his freedom Downloaded by tabisa dyonase () lOMoARcPSD| Case book: Henry 1999 (1) SACR 13 (SCA) 3. Defence does not succeed easily o It is very difficult to win using the argument of automatism o Even if X pleads sane automatism (state must prove voluntary) there needs to be a basis for this defence 4. Antecedent liability o If the accused know that they suffer from blackouts or epilepsy but get into a situation where their conduct causes a crime to happen, they cannot use automatism as a defence. o X can be held criminally liable for certain crimes of negligence (culpable homicide) – voluntary act is when X drives the car (called antecedent liability) o Victor 1943 TPD 77, X convicted of negligent driving despite having an epileptic fit which caused the accident – no evidence to suggest that he would not have a fit while driving. Omissions Criminal law 58-62; case book 28-31 Legal duty to act positively General Rule Read in the Case Book: Minister van Polisie v Ewels 1975 (3) SA 590 (A) Omission is only punishable if there I a legal duty upon X to act positively. (NOT a moral duty!) There is a legal duty when the legal convictions of the community require him to do so. - Minister van Polisie v Ewels 1975 (3) SA 590 (A) If someone is drowning and an unrelated person can save them they are legally obliged to save them. Legal Duty: Specific Instances General rule is very vague. In practice a number of specific instances are recognised in which a legal duty is imposed upon X to act positively. Specific instances: