CRW2601 - General Principles Of Criminal Law_EXAM_PREP.

CRW2601 - General Principles Of Criminal Law_EXAM_PREP. STUDY UNIT 1 Let’s apply this simple principle to a concrete set of facts: Assume X is charged with having assaulted Y. The evidence relied upon by the prosecution to prove the charge reveals that one night while X was walking in his sleep, he trampled upon Y, who happened to be sleeping on the fl oor. Has X committed assault? FEEDBACK The answer is obviously “no”, on the following grounds: Because X was walking in his sleep, his act was not voluntary – in other words, while sleepwalking, he was not able to subject his bodily movements to his will or intellect. Because there was no act, he is not guilty of assault. (Or, to make use of the metaphor in the illustration above, there was no table for the boy to use and, therefore, any attempt by him – even with the aid of a chair and a stick – to retrieve his kite would be fruitless.) It is unnecessary to enquire whether, for example, X’s act was unlawful or whether he acted with intention (culpability). From a systematic point of view, it would be unsatisfactory – and proof of unimpressive legal thinking – to say that X escapes liability because he lacked the intention to assault. Such an argument presupposes that there was a voluntary act on the part of X – which is patently incorrect. TEST YOUSELF (1) Name the four elements of criminal liability. (2) Briefl y discuss each of the four elements of criminal liability. (3) Should the investigation into the presence of the four elements of liability follow a prescribed sequence? Explain. STUDY UNIT 2 Assume the South African parliament passes a statute in 2004, which contains the following provision: “Any person who commits an act which could possibly be prejudicial to sound relations between people, is guilty of a crime. This provision is deemed to have come into operation on 1 January 1995.” No punishment is specified for the crime. Do you think that this provision complies with the principle of legality? FEEDBACK You should have considered whether the provision complies with all the rules embodied in the principle of legality. The provision complies with certain aspects of the ius acceptum rule. It is clearly stated in the provision that the conduct prohibited is a “crime”. This means that the provision contains a criminal norm. (Look again at the train-ticket example above if you still do not understand the difference between these norms.) However, the maximum punishment that may be imposed is not prescribed in the provision. Therefore, the ius acceptum rule has not been fully complied with. The provision does not comply with the ius praevium rule because the crime is created with retrospective effect. The provision also does not comply with the ius certum rule because it is formulated in vague and uncertain terms. The phrase “possibly prejudicial to sound relations” is very wide and does not indicate exactly what type of conduct is prohibited. Does it refer to “sound relations” in the family context or in the workplace, or to relations between people of different cultures or races? The ius strictum rule further requires that an act that is ambiguous be interpreted strictly. In practice, this means that a court may not give a wide interpretation of the words or concepts contained in the defi nition of the crime. A provision that is very wide and vague should be interpreted in favour of the accused. It follows that the provision does not comply with the principle of legality. TEST YOURSELF (1) Define the principle of legality. (2) Name the five rules embodied in the principle of legality (refer to the Latin terms). (3) Discuss the role of the ius acceptum rule in determining whether (a) conduct constitutes a crime in terms of the common law (b) a statutory provision has created a crime (4) Distinguish between a legal norm, a criminal norm and a criminal sanction. (5) With reference to the decision of the Supreme Court of Appeal in DPP v Prins, discuss how our courts should determine whether a statutory offence has been created if there is no punishment prescribed for the offence in the particular legislation. (6) Define the ius praevium rule. (7) (a) Define the ius certum rule (b) Is the ius certum rule entrenched in the constitution? Motivate. (8) Discuss the decision of the Constitutional Court in Masiya. (9) Discuss the ius strictum rule. (10) Discuss the principle of legality in punishment. STUDY UNIT 3 1. X, a 62-year-old man, works in a mine. His job is to operate the cocopans. These cocopans are used to transport hard rocks and gravel from the bottom of the mine to the surface. One day, while working, he suddenly experiences a blackout. In his state of unconsciousness, he falls on the lever that controls the movement of the cocopans. A cocopan crashes into another worker, Y. Y is killed instantly. X is charged with culpable homicide. The evidence before the court is as follows: X has been suffering from diabetes for the past year. His doctor had warned him that he may lose consciousness at any time if he fails to take his medication as instructed. On that particular day, X had failed to take his medication. The court finds that X had insufficient grounds for assuming that he would not suffer a 35 blackout on that particular day. X’s legal representative argues that X cannot be convicted of culpable homicide because, at the time of the commission of the offence, he was not performing a voluntary act. In other words, the defence raised is that of automatism. You are the state prosecutor. What would your response be to this argument? FEEDBACK You would rely on the decision in Victor 1943 TPD 77, arguing that this is a case of antecedent liability. The voluntary act was performed at the stage when X, fully conscious, started operating the cocopans. What the law seeks to punish is the fact that he (X), while in complete command of his bodily movements, commenced his inherently dangerous tasks at the mine without having taken his medication. In so doing, he committed a voluntary act that set in motion a series of events that culminated in the accident. 2. Y, a two-year-old child, goes to a nursery school. X, the teacher at the nursery school, often does her washing and ironing while looking after the kids. One day, while ironing, the telephone rings. She runs to answer the phone, failing to switch off the hot iron. While playing, Y accidentally pulls the cord of the iron. The iron falls on top of his body. He is severely injured. X is charged with assault. As state prosecutor, you have to prove that the accused had performed an act in the legal sense of the word. Explain how you would go about proving this. FEEDBACK You may argue that this is an instance where there was a legal duty upon X to take positive action. More specifically, this duty arose from a previous positive act. In law, this is known as an omissio per commissionem. See specific instance (6) listed above. The duty may also arise from the fact that X stood in a protective relationship to Y (specific instance 5 listed above). 3. A municipal by-law stipulates that no homeowner may dump his garden refuse in public parks. The conduct prohibited is defi ned as a crime and is punishable with a maximum fi ne of R2 000. X is charged with this offence on the grounds that he dumped his garden refuse in a public park. X relies on the defence of impossibility. He alleges that because there are no designated places in the The act vicinity where he can dump his refuse, it was impossible for him not to commit this offence. Discuss critically the merits of his defence. FEEDBACK X’s defence has no merit. The defence of impossibility cannot be raised in cases where certain conduct is prohibited by law. The defence may be pleaded only if the conduct that forms the basis of the charge consists in an omission. In other words, if the provision stipulates “You may not ...”, the defence of impossibility cannot be raised. Conversely, if it stipulates “You must ...” the defence may be raised. Students often have diffi culty in understanding this. The basis of the charge against X was not a failure (omission) to do something. A positive act (commissio) by X formed the basis of the charge. Also read the leading case in this regard, namely the decision in Leeuw. TEST YOURSELF (1) Define the concept of an “act” and provide practical examples of an act in the legal sense of the word. (2) What is the difference between the meaning of the word “act”, as this word is used in everyday parlance, and the technical meaning it bears in criminal law? (3) Briefl y explain the meaning of the requirement that the act must be a human act. (4) Fill in the missing words: Conduct is voluntary if X is capable of subjecting his ... … to his ... or ... (5) Distinguish between the concepts “voluntary” and “willed”. (6) Name three factors that exclude the voluntary nature of an act. (7) Explain the meaning of “absolute force”, as well as the difference between this type of force and relative force. (8) Give examples of muscular movements or “events” that take place in a state of automatism. (9) Give three examples of automatism from our case law. (10) X causes an accident while suffering an epileptic fit. The evidence reveals that he has been having epileptic fits for the past thirteen years and that he had insufficient grounds for assuming that he would not suffer one again on the particular day. Could X be convicted of negligent driving? Give reasons for your answer. (11) Sort the following phrases under the headings “Sane automatism” and “Insane automatism” and write them in the correct columns. (a) State of automatism is due to mental illness or defect. (b) A sane person momentarily acts involuntarily. (c) Onus is on the state to prove that act was voluntary. (d) Onus is on the accused to prove that he suffered from a mental illness or defect. (e) X is acquitted because he is deemed not to have acted. (f) In terms of section 78(6) of the Criminal Procedure Act 51 of 1977, X is found not guilty, but he loses his freedom in that he is referred to a mental hospital. Sane automatism Insane automatism (12) L ist and discuss the eight instances in which it is assumed in practice that a person has a legal duty to act positively. (13) The law cannot expect somebody to do the impossible. Name the three requirements for the defence of impossibility to succeed. Refer to examples and the case law. STUDY UNITS 4 In each of the following sets of facts, consider whether X’s act is the cause of Y’s death: (a) Y feels depressed and threatens to commit suicide. X, who harbours a grudge against Y, hands her a loaded fi rearm, stating that she may shoot and kill herself if she so wishes. Y takes the fi rearm and shoots and kills herself. (b) X, who is very poor, reads a newspaper report about a man who had been caught by a crocodile in a river in Botswana. She persuades her uncle Y, who is very rich and whose heir she is, to go on a safari to Botswana. She also encourages her uncle to take a boat trip on the river, hoping that he will be killed by a crocodile. Y undertakes the safari. He also goes out on a canoe on the river. The canoe is unexpectedly overturned by a hippo. Y falls into the water. A crocodile catches and kills him. (c) X tries to stab Y, intending to murder her. Y ducks and receives only a minor cut on the arm. However, infection sets in and Y visits a doctor. The doctor gives her an injection and tells her to come back the following week for two more injections. The doctor warns Y that she may die if she fails to come back for the other two injections. Y fails to go back to the doctor, reasoning that her body is strong enough to fight the infection. She dies as a result of the infection. (d) X shoots Y in the chest, intending to murder her. The bullet wound is of such a serious nature that Y will die if she does not receive medical treatment. Y is admitted to hospital, but because the nursing staff is on a general strike, she receives inadequate medical treatment. The wound becomes infected. Although she is eventually treated for the infection, she dies after a period of two weeks. FEEDBACK (a) You probably recognise these facts as being similar to those in the Grotjohn case. In that case, the Appellate Division held that the mere fact that the last act was the victim’s own voluntary act did not mean that there was no causal relationship between X’s act and Y’s death. X’s act (in the Grotjohn case) was a conditio sine qua non of Y’s death. Y’s last act (her suicide) was not a novus actus interveniens – an unexpected or unusual event in the circumstances. The court ruled that if X’s act was the factual cause of Y’s death, an unusual event that took place after X’s act but before Y’s death cannot break the causal link if X had previously planned or foreseen the unusual turn of events. (b) X’s act can be regarded as a conditio sine qua non of Y’s death because if X had not persuaded Y to undertake the safari, Y would not have undertaken the trip. Therefore, there was factual causation. However, there was no legal causation. An application of the theory of adequate causation leads to the same conclusion: being killed by a crocodile is not an occurrence that, according to general human experience, is to be expected in the normal course of events during a safari. Merely to hope (as X did) that the disastrous event would take place cannot be equated with the situation where X planned or foresaw the occurrence of the event before it took place. According to the criterion of policy considerations applied in the Mokgethi decision, we may also argue that it would not be reasonable and fair to regard X’s act as the legal cause of Y’s death. (c) If you have read the Mokgethi case, you will immediately recognise these facts, which were used as an illustration by the court in its judgment. It is clear that X’s act is the factual cause of Y’s death: if X had not stabbed Y, she would never have contracted the infection. In terms of the Mokgethi decision, however, we may argue that X’s act was not the legal cause of Y’s death. Y’s failure to go back to the doctor was unreasonable and created such an unnecessary life-threatening situation that, legally speaking, there is not a sufficiently close link between the original stab-wound inflicted by X and the death of Y. (d) These facts are similar to those in Tembani. It is clear that X’s act is the factual cause of Y’s death (a conditio sine qua non). According to the court in Tembani, X’s act can also be seen to be the legal cause of Y’s death. X deliberately infl icted an intrinsically dangerous wound to Y, which, without medical intervention, would probably cause Y to die. It is irrelevant whether it would have been easy to treat the wound, and even whether the medical treatment given later was substandard or negligent. X would still be liable for Y’s death. The only exception would be if, at the time of the negligent treatment, Y had recovered to such an extent that the original injury no longer posed a danger to her life. TEST YOURSELF (1) Explain the meaning of the term “definitional elements of the crime”. (2) Distinguish between materially and formally defined crimes and indicate in which of these two groups of crimes the crime of possession of dagga should be categorised. (3) Discuss the criterion that our courts apply to determine factual causation. (4) Explain what you understand by the concept “legal causation”. (5) Define and give a critical evaluation of the theory of adequate causation. (6) Define and discuss, with reference to decided cases, the theory of novus actus interveniens. (7) Discuss the decision of the Appeal Court in the Mokgethi case. (8) Discuss the decision of the Appeal Court in Tembani. (9) Give a summary of the rules that our courts apply in order to determine causation. (10) Can X, if she assists Y to commit suicide and is subsequently charged with the murder of Y, succeed with the defence that there was no causal link between her conduct and Y’s death? STUDY UNIT 5 Assume that X, who is sleeping in his home, is woken up in the middle of the night by Y, an armed burglar, who approaches his room or that of a family member. X shoots at Y in order to protect his family. Y dies as a result of the shot. Can X’s conduct be justified on the grounds of private defence? FEEDBACK It would be unfair to expect X fi rst to ask Y to identify himself and state the purpose of his visit in order to decide what, objectively, the appropriate defensive measures would be in the circumstances. It would also be unfair to expect X fi rst to try to arrest Y and then call the police. Experience tells us that even a moment’s hesitation by X in such circumstances might be fatal to X. To deny X the right to shoot in such circumstances is to require him to gamble with his life or with that of the other people in the house. Even if a court holds that X cannot rely on private defence because, objectively, there was a less harmful way in which he could have overcome the danger, the court would, in most cases, refuse to convict X of murder if he shot and killed Y, on the following ground: although X acted unlawfully, he lacked intention because he honestly believed that his life or the lives of his family members were in danger. This means that there was no awareness of unlawfulness on his part and, therefore, no intention. He was mistaken about the unlawfulness of his action and, therefore, lacked intention. This will become clearer later in the guide where, as part of the discussion of intention, we discuss the effect of mistake relating to unlawfulness. However, X may still be found guilty of culpable homicide if the reasonable person would have acted differently in the circumstances. See the discussion in 11.5 hereunder. TEST YOURSELF (1) When will conduct be regarded as unlawful? (2) Are there a limited number of grounds of justification? Discuss in view of the decision in Fourie. (3) Is the following statement true or false: “Conduct is unlawful if it accords with the definitional elements.” (4) Define private defence. (5) State the requirements with which the attack, as well as the act of defence, must comply in order to form the basis of a successful plea of private defence. (6) Distinguish putative private defence from actual private defence. (7) Discuss the question of whether, or in what circumstances, X may act in private defence (a) against a young child (b) against a policeman (c) against an animal (d) in defence of another person (e) in protection of property (f) as punishment for an attack that is already over (g) against another person, who is not the attacker (h) in a situation where it is possible for him (X) to escape (i) in a manner that is more harmful than is necessary to ward off the attack (j) in a situation where he (X) is unaware that his act of defence is directed against an unlawful attack (8) Discuss the decision of the Supreme Court of Appeal in the case of Steyn. STUDY UNIT 6 While walking in the street, X sees a dog attacking Y, an old person. X and Y do not know each other. In order to protect Y, who cannot defend herself, X hits the dog with her walking stick. The dog dies as a result of a head wound caused by the injuries infl icted by X. X is charged with malicious injury to property in respect of the dog. What is the appropriate defence in these circumstances – private defence or necessity? FEEDBACK X can rely on the defence of necessity. In a situation of necessity, a person may also protect the interests of somebody else, even though there is no particular relationship between that person and the party who is being protected. If you protect yourself or another person against an animal’s attack, you act in a situation of necessity and not in private defence. Private defence is possible only against an unlawful attack. Only a human being can act unlawfully. Y participates in a rugby game. According to the rules of the game, a player may be tackled to the ground by an opponent, but only if he is in possession of the ball. In the course of the game, X tackles Y seconds after the latter has already passed the ball to a team-mate. Y has three broken ribs as a result of the tackle. X is charged with assault. You are his legal representative. What defence would you rely on? FEEDBACK The appropriate defence is the ground of justifi cation known as consent. X’s act of tackling Y is justifi ed by consent. Somebody who takes part in sport tacitly consents to the injuries that are normally to be expected in the course of that sport. Most authorities agree that voluntary participation in a particular type of sport implies that the participant also consents to injuries that may be sustained as a result of acts that contravene the rules of the game, provided such acts are normally to be expected when taking part in that sport. See Criminal Law 125. There would, however, be no justifi cation if X, for instance, had intentionally assaulted Y so that he would be unable to play rugby for the rest of the season. That would be against the legal convictions of society. X, a member of the South African Police Service, is charged with assault with intent to do grievous bodily harm. The facts before the court are that she had instructed a German shepherd dog to attack a beggar loitering in a park. The defence argues that X’s act was justifi ed because her superior offi cer had instructed her to get rid of all the beggars in the park by setting the police dogs on them. You are the state prosecutor. What would your response be to this line of reasoning? FEEDBACK According to the decision in Mostert, X cannot rely on the ground of justifi cation known as obedience to orders in these circumstances. The order was manifestly unlawful and, therefore, X’s conduct is also unlawful. TEST YOURSELF (1) Distinguish between private defence and necessity. (2) Distinguish between absolute and relative compulsion, and indicate which of the two constitutes necessity. (3) Name and discuss the requirements for a successful plea of necessity. (4) Discuss whether an innocent person may be killed in a situation of necessity. (5) May consent constitute a ground of justification in the following circumstances? (a) if X is charged with rape (b) if X kills another person (c) if a rugby player is injured in the course of a match (d) when indecent acts are committed by adults (6) Name and discuss the requirements for a successful plea of consent as a ground of justification. (7) Discuss the following grounds of justifi cation: (a) spontaneous agency (b) parental disciplinary chastisement by means of corporal punishment in private homes (c) trifling character of an act (8) Discuss whether an otherwise unlawful act may be justified because the perpetrator, when she committed the act, obeyed the order of a person to whom she was subordinate. (9) May officials occupying a public office, who commit acts that would otherwise be unlawful, rely as a defence on the fact that they are entitled to perform these acts because the acts were performed in the course of their official duties?