Criminal Law: Omission and Unlawfulness

Omission

• An omission is a failure to act, and is only criminal if there is a legal duty to act positively.
• These duties arise from:
  • Contract - Failure to fulfill contractual obligations can be criminal.
  • Act or Statute - Laws may impose a duty to act, such as filing taxes on time.
  • Dangerous Object - A duty to control a dangerous object to prevent harm.
  • Protective Relationship - Parents and guardians have a duty to care for children.
  • Office - Certain individuals like police officers or medical practitioners have duties based on their roles.
  • Previous Positive Act - Creating a situation that requires action can lead to a duty to act.

Unlawfulness

• Unlawfulness is unjustified conduct, and is a key element in criminal liability.
• Grounds of justification may excuse conduct that otherwise meets the definition of a crime.

Defences Exluding Unlawfulness

• Private Defence - A lawful use of force to defend oneself or another from an unlawful attack.
  • The attack must be unlawful, against interests that should be protected (life, bodily integrity, property), and the defensive action should be necessary, directed at the attacker, and no more harmful than necessary.
• Necessity - An act is justified by necessity if it is the only way to prevent a greater harm.
• Consent - Consent to an act may justify it, but only if the consent is freely and voluntarily given and the person consenting is capable of understanding the nature of the act.
• Official Capacity - Conduct by law enforcement officers is sometimes justified by their official duties.

Contempt of Court

• Contempt of Court - Conduct that undermines the authority of the court.
  • Contempt can be:
    • In facie curiae (in the face of the court): Disrespectful behavior or interference with court proceedings taking place.
    • Ex facie curiae (outside the court): Interference with the administration of justice outside of the physical courtroom.
    • Dolus eventualis (intent) is sufficient for conviction of contempt of court.

Defeating or Obstructing the Course of Justice

• Defeating the Course of Justice - Making it impossible for justice to be administered.
  • Requires proof that justice was actually defeated.
• Obstructing the Course of Justice - Interfering with or hindering the administration of justice.
  • Requires proof of interference or hindering.

Perjury

• Perjury - Making a false statement under oath in a judicial setting.
  • May be verbal or in the form of an affidavit.
  • Only applies to statements made during judicial proceedings.

Murder

• Murder - The unlawful and intentional causing of the death of another human being.
  • May be caused by an act or an omission.
  • Intention can be direct (dolus directus) or indirect (dolus eventualis).

Theft

• Theft - The unlawful and intentional taking of property belonging to another person.
  • The taking must be without the owner's consent.
  • Assumption of control by the thief is sufficient for theft, even if the owner has not lost control of the property.
• Theft is a continuing crime - A person can be prosecuted in the area where they are found with the stolen property, even if the theft took place in another area.
• Multiple individuals can be convicted of theft of the same property, even if they possessed it at different times, provided they each knew the property was stolen.

S36 of the General Law Amendment Act 62/1955

• S36 of the General Law Amendment Act - A statutory offense related to property theft.
• Elements of the Offense -
  • Possession of goods for which there is a reasonable suspicion of theft
  • Failure to give a satisfactory account for possession of the goods
  • Accused must be found with the goods in possession at the time of questioning
  • The test for reasonable suspicion uses the standard of a reasonable person.

Firearms

• Firearms - The Act (unspecified) deals with the unlawful possession of firearms.
  • Semi-automatic firearms - Fire one shot per trigger pull.
  • Automatic firearms - Fire continuously when the trigger is held down.
  • Firearms without serial numbers - Prohibited under the Act.
• Section 3 of Act - Prohibits possession of "normal" firearms (semi-automatic or non-automatic) with serial numbers without a license.
• Section 4 of Act - Prohibits possession of firearms without serial numbers, including all automatic firearms, and therefore, automatic firearms cannot be licensed.
• Contravention of Section 4 - Always applicable for unlawful possession of an automatic firearm.
• Contravention of Section 3 - Applies to unlawful possession of a firearm with a serial number that could be licensed if the possessor had a license, but the possessor does not have a license.

This quiz covers important concepts in criminal law, focusing on omission and unlawfulness. It outlines the legal duties to act and explores various defenses that may exclude unlawfulness in criminal liability. Test your understanding of these fundamental principles!