lcrm-sec-semester-notes-unit-10-14-final.pdf
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lOMoARcPSD|41285945 LCRM SEC Semester Notes UNIT 10-14 final criminal law 2604 (University of the Free State) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downl...
lOMoARcPSD|41285945 LCRM SEC Semester Notes UNIT 10-14 final criminal law 2604 (University of the Free State) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Unit 10: Crimes Against the Person 1. Murder Def: the unlawful and intentional causing of the death of another human being Interest protected: Sec 11 protects everyone’s right to life Elements of crime in murder: 1. Unlawfulness Valid defence e.g. private defence, necessity, statutory authorization= not guilty of murder Consent by deceased not a valid defence e.g. euthanasia 2. Intention Must be proven beyond reasonable doubt Includes criminal capacity There must be a will to kill and knowledge of unlawfulness…intent Any type of Dolus⃰= sufficient 3. Cause of Death An act consisting of a voluntary act or omission which causes the death of another human Causality theories are applicable…to determine the factual or legal cause of the victim’s death. 4. Another living human being Must be a human being Suicide/ attempted suicide isn’t a crime Unborn fetus does not qualify Case Law: S v Mshumpa Facts Accused 1 (father of the unborn child of complainant) and Accused 2 agreed to end the life of the complainant’s unborn child (38 weeks). Accused 1 arranged with Accused 2 to shoot both himself (in the shoulder) as well as the complainant in the stomach with the purpose of killing the unborn baby. The plan was to be executed in a way that made it look like a kidnapping and robbery. On the morning of 14 February 2006, Accused 2 (Mshumpa) indeed approached the couple and shot Accused 1 in the shoulder and the complainant (twice) in the stomach. Accused 2 then took off with certain items of Accused number 1, including his watch. Accused 1 then got back into the car and managed to drive the complainant and himself to the hospital. Both were fortunate and survived, but the unborn baby died. Accused 1 and 2 were prosecuted of various charges including the murder of the unborn baby. Legal question Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Whether it was appropriate for the court to develop the common law so to include the killing of an unborn baby in the definition of murder? Decision and reason for court’s decision No, but both Accused 1 and 2 were convicted of attempted murder of the complainant. They both foresaw the causing of death of the complainant with the attempt to kill the unborn baby. The current definition of murder refers to the unlawful and intentional killing of another person, born alive. The extension of the definition to include an unborn baby, will be against the principle of legality. The fact that the complainant was pregnant served as an aggravating factor in sentencing the accused. Case Law: Ex Parte the Minister of Justice: In re S v Grotjohn. Facts of the case The accused’s wife indicated that she wished to commit suicide. She was in a wheelchair and suffered from depression. On the day of the incident, her husband handed her a loaded gun, saying that she should shoot herself because she was a burden. She took the gun and shot herself. The accused was charged with murder but was acquitted/ found not guilty. The Minister of Justice referred the following questions to the Supreme Court of Appeal: Legal question for the court to answer 1. Does a person who instigates, assists or puts another person in a position to commit suicide, commit a crime? 2. If so, what crime? Other legal questions: 3. Is suicide a crime? 4. Was there a sufficient causal link between the conduct of the accused and the death of his wife as the last act was her own and independent? Decision of court 1. Yes, a person who instigates, assists or puts another person in a position to commit suicide, is guilty of a crime. 2. Depending on the circumstances (type of fault present), such a person may be guilty of murder, culpable homicide or attempted murder in the case where the attempt is unsuccessful. Decisions of other legal questions: 3. suicide is not a crime; Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 4. There was a sufficient causal link between the conduct of the husband and death of woman irrespective of the fact that the very last act was her own independent act. 2. Culpable Homicide Def: the unlawful and negligent causing of the death of another human being. Elements: Unlawful causing of death of another human being- no valid defence Negligence* Negligence Difference between murder and culpable homicide Objective/ reasonable person test Did the conduct of the accused differ from what’s to be expected from a reasonable person??? Reasonable expert test (doctors) also applied Versari doctrine (if person commits crime they are strictly liable for the consequences…unlawful conduct = guilty) – rejected Partial excuse theory also rejected- exceeds the boundaries of self-defence THERE IS NO SUCH THING AS ATTEMPTED CULPABLE HOMICIDE- you cannot attempt to be negligent. Case Law: S v Burger Facts: The accused assaulted the victim by kicking him in and below the stomach. The victim was only 19 years old and small. The accused was much older and stronger and also wearing shoes. when he committed the offence. A few days later, the victim died. The accused was convicted of culpable homicide and appealed against the conviction. Legal question: Whether the accused was negligent in causing the death of the victim? Decision and reason for the decision: Yes, the conviction of culpable homicide was confirmed. Reason: A reasonable person in the shoes of the accused would have foreseen the possibility of causing death in the circumstances. (The other legal question dealt with causation – not relevant) Case Law: S v Van As Facts: Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 During a quarrel, the accused gave d a hard slap with his right hand on D’s Cheek. D, who was a very fat man, lost his balance, fell backwards and hit his head on the cement floor. He became unconscious and died. The trial court convicted him of culpable homicide He appealed against the conviction. Legal question: Was the accused negligent in causing the death of the victim? Decision and reason for the decision: Conviction of culpable homicide was replaced by one of common assault. Reason: The reasonable person would not have foreseen the possibility of death. 3. Assault DEF: the unlawful and intentional direct or indirect impairment of another person’s bodily integrity OR The unlawful and intentional inspiring of a belief in another person that impairment to bodily harm is immediately threatening. Protects section 12 There are three different types of assault: Common assault Assault with intent to do grievous bodily harm Sexual assault Elements of Assault: 1. Unlawfulness The slightest threat may constitute assault but minimal threats will not be considered unlawful (de minimus rule) Grounds for justification as defence for assault are self-defence, public authority and consent to harm Consent may be raised as grounds if for example a patient charges a doctor following a therapeutic op or when someone is injured during a sports competition. 2. Intention Any type of Dolus is sufficient esp. Dolus eventualis There is no such thing as negligent assault- always intentional Attempted assault is possible and recognised- in situation where the assailant is unaware of threats or asleep You can also be convicted for assaulting someone who is already dead but you believed they were alive Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Case Law: S v Mantle Facts: The accused was a difficult man. On the day of the incident, he did not like the way that his girlfriend made his bed. He threw a cane at her – she ducked, and it hit and injured his mother standing behind her. A few days later his mother died due to pneumonia. He was prosecuted of culpable homicide but convicted of assault with intent to cause grievous bodily harm. He appealed. Legal question: Did the accused have intention to injure his mother? Decision and reason for decision: No, the conviction of assault with intent to cause grievous bodily harm as well as the sentence were set aside. Reason: The state could not even prove intention in the form of Dolus eventualis as the room was very small (3x3 meters). It was unlikely that the accused foresaw the possibility of missing his girlfriend and hitting his mother. 3. Direct or Indirect impairment of bodily harm Direct: the direct application of force e.g. stabbing, hitting and punching. Subject to de minimus non curat rule, the slightest contract with victim’s body is sufficient to constitute assault. Indirect: when assailant doesn’t use part of his body to apply force to the victim’s body, uses an instrument or other strategy to violate victim e.g. with a stick, liquor in coffee May also occur through third party e.g. telling someone to spit on another’s face Not required for victim to be conscious during the indirect assault for it to constitute 4. Inspiring a belief Must be immediately threatening e.g. waves fists, pretends to stab Victim must fear the assault against him- belief that accused will assault him Not sufficient if only accused believes that he inspires such fear in victim - Subjective state of anxiety of threatened person must be tested Fear doesn’t need to be reasonable- tested subjectively Assault with the intent to do grievous bodily harm More serious than common assault Elements the same but: Intention to cause grievous bodily harm must be present E.g. weapon, degree of violence injuries Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Case Law: S v Smith Facts: The accused was a police officer and part of a group of policemen who set their dog upon 3 allegedly illegal immigrants as part of a training session. The victims sustained serious injuries. The accused was convicted of ASSAULT WITH THE INTENT TO DO GRIEVOUS BODILY INJURY and sentenced to 7 years’ imprisonment of which 2 years were suspended. He appealed against the sentence. Legal question: Whether the SENTENCE was appropriate (fit and proper?) Decision and reason for the decision: YES, the sentence was CONFIRMED Reason: Although this is a harsh sentence for ASSAULT WITH THE INTENT TO DO GRIEVOUS BODILY INJURY, the attack/conduct was PREMIDITATED and the accused have done damage to the image of the police. Sexual Assault Common law offence of indecent assault replaced by sexual assault (a statutory offence) Sect. 5 DEF: Any person who unlawfully and intentionally sexual violates a complainant without his/her consent, is guilty of the crime of sexual assault. And The masturbation of another, placing objects (resembling genitals) into or beyond mouth of another- the only form of penetration that amounts to sexual assault. Sexual violation= Sexual Violation Direct or Indirect contact between: Genitals and body, anus and body, breasts and body Genitals, anus, breasts and body of animal Genitals, anus, breasts and any object (those that resemble genitals) Contact between mouth and Genitals Anus Breasts Mouth Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Body parts e.g. fingers and toes- can be used in acts of sexual penetration Body parts that cause sexual arousal (to victim and perp) Objects resembling genitals Genitals and anus of animal 5. Rape Though we only focus on sexual assault and rape as examples of sexual offences there are other examples like bestiality, necrophilia and prostitution DEF: any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without the consent of the complainant is guilty of rape A statutory crime…both males and females can be victims and perps of rape Criminalisation of rape protects right to dignity and bodily integrity The elements: 1, Unlawfulness Conduct is unlawful unless you can raise a ground of justification e.g. necessity in the form of duress Consent is really important- no consent= crime Marital relationship is no defence, a spouse can be convicted of sexually assaulting or raping the other and can’t raise the fact that they’re married as a defence (sect. 56(1) of Act 32/2007). 2. Intention Must have intention to have the act of unconsented sexual penetration and knowledge of unlawfulness Could be a mistake of fact- if the accused was under the impression that they had permission/consent 3. Sexual Penetration A- genital organs of one person into the genital organs/ anus and mouth of another B- any other body part, object or animal part into the genital organs, mouth or anus of another person C- genital organs of an animal into mouth of another person NB: forcing another person to do these things = compelled rape 4. Absence of Consent Consent must be COMPLETELY VOLUNTARY Submission ≠ consent Consent obtained by force/ intimidation ≠ valid consent Abuse of power of authority ≠ valid consent Consent acquired through fraud ≠ valid consent: o Misrepresentation of identity (error of personae) Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 o Misrepresentation of nature of act Valid consent where victim agrees to commit act believing that she’ll be cured e.g. a medical condition Sleeping, unconscious and intoxicated CANNOT consent – Mentally deficient- can normally not consent but depends on degree Age- anyone younger than 12 cannot consent Case Law: S v SM Facts: The appellant was convicted in a high court of, inter alia, rape and was sentenced to fifteen years’ imprisonment. He appealed against the conviction and sentence. The complainant was the appellant’s adoptive daughter. She was adopted at the age of 15. A close and intimate relationship developed between the appellant and complainant. The appellant then started to demand privileges 12 from the complainant for allowing the complainant to contravene some of the grounding orders imposed by her mother. These privileges included kissing her, rubbing her breasts, touching her private parts and performing oral sex on him. Later that year he had sexual intercourse with her. The complainant objected but did not resist at the end because she felt that she had no choice but to go along with what he was doing. She testified that she had nowhere else to go and might have been returned to a place of safety, should she cause trouble for her adoptive family. It would also cause trouble for the church where the appellant was a senior pastor. Legal question: 1) Whether the appellant had valid consent? 2) Whether the sentence was appropriate? Decision of court and reason for decision: 1) No, there was no valid consent. The conviction of rape was confirmed. Reason: 1)The appellant abused the power of authority that he had - complainant was entangled in a web of rewards and punishments at the hands of an elder whose intrusive conduct became increasingly difficult to resist. He had no real consent 2) Yes, the sentence was appropriate and confirmed. Reason: The trial court did not induce a sentence of shock. Case Law: S v Willemse Facts: Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 The accused (boy raised as part of the family) raped the victim one afternoon inside her home. The accused at first raped the victim vaginally and thereafter stopped, turned her on her side and raped her anally as well. He was convicted of two rape charges and given life imprisonment as sentence. He appealed against the conviction as well as the sentence. Legal Question: 1)Whether the conduct of the accused amounted to two separate acts of rape 2) Whether the sentence was appropriate. Decision and reason for decision: 1)Yes, the conviction two rape charges were confirmed Reason: According to the court, there were two separate thought processes involved (he wanted to rape the victim in two different ways) which justifies the conviction of two rape charges. 2) The sentence was not appropriate Reason: Due to mitigating factors the sentenced was reduced to twenty years’ imprisonment. 6. Crimen Iniuria DEF: The unlawful, intentional and serious infringement of the dignity or privacy of another A common law crime Element: unlawfulness Intention = any Dolus is sufficient Grounds of justification= official capacity and necessity Only serious violations considered unlawful Everyday abuses are de minimus non curat lex (the law doesn’t concern itself with trifles/ petty things) Factors that make a violation serious enough Time and place (were there witnesses) Respective ages Sec and social status Whether the insult has a racial/ sexual connotation Whether the insult was aimed at a public official on duty Violation Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Can take place in various ways i.e. can be verbal or a conduct committed Examples: spit on face, exposing something, sexual assault etc. Verbally abusive language is usually suggesting sexuality or racism Violation of privacy usually along the lines of a peeping tom, reading confidential info etc. Dignity and Privacy Dignity refers to self-respect Victim must be aware of the violation in the case of violation of dignity The only exceptions are children and mentally retarded people i.e. can’t perceive the violation In the case of privacy – the victim need not be aware of the violation e.g. someone looking while you undress Case Law: S v Holiday Facts: The accused was lying on a roof and looking through a skylight while the complainant was undressing. She was informed about this by 2 pedestrians outside the building who saw the accused on the roof. He was convicted of crimen iniuria and appealed. Legal question: Is it a requirement for conviction of crimen iniuria that the victim be aware of the violation of privacy? Decision of the court and reason for the decision: Conviction of crimen iniuria was confirmed. Reason: 1) awareness is not a requirement for conviction in the case where privacy is violated, only where dignity is violated. 2) This was a serious violation of privacy. Case Law: S v Momberg Facts: The appellant had been convicted of crimen iniuria in that he said the following to the traffic officer: “Jou lae donnerse bliksem, ag fock-off jou lae bliksem, jy is laer as ‘n donnerse vark.” He uttered those words upon receiving a traffic ticket from the officer. The traffic officer was in uniform, with another officer and the incident took place in the main street of Mosselbay. The accused appealed against the conviction. Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Legal question: Was the conduct of the accused serious enough for a conviction of crimen iniuria? Decision of the court and reason for decision: Conviction of crimen iniuria was confirmed. Reason: The conduct was serious enough because: 1) the officer was in uniform, 2) it happened in front other people – in the main street of Mosselbay, 3) the officer was on duty and 4) the accused spoke loudly Case Law: S v Sharp Facts: The accused stripped naked in a tavern. She was arrested and charged for public intoxication. The complainant (a female police officer) had to search the accused. The accused then told the complainant, in front of others, that she was a bitch. The accused was heavily drunk. She was convicted of crimen iniuria in the trail court. The case went on a review. Legal Question: Was the dignity of the complainant impaired? Decision: No, the use of the word did not amount to a violation of the officer’s dignity since the word formed part of everyday language (de minimus non curat lex). 7. Criminal Defamation DEF: the unlawful and intentional publication of matter concerning another which tend to injure the other person’s reputation. In between section 10 and 16 of constitution Crimen Iniuria(CI) VS Criminal Defamation(CD) CI= dignity & privacy – words/ conduct towards victim CD= reputation/ fama – publication of accusations to others Elements: Unlawfulness: grounds of justification = consent and necessity Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Intention: must be proved (animus iniuriandi), Dolus eventualis is sufficient, intent to publish and defame are present. Publication: must be in writing or verbal and must be announced to someone else Special grounds of justification exclusive to CD: The defamatory publication was the truth and served the public’s interest Boiled down to reasonable commentary Defamatory allegation made at a privileged occasion. Violation of Reputation: violated when the publication exposes them to hatred, contempt, ridicule and diminishes their esteem. Case Law: S v Hoho Facts: The appellant was convicted on twenty-two charges of criminal defamation for publishing several leaflets in which he defamed various persons. In these leaflets allegations of, amongst others, fraud and corruption were made. He appealed against the conviction. Legal questions: 1. Does our law still recognize criminal defamation as a crime? 2. Is it constitutional to recognize criminal defamation as a crime? 3. Is seriousness an element of this crime? (should only serious violations of reputation be referred to criminal courts)?) Decision: 1. Yes, criminal defamation is still a crime in our law. 2. Yes, the existence of criminal defamation as a crime is constitutional Reason: The limitation of section 16 is reasonable and justifiable 3. No, not only serious cases of criminal defamation to be referred to criminal courts. The conviction of criminal defamation was confirmed. Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 8. Witchcraft and Criminal Law No definition in Witchcraft Suppression Act Refers to the cultural belief that a person, who has magical/ supernatural powers has influence on another person’s property, mind or body Customary law provides sanctions for this Criminal law created crimes to suppress witchcraft and to protect the innocent against harm caused by witchcraft. Witchcraft related offences in SA Accusation -Section 1(a); (b)- accusing another of using witchcraft to cause harm Identification- section 1(a), (c)- identifies/ hire a person to identify the person who has caused harm by using witchcraft Practicing- section 1(d), (e), (f)- advising on or using witchcraft to damage, harm, find stolen property for gain Section 1: CRIMES in terms of Witchcraft Suppression Act 3 of 1957 (a) Witchcraft Accuses another of causing disease/ injury to another by Accusation supernatural means; identifies another as a wizard (b) Accusation Using supernatural witchcraft to accuse another of causing disease, death and damage (c) Identification Employs another to identify any person as a wizard (d) Advise Admits knowledge of witchcraft/ charms and advises another on how to bewitch , injure and cause damage (e) Practice On advice of witchdoctor/ any other based on own witchcraft knowledge- x uses means to injure or cause damage to another (f) Practice For gain- pretends to use any witchcraft to discover where and in what manner anything supposed to have been stolen or lost may be found Sanctions: For contravening: o Sec 1(a);(b) – max. 10yrs and if victim dies= 20yrs o Sec 1(c);(d) ;(e) – max. 5yrs o Sec 1(f) – 2yrs complies with principle of legality Effects of Witchcraft Criminalisation A complex issue as witchcraft accusation and killing of witches still part of certain community’s culture/belief Punishing the killing of alleged witches as murder creates conflict between criminal law principles and cultural belief Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Requires a balancing of conflicting constitutional rights, i.e. right to life vs right to exercise one’s culture Criticism against act and a way forward South African Pagan Council – state that witchcraft is their religion thus Act violates section 9, 10,15,16 – ask for repeal and apply common law to witchcraft related offences Traditional Healers Organisation – ask for repeal of act and replace with new legislation (read Way Forward slide and Practical Scenarios) Possible Defences Private defence Lack of criminal capacity Putative private defence Only a mitigating factor 9. Kidnapping Protects section 21 of const DEF: the unlawful and intentional depriving a person of his freedom of movement and/or if such person is under 18, depriving their parents/custodian of their control over them. Parent can’t commit this crime in respect of his own child- only guilty of contempt of a court order Elements: Unlawfulness o Can be lawful in cases of a court order, consent, official capacity to arrest, necessity or emergency requiring medical attention occurs o Consent to kidnapping by children not valid defence o Even when minor gives consent= kidnapping as parents are deprived of control over minor Intention o Must be proven with respect to each element of crime o Must be the accused intention to deprive kidnapped person of his freedom of movement and o Accused must be aware of the unlawfulness of his conduct o Duration of deprivation can indicate intent- but it is not a requirement Deprivation of freedom of movement o Violent or cunning deprivation of freedom Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 o Removal from one place to another not essential- stationary person held hostage is deprived of their freedom Of another person o Kidnapped can be a man, woman or child Case Law: S v Mellors Facts: The accused entered a library where he pointed a pistol at the librarian and ordered her to sit down. He then piled books against the door to prevent anyone entering or leaving the room. Later he ordered the librarian to make certain phone calls which she did. After two and a half hours, he gave himself up and allowed the librarian to leave the room. He was convicted of kidnapping the librarian and appealed. Legal question: Whether the period of two and a half hours was long enough for a conviction of kidnapping? Decision of the court and reason for the decision: Yes, conviction of kidnapping was confirmed. Reason: The period was long enough and the victim was deprived of her freedom of movement during this period. Downloaded by Kesaobaka Dabula ([email protected]) lOMoARcPSD|41285945 Unit 12: Offenses against the family: ABDUCTION DEF: The unlawful and intentional removal of an unmarried minor (
