PBL 420 Semester Test 1 Notes PDF

Pass and Prosper PBL 420 Semester Test 1 Notes Scope: Incomplete offenses and Particiaption Incomplete 3 Types: Offenses ❖ attempt ❖ Incitement ❖ Conspiracy Definitions: Formally defined cr...

Pass and Prosper PBL 420 Semester Test 1 Notes Scope: Incomplete offenses and Particiaption Incomplete 3 Types: Offenses ❖ attempt ❖ Incitement ❖ Conspiracy Definitions: Formally defined crimes- punish the act not the consequence Materially defined crimes- punish consequence These crimes do not exist in the abstract, must be connected to an actual crime (house breaking, murder). Punishment in theory same as complete crime, but in practice the punishment is more lenient. Attempt 3 forms of attempt ❖ Completed ❖ Interrupted ❖ Impossible Completed attempt Definition: x does everything from their side to commit crime but due to unforeseen circumstances crime could not be completed. - Completed attempt Example: x hates y and wants to kill him, attempts to shoot Y but has no bullets. X did everything to attempt to kill Y- this is completed attempt. Laurence - Mr Laurence did interview with an alleged communist. Wrote article to magazine to be published but was intercepted by police beforehand. Laurence did everything from his side to have interview published but could not due to unforeseen circumstance. Charged with attempted contravention of suppression of communism act. Court found guilty and held as example of completed attempt. Mshumpa- Dealt with attempted murder of pregnant mother, clear example of completed attempt as fired shot at mother but killed foetus. Did everything from their side to kill the mother, hence charged with attempted murder. Attempt can only be completed intentionally, cannot be negligent Interrupted attempt Definition: X tries to act on committing crime but is stopped. Relates to dividing line between x thinking of crime and putting crime into action. Thinking is not punishable. Once crime in motion (consummation) then punishable. e.g. x tries to shoot Y but is arrested before he can do so. Voluntary withdrawal (x pulls out gun and decides can’t do it and puts it away) R V Schoombie- Schoombie wanted to set shop on fire, took petrol and matches, went after closing and started pouring petrol on shop, got matches out of pocket but was arrested before he could light shop on fire. Charged with attempted arson, Court distinguished between completed attempt and interrupted attempt. stated you must assess if it is beginning of end or end of beginning, is the crime still in prep phase or is it already in motion. Attempt established once X commits act with intent to complete that crime, always needs to be established whether act progressed further than mere preparation. Nango decision- attack on police planned, during the attack Nango wanted to assault police with Axe, stood over policeman with axe, before could hit police he was shot by a cop. Charged with attempted murder, unsuccessful defence of voluntary withdrawal. -interrupted attempt as crime had progressed to execution stage, had he not been shot he would have assaulted policeman. R v Du Plessis- accused published book with state secrets, but one alleged state secret was false. Court held- there must be intention of offender to complete the crime, it must be clear that x embarked on series of acts which had progressed beyond merely preparation, and if not interrupted would have progressed to completion of crime. GS decision- leave out Impossible attempt 2 tests ❖ Objective ❖ subjective Objective test for completed and interrupted attempt- court views set of facts objectively Subjective test for impossible attempt- the mind/ intention of perpetrator. Definition: impossible attempt- impossible either in terms of means used or object. E.g X thinks the gun is real while it is fake and tries to kill someone. It is sanctionable if there is act+ evil intent to commit an existing crime but it’s not physically possible to commit the crime. E.g X shooting a dead body with intent to kill an alive human. The evil intention present makes X liable for attempted murder. - Subjective test 2 exceptions for impossible attempt 1. If X attempts to commit a crime which no longer exists (X tries to commit adultery) -x not guilty as crime no longer exists even if x thinks a crime exists. 2. Statutory provision specifically excludes liability for attempt. (the attempt of X is excluded from being a crime) Davies decision- Happened during abortion being a crime, Davies charged with attempt to contravene abortion act. Facts revealed that at time of performing abortion the foetus was already dead, question arose if he can be guilty of abortion if foetus already dead. Court looked at test applied (subjective test) Davies thought he is performing an abortion. Found guilty Don’t study Ncamu decision, Davies only!!!! 3 impossibilities ❖ Object (person already dead) ❖ Means (toy gun) ❖ Subject (not applicable anymore, rape could not be committed by a female back in the day) Special cases Robinson- deceased experienced financial difficulties, so he asked accused nr 3 to kill him to get insurance for wife. Question arose if accused nr2 would be guilty of attempted murder. Nr 3 found guilty of murder and wife only of attempted murder Ntanzi- accused on bus with complainant. Accused pushed burning cigarette on Ntanzis forehead, Ntanzi walked away, complainant followed him and Ntanzi pulled out gun and shot at complainant but missed. Ntanzi charged with attempted murder. Court held that Ntanzi had no intention to murder. (as no intent there is no attempt. Found not guilty. Phiri - X knows they have HIV but has intercourse with another without disclosing such fact. X sees foreseeability of transmitting HIV and reconciles with such fact. Charged with attempted murder. Intent established based on dolus eventualis. Nyalungu- Accused raped while having HIV. Charged with both Rape and attempted murder based on fact that he didn’t use protection while being HIV positive and foresaw possibility of infecting complainant and reconciled with that fact. Leave out Nkosi and Zyku Incitement Definition: Incitement- any person who incites instigates commands or procures any other person to commit a crime, whether it be common law or statutory crime shall be guilty of an offense. Which is punishable with the same punishment as would have been for the completed offense. Incitement is independent crime, not in abstract, a formally defined crime- punishing act.. Incomplete anticipatory substantive offence. Should only be charged if crime is not completed. 2 parties ❖ Inciter ❖ Incite Inciter  ❖ Element of persuasion not required. (need not be proved that persuaded as long as attempted). The means used to influence incite are immaterial, it can be express or tacit. ❖ If incite does not know then only attempt, must consciously seek to influence incite to commit crime. ❖ If crime completed then inciter and incite become accomplices. ❖ Incitement can be in any form (x asking Y to kill z). matter of persuasion irrelevant if inciter seeks to influence mind of incite. Incitee ❖ Immaterial whether there was persuasion or unwillingness, ❖ may be a police trap who seeks to trap inciter (NKOSIYANA). ❖ If culpability is lacking that he incited to commit crime (then no incitement but guilty as indirect perpetrator. - follow NKOSIYANA!!!! S v Nkosiyana- 1 person tried to convince 2 persons (undercover police) to commit a murder of a politician. Firstly, inciter is someone who seeks to influence mind of another to commit a crime. Secondly manner of persuasion can take various forms, question is whether accused sought to influence mind of another to commit a crime. Where persuasion does not reach mind of incite (its attempted incitement). Found guilty of incitement to murder. Crux of matter is were always concerned with mind of inciter. Subjective test. Dreyer- question was if incitement can be through answer to question, answer is yes. Dick - Accused wanted to poison fiancé if love potion did not work. Court held that incitement (the accused incited the sangoma to give the poison) can be conditional. Note: If x incites y to do impossible crime, then incitement impossible to perform, test same as for impossible attempt. Conspiracy Definition: S18(2) riotous assembly act- any person who conspires with another to aid or procure the commission of an offense whether it be a common law or statutory offense shall be guilty of an offense and upon conviction liable to same punishment which could have been imposed for completed crime. Formally defined crime: punish act not consequence. All substantive crimes (must be in relation to something). Example: ❖ A,B,C meet to commit murder, as soon as parties reach agreement, conspiracy is completed. A,B,C should be charged with conspiracy only if planned crime not completed, however prosecutor may charge A,B,C in alternative with conspiracy to murder on evidence considerations. NB: Must be at least 2 participants. Always entering into an agreement between 2 or more persons. (agreement can be express or tacit). Not a requirement that every participant be aware of other participants identity, but must know of other participants or that parties agree on manner of executing crime, must just agree that crime should be completed. Intention requirement: x must intend to conspire with other participants and have intention to commit crime.  What if X attempts to conspire with mentally ill person? That’s attempted conspiracy. Sibuyi: accused was charged with conspiracy amongst other crimes. Theft of metal bearings, one charge related to conspiracy to commit theft as all parties agreed to commit crime on the day. Court assessed if conspiracy present, court illustrated principle: crime of conspiracy comes into existence the moment there is a meeting of the minds between the participants. Found guilty. Nduli: dealt with important principle, defence of dissociation. Can X decide that they no longer want to be part of the conspiracy? 4 accused persons, reached agreement on robbery of petrol station. Mr Nduil was to stand guard outside so 2 accused inside could execute plan. Nduli borrowed R2 and told other participant he no longer wishes to partake, went home by bus. Dissociation Definition: conduct by a collaborator to offence with intention of discontinuing collaboration. The more advanced an accused persons participation in the commission of a crime, the more pertinent the dissociation needs to be to convince court that they wanted to dissociate from the plan. ❖ Timely and unequivocal notification to other conspirators of decision to abandon unlawful purpose. ❖ Court held that his actions had already progressed to execution phase of the plan so his appeal was denied. Sebeku- leave out only Nduli needed for dissociation!!! Basson- X can only conspire to commit a crime within SA borders, if conspire to commit crime outside SA riotous assembly act N/A De toit- leave out Agliotti - court held: no difference between successful/unsuccessful conspiracy Friedrickson -leave out Participation S55 of Sexual offenses act Definition: provides attempt/conspiracy/incitement for sexual offenses. Anyone who: ❖ Attempts ❖ Conspires with any other person ❖ Aids ❖ abets ❖ induces ❖ Incites ❖ Instigates ❖ instructs ❖ commands  ❖ counsels, ❖ procures Another person to commit a sexual offence ito the act is guilty of an offence and may be liable on conviction to punishment to which a person convicted of committing that offence would be liable. Perpetrators Divided into 2 ❖ perpetrators ❖ non-perpetrators Definition: Perpetrator- all persons who commit the crime, a person who through his conduct the circumstances in which the event takes place, and the attitude with which it occurs complies will all requirements and definition of crime. Example: (e.g Murder- unlawful and intentional killing) (x shoots y on purpose and kills y, conduct matches the definitional elements) Kinds of perpetrators 1.Direct perpetrator- commits crime themselves 2.Indirect perpetrator- commits crime through instrumentality of another (x gets Z to shoot Y) 3.Co-perpetrators- 2 or more persons act together and comply with definition of the crime 4.Concurrent perpetrators- commit crime together but are unaware of each other’s existence Generally, unnecessary to focus on the type of perpetrator and the perpetrators liability is not accessory in nature (do not need someone else liable). Co-perpetrators to murder are determined with causation and if unable to prove causation, then use doctrine of common purpose. Robinson case- deceased had financial difficulties and asked accused nr 1 to kill him, did not do it. Accused nr 3 killed the deceased. Robinson was indirect perpetrator. Dee- wrongly decided, dealt with rape and whether you can be indirect perpetrator. D assaulted M, told his friend mr B he can have sex with D’s gf. Both D and B charged with rape. Question was if D was indirect perpetrator, court found guilty. But you cannot be co-perpetrator to autographic crime such as rape. Dee should have been accomplice. Mangalo- dealt with theft and if you can co-perpetrate, you need intention of theft. Lady and husband in shop waiting to pay, then Mangalo and co perpetrator cut the line, Mangalos co-perpetrator took the husband’s wallet. Mangalo found not guilty. Only co perpetrator guilty. Common purpose Definition: If 2 or more persons form common purpose the act of causation of one is imputed to other. (if multiple accused commit robbery together, and someone dies during the robbery it is hard to decide who is act caused the death). Example: Necessary for group activities. (x,y,z,a,b all act together but prosecutor can’t decide who’s act caused the death. Each one’s intention and fault need be proved individually.) Conduct of one imputed to others Conduct and causation need not be proven, only fault. Glansworthy- people striking outside mine, police arrived to disperse, shots fired by strikers and killed a policeman. All charged with murder as impossible to ascertain which striker fired fatal shot. The act of one was imputed to rest. 2 types ❖ Identifiable perpetrators- A, B rob bank both perpetrators as common purpose ❖ Unidentifiable perpetrator- gang kills someone but difficult to determine who to blame so all found guilty. Active association for common purpose Requirements decided in Nkedesi ❖ Accused must be present at scene of crime ❖ Accused must be aware of assault on victims ❖ They must have intended to have common purpose with rest of perpetrators ❖ He/she must have manifested sharing of common purpose by associating. ❖ They must have had intention for victim to be killed. Spontaneous common purpose Malangwe- accused came across 3 other individuals, all wanted to rob a shop. Resulted in owner dying. All charged with common purpose of murder, they had purpose to rob the shop but court held them guilty of murder because of spontaneous common purpose. Withdrawal from common purpose. Lungile- break in at store, police arrived and criminals fired shots at them. Lungile ran away once police arrived. Argued that he left scene, but court rejected the argument as he participated on advanced level. And it was foreseeable for police to respond. Therefore, he participated with rest to point of execution. To succeed with withdrawal defence, he must perform an act indicating unwillingness to participate before the act. Tiebus decision- leave out. Nzo- accused member of political party, provided lodging to terrorists. Mrs’d said they going to the police. Terrorist threatened mrs’d d and killed her a few weeks later. Nzo confessed to police, charged with murder. As he knew murder was going to happen, appealed by saying he withdrew from common purpose by confessing to police. Defence succeeded. Not guilty. Court held he withdrew the minute he confessed. Wana- Leave out Nkwenya- common purpose can apply to crimes of negligence, deceased and gf sitting in vehicle. accused and co-accused decided to rob, as attempting to rob they used violence. One of the persons died as result. Charged with murder, prosecution could not prove intention to kill deceased. Evidence established negligence as they foresaw possibility of resistance and negligent in not refraining from violence. Gouvenor and withehead- leave out Joinder-in Definition: - associates with common purpose after deadly wound already inflicted but victim still alive. Example: X, Y act in common purpose to murder Z. J comes after crime committed and inflicts further wound (which does not cause or hasten the deceased’s death) J is joinder in. joinder in guilty of attempted murder not murder. Motahung- Accused came and kicked a victim of a gang attack while she was still alive the kicks did not hasten or cause death and deceased died from gang attack. Court held, accused was example of joinder in. arrived after injuries already inflicted. Accused only guilty of attempted murder, as joinder in associates after fatal wounds already inflicted. Common purpose can be from prior agreement or inferred from active association. Safatsa-distinguished prior agreement from active association. Deceased was political leader, 8 accused persons arrived at house of deceased and set him alight in street, impossible to decide who’s act caused death, all charged with murder for common purpose. Leave out Gcam-Gcam decision. Dube- don’t need to know. Maxaba- 3 accused, only 1 accused armed. Came across deceased to rob. Deceased said he had no money, robbed him of his watch. Accused 1,3 left. Accused 2 stayed and stabbed deceased. All charged with murder. Based on common purpose. Appealed on difference in intention. (1,3 rob only). Court on appeal held: no magic spell for doctrine of common purpose, individual fault still needs to be proved by state. Accused 1,3 conviction of murder set aside. Leave out molimi Leave out Musimangu Jacobs-Common purpose and crime of rape, contentious issue if common purpose can be used for rape. Problem (x and Y want to rape Z) x sets up and Y does the physical act. Rape is an autographic crime, can only be attributed to person who does the crime physically with own body. In above scenario X is accomplice and Y perpetrator. Tshabalala- group of accused charged w rape for common purpose. Charged with rape as all present on scene even when only 1-2 accused performed the rape. On appeal court held that doctrine of common purpose can be applied only for common law definition. Incorrect decision: More logical if court held others as accomplices. Mambu- leave out Molimi- leave out Accomplices Definition: Person who unlawfully and intentionally engages in conduct where they further or promote an offense by someone else, but does not satisfy definitional elements of crime and common purpose cannot be imputed to them. Can get same sentence as perpetrator. Example: x and y agree that x wants to murder z so y informs x that he will provide a location and tools for the murder and x then kills z. Y then furthers or promotes the offense that x is committing. M decision: married couple committed rape, m did the crime, the wife assisted with luring people to house. Was held M’s wife could only be guilty as accomplice. As she did not commit crime with own body but furthered commission of crime. M- guilty of rape, wife- accomplice. Williams- 4 accused on a train, nr1 and nr3 stabbed deceased, nr2 dragged body, nr4 did nothing. Court held: 1,3 charged with murder. 2,4 accomplices. Accomplice liability is accessory in nature, accomplice cannot be liable if no perpetrator to assist. Accomplice is not co perpetrator, accomplice associates himself w crime by furthering or promoting the commission. Assistance can be a commission or omission, accomplice guilty by their own fault. Leave out Msomi+HB Know only M and Williams. Accessoriness 5 Levels ❖ Accomplice can only be held liable if perpetrator found guilty and sentenced (procedural accessoriness) (strictest level, not applied) ❖ Hyper accessoriness (needs to be act, unlawful, capacity, fault, convicted, sentence) ❖ Strict accessoriness (act, unlawful, capacity, fault) does not need conviction ❖ Limited accessoriness used in Parry case needs only act +unlawful ❖ Minimal accessoriness needs only act. No need-to-know in-depth in textbook. Parry- charged with murder provided gun to H who wanted to murder his wife. Question arose if he should be perpetrator or accomplice H was mentally ill (court used limited accessoriness) Parry found guilty as accomplice. Patel not needed. Ballenberg decision leave out. Accessories after the fact Definitions: person who unlawfully and intentionally assists the perpetrators or accomplices to avoid liability after commission of offense. Crime similar to with defeating ends of justice/obstructing course of justice. non-participants: come to scene after crime is committed. E.g. assist perpetrator by ridding of evidence or giving false info to police. E.g. x kills y and Z arrives after to clean crime scene. NB: Similarity between accessory after the fact and accomplices is the accessoriness. Important elements Act Unlawfulness Intention Accessoriness What is difference between co-perpetrators, accomplice, and accessory after the fact? (co perpetrator commit the crime with you, accomplice facilitates it but conduct does not amount to the actual crime, accessory assists in covering up) Joinder in v accessory after the fact: Joinder in comes while crime still busy, accessory assists in covering up, joinder does not do that. Nooroodien- - 2 gangs were in opposition. Deceased was driving his vehicle and other gang fired shots at him killing him. Whole gang charged w murder, Noorodien was charged w murder+ accessory after the fact as he provided false info to police. Leave out parlaani and teblanche Jonathan- can you be accessory after the fact to own crime? General rule no. Jonathan was exception. Jonathan shared prison cell w 2 co accused and deceased. Deceased was found dead in cell. All 3 charged w crime of murder. Court found all guilty of accessories after the fact as they did not confess who killed deceased. Mabungu- conspired with few individuals to murder ndo’s mother-in-law to use body parts for medicine. Mabungu was late to crime, mrs ndo informed him that murder complete but murdered someone else. Assisted mrs ndo in removing body parts. Charged w murder, defence of not intending to murder the victim but someone else thus lacking intention. Court found him guilty on accessory after the fact but not murder. Jonathan decision and mavungo NB, leave out phallo and rest.