Week 4 LWCRA2-22.pdf

Criminal Law LWCRA2-22 WEEK 4 (2024) Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered with the Dep...

Criminal Law LWCRA2-22 WEEK 4 (2024) Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered with the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008 Week 4 Assessment Criteria 2.3 Provide a detailed analysis of culpability in terms of criminal capacity. 2.5 Discuss the element of causation and definitional elements. Week 4: Chapter 3 – Compliance with the definitional elements and, Causation; Chapter 5 – Culpability; AC: 2.5, 2,3 Analyse the aspects of culpability and causation when assessing whether apparent wrongful conduct is lawful. Overview of week 3 Chapter 3 & 5 - Causation, (Definitional Week 4 Culpability Elements, AC: 2.3, 2,5 Culpability).  What will be covered in today’s lesson? THE DEFINITIONAL ELEMENTS Week 4 OF A CRIME. Lesson 1 THE IMPORTANCE OF CAUSATION IN PROVING SOMEONE LIABLE FOR A CRIME.  Introduction The mere fact that an act complies with the definitional elements of a crime, does not mean that the person who performs the crime is liable for the particular crime. By “Definitional elements , it is understood to refer to the concise description of the requirements of the specific type of crime with which X is charged as opposed to other crimes. The next step is to test whether the act (which complies the definitional elements of a crime) is unlawful. The definitional elements should be such that it shows the specific type of conduct or wrongdoing that the law seeks to prohibit. The definitional elements contain the model or formula which court may apply to know the specific requirements of a particular crime. For example the definitional elements of crime must be such that even a lay person would be able to know the type of conduct that is sanctionable in a court of law. Some crimes are simpler to identify and explain them and others such as murder are difficult and reads as follows: “The intentional killing of another human being”. Such crimes as murder and culpable homicide require the existence of a causal link between the act and a certain situation (the result). The causation requirement forms part of the definitional elements and not as often assumed, of the requirement of an act. The causal link is a specification of the circumstances in which an act is punishable. Causation is also an indication of how one crime may differ from another.  THE DEFINITIONAL ELEMENTS Concise description of the requirements set by law for liability for a specific type of crime. Differentiates between different crimes re: - (e.g. method of execution) - Characteristics of person. Kind of act prohibited and circumstances. - Nature of object. - Particular place. DEFINITIONAL ELEMENTS DEFINITION OF CRIME - Particular time. No reference to the requirements Contains definitional elements as well such as unlawfulness and as reference to requirements of culpability. unlawfulness & culpability  THE DEFINITIONAL ELEMENTS (DISCUSSION) The conduct of an accused person must comply with the definitional elements of a crime. Those elements describe the conditions to be satisfied before conduct can be said to amount to a crime. They typically describe the type of conduct; the manner in which, the place where and the time when the conduct is performed, and the person performing the act (for example, registered students). The definitional elements are the formula or model by which both ordinary person and judges will know whether X’s has committed a particular crime. For the purposes of the definitional elements of a crime, without the existence of such an intent the act in dispute is not recognizable as the commission of anything criminal. At this stage, the inquiry is not what precisely the accused intended, but rather whether his act was intentional at all. NB* You must also bear in mind that an investigation into whether the definitional elements have been complied with logically precedes the investigation into unlawfulness (and, after that, culpability). The definitional elements thus contain at least the minimum requirements necessary to constitute a criminal norm. For example “X’s intention must thus also form part of the definitional elements”.  THE DEFINITIONAL ELEMENTS (DISCUSSION) A) Crimes of double intention: This is in a case where, apart from the intention to commit the act, an intention to achieve some further aims is also established. E.g. Crimes like abduction (where in addition to removal of the minor, X must also intend to marry or have sexual intercourse with the minor). B) Crimes requiring a certain characteristic of intention. E.g. crimes like theft, intention must be established, whether X intended to appropriate the property meaning to take away rather than temporarily use without permission, which would be a different crime altogether. C) Crimes of attempt: That X’s intention must form part of the definitional elements of crime. For example X, intending to kill his enemy Y fires a shot at a scarecrow, under mistaken impression that its Y, X is guilty of an attempt to murder but what constitutes the wrongdoing, because without his intent, the crime that he is only guilty of is shooting a scarecrow. D) Possession: In the Jacobs case they held that one cannot say X possesses dagga unless he knows that the article X possesses is dagga.  Crimes can be arranged following their definitional elements: i Crimes which impair legally protected interests (e.g., malicious injury to property) and crimes which merely endanger such interests (e.g., negligent driving); ii Crime committed by means of a single act (e.g., assault) and crimes committed by means of more than one act (e.g., robbery, which requires both violence and an appropriation of property) iii Crimes requiring a single intent (e.g., murder) and crimes requiring a double intent (e.g., abduction, where, addition to intending to remove the minor, X must also intend to marry or have sexual intercourse with her) iv Crimes which may be committed only by means of one’s own body (“autographic crimes” e.g., rape) v Crimes in respect of which a certain conduct is prohibited, irrespective of its result (formally defined crimes) and crimes in respect of which any conduct that causes a certain result is prohibited (materially defined crimes or result crimes)  Introduction Certain crimes such as murder require proof of causation. Courts and parties to those cases must be able to establish the link between conduct and a prohibited result. The rules on causation govern how this causal link should be established. There are two tests for causation: factual and legal tests. In any investigation on the possible causal relation between an accused’s conduct and a result prohibited by criminal law, courts must first resort to factual tests before moving on to legal criteria for causation.. Example: The distinction between formally defined and materially defined crimes in the previous unit is pertinent to the topic of this unit: causation. Indeed, the rules on causation only apply to materially defined crimes. By definition, formally defined crimes such as perjury do not require certain results for them to be realized. By contrast, materially defined crimes such as murder require certain results for their realization. Causation refers to the factual link between conduct and crime. This question arises often in cases of murder and culpable homicide. In order to find that an accused’s conduct caused a certain condition (such as the victim’s death), the accused’s act must first be a factual cause, and then a legal cause of death For example the definitional elements of murder reads as follows: “The intentional killing of another human being”. Such crimes as murder and culpable homicide require the existence of a causal link between the act and a certain situation (the result). The causation requirement forms part of the definitional elements and not as often assumed, of the requirement of an act. The causal link is a specification of the circumstances in which an act is punishable. Causation is also an indication of how one crime may differ from another.  CAUSATION The issue of causation Materially defined crimes. Causal link between conduct and prohibited result. Principles to be applied in determining causation. Basic principle – 2 requirements to find causal link: 1.) Factual cause; and 2.) Legal cause. Formally defined crimes Materially Defined crimes Definitional elements proscribe a certain conduct Definitional elements do not proscribe a conduct, but any irrespective of what the result of the conduct is. conduct which causes a specific condition Perjury, drug possession Murder, culpable homicide E.g. In murder, we look at whether there was a causal link (nexus) between X’s conduct and the death of Y  CAUSATION ELEMENTS (DISCUSSION) a) The factual test: The factual test basically consists in the conditio sine qua non test. This Latin expression literally means ‘the condition without which not’. That is, an accused’s act is a factual cause of the death of the victim if the accused’s act cannot be thought away without the victim’s death disappearing at the same time. Put another way, the question is: If the accused had not performed the conduct in question, would the prohibited result (i.e., crime) ensue? A convenient English equivalent of the conditio sine qua non formula is the ‘but-for’ causation. One must be able to say that, but for the conduct or event, the prohibited situation would not have happened. The test has been criticized. One criticism is that the factual causation test covers a wide field and leads to the problem of infinite regress. Thus, if X did not take the left turn, Y would still be alive; if X did not buy that car, Y would not have been run over; if X did not graduate from university, he would not have been able to afford the car that hit Y; if X was never born, Y would not have died, and so on infinitely. The net of inquiry must be limited”. Daniels: Appeal court decided that factual causation is determined on the basis of the conditio sine qua non theory  CAUSATION ELEMENTS (DISCUSSION) b) The Legal test: The mere fact that X’s act is a factual cause of the forbidden situation is still not sufficient ground for the court to establish a causal link between the act and the situation (result). So the courts have to apply a legal cause too. Legal tests are narrower than the factual test. I must stress, here, that legal tests are founded on value judgments and policy considerations. “Policy considerations” refers to considerations which ensure that it is reasonable and fair to regard an accused’s act as the cause of the victim’s death. Legal causation Theories: 1) Individualization theories : Most operative/proximate cause. Objection: 2 or more conditions are often operative in equal measure.In Daniels: court refused to accept that in our law criminal liability is necessarily based on “proximate cause.” 2) Adequate causation theory: Because of the vagueness of the individualization theories, the courts also applied this theory. According to this theory, an act is a legal cause of a situation if, according to human experience, in the normal course of events , it brings about that situation. 3) Novus actus interveniens: Another way of conceiving causation is as the absence of any intervening acts between the conduct and the alleged prohibited result. This conception is captured by the Latin phrase novus actus interveniens (i.e., new intervening act). E.g. X inflicts a light non lethal wound on Y’s head who is then taken to the doctor. The moment Y enters the doctor’s rooms, he is struck by lightning. This then means that X is not the legal cause of Y’s death. The flash of lightning becomes a novus actus. Daniels 1983 3 SA 275 (A) 331. Mokghethi 1990 1 SA 32 (A)  Courts’ approach to legal causation Court must be guided by policy considerations – reasonable, fair and just (Daniels; Mokgethi cases). The court may apply one or more theory, or none.Wrong for court to regard only one specific theory as correct one to be applied in every situation (Mokgethi). Daniels: X shoots Y in back. Y would die in 30min. Latecomer Z shoots Y in head. Majority: both acts cause of Y’s death. Shots fired were fatal and would in any case lead to death. Minority: head shot = novus actus interveniens. Mokgethi: bank teller wounded in robbery – paraplegic. Did not follow doctor’s orders and dies from septicemia after 6 months. Wounding is conditio sine qua non but not legal cause. Policy considerations – X’s act too remote from result. Y’s own unreasonable failure = immediate cause of his death. X guilty of attempted murder only. Tembani: accused shoots girlfriend twice in chest. Admitted to hospital. Medical personnel negligent. Dies from wounds. Deliberate infliction of an intrinsically dangerous wound from which death likely to occur without medical intervention must generally lead to liability. Irrelevant whether wound was treatable or whether treatment was negligent or sub-standard. Only exception: if recovered to such an extent that the original injury no longer posed a danger to her life ACTIVITY (CAUSATION) QUESTION 1 Peter has recently been declared bankrupt due to his lavish lifestyle. To try to ‘solve’ his financial dilemma he decides to rob a bank. He has never robbed a bank before and is very nervous! As the bank teller goes to get the money, the gun goes off, injuring the bank teller. The bank teller is subsequently taken to hospital. The doctor operates on the bank teller and proceeds to tell the teller that he needs to do physiotherapy and move around to prevent pressure sores from developing. However, the bank teller does not heed the doctor’s advice. As a result, pressure sores develop and Septicaemia (blood poisoning) sets in. As a result the bank teller dies. 1.1 Is Peter the factual and legal cause of the bank teller’s death? Explain fully with reference to relevant case law. [Total 15 Marks] 1.2 Would your answer in 1.1 differ if the doctor who operated on the bank teller to remove the bullet gave him an overdose of anaesthesia before proceeding to operate on him and as a result he goes into cardiac arrest and dies? Is Peter still the legal cause of the bank teller’s death? Explain with reference to case law. [Total 10 Marks]  What will be covered in today’s lesson? Week 4 An analysis of culpability in terms of criminal Lesson 2 capacity.  Introduction Culpability is the essence of criminal liability. In all civilized nations and since the Middle Ages, it has been a fundamental principle of law that intention is an indispensable condition of criminal liability. The mere fact that a person has committed an act which corresponds with the definitional elements of a crime and which is unlawful is not sufficient to render them criminally liable. The next step is to test whether it is appropriate to hold X blameworthy for his conduct which is unlawful. Example: Courts may refer to culpability by its Latin equivalent: mens rea. If you want to fully understand the terms ‘culpability’ and ‘mens rea’, you need to go back to the roots of those two words. ‘Mens rea’ is a Latin expression that literally translates as ‘guilty mind’. Culpability comes from the Latin term ‘culpa’, which literally means ‘blame’. By culpability, it is meant that there must be, in the eyes of the law, grounds for blaming X personally for his unlawful conduct. The whole question of culpability may be reduced to one simple question, namely “could one in all fairness have expected X to avoid the wrongdoing?” If the answer is no, there is no culpability. For example In Gertze, a Namibian case, the accused was a court orderly entrusted with the booking out of admission-of-guilt fines to be deposited the magistrate’s court clerk. He allegedly filled and kept proper record of the monies received for the relevant month, but he failed to hand the monies to the court clerk. And when he attempted to do so, the clerk declined to receive the monies on the basis that she was instructed not to, due to an on-going investigation regarding same monies. Later on, the accused was arraigned and convicted in the Karasburg Magistrate’s Court on eight counts of theft. On appeal, the issue was whether the state proved beyond a reasonable doubt the requisite mens rea for the crime of theft. The appeal court found that the state had failed to prove that the accused had demonstrated an intention or had the necessary mens rea to commit theft; for, despite failing to deposit the monies on time, he kept proper record of the monies and accounted for them. In any event, it was not the first time for the accused to be late in handing over the monies to the clerk. NB* Note that the question of culpability arises only once it has been established that there was an unlawful act. For criminal liability to arise, culpability and unlawfulness must be present at the same time, i.e., they must be contemporaneous. That is what is known as the principle of contemporaneity.  CULPABILITY Mens rea Blameworthy state of mind; whether there are grounds upon which, in the eyes of the law, he can be reproached or blamed for his conduct. Particular person as an individual and his personal characteristics, aptitudes, gifts, shortcomings, mental abilities and knowledge. Culpability has 2 legs: 1.) Criminal capacity; and 2.) Intention or negligence. Masilela 1968 2 SA 558 (A),please read this case on page 130 of textbook. Criminal capacity Intention/negligence Foundation/indispensable prerequisite to existence of Question only arises once it is established that accused has intention/negligence criminal capacity Mental abilities Presence/absence of certain attitude/state of mind; knowledge  CULPABILITY ELEMENTS (DISCUSSION) a) Culpability versus unlawfulness : The criteria for unlawfulness applies to everyone and do not relate to X’s personal characteristics. By contrast, when the question of culpability arises, the picture changes: The focus now shifts to the accused as a person and as an individual, and the question here is whether that particular person (i.e., the accused), in the light of his personal aptitudes, gifts, shortcomings and knowledge, and of what the legal order may fairly expect of him, can be blamed for his wrongdoing. b) Culpability and freedom of will : Culpability and freedom of will Culpability presupposes freedom of will. Whether human beings are indeed free is a philosophical question. For the purposes of criminal law and for the purposes of determining culpability, one should merely be able to say. For the purposes of criminal law and to determine culpability, one must be able to say that , X could have behaved differently.  CULPABILITY v MORALITY AND BLAMEWORTHINESS (DISCUSSION) a) Legal versus moral culpability: Culpability as a requirement for criminal liability refers to legal culpability as opposed to moral culpability. Legal and moral norms often coincide, but sometimes they collide. The difference is that legal norms are binding even when they may be regarded as against morality. This is why X may be legally culpable even when he does not feel that he has done anything blameworthy. The other difference is that the blame inherent in culpability does not relate to X’s character, personality or general attitude towards life; it must be linked to a specific act. b) Rejection of the taint doctrine: The taint doctrine, also known as the versari doctrine, holds that, if X engages in an unlawful act or immoral activity, he is criminally liable for all the consequences flowing from this activity, irrespective of whether X acted intentionally or negligently in respect of the consequences. Stated differently, the unlawful or immoral nature of the activity colours or “taints” the consequences, so that X may be held criminally liable for the consequences without requiring culpability (intention or negligence) in respect of the consequences. c) Distinguishing culpability and blame: In Rautenbach, the accused shot at and broke the window of the complainant’s vehicle with a paintball. The accused pleaded not guilty to charges of malicious damage to property and raised the defense that he lacked criminal intent. The court found that the accused had subjectively foreseen the plausibility of causing damage to the window in question, reconciled himself with that possibility; and proceeded to pursue his action d) Rejection of the psychological theory of culpability: e) Linking culpability and criminal capacity: pp 136 of prescribed textbook. ACTIVITY (CAUSATION) QUESTION 1 Sam assaults Thomas and strangles him with an intention to kill him, then believing him to be dead, he throws his body onto the bed on an old barn in the woods. He then sets fire to the bed and disappears with all the valuables he sees. Thomas was in fact still alive when he was assaulted and only dies from the fire. When charged with murder, Sam’s lawyer Harvey Speedway argues that his client should only be charged with attempted murder. 1.1 With reference to relevant case law, discuss aspects of culpability and state whether Sam is guilty or not. [Total 15 Marks]  Activity: Discuss the requirements for the psychological theory of culpability, explain the rejection of this theory using aspects raised in the S V Eadie 2002 1 SACR 663 case.  Bibliography Textbook: Snyman, C. R. 2021. Criminal Law. 7th edition. LexisNexis: Durban. Caselaw: Daniels 1983 3 SA 275 (A) 331. Mokghethi 1990 1 SA 32 (A) Masilela 1968 2 SA 558 S V Eadie 2002 1 SACR 663 The end