03CR - Voluntariness - Criminal law, the body of law that defines criminal offenses, regulates the PDF

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Criminal law, the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to convicted offenders....

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Voluntariness DEFINITION  Voluntariness is conduct subject to conscious will (Chretien)

GENERAL PRINCIPLES 

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Voluntariness is derived from notion of individual responsibility from the doctrine of free will, whereby all humans are born with the ability to freely choose between different courses in action, and having freedom means an individual can justifiably be held responsible for the consequences of his/her actions. The requirement of voluntariness is an attempt of the criminal law to give expression to concerns with free will and it proposes that an individual is only deserving of a conviction if they did wrong in their own free will as a function of their own choice. The positive act or omission must committed by a person’s free will, hence a human must have conscious will to commit an act in order for it to be voluntary. Criminal liability will not arise where there is involuntariness; if a person acts automatically (lacking self-control) or mechanically there is no liability for that offense.

Describing voluntariness  It cannot be said the accused failed to control something, but that he/she failed to control self  Can only claim to have ”lost” self-control if acting involuntarily.

INVOLUNTARY CONDUCT   

Most simply put, involuntary conduct is conduct which is not controlled by the will. Burchell poses two questions with respect to determining involuntary conduct: 1. Was the accused able to control his will?; and 2. Did the accused in fact control his will? The courts have referred to this as “mechanical” conduct and an “involuntary lapse of consciousness”, among other terms.

AUTOMATISM Conduct is considered involuntary if it takes the form of “automatism”. There are two types of automatism: Insane automatism  Involuntary conduct brought about by mental illness  Onus is on the accused to show that he/she is insane and it is done on a balance of probabilities  A verdict of not guilty on the grounds of mental illness usually results in the accused being detained or incarcerated in a mental institution  Insane automatism negates capacity. Sane automatism  Involuntary conduct due to temporary loss of will or control.  The onus is on the state to prove beyond reasonable doubt that the accused was acting voluntarily and if the State fails to do so resulting in a verdict of not guilty, the accused will be acquitted.  Sane automatism negates voluntariness.  To raise the defence of sane automatism the State must bring evidence which is sufficiently cogent to raise a reasonable doubt as to the voluntariness of the accused, evidence should be expert medical evidence (S v Trickett).  Sane automatism includes:  Sleep (internal disturbance) 1

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Epilepsy (internal disturbance) Hypoglycaemia Intoxication Superior force Hypnosis Arteriosclerosis, concussion and provocation.

SLEEP CASE: R v Dhlamini 1955 

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Facts: The accused killed a 15 year-old boy, apparently acting as a “mechanical influence” of a nightmare. It was found the accused was not acting with intention or malice but that he had just woken from a nightmare and reacted in response to that. He stabbed the deceased three times after the deceased approached the accused and picked up a mat. The accused was described as sitting “still and silent, taking no notice of anything” and he later told the court in a vague and confused manner that he had recollection of having seen faces looking at him through a window and he dreamed he was being assaulted by a number of people and he was defending himself. Court held: The accused was acting mechanically without motive, volition and intention and was reacting to a dream. In some cases there is a degree of negligence on the part of a sleepwalker which would render him liable but that would be in cases where the accused was aware that he commits acts of violence and fails to take reasonable precautions against it. Legal Principle: Sleep can constitute involuntariness provided the accused was not aware of the possibility that he/she may cause harm or damage while in that state of automatism, or if the accused was aware of that possibility. Sleep walking will not result in acquittal in every circumstance because if the sleepwalker is aware of his/her condition and is further aware that he/she may be violent in such situations, then the accused must take measures to protect against harm being caused. Even though it is an involuntary action, if the accused had knowledge and could reasonably foresee it happening but did not take precautions then he/she will not escape liability. If sleepwalking is completely involuntary, sane automatism can be used as a defense

EPILEPSY CASE: R v Victor 1942 

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Facts: The accused appealed against a decision from the court a quo wherein he was found guilty of reckless and negligent driving which resulted from an epileptic fit that occurred while the accused was driving his car. He drove at an excessive speed, did not stop at a stop street, did not keep his car under control and collided with a pedestrian and another car. The accused had suffered from epileptic fits for 13 years but claimed he was not negligent because he did not foresee he would have a fit as there no warning signs and he already had an attack on the day in question but had never had two on a day so did not expect to have a fit whilst driving. Court held: The accused drove recklessly and negligently because of his physical condition and criminal conduct is ordinarily excused if it is proved that the mind ceased to control motions of the body. The accused was aware of his condition and of the probable danger to others, hence he had reason to expect a fit might occur. He could not take advantage of his disability to avoid responsibility so it was held he was criminally liable for negligence because he could not keep his car under proper control and he had reason to anticipate a high potential of danger to others when he set the car in motion. Legal Principle: The defense of sane automatism (with specific regard to epilepsy) will only be successful if the accused did not have reason to expect the involuntary conduct would occur.

CASE: R v Schoonwinkel 1953 

Facts: The accused was driving his vehicle when he collided with another vehicle resulting in the death of the other driver. He veered to the other side of the road and drove towards the 2

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oncoming traffic in what would otherwise have been deemed as suicidal conduct. It was established he was epileptic and further had an epileptic seizure at that critical moment, causing him to black out and lose control whilst driving. He was completely unaware of his conduct. Although ordinarily epileptics can establish they are about to have an attack as in Victor, the accused had a minor form of epilepsy (only had two attacks in his lifetime and the last one was a considerable period before the incident) so he could not reasonably foresee potential danger or consequences. Court held: The accused could be exonerated from the charge of culpable homicide because he did not have knowledge of possibility of a seizure while he was driving. To protect himself and the public, his license was suspended due to infirmity and would remain suspended until there was proof he would no longer have fits. Legal Principle: If the accused was unaware of his/her condition and thus could not reasonably foresee possibility of danger there will be no liability. Although these diseases are involuntary, a person still has a duty to take precautions and guard against harm or damage being caused. Whether conduct during an epileptic fit falls under the category of sane or insane automatism is an open matter (R v Schoonwinkel)

HYPOGLYCAEMIA / LOW BLOOD SUGAR CASE: S v Van Rensburg 1987  Facts: The accused was charged with negligent driving which resulted in a collision but raised the defence of sane automatism, particularly on the ground that he suffered from hypoglycaemia (low blood sugar). He had been for blood tests with a pathologist on the day of the collision and had not been warned that he may become drowsy with the effect that his ability to drive would be impaired, but while driving home he began feeling tired and collided with another vehicle. The State argued a reasonable person would, under those circumstances, have pulled over to the side of the road and so he was negligent. However, it was not proved beyond reasonable doubt that the accused would have foreseen the sudden drop in blood pressure and thus known to pull over. Further, on a balance of probabilities it was shown the accused acted in a state of sane automatism.  Court held: With reference to S v Trickett the court held that to effectively raise the defence of sane automatism there must be evidence to raise reasonable doubt regarding the voluntary nature of the actus reus and there must be medical or other expert evidence to show that the involuntary or unconscious nature of the actus reus is possibly due to causes other than mental illness or disorder. The accused was acquitted due to his sane automatism.

INTOXICATION CASE: S v Johnson 1969  Facts: The accused was 18 years old and was charged with being drunk in public for which he was detained in a cell with the deceased who was an elderly man in a deep sleep. The accused killed the deceased by striking him on the head with a bucket. The trial court found the accused was so drunk he was not conscious of his conduct, this because he had consumed nine glasses of brandy, however he was convicted of culpable homicide.  Court held: Upon appeal, Botha JA reiterated that before there can be criminal liability for an act or omission the act or omission must have been voluntary and quoted van der Linden: “Although all crimes must consist in a free and voluntary act we cannot count thereunder those crimes which could be committed by persons who are asleep or so-called somnambulists”, this was with

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reference to Dhlamini. Reference was also made to R v Mkize wherein the accused was acquitted for killing his sister because he had an epileptic seizure and he was “unconscious at the critical moment and did not act voluntarily”. Botha JA held that although severe intoxication does constitute involuntary action, it should not, on the grounds of policy, apply where there is self-induced intoxication unless it causes a type of insanity.

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Legal principle: Intoxication cannot serve as a defence except where it leads to insanity. Note: this judgement was made in light of the policy/unyielding approach, but this decision was rejected by Rumpff JA in S v Chretien.

CASE: S v Chretien 1981  Facts: The accused had attended a party at which he drank a great deal of liquor and the party broke up in some circumstances of discontent. While under the influence he drove his car into a crowd of people who had been at the party but were, at the time, standing in the street, leaving one person dead and 5 injured. The accused argued he was too intoxicated to appreciate the consequences of his acts and that he expected people in the street to move away. The accused was charged with 5 counts of attempted murder and 1 count of murder but he was found guilty of culpable homicide only, not even common assault instead of the attempted murder charges.  Issue: Could a charge of attempted murder or charge of common assault lead to conviction where the accused’s necessary intention for the offence had been influenced by voluntary consumption of alcohol?  Court held: The court distinguished between three degrees of intoxication: (1) dead drunk – whereby a person lies performing involuntary muscle movements and if someone is hit it is involuntary. (2) moderately drunk – whereby there is no capacity and it is prima facie involuntary but it is a question of fact and (3) slightly drunk – whereby there is no intention but there is likely negligence. The court also stated there are instances where a person is intoxicated but realizes what is happening and may act in a seemingly rational manner at the critical moment yet does not remember afterwards (R v Fowlie), but in such cases there may be criminal capacity as the mere fact that a person forgets does not mean lack of criminal capacity.  In a quote from Judge Curlwesis the court noted that it would be dangerous in the public interest to encourage the idea that drunkenness in any way excuses a crime and Rumpff JA agreed with this but said it was preferable to accept that if it appears from evidence that the accused was so intoxicated he in fact had no appreciation of what he was doing, then public policy does not require the legal principle to be deviated from and the accused be punished purely because he voluntarily reached that state of intoxication. (This does not account for instances where people drink in order to commit crimes).  The question posed was answered in the affirmative, therefore it could lead to a conviction if a person was intoxicated.  Legal principle: If a person lacks criminal capacity (ability to distinguish between right and wrong and act in accordance with that appreciation) due to intoxication, then there cannot be liability.  NOTE: The court used a principled approach which is more lenient than the policy approach. SUPERIOR FORCE  An act is involuntary where it occurs as a result of application of superior force upon the body of a person.  Superior force occurs in two main forms: Vis compulsiva (Relative force)  The accused is overwhelmed by another person  It encompasses compulsion, hence where the accused was forced/compelled to act and perhaps that person’s life or lives of others depend on it.  Example: Y threatens to kill X if X does not kill Z.  If X kills Z his conduct is not involuntary in the strict sense but it may not attract liability because of the compulsion by X and if the threat posed by X was imminent (S v Goliath). Vis absoluta (Absolute force)  The accused is overwhelmed by a force of nature or the environment  This is unlikely to arise in practice, as there is no actual act on the accused’s part.  It includes instances of hurricanes or earthquakes, hence things which make a person cause harm to another but they cannot be controlled at all by the accused.

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CASE: S v Goliath 1972, SCA This is the leading South African case on killing under compulsion.  Facts: The two accused came upon the deceased and accosted him and asked him for a cigarette and some money. The deceased replied that he had no money so the first accused stabbed him in the chest with a knife and ordered the second accused (Goliath) to bind him up. Goliath refused initially however the first accused threatened that unless he obeyed the order he would kill him (Goliath). As a result of that, the second accused tied the deceased up and the first accused stabbed him 12 times more which caused the deceased to collapse and die. The first accused also ordered Goliath to remove the deceased’s clothes, with the threat of death if he did not.  Both of the accused were charged with murder (Goliath as an accomplice), however the trial court found only the first accused guilty of murder and acquitted Goliath on the ground that he acted under the first accused’s compulsion.  Issue: Should the defence of compulsion be upheld?  Court held: The question whether in terms of positive law compulsion can ever be a ground which excludes culpability would depend on: 1) Whether the compulsion was of such a nature and degree that the intent of the perpetrator was wholly excusable because of the absence of a blameworthy state of mind, in which case he would be guilty of neither murder nor culpable homicide 2) Whether the compulsion was of such a nature and degree that the perpetrator is partially, but not wholly excusable under the circumstances, in which case he would be guilty of culpable homicide.  “Where the act is justified by necessity, the perpetrator does not act unlawfully.” Fear, however extreme, does not affect the unlawfulness of an act, only the mens rea. The interests of a deceased must be balanced with the preservation of the actual life and the accused must have done everything possible to free himself from the compelling force.  Principle: The threat of force must be imminent, but imminency is measured by proximity and the period. If the threat is not imminent or capable of being carried out, then there will be liability. HYPNOSIS  If an accused deliberately submitted himself to hypnosis for the purpose of committing a crime while under hypnosis then he would still be liable (actio libera in causa)  If the prohibited conduct committed was homicide, he would be liable for culpable homicide if he became hypnotised before he ought to have foreseen the possibility of killing another while under hypnosis. Distinction between sane automatism and mental illness CASE: S v Mahlinza 1967, AD  Facts: The accused burnt all her clothing in a fire and put her children in the fire too in order to kill them. All her children except for her 6-month old baby survived.  Court held: A psychologist found that the woman could not give an account of her behaviour and it was discovered that the mother was in a state of hysterical dissociation which developed into a pathological condition.  She was found to be insane.  Legal principle: When involuntary conduct is due to something other than a disease of the mind it is sane automatism unless it develops into a pathological condition.   

Sane automatism exists when an accused is found not guilty and acquitted on the basis that there is no voluntary conduct. One cannot be found guilty when there is mental illness (s17 Criminal Procedure Act) General rule: every man is presumed to be sane and to possess a sufficient degree of reason unless it is proved otherwise.

ANTECEDENT LIABILITY

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 It is a fundamental requirement for criminal law that a person be in a state of voluntariness to be liable, but the fact the accused’s conduct was involuntary at time of the prohibited act will not necessarily lead to exoneration.  This principle allows for a point in the past to be found wherein the actus reus and mens rea exist contemporaneously and thus requires that contemporaneity be searched for at a time outside the period of involuntariness.  The principle can be used where a person acts intending or foreseeing some harmful consequence or circumstance will occur.  Application of this principle is only necessary after it is shown that the accused’s conduct was involuntary.  If the accused was involuntary at the critical moment there could ordinarily be no liability because the element of voluntariness is not satisfied, however on the basis of antecedent liability, criminal liability can still arise. How does antecedent liability differ from actio libera in causa?  Actio libera in causa (“liberate self in a cause”) is the ancestor of antecedent liability:  If one creates a situation which is unlawful but that situation is one in which ordinarily one could attract liability, then that person shall be guilty. t0 

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There can be no liability whatsoever for conduct which falls in a period of involuntariness (t2 – t3), except where there is antecedent liability (prior conduct), also known as actio libera in causa. This comes from the idea of someone who wants to do something but finds an alternative to purely doing it voluntarily. There is no exception to the rule that in a state of involuntariness there is no liability, although antecedent liability makes it possible for there to be liability by obscuring the rules and principles of criminal liability, such as contemporaneity – when actus reus and mens rea exist simultaneously. Therefore it is not an exception or a magic formula or doctrine, it is simply a reminder of the general rule.

EFFECT OF CRIMINAL LIABILITY IN INVOLUNTA...