Criminal Law Magic Notes Final PDF

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CRIMINAL LAW Lecture 1 

Law – public and private

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Criminal law falls within the public law

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Public law – State & citizens

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State is the party to all cases

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State v Accused c

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Victim/complainant lays a charge

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State then steps into the shoes of the complainant

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Name & title of case shows name of the accused (A)

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NB! No defendant – only A

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Site only the name of the accused

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Criminal- state v accused

What is criminal law? (a. (a.k.a k.a off offence) ence) 

Law of crime & punishment

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Operative when crime is (allegedly) committed

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Determines guilt & sentence of A

Definition: A legal wrong p punishable unishable by the State. “A crime is a legal wrong ffor or when the off offender ender is liable to be prosecuted and and,, if convicte convicted, d, punished by the state. state.”” Contains 2 essential aspects:1) Unlawful conduct 2) Threat of state punishment Crime = conduct forbidden by law under threat of punishment

Criminal liabi liability lity A guilty (convicted) or innocent (acquitted) If guilty = criminally liable/ A incurs criminal liability If innocent = not criminally liable/does not incur criminal liability 1

Criminal liability = central concept It is a detailed investigation.

5 ELEMENTS OF CRIM CRIMINAL INAL LIABILIT LIABILITY Y  Conduct (physical)  Unlawfulness (physical)  Causation (physical)  Criminal capacity (mental)  Mens rea (mental) 

1-3 are physical elements o What x does o Behaviour/ actions/ conduct

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4+5 are mental elements o What x thinks o State of mind o Mental abilities+ mental processes

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Guilty only if all 5 elements are satisified

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Key to criminal liability

 seldom have to investigate all  identify the problematic element(s)  if anyone not satisfied then x to be acquitted TEST OF CRIMINAL LIABILIT LIABILITY Y

SUBJECTIVE X’s state of mind Internal focus Mental

OBJECTIVE Objective circumstances External factors Physical- not x’s state of mind

NB! Exception – negligence (element of mens rea)

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However, - negligence is tested with reason, but is a mental element -

External standard of reasonable person

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Therefore, tested objectively (physical)

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Sometimes, test is hybrid – luxuria (mixed, subject v object)

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Criminal trial tests guilt or innocence

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Parties to a criminal trial – - S (could be represented by Prosecutor) - A (person alleged to have committed a crime - Court (Judge or Magistrate)

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Adversarial system = Accusatorial system

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Contest = S V A

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Court = control & decides outcome

5 STEPS OF A CRIMINAL TR TRIAL IAL 1) Charge/Indi Charge/Indictment ctment (by State) 2) Plea (verb= (verb=to to plead) – either guilty or not guilty 3) Hearing (only if A ple pleads ads not guilty 4) Verdict 5) Sentence (if con convicted) victed) ____________________________________________________________ CRIMINAL LAW Lecture 2

Presumption of innocence -

is the most fundamental principal in C.L

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X is innocent until proved guilty

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Or until the P.I. is rebutted

P.I .I imposes upon the state the onus to pro prove ve the guilt of the Definition: The P accused beyond a reasonable doubt (BARD). 3

Case law: Ndlovu 1945 AD: ‘In all criminal cases it is for the Crown to establish the guilt of the accused.’

Zuma 1995 CC: ‘ It is always for the Prosecution to prove the guilt of the accused..’

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P.I consists of: - 2 parts 1) Onus of proof proof: the legal duty to prove guilt/legal burden of proof - duty of state to bear the burden of proof

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The State (S) has to convince the court that X did commit the crime

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If successful, State has met the onus of proof i.e. S has discharged its burden of proof

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If unsuccessful, State hasn’t met its onus i.e. S has not discharged burden therefore X must be acquitted.

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The law presumes that X is innocent.

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State to rebut PI

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Prove X has satisfied all 5 elements

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If PI rebutted, X liable

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If PI not rebutted, X not liable

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Duty on State to prove X is guilty

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No duty on X to prove innocence

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Exception: defense of insanity

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Reversal of onus i.e. it shifts to the A

2) Standard of proof 

Standard of Proof – beyond a reasonable doubt (BARD) = degree of proof i.e the quality of evidence to rebut PI

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standard = proof BARD

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Proof BARD – only a reasonable verdict is a guilty verdict

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Evidence must convince a reasonable person (RP) that X is guilty 4

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If RP convinced – no reasonable doubt (RD) => X convicted

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If RP not convinced, RD exists.

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NB! X to get the benefit of the doubt = X acquitted

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Standard of proof is BARD – proof must be beyond a shadow of a doubt

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S to prove that there is no RD

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Exception: insanity - proof on balance of probability (BOP) with reversal of onus comes a lowering of the standards i.e. on a balance of probability (civil std)

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PI originally a common law (CL) presumption

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Now a constitutional principle s.35 3 (h) of the Constitution contained in the BOR “Every accused person has the ri right ght to a fair trial trial,, which includes the right to be presumed inno innocent” cent”

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If violated, it constitutes a violation of a fundamental human rights

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WHY DOES THIS PRESUMPTION ARISE?

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S.35 3 (h) part of BOR – right to a fair trial is a fundamental human right

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If trial is unfair, this constitutes a violation of a basic H.R.

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Rationale for PI - Manamela 2000 CC: ‘ The purpose of the PI is to minimize the risk that the risk that innocent persons may be convicted and imprisoned.’

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Prevent wrongful convictions by preventing innocent people from landing up in Jail

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Zuma 1995

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s. 217 (1) (b) of CPA 51/1977

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Confessions recorded by Magistrate

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Q re: admissibility (can it be used against you)

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Unless X proves on BOP that not freely made i.e. X was coerced or made to confess under duress – reversal of onus = A must prove confession invalid

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Unconstitutional = violates PI 5

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Not rescued by s.36 (Limitation clause) = must then be struck down as a violation of a fundamental right

PRINCIPLE OF LEGALIT LEGALITY Y -

A fundamental principle of law

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All actions to be based in law

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Maxim: nullum crimen lege: no crime without law or literally, you cannot be convicted of a crime which doesn’t exist in law

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Also, we may only perform acts authorized by law i.e. every act must be based in law.

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Definition of the principle of legality: The POL means that an accused may not incur crimi criminal nal liability unless his cconduct onduct was criminaliz criminalized ed before it takes place.

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Criminal liability must have a legal basis.

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X liable if & only if conduct is recognized as a crime in law before he performs it.

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Conduct to be classified as a crime before hand

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POL originated as a common law principle

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Now it’s a constitutional principle which forms part of the BOR = s. 35 (3) (l) of the Constitution hence it’s now a basic H.R. “Every accused person has the right to a ffair air trial, which includ includes es the right not to be convicted for an act or o omission mission that was not an off offe ence under either”

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Thus, any violation of a right to a fair trial would constitute a violation of a basic H.R.

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Ration Rationale ale of POL (protective princ principle) iple)

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To protect individuals against abuse of state power

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State to act in accordance to the law

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State not allowed to exceed powers at the expense of A = ultra vires – no legal basis on which to be held liable

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Solomon 1973: The accused set fire to an open field = negligent. The prosecutor asked the court to create a new crime – ‘conflagration’. A charged with ‘conflagration’.

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Not a crime.

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Court cannot create a new crime ex post facto (i.e. after the fact)

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Court refused to criminalize conduct ex post facto.

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To find Solomon guilty would have been a breach of the principle of legality.

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Smith 1973: A found in possession of indecent photographic material

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Photographic/photostatic – by analogy

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Court refused to widen meaning of photographic material to include photostatic as this would’ve been a violation of the POL

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Hence, A acquitted on the grounds that there was no legal basis for a crime.

WORKSHEET 1: INTRODUCTION 1. ‘A crime is any proscribed (that which is forbidden /unlawful) act that causes harm.’ Discuss fully. (Evaluate) -

no threat of state punishment

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omits crucial element

2. Which element of criminal liability is at issue in these scenarios? A. X rapes V. X is mentally retarded. (criminal capacity) B. X strikes V while he (X) is having an epileptic seizure. (conduct) C. X shoots V after being ordered to do so by his sergeant. D. X beats V unconscious. V is strangled by Y while unconscious. (causation – whose conduct causes the death)

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E. X shoots V because she thinks he is a burglar. He is in fact her husband. (intention/ requires mens rea) 3. X is charged with assault. X pleads not guilty. The Magistrate knows him well and tells him: ‘You are a habitual criminal.’ Y probably did commit this crime. At the end of the trial, X is found guilty. Discuss. (POL violated - not allowed to consider previous convictions – only at the end of the trial with regard to sentencing). 4. The following statement written by a criminal law student: Sentence 1: In a theft tri trial al the onus is on the court to prov prove e X’ X’ss guilt BARD. The defendant mer merely ely has to show that she is not gui guilty lty on a balance of probabi probability lity lity.. (No onus on the court to prove anything – onus is on the state to prove guilt of the A. BARD is correct. Sentence 2: The def defendant endant merely has to show that she is not guilty on a balance of probabilit probability y. (The term defendant is not used in criminal law – ‘accused’. Onus is on the State to prove innocence unless defense used ground of insanity) Sentence 3: If X’ X’ss guilt is proved, she will b be e convicted by the prosecu prosecutor tor tor.. (statement incorrect – the prosecutor has no power to convict the accused) Sentence 4: She will then be charged and sent to jail. (Incorrect – a charge is laid against the A at the beginning not at the end of a trial – punishment may not necessarily be a custodial sentence) Sentence 5: If there is a RD about her guilt, sshe he may be give given n the benefit of the doubt. (In our law, if there is a RD, the accused MUST be given the benefit of the doubt). Sentence 6: This means that the POI has not b been een rebutted. (Correct) Sentence 7: In such a case, although X wi willll be convicted, she will not be jail jailed ed but given a non non-custodial -custodial sentence). (X will not be convicted so the sentence doesn’t matter).

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5. X sends nude photogr photographs aphs of himself to a n number umber of schoolgirls. He is charged with lascivio lasciviousness usness which the prosecutor explai explains ns to be any act intended to corrupt the mor morals als of young gir girls. ls. Discuss. - violation of the POL & s. 35 (3) (l) of the BOR - similar to Solomons case - lasciviousness is not a crime as it does not exist in law

6. On January 28 X sleep sleepss on a park bench. On 1 F February ebruary ebruary,, parliament passes the No sleeping park benc benches hes Act 45 of 2011, criminalizing all sleeping on par park k benches. On 2 F February ebruary ebruary,, X is charged with hav having ing contrav contravened ened the Act of 28 January January.. Discuss. (POL – conduct must be a crime at the time you committed/omitted it. I.e. crime is ex post facto)

MUL MULTIPLE TIPLE CHOICE QUE QUESTIONS STIONS (Choose the most correct answer) In a normal cr criminal iminal trial: A. The accused mat not be guilty. (false) B. The accused may plead guilty (true) C. The plea must be followed by a verdict. (false) D. The accused who pleads not guilty, must be found not guilty. (false) E. The standard of proof is BARD. F. The A will be convicted if he acted with mens rea. (False – not all crimes require dolus) - punishment may not necessarily be a custodial sentence

8. Consider the ffollowing ollowing statements:1. The test of conduct is objective. (T) 2. The test of unlawfulness is subjective. (F) 3. The test of criminal capacity is objective. (F)

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Choose the most correct answer answer.. A. Statement 1 is true; B. Statement 2 is true; C. Statement 3 is false; (Yes) D. Statement 1 and statement 2 are true; E. Statement 2 and statement 3are false; F. Statement 1 is true but statement 2 & statement 3 are false.

TOP TOPIC IC 2: CRIMINAL CONDUCT 

Most basic element

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X has acted for the purposes of criminal law

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No conduct = no crime

Definition: Criminal conduct is a vvoluntary oluntary act or ffailure ailure to act by a human bei being, ng, with such act or ffailure ailure to act being proscrib proscribed ed by the criminal law law..

What makes up criminal conduct? 

It must be voluntary.

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It must be proscribed.

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It must be a human act.

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It must be an act or omission.

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4 ASPECTS OF CR CRIMINAL IMINAL CONDUCT 1. Proscribed 2. Human 3. V Voluntary oluntary 4. P Positive/negative ositive/negative

1. Proscribed: conduct forbidden by specific crime -

No proscription = no crime

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Solomon (principle of legality) – charged with ‘conflagration’ for burning down a field due to negligence

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Conduct not proscribed by any existing crime

2. Human conduct -

Non human behaviour ≠ criminal conduct

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Objects & animals

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Via instrumentality of object/animal = human being is using animal & object to commit a crime = is acting & is liable

 Spontaneous attack by an animal -

nature of animal

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not dangerous = no conduct

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If dangerous, X has a legal duty to control him & to prevent the animal from causing harm.

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If the animal attacks a person, X will be liable for failure to control the animal i.e X will incur omission liability.

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If owner could not have predicted the attack, no liability.

Rule: Crimi Criminal nal conduct must be human so a juristic person cannot ac actt in criminal law law..  Juristic persons = legal artific artificial ial persons – cannot act or be liable 11

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But can be liable on the basis of a statute = s.332 (1) of the CPA 51/1977 which provides for corporate (juristic)/ criminal liability which is linked to human beings i.e. not saying that the COY is acting but an employee of the COY

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Corporate body liable for crimes of the director or employees in two instances: -

1) If the director/employee commits the crime in the performance of his duties. 2) If he commits the crime in furthering the interests of the corporate body. Scenario: X eliminates the competition by killing the competitor. X is guilty of murder but not under common law but under CPA on the second point. COY, if found guilty, is normally ordered to pay a fine or forfeit assets or face some sort of economic sanction = must be non-custodial

Example: x is the owner of company s and v the owner of company b. they are competitors in the same sphere of business. X kills v. Question: who is guilty of what? X kills v and is guilty under common law for murder. Company a will also be liable under s 332(1) of the CPA 51/1977 because corporate liability is derived from human conduct.

 Thought crime? No conduct under common law as long as it remains in your head.  Word crimes? Yes. Eg. Defamation. Words do amount to crimes. E.g. X asks Y to murder B. Y says no. X has incited Y to commit murder. = crime -

crime of incitement to commit murder.

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X asks Y to help me kill B. B says ‘yes’ but is caught. YES – crime of conspiracy as they have reached an unlawful agreement to commit a crime.

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CRIMINAL LAW Lecture 4

Liability of a juri juristic stic person Case law: S v SA Metal & Machinery Co (Pty Ltd) 2010 Facts acts: A scrap metal dealer and one of the branch managers were charged with retrieving stolen property (copper cathodes – valuable & expensive) weighing 3000kg. Allegation: The branch manager had bought these cathodes as scrap metal when in fact they were actually stolen. The Magistrate’s Court convicted of both the manager and company. On appeal to the HC, the manager was acquitted but the HC rejected the COY’s appeal i.e. the COY’s conviction stood. The COY then appealed to the SCA who found that i.t.o s.332 (1) a company may be liable for the action but this liability was dependent upon the liability of the manager. Logically, there could be no crime as the human being was found not guilty so the company cannot be found guilty. Both were acquitted.

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4 Aspects of conduct continued....

3. V Voluntary: oluntary: - Only voluntary behaviour = criminal conduct - No liability for involuntary actions. - Voluntary conduct = subject to X’s conscious will = volitional bodily movements = goal-directed -

Involuntary behaviour = non-volitional therefore directionless

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Not subject to X’s conscious will

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Non-volitional

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Directionless

Voluntary – control muscles with mind Involuntary – no control of muscles with mind

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Valid defense if behaviour is not controlled = automatism/involuntariness

4. P Positive/Negative ositive/Negative Conduct...