Criminal Law Voluntariness and Antecedent Liability Notes PDF

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MS STAROSTA’S CLASS

CRIMINAL LAW LAWS2014 VOLUNTARINESS THEORY & CASE STUDIES ________________________________________________________________________ `Requirements of the actus reus (conduct element of the crime): 1. There must be an act or an ommission; 2. Committed by a human or through the agency of an animal [Eustace]; 3. The act or ommission must be unlawful; 4. It must be voluntary; 5. There must be a causal link between the conduct and the unlawful consequence. `We already know that in order for their to be conduct, there must be an act or an ommission (if there was a duty to act) and that it must be perpetrated by a human or through human agency. `The corollary of the conduct requirement is that conduct must be voluntary. `Accordingly, the rule is that: One should not attract liability for events not under one’s control. `Even an ommission must be voluntary. E.g. where a municipal worker fails to cover a dangerous hole in the ground because at the time, he suffers from an epileptic attack, his ommission will not attract liability despite there having been a legal duty on him to have prevented the harm.

`Volntariness is predicated on free will, governed by the doctrine of choice – punishment is fair because the Accused had the free choice not to act unlawfully. DEFINITION: Voluntariness means that the Acc’s conduct was subject to the control of his free will. `Thus, if a person is lying on the floor, thrashing around in a state of a fit, he cannot subject his bodily movements to his own conscious will. `Involuntary conduct termed automatism . `Automatism negates the actus reus element of a crime and not the mens rea. `It is not required that the Acc makes a rational decision, a mentally ill person can act voluntarily even though they are incapable of making rational decisions. In short, voluntariness does not have a bearing on the state of mind of the Acc, only their physical capability to control their bodily movements.

EXAMPLES OF AUTOMATIC STATES: 1. Reflex movements and spasms (mechanical activity); Eg. X punches Y while stretching out his arms in a yawn 1

2. 3. 4. 5.

Unconscious acts; Acts during sleep or in a near sleep state (somnambulism) [Dhlamini]; Heavy intoxication which renders the Acc “dead drunk” [Chretien] [Johnson] Application of superio force; Here we distinguish between absolute force ( vis absoluta) and relative force (vis compulsiva) **see discussion below 6. When the Acc suffers from: 6.1 Concussion; 6.2 Epileptic attack [Mkize] [Victor] [Schoonwinkel] ; 6.3 Hypoglaecemia (low blood sugar) [Van Rensburg] [Stellenmacher]; 6.4 *Hysterical disassociation [Mahlinza] [Kok] 6.5 Black-out [Trickett]

ABSOLUTE FORCE vs RELATIVE FORCE `Absolute force: Physical force operating directly on the Acc’s body, for example, X directs the Acc’s hand holding knife into B’s chest. `Relative force: A threat operating on the mind of the Acc, for example, X threatens the Acc with iminent harm which induces X to harm B. `Both types exclude voluntary conduct unless it was not reasonable for the Acc to yield to X’s threats of harm. S v GOLIATH ’72 (AD) `Two Accs came upon the deceased; `Acc1 accosted him and asked him for a cigarette and for money; `When the deceased replied that he had no money, Acc1 stabbed him in the chest and ordered Acc2 to tie him up; `When Acc2 objected, Acc1 threatened that if Acc2 did not obey, he would be stabbed to death; `Acc2 bound the deceased at which point Acc1 stabbed him 12 times causing his death; `Acc1 was charged with murder and Acc 2 as an accomplice to murder; `Acc1 was found guilty and sentenced to death LEGAL QUESTION:

Whether Acc2 acted voluntarily in light of compulsion operating on his mind (vis compulsiva).

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HELD: `Acc2 was acquitted on the grounds that he’d acted under the compulsion of Acc1.

SANE vs INSANE AUTOMATISM `It is important not to confuse sane automatism with insane automatism as they have different legal consequences; SANE AUTOMATISM

#Here, the Acc is mentally sane and only momentarily behaves involuntarily; 2

#If the sane automatism is established, the conduct requirement (AR) is negated; #Onus rests on the State to disprove the state of automatism alleged by the Acc, Acc merely has an evidentiary burden to establish the automatism on a balance of probability (See Trickett); #Results in full acquittal. INSANE AUTOMATISM #Here, the Acc suffers from a mental pathology or mental illness; #If insane automatism is established, it will negate capacity which is a MR requirement; #Onus is on the Acc to prove mental illness as all citizens are presumed to be sane; #Result is “guilty by reason of mental ilness”, the Acc is incarcerated in a mental institution until such time as the Acc is no longer a danger to him/herself and/or society (not a full acquittal).

[S v MAHLINZA ’67 (A)] This case is authority for the difference between sane and insane automatism; `Sane automatism is an unconscious, involuntary action resulting from a malfunctioning of the mind caused by some external factor or stimulus such as a blow on the head, the consumption of alcohol or drugs; being under the effects of an aneasthetic; `Insane automatism is an illness of the mind, a pathological malady. NB: For case illustrations on the two, see the cases of [Mahlinza] [Stellenmacher] and [Kok] below.

INVOLUNTARINESS R v DHLAMINI ’55 (T) `Accused was charged with murder in that he’d unlawfully and with intent to kill stabbed the deceased three times with a knife after the deceased had stooped down to pick up a mat where the Acc had been sleeping; `Evidence adduced that the Acc had just awakened and that he had been reacting mechanically in response to a nightmare; `Acc claimed he dreamt of figures looming and hovering; `Other evidence revealed that the Acc and the deceased were on good terms and there was no bad blood between them; `Acc and the deceased were family friends; `Other evidence included that the two parties were cordial earlier in the evening, had not faught and there was no possible motive for the Acc to kill the deceased LEGAL QUESTION:

Whether the Acc could be said to have been acting voluntarily at the time that he stabbed the deceased. 3

HELD: `The Acc was acting involuntarily whilst in a state of somnambulism; `He was acquitted of all charges including culpable homicide. Discussion: Is there any way in which we could hold Dhlamini liable? Discuss in the context of the actio in libera causa or antecedent liability below.

R v MKIZE ’59 (N) `Acc who suffered from epilepsy was charged with the murder of his sister; `On the day in question, the Acc has been cutting meat when he suffered an epileptic fit which resulted in stab wounds from which his sister later died; `There was no evidence that the Acc had any warning of the attack; LEGAL QUESTION:

As above.

HELD: `The Court found on a balance of probability (*cross reference with onus of proof vs standard of proof) that the Acc had suffered an epileptic attack at the time of stabbing his sister; `The Acc was in an unconscious state and the acts of stabbing were a result of blind reflex activity; `The Acc was acquitted of all charges (no legally relevant conduct).

ACTIO IN LIBERA CAUSA / ANTECEDENT LIABILITY `Actio in libera causa asks, was the cause (of the automatism) in the individual’s power?; `Essentially, we are asking: Even though the Acc was involuntary at the time of the unlawful conduct, was there a time immediately preceding the state of automatism where the AR and MR coincided (that is, where the Accused acted voluntarily and with either negligence or dolus eventualis). *See illustration on the board.

R v VICTOR ’43 (T) `Acc was charged with reckless and negligent driving; `Whilst driving on a public road, the Acc had suffered from an epileptic seizure, lost control of the vehicle and collided with a pedestrian and another vehicle; `Acc conceded that he had had an attack before whilst driving although no one was hurt; `The Acc’s defense was that he was involuntary at the time because the seizure negated his conscious will. LEGAL QUESTION:

As above. 4

HELD: `The Court faced two alternative bases holding the Acc liable as follows; 1. If the Acc had warning signs of the attack then his antecedent conduct was continuing to drive despite these warning signs, thus, the prior conduct immediately preceding the unconscious state was deciding to drive despite having a warning sign;  The State could not prove beyond a reasonable doubt that he had a warning sign before the seizure. 2. Even if he had no warning signs, the Acc knew he was epileptic and thus, the voluntary conduct immediately preceding the unconscious state was driving knowing that he had had an attack before and might again.  The Court accepted this basis. `Thus there was a time immediately prior to the automatic state where the AR and MR existed at the same time. Conduct = driving knowing he could have an attack and MR = Negligence (on the basis that a reasonable person who knew they might have an attack while driving would not drive alone). `Court’s analogy: Case is no different when a person decides to drive a vehcile knowing that it has a defective breaking system for instance. At the time the breaks fail, there is a loss of control and thus involuntariness but the antecedent conduct is what is criminalized. NB:

These days, epilepsy can largely be controlled by medication and thus, conduct would be met for instance where the Acc negligently forgot to take his medication or failed to react to a warning sign.

R v SCHOONWINKEL ’53 (C) `Acc was charged with culpable homicide as a result of motor vehicle collision in which two people were killed; `The Acc’s defense was that at the time of the accident, he was suffering from an epileptic fit and his mind was a blank; `The Acc had a rare form of epilepsy in which the full symptoms had not fully presented themselves; Acc had only had two previous minor attacks the last of which was a considerable period of time before this attack

HELD: `The Acc was acquitted and the Court distinguished this case from the case of Victor; `On the facts, there was no basis for establishing antecedent liability.

S v VAN RENSBURG ’87 (T) `Acc was charged with reckless and negligent driving; `The Acc’s defense was that at the time of the accident, he was suffering from an hypoglycaemia (low blood sugar); `The Acc had consulted a pathologist on the day in question and blood tests had been done but he was not advised by the doctor that he might become drowsy and that he should not drive; 5

`Whilst driving, the Acc started feeling tired and soon thereafter collided with another vehicle. CLASS DISCUSSION:

Could antecedent liability be established? Arguable

HELD: `Re antededent conduct: It could not be proven beyond a reasonable doubt that the Acc continued to drive even after it was clear to him that he had become tired as he could have gradually become more drowsy without conscious awareness thereof; `Re negligence: It could not be proven beyond a reasonable doubt that a reasonble man in the Acc’s position would have foreseen a sudden drop in sugar levels. DISTINGUISH THE TIME OF THE CONDUCT WHEN ESTABLISHING AUTOMATISM `When dealing with antecedent liability, it is important to distinguish between conditions which existed at the time of the conduct and those which arose only afterwards and which were brought about by the accident; `Eg. X is involved in a MVA in which he kills a pedestrian Y. X claims to be suffering from amnesia. The amnesia will not be legally relevant in determining voluntary conduct because it arose as a result of the accident. X could well have been voluntary at the time of the accident at least via antecedent liability. PLAN FOR THE REMAINING LECTURES ON VOLUNTARINESS: 1. Case illustrations of Sane vs Insane Automatism (Mahlinza, Stellenmacher and Kok); 2. Effect of Intoxication on Voluntariness (Chretien and Johnson) – to be discussed more fully later under topic 5.1 dealing with capacity. Note that intoxication can affect voluntariness, capacity and fault; 3. Case illustration on evidentiary burden (Trickett).

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