CRL 202 exam notes PDF

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Topic 2 Criminal Conduct  Most basic element of liability  Only if you acted for purposes of criminal law  No conduct = no crime Definition  Criminal Conduct is a voluntary or failure to act by a human being with such act or failure to act being proscribed by criminal  Proscribed  Human being ...

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Topic 2 Criminal Conduct  Most basic element of liability  Only if you acted for purposes of criminal law 

No conduct = no crime

Definition  Criminal Conduct is a voluntary or failure to act by a human being with such act or failure to act being proscribed by criminal 

Proscribed

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Human being

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Voluntary

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Failure to act(positive or negative)

Proscribed Conduct  Conduct performed must be forbidden by law  Conduct must fit a specific crime that is proscribed 

Rape = non-consensual sexual intercourse

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Murder = killing conduct

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Arson = set fire to an immovable property

 No proscribed crime = no crime  Look at the case of Solomon’s 

Found not guilty = principle of legality 

Conduct was not proscribed and did not fit to specific crime

Human Being  Only human behaviour is recognised under criminal law  Non human behaviour does not equal criminal conduct  Human using an object or animal  Human being is using the animal or object as an instrument  Acting via instrumentality of object or animal  Issue:  What if animal attacks a person not on the orders of the owner?  Spontaneous attack by animal

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One has to consider the nature of the animal

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If animal is not dangerous by nature 

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Owner could not have predicted = no conduct (X is not liable)

If animal is dangerous by nature 

X had a legal duty to prevent animal doing any harm

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X is liable = conduct by omission

Failure to control animal

 Juristic Persons 

Is not a human

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Can a close corporation or company commit theft or murder? 

Cannot act according to criminal law

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Criminal law must be human  Juristic person is not human

 

Cannot act according to criminal law but can be held liable

S332 (1) of criminal procedure act 

Corporate or juristic body can be liable for crimes of a director or employee

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Does not say that a jurist person can be held liable for human action only concerns itself with what the company can be held liable for

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Can be liable in two cases  1) if director or employee do in performances of their duties  Commit a crime in furthering interest of the company

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Example: 

X is a director of company A

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V is a director of a company B

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Practice in the same field

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V is doing well x is suffering

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X kills V

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X is guilty of murder under common law  Human conduct

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Company A is guilty of murder not under common law in s332 (1) of CPA

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X killed V to further interests

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X sent to jail

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A cannot be sent to jail  Only form of punishment is in a n economic sanction  Only non- custodial

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Thought Crimes? 

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NO think what you want as long as they in your head

Word Crimes? 

Word amounted to a crime



Example:  X asks Y to murder V, Y says no  Crime is committed?  X committed incitement to commit murder  X asks Y can you please help V. Y says YES  Crime is committed? 

Conspiracy to commit murder

SA Metal and Machinery Co (pty) Ltd 2010  Largest scrap metal company on SA  One tof the manager and company  Human Being and Company  Receiving stolen goods 

RSC copper cathodes 

Massive plate of copper

 In possession 3000kg of stolen  State alleged man bought it stolen, hijacked  Human Being attributed to company  Charged and convicted  Appeal to high Court

 High court believed had not bought with the intention  Human Being was acquitted  Company appealed failed  Company went to the Supreme Court of Appeal  Over turned companies conviction  Liability of company depends of the Human Being’s liability  High Court was wrong to uphold companies conviction  Lesson:  Company alone is not liable, depends on Human Being liability Voluntary  Our law only recognises voluntary conduct  Voluntary  If you can control subject to conscious  Volitional bodily movements 

Aimed at something goal directed

 Involuntary  Not subject to conscious will 

Not aimed at anything

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Non-volitional

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Example: X falls accidently on V and killed V = not liable

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If you are asleep= unconscious = not liable

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No control of muscles with mind 

Not liable

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Valid defence

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Automatism

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Involuntariness

 Volitional  Control muscles with mind Failure to Act

 Can be either positive or negative  Commission  Physical action of doing  Incurs commission liability  Normal form of criminal conduct = 99%  Omission  Arises out of the failure to act  Doing nothing means acting  Omission liability  Exceptional not normal form criminal conduct  Rare form of liability Law of omission liability  No general duty to act  In our law it does not contain the duty to act  Failure to act = is not normally amount to criminal conduct  No duty to rescue  Normally not a crime  There is an exceptional cases where you have a legal duty to act  Some people do have a legal duty to rescue  What separates us?  Boni Mores 

Legal convictions of community

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If Boni mores says you must do, you must or else you will be held liable

Boni Mores  Our perception of what is right or wrong  Societies perception of justice  Reasonable, just and fair  Boni mores  Legal duty to act

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Not a popular form of liability

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Crystallised forms of the Boni mores 

Exceptions to not act

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Developed over time with the obvious cases where you are required to act

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Special situations

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These Boni mores have a legal duty to act

 Exception to general rule of not to act 7 Crystallised forms of Boni Mores  1) Control of a dangerous animal or object  2) Protective Relationship  3) Ex lege duty  4) ex contactau  5) public office  6) prior Conduct  7)court order 1) Control of a dangerous animal or object  Rule:  If X in control of or responsible for a dangerous animal or object he has the legal duty to prevent animal or object from causing harm  Failure to control = omission liability Eustace 1948  Owner of a vicious dog  Dog was a terrorist in nature  Did nothing to control the dog and the dog attacked a 10 year old girl  Her injuries were sever and she died  Charged with culpable homicide  Legal duty to act = failed to act  Part of Boni Mores  Failure to control

Grobler 1974  Worked in a mine  He operated the lift  The lift was a potentially dangerous object  Grobler work the night shift and fell asleep while on duty  While drivingly lift when it reached the top he did stop as he was asleep and went on to crash into the machinery  He was charged with culpable homicide  Culpable homicide = negligent murder  16 died and charged with 2 homicide 2) Protective relationship  If X stands in a protective relationship to V then X has a legal duty to protect X from harm  Example: mother and child relationship  Failure = omission liability  Example: 

police and citizens

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life saver and swimmer

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child minder and child

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curator and insane individual

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warder and prisoner

 Left side is the stronger side that needs to protect the weaker right hand side 

Failure to protect will result in omission liability

 Boni mores requires or expects society that the strong protect the weak

B 1994  Mother abandoned her parental duty of protection  Mother, boyfriend and child lived together with boyfriend.  Boyfriend did not like the child

 Boyfriend used to beat the child and the mother did nothing to stop this  Child died from assault from Boyfriend  Boyfriend charged with murder and assault GBH  Assault ( with the intent to do harm)  GBH = grievous bodily harm  However the case was about the mother  She was found guilty with assault GBH as she had a duty to protect 

Protective relationship

Chenjere  Mother child and boyfriend  Mother was married to the Childs father  Mother left her husband and moved in with the boyfriend  Mother =killed the child in front of boyfriend  Mother strangled her child  Mother was found guilty as she acted positively (commission)  Boyfriend was found guilty  Court held boyfriend took over the role of the father as the created a new family 

Therefore you had a protective relationship with the child

 Mother was commission  Boyfriend was omission 3) Ex lege Duty  By operation of law  One does not have choice you just have to)  Failure = omission liability  Common law or statute = applies to all laws  Treason common law crime  You become aware of a treason plot 

You have a legal duty to report it to the police ASAP



If you do not report  You can be convicted of treason

 Inquests Act 58 of 1959  If you become aware of an unnatural death inform the police  Contravening act you will be liable  Income tax act 58 of 1962  Legal duty to submit income tax return  If you do not then you contravening the act and will therefore would be held liable Charmichele v Minister of Safety and Security 2001  Charmichele was beaten up Francois  She sued minister of safety and security  She could do this as 

Francois was a known criminal and was silent

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before the attack he was arrested prior rape and was released without bail

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while he was out he attacked her with a pick handle and a knife

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he was arrested for attempted murder

 sued minister of safety and security 

basis 

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police and prosecutor had a ex lege duty preventing Coetzee from protecting her

high court and supreme court of appeal rejected argument 

there is no common law principle sating that it requires the police to do something positive

 went to constitutional court 

yes there is a legal duty

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common law is wrong as there should be a duty

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there is an absence of duty in common law principle

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contradicts spirit, purport and objectives of the bill of rights

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court has the duty to develop common law

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s39(2) read along with s 173 

court relied on this argument

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when the common law is contradicted common law must be developed

 the court then sent the matter back down to high court  no lower courts did not take the relevant sections into account  they had to re-evaluated and the high court found that the police and prosecutor did have a legal duty to act 4) Ex Contractu Duty  Seldom happens  By operation of contract  Contract requires you to act positively = breach of contract  Breach of contract can be a crime  Failure is normally a civil matter Pit wood 1902  British Case  About a level crossing  Place where the road and a railway intersect  Person had to open and close gates when trains came and gone  One day pittwood deserted his post  A man in a donkey cart crossed the railway line while a train was approaching  Man and donkey died  Pittwood was found guilty of a crime for breach of contract  UK = manslaughter  SA = culpable homicide  Legal duty created by contract to protect people 5) Duty arises from Public office  Duty arises through office to act positively  Failure to do so = omission liability  Mostly Police officers  Boni Mores

 Requires them to protect us from harm 

Ordinary people

Minister van Polisie v Ewels 1975  Ewels went to police station to report an incident  An argument took place between newels and policemen  Policeman was off duty  Police man attacked and assaulted newels  Did so in the presence of a number of colleagues who were on duty  Colleagues did not stop fight between the two  E wanted to sue the minister of police  Vicarious liability (civil)  Ewels succeeded  Why? 

The policeman on duty did nothing to stop the fight

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As they had a legal duty and failed to do so

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Liability arouse of omission

Gaba 1981  Was part of team of detectives  They were after notorious criminal the godfather  They found him and arrested him  None of the other detectives knew who he was  Only Gaba knew godfather and failed to inform them  Gaba  Charged with attempting to defeat the cause of justice  Did he have a legal duty to disclose 

Yes he did

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He ought to be held liable

 There was a technical diffenciancy with the charge sheet  Gaba had a legal duty to enclose identity of the Godfather

Govender 2004  4 policeman involved  All involved in beating a man to death  All four were charged  All four was found guilty of culpable homicide  They were not happy and appeal decision  As all them did not participate in the beating of the suspect 

So not all of them could be found guilty

 The supreme court appeal rejected argument  The policemen that were not involved had a legal duty to stop the policeman beating the suspect  Policeman who took part occurred commission liability  Policeman who did not take part occurred omission liability 6) Prior Conduct  Has a Latin name  That sums it much better  OMISSIO PER COMMISSIONEM  Omission through or way of omission  Tells us it happens in two stages  Rule:  If X does something which creates a potentially dangerous situation  He has a legal duty to prevent that danger from materialising 

Most difficult to explain

 Failure = omission liability  Stage 1:  Commission stage is do something positive as you create the potential danger 

X creates risk of danger

 Stage 2:

 Omission 

X fails to prevent danger from materializing as you caused the problem

Claasen 1979  Owner of the car  One day he allowed a young girl to drive the car  The young girl did not have a licence  There were three people in the car  Young girl  The man = C  And another = M  Young girl was driving while C and M were talking to one another  The young girl collided with a cyclist and the cyclist died  Young girl was guilty of culpable homicide  C was found guilty on the basis of this form of Boni Mores  Stage 1:  By letting the young f=girl drive  C had a legal duty to control driving  C failed to do so  Guilty on the basis of omission  What he did before = culpable homicide Miller 1983  British Case  Miller was a squatter  He squatted in an empty house and stayed in the room  In the room was a mattress  He lit the cigarette and feel asleep with the cigarette in his hand  The mattress caught on fire  He woke up saw it and left the room to go to another room  House burnt and the damages cost £800

 Miller was guilty f arson  Stage 1:  A form of Boni mores  Create possibly danger by lying on the mattress with cigarette  Stage 2:  He walked away 7) Court Order  Duty imposed by an order of court  Failure = omission liability  It constitutes a crime = contempt of court  Example: Maintenance Order 

If you fail to obey the order of court

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Found guilty of contempt of court

Beyers 1968  He was lawyer  He had an agreement with a trade union to be a legal advisor  He had access to the account information  Over a period of time  The relationship became sour between the trade union and Beyers  Trade union obtained an interdict  A court order that forbids buyers from being involved in anyway  Beyers ignored the interdict for 3 months  Charged with contempt of court  Beyers tried to be clever  Interdict was issued by Civil Court  Cannot be charged under criminal law for a civil court  Appellant Division  Basic Rule:

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Could be charged for disobeying an interdict issued by a civil court

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Appellant Division 

Yes you can be

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Charged with contempt of court

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Contempt of court = Omission

 All cases are well established The 7 crystallised forms are NOT a numerous clauses  These are not only the cases that the Boni Mores imposed a legal duty OUTSIDE scope of 7 crystallised forms  It is not about the crystallised forms but rather what the BONI MORES says  Ultimate criteria 

Boni Mores requires you to act

 Example:  X = Doctor  Y = Patient  V = Y’s sexual partner  X diagnosed Y to be HIV positive  X knows that Y will not Inform V that Y is HIV positive  Does X have a legal duty to inform V? 

Does not prevent legal duty

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Considering the high levels

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Court might say X has a legal duty to inform

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No

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Boni Mores requires you to act

 Example:  X knows Y is planning to murder V  X has a legal duty to expose Y plans to commit murder  No = police do  High Crime Levels

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Court may decide that you do have a legal duty to expose

 Omission liability not limited to Crystallised Forms

TOPIC 3: UNLAWFULNESS Unlawfulness is wrongness. You need to establish if conduct is unlawful because even though conduct appears to be unlawful, it might not be. In other words, even though an action is proscribed as a crime it might not be unlawful. Conduct is only unlawful if it complies with proscribed conduct and it conflicts with Boni Mores There are 2 ways or legs to investigate unlawfulness. Leg 1: Proscribed conduct: If X’s conduct is not proscribed, then he must be acquitted. If it is proscribed then its prima facie unlawful and it must go to leg 2 Leg 2: Contra Boni Mores: Compare the interests that are being protected and the interests that are violated. If the interest which is being protected is more than interest violated, then it complies with the Boni Mores and it is not unlawful. If the interest violated is more than the interest then it doesn’t compare with the Boni Mores. Thus unlawful Leg 2 is used because there might be a justification for X’s criminalised actions. EG: S v I (Peeping Tom Case) Wife hired a PI to spy on husband who found that husband was having a affair. Husband claimed that wife + PI violated his right to privacy and dignity. Court found that wife’s + PI’s conduct was proscribed (Leg 1 met). However they found that wife’s interest exceeded the husband (Leg 2 was not met) Thus her conduct was not unlawful. Fourie (Magistrate Speeding Case) Magistrate was caught speeding. His defence was that he was late for work. He had to do cases in Knysna. Trial court acquitted him. The State appealed. High Court found that he was conv...