CRL Study Notes PDF

Preview

Summary

CRIMINAL LAWEXAMINATION 2020STUDY NOTESTOPIC 6: MENS REAINTRODUCTION Mental element  Mens rea = "guilty mind"  Maxim = "Actus non facit reum, nisi mens sit rea"  Definition: o X acts with mens rea if his/her conduct is accompanied by a blameworthy/culpable sta...

Description

CRIMINAL LAW EXAMINATION 2020 STUDY NOTES

TOPIC 6: MENS REA INTRODUCTION 

Mental element



Mens rea = "guilty mind"



Maxim = "Actus non facit reum, nisi mens sit rea"



Definition: o







X acts with mens rea if his/her conduct is accompanied by a blameworthy/culpable state of mind

Concerned with X's state of mind at the time of the offence o

Whether or not X possessed a criminal state of mind

o

Absense of mens rea = Absence of liability

Synonyms for Mens Rea o

fault

o

culpability

o

blameworthiness

Forms of mens rea: o

Dolus = Intention

o

Culpa = Negligence



Since 1965



Prior 1965 = Versari doctrine/Taint doctrine

VERSARI DOCTRINE



Possible for X to be liable without proof of mens rea



Provided that X is liable for all the consequences of his unlawful conduct, regardless of his state of mind at the time of the crime



Did not care about X's state of mind and focused on X's conduct



If X's conduct was unlawful, all the consequences of his/her actions would be tainted



Motsepe 1931 AD 150 o

X (truck driver); V (young child)

o

V climbed onto the back of the truck without X's knowledge

o

X drove negligently and crashed into a tree and V died in the accident

o

X was found guilty of culpable homicide even though he did not know that V wa on the truck

o

Court applied the versari doctrine

o

X's negligent driving was unlawful and he is therefore responsible for all the consequences of his unlawful conduct

o

V's death was a consequence of his unlawful conduct

o

X is therefore liable for V's death



The versari doctrine was abolished by the Appellate Division in Bernadus 1965 (3) SA 287 (A)



Bernadus 1965 (3) SA 287 (A) o

X and Y were in a fight

o

V tried to intervene and stop the fight

o

X through a kerie at V to prevent his from intervening

o

The kerie struck V behind the ear and the blow killed him

o

X was charged with culpable homicide

o

The trial court applied the versari doctrine

o

The appeal court rejected the versari doctrine: 

Held that X's unlawful conduct by itself is not enough to convict him



It was necessary to establish that X acted with mens rea/a guilty mind

o

Although the court rejected the versari doctrine, it found on facts, that X did not have the required mens rea in the form of negligence

o

Hence, X was found guilty of culpable homicide

Mens Rea 

X's unlawful company must be accompanied by DOLUS/CULPA



A crime is either a DOLUS/CULPA crime



If a crime has neither DOLUS/CULPA = X does not have mens rea o

EXCEPTION!!: Strict liability + Vicarious liability



Murder: Dolus crime



Culpable Homicide: Culpa crime

DOLUS/INTENTION 

Meaning of dolus: o

Dolus refers to X directing his/her mind to: 

Performing an unlawful act OR



Achieving an unlawful result



Intention is based on subjective foresight



Subjective foresight means that X foresees the unlawful result o

X subjectively foresees: 

That he/she will break the law



That he/she may break the law

OR



Focus is on X's state of mind



Objective circumstances is not important



If X foresaw that he/she will/may break the law = Acted with dolus



Forms of dolus:



o

Dolus directus = Direct inention

o

Dolus indirectus = Indirect intention

o

Dolus eventualis = Legal/constructive intention

Any form is acceptable for a dolus crime

CULPA/NEGLIGENCE 

Meaning of Culpa/Negligence o



Refers to X committing an unlawful act or causing an unlawful result without specifically directing his/her mind to it

Negligence is based on reasonable foreseeability o

The crime is reasonably foreseeable to a reasonable person in X's position

o

X himself does not foresee the crime but a reasonable person in X's position would have foreseen the crime



No subjective foresight is requires



Test:



o

Compare X to the reasonable person in his/her position

o

X is expected to live up to the standard of a reasonable person

o

X acts with culpa if he/she fails to live up to the standard of a reasonable person

The reasonable Person: o

Gender neutral

o

Non-racial

o

Not an exceptional person

o

Neither: 

abnormal with superior intelligence



subnormal with inferior intelligence



o

Normal with average intelligence

o

Reasonable person is an objective standard

Forms of negligence: o

Unconscious negligence = culpa

o

Conscious negligence = luxuria

o

Either form is acceptable

RELATIONSHIP BETWEEN NEGLIGENCE AND INTENTION 

Both forms of mens rea



Opposing concepts



Intention = subjective foresight



Negligence = reasonable foresight



Mutually exclusive and do not overlap o



X cannot possess both dolus and culpa at the same time

Erasmus 2005 (2) SACR 658 (SCA) o

Involved a homosexual relationship that went wrong

o

H and J were involved in the relationship

o

When it ended, J wanted to take revenge on H

o

J agreed with X to harm H

o

X was supposed to throw acid into H's face in return for a car and a cellphone

o

X through the acid into H's face

o

H was seriously injured 

His skin and upper body was stripped off by acid



His eyes were damaged and had to be surgically removed

o

H was reduced to an invalid by the acid attack

o

X was charged with attempted murder

o

The state could not prove that X intended to kill H

o

Not guilty of attempted murder but rather assault GBH on the basis of dolus eventualis

o

X appealed

o



Argued that he did not foresee the injuries suffered by H but rather merely H's skin to be red



X argued that he did not have subjective foresight required for dolus

Evidence proved BEYOND A REASONABLE DOUBT that X did not foresee that H would suffer injuries 

o 

Payment J offered was out of proportion to an attack and X initially tried to pay somebody else to attack H and did not foresee the exact nature of the injuries.

X therefore complied with the foresight component and the appeal was dismissed

Compos 2002 (1) SACR 233 (SCA) o

X battered her 6 month old daughter over an extended period of time

o

Inflicted numerous injuries including breaking the baby's spine and the baby's spine snapped in two

o

An expert testified that this kind of injury was only seen in serious car accidents and requires tremendous force

o

The baby died of her injuries and X was charged with murder

o

The Supreme Court of Appeal held that the state had not proved beyond a reasonable doubt that X had subjective foresight of the child's death

o

When she battered the child, she did not foresee the child's death

o

Hence, X did not act with dolus

o

However, death was reasonably foreseeable

o

In other words, a reasonable person in her position would have foreseen the possibility of the child's death

o

Hence, X was guilty of culpable homicide

TOPIC 9: PARTICIPATION WHAT IS PARTICIPATION? 

When 2/> people are involved in the same crime



Concerned with the different roles people have in the same crime

ROLE CLASSIFICATION 



Participants o

Perpetrators

o

Accomplices

Non-Participants o

Passive spectator

o

Accessory after the fact

THE PARTICIPANTS 

People who actually participate in the commission of the crime



Perpetrators o

The perpetrator 

o

Co-perpetrator 

o

o

o

o

2/> perpetrators who commit the same crime

Con-current perpetrator 

o

Satisfies all the requirements in the definition of a crime

2/> perpetrators who commit the same crime independently of one another

Perpetrator liability 

Independent liability



Not derivative



Not derived from liability of another participant



Liable because he has satisfied the requirements of the crime

Kinds of perpetrators: 

Direct perpetrator



Indirect perpetrator



Common-purpose perpetrator

Direct perpetrator 

A person who satisfies all requirements contained in the definition of a crime personally



Commits the crime himself



Perpetrator in his own right

Indirect perpetrator 

A person who satisfies all the requirements contained in the definition of a crime by making use of a human or non-human agent



Does not commit the crime personally



Not a perpetrator in his own right



Qui facit rule 





o

qui facit alium facit per se = he who does not act through another person does it himself

Principle of imputation 

If X commits the crime through Y, conduct of Y is transferred to X



Y is the direct perpetrator



X is the indirect perpetrator

Own-body crimes: 

Cannot be indirect perpetrator



Cannot commit crime via another person



perjury, negligent driving

Common-cause perpetrator 

If 2/> people participate in a joint criminal enterprise, each with the required mens rea, then the conduct of each person towards the commission of the crime may be imputed to every other person, making each a co-perpetrator of the crime



Principle of imputation



Transfer/Attribution



Applicable to consequence crimes



Common purpose can be used if unable to prove causation



Common-purpose doctrine





Special doctrine in our law



Common law doctrine



All share common purpose in a crime



Liable as co-perpetrators



Shared intention to commit the crime

Safatsa 1988 (1) SA 868 (A) 

Also known as 'Sharpeville six'





V (Deputy mayor of Town Council in Sharpeville



Town council decided to increase the service levies for houses from 5.50 to 5.90 per house per month



The community continued to reject the increase and organised protests against it



V supported the increase and was regarded as a sell-out and a traitor



V became a target of the protest action



3 September 1984, a crowd of 100 people gathered in protest outside V's house



Stones were thrown at his house and V fired shots at the crowd hitting one person



Crowd became aggressive and V's house was petrol bombed



V died and 8 members of the crowed were charged with murder of V



They appealed and argued that the state did not prove causal nexus



Botha JA agreed to this "



Convicted in terms of DCP which does not require causal nexus



The evidence showed that all 6 participated in a joint criminal enterprise to murder V



Conduct of the actual killer was imputed to every accused and all 6 were deemed to have killed V and liable for murer a co-perpetrators in terms of DCP



The appeal was dismissed

Shaik 1983 (4) SA 57 (A) 

X, Y, Z broke into a house to steal R40k in terms of an arrangement with the owner's son



The husband and wife were asleep



WIfe woke up screaming and husband woke up



The two accused beat the husband with a stick and as a result, he dies



X, Y, Z charged with murder under DCP











X, Y, Z had mens rea in the form of dolus eventualis



X, Y, Z actively associated thmselves with the commission of the crime and all 3 were found guilty of murder in terms of DCP

Nkwenja 1985 (2) SA 560 (A) 

X and Y saw a man and woman in a car



They decided to rob them



They attacked the couple and the man wass killed



X and Y were charged with murder under DCP



The death was reasonably foreseeable



X and Y were found guilty of culpable Homicide under DCP

Forms of Common purpose 

CP with prior agreement



CP without prior agreement

Common purpose with prior agreement...DANIELS 

2/> people agree in advance



Plan the crime together (Premeditated)



Requirements: o

Participation

o

Mens Rea

Common purpose without prior agreement...SAFATSA 

Arise spontaneously



Not premeditated



Active association



Requirements:...Mgedezi 1989 (1) SA 687 (A) o

X must have been present at the scene of the crime

o

X must have been aware of the attack upon V





o

X must have intended to make common cause with those who were committing the crime

o

X must have done something which actively associated him with the conduct of the others

o

X must ave had the mens rea required for the crime

Mqedezi 1989 (1) SA 687 (A) 

Involved mineworkers



One night a crowd of 100 mineworkers attacked the living quarters of team leaders



4 team leaders were killed in the attack



7 mineworkers were charged with murder



The trial court found all 7 guilty under DCP



Appealed to the Supreme Court of Appeal



5 requirements must be satisfied



Court found 6/7 mineworkers met all the requirements



7th did not meet any of the 5 requirements



7th mineworker's appeal was upheld but all other 6 were liable

Mbanyaru 2009 (1) SACR 631 (C) 

Two accuse, X and Y



V drove to Khayelitsha in a bakkie to collect workmen



He had a passenger with him



While V and the passenger were waiting for the workmen, X walked up to the bakkie and shot the driver in the neck and the chest



The driver died but the passenger survived



Y was close to X when the shooting happened



After the shooting, Y and X fled the scene together



Both were arrested and charged with one count of murder and one count of attempted murder



The trial court found both guilty on all counts under DCP



The matter was appealed



The appeal court found no evidence of common purpose based on a prior agreement



Common purpose had to meet 5 requirements prescribed



In terms of the first 2 requirements, X satisfied but there was no evidence of y: o



intended to make common cause with X/that he did anything to actively associate himself with the conduct of X and Y had mens rea required for the crime



Only evidence against y was that he fled the scene with X after the shooting



Many people also fled the scene



X was guilty as direct perpetrator and Y was acquitted on all charges

The Accomplice o

A participant

o

Does not commit the crime

o

Enables/Assists the perpetrator to commit the crime

o

Definition: 

A person who unlawfully and intentionally engages in conduct which furthers/promotes the commission of the crime by the perpetrator/s

o

Facilitates the crime

o

Accomplice liability: 

o

Two requirements 

Unlawful conduct



Dolus/intention

Unlawful conduct

o



X performs an act which promotes/furthers/facilitates a crime



An accomplice provides the: 

means



opportunity



advice



Law does not prescribe any special form of commission



Any unlawful conduct that helps the perpetrator commit the crimme

...