CRW2603 Definitions PDF

Preview

Summary

Summary of all the definitions...

Description

CRW UNIT 1 Definition of a perpetrator his conduct, the circumstances in which it takes place (including, where relevant, a particular description with which he as a person must, according to the definition of the offence, comply), and the culpability with which it is carried out are such that he satisfies all the requirements for liability contained in the definition of the offence OR (2) although his own conduct does not comply with that required in the definition of the crime, he acted together with one or more persons and the conduct required for a conviction is imputed to him by virtue of the principles relating to the doctrine of common purpose.

Define an accomplice A person is an accomplice if, (1) although he does not comply with all the requirements for liability set out in the definition of the crime, and (2) although the conduct required for a conviction is not imputed to him in terms of the doctrine of common purpose, he engages in conduct whereby he unlawfully and intentionally furthers the commission of the crime committed by somebody else. Discuss the requirements for the liability as an accomplice. Act. There must be an act (in the criminal-law sense of the word) by which the commission of a crime by another person is furthered or promoted. Unlawfulness. The act of furthering as described above must be unlawful. In other words, there must not be any justification for it, such as compulsion. Intention. The crime, committed by another person, must be furthered intentionally (Quinta 1974 (1) SA 544 (T) 547). Negligence is not sufficient Accessory character of liability. A crime must have been committed by some other person. Liability as an accomplice is known as “accessory liability”. No person can be held liable as an accomplice unless some other person is guilty as a perpetrator. Define an accessory after the fact. A person is an accessory after the fact to the commission of a crime if, after the commission of the crime, he unlawfully and intentionally engages in conduct intended to enable the perpetrator of, or accomplice to, the crime to evade liability for his crime, or to facilitate such a person’s evasion of liability. Requirements for liability of accessory after the fact

Act or omission. The accessory after the fact must engage in some conduct (act or omission) whereby he assists either the perpetrator or the accomplice to evade liability After the commission of the crime. X’s act or omission must take place after the commission of the actual crime. If X’s act takes place at a time when the crime is still in the process of being committed, he may qualify as a co-perpetrator or accomplice. Enabling perpetrator or accomplice to evade liability. The act must be of a certain nature. It must be such that it assists the perpetrator or accomplice to evade liability for her crime, or to facilitate such a person’s evasion of liability Unlawfulness. The act must be unlawful, which means that there must be no justification for it. Intention. The accessory after the fact must render assistance intentionally. He must know that the person he is helping has committed the crime. Accessory character of liability. The liability of the accessory after the fact, like that of an accomplice, is accessory in character. There can only be an accessory after the fact if somebody else has committed the crime as perpetrator.

Define the doctrine of common purpose. If two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the acts of each of them in the execution of such a purpose are imputed to the others.

What is the crucial requirement for the doctrine of common purpose? The crucial requirement of the doctrine is that the different accused should have had the same purpose. Once this is proven, the act of Z, who for example threw a heavy stone at Y which struck him on the head, is imputed to X, who had a common purpose with Z to kill Y, but who threw a stone at Y which missed him. In fact, Z’s act is imputed to everyone who had the same purpose as himself, and who actively associated himself with the achievement of the common purpose, even though one cannot construe a causal connection between such a party’s act and Y’s death. It is, however, only Z’s act which is imputed to the other party (X), not Z’s culpability. X’s liability is based upon his own culpability (Malinga 1963 (1) SA 692 (A) 694).

Name the leading case on the doctrine of common purpose. Discuss the case.

The leading case on the doctrine of common purpose is Safatsa 1988 (1) SA 868 (A). In this case the facts were the following: A crowd of about 100 people attacked Y, who was in his house, by pelting the house with stones, hurling petrol bombs through the windows, catching him as he was fleeing from his burning house, stoning him, pouring petrol over him and setting him alight. The six appellants formed part of the crowd. The Court found that their conduct consisted, inter alia, of grabbing hold of Y,

wrestling with him, throwing stones at him, exhorting the crowd to kill him, forming part of the crowd which attacked him, making petrol bombs, disarming him and setting his house alight. The Appellate Division confirmed the six appellants’ convictions of murder by applying the doctrine of common purpose, since it was clear that they all had the common purpose to kill Y. It was argued on behalf of the accused that they could be convicted of murder only if a causal connection had been proved between each individual accused’s conduct and Y’s death. However, the court held that where, as in this case, a common purpose to kill had been proven, each accused could be convicted of murder without proof of a causal connection between each one’s individual conduct and Y’s death. If there is no clear evidence that the participants had agreed beforehand tocommit the crime together, the existence of a common purpose between a certain participant and the others may be proven by the fact that he actively associated himself with the actions of the other members of the group.

Summary principles relating to the doctrine of common purpose as well as the liability of the joiner-in. (1) If two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the acts of each of them in the execution of such a purpose are imputed to the others. (2) In the case of a charge of having committed a crime which involves the causing of a certain result (such as murder), the conduct imputed includes the causing of such result. (3) Conduct by a member of the group of persons having a common purpose which differs from the conduct envisaged in the said common purpose may not be imputed to another member of the group, unless the latter knew that such other conduct would be committed, or foresaw the possibility that it might be committed and reconciled himself to that possibility. (4) A finding that a person acted together with one or more other persons in a common purpose may be based upon proof of a prior agreement or proof of active association in the execution of the common purpose. (5) On a charge of murder the rule that liability may be based on active association applies only if the active association took place while the deceased was still alive and before a mortal wound, or mortal wounds, had been inflicted by the person or persons who commenced the assault. (6) Just as active association with the common purpose may lead to liability, so dissociation or withdrawal from the common purpose may, in certain circumstances, lead to non-liability.

CRW 2

Attempt (1) A person is guilty of attempting to commit a crime if, intending to commit that crime, he/she unlawfully engages in conduct that is not merely preparatory but has reached at least the commencement of the execution of the intended crime. (2) A person is guilty of attempting to commit a crime, even though the commission of the crime is impossible, if it would have been possible in the factual circumstances which she believes exist or will exist at the relevant time. Completed attempt Perpetrator tries everything to commit an offence. For some reason the crime is not completed. where X fires at Y, but misses. where X fires at Y and hits Y, but Y’s life is fortunately saved by timeous medical intervention. Interrupted attempt Perpetrators actions have reached the stage where they are no longer just preparatory (e.g. A is caught while removing B’s bicycle lock in order to steal the bicycle). Perpetrators actions are in effect acts of execution (objective criterion). They are interrupted so the crime could not be completed. An interruption before the crime happens. Attempt to commit the impossible Impossible to commit or complete an offence, because: The means cannot bring about the desired result e.g. Poisoning another person with a harmless substance It is impossible to commit an offence in respects of the 0bject of his/her action. X rapes a woman while unaware of the fact that she is already dead. E shoots F in the head and believe that he is murdering F, but factually F died of natural causes earlier, and is lying dead on his bed. Voluntary withdrawal Perpetrators action have already reached the stage where they qualify as act of execution, and The perpetrator on his/her own accord abandons (relinquishes) his/her criminal plan/actions. (e.g. Caught by someone else or forced by changing circumstances to withdraw)

Can be held criminally liable for the attempted crime – voluntary withdrawal regarded as a defence – should be taken into account in mitigation of punishment CONSPIRACY Agrees with another to commit a crime Punishable ito S 18(2)(a) of the Riotous Assemblies Act, Act 17 of 1956: a person who conspires with any other person to aid or procure the commission of or to commit any offence is guilty of an offence, and if he/she is convicted, he/she is liable to the same punishment to which a person who is convicted of the actual offence would be liable. Committed the moment the parties agrees to commit an offence, further act pertaining to the execution of the conspiracy need not be proven. Culpability: Mens rea required is intention (Negligence not sufficient). NB: Intention to conspire, as well as intention to commit a crime or to assist in the commission of a crime. REQUIREMENTS An agreement between at least two parties to commit an offence. (e.g. If two parties have the intention, but do not enter into an agreement – no conspiracy). There must be an aim to commit an offence. Must agree to commit an specific offence. The way in which it will be carried out need not be agreed upon. The agreement completes the crime of conspiracy Still only negotiations – no offence. Can be found guilty of attempted conspiracy - during the act of execution an agreement is prevented from coming into being. More than two parties – need not know all parties identity, sufficient to know that there is other conspirators, e.g. Secret organisation with the aim to commit crimes, and the person knows that it is the organisations aim. Direct communication not required, can be done through an intermediary. May take place tacitly: may be reasonably concluded from the conduct of one or more parties that they agreed to commit the crime. INCITEMENT Encouraging someone to commit a crime Punishable ito S 18(2)(b) of the Riotous Assemblies Act, Act 17 of 1956: any person who incites, instigates, commands or procures any other person to commit a common-law or statutory law offence is guilty of an offence and, if he/she is

convicted, is liable to the same punishment to which a person convicted of actually committing that offence would be liable. REQUIREMENTS Person being encouraged should initially be somewhat not interested. Not necessary to have an element of persuasion Means (way) to carry out the incitement (encouragement) is immaterial, as long as it occurred. May be expressly or tacitly. May take place tacitly: may be reasonably concluded from the conduct of one or more parties that they encouraged someone to commit a crime. A group of people can also be incited (e.g. by publishing remarks in a newspaper). If the other person does not become aware of the encouragement – attempted incitement (regarded as a completed crime). CRW 4 EXAMS CRIMES AGAINST THE ADMINISTRATION OF JUSTICE

DEFINITION COMMON LAW PERJURY Common-law perjury consists in the unlawful, intentional making of a false declaration under oath (or in a form allowed by law to be substituted for an oath) in the course of a legal proceeding. ELEMENTS the making of a declaration which is false under oath or in a form equivalent to an oath in the course of a legal proceeding in an unlawful and intentional manner

MAKING OF DECLARATION UNDER OATH An oath means that a person swears before God to tell the truth. By law an oath can be substituted by: Affirmation or admonition. Sec 163(1) CPA: an affirmation to tell the truth may be administered in lieu of an oath.

The person making the statement is warned to tell the truth. The warning is called an admonishment (e.g. Children). The oath/affirmation/admonition must be administered/accepted by a competent person: commissioner of oaths. During judicial proceedings of a civil or criminal nature. Includes proceedings in: court of law, arbitration proceedings and other tribunals (e.g. CCMA) UNLAWFULNESS Will be considered to have been made unlawfully, unless there is a ground of justification. Coercion can be a valid ground of justification for perjury. Coercion implies that the person making the statement has been compelled to make this false statement, e.g. where such person is threatened to be harmed by another if he/she does not make the statement. The fact that shortly after making a false statement (e.g. in cross-examination) the witness acknowledges that the statement was false and then tells the truth, is no excuse (Baxter 1929 EDL 189, 193). The fact that the false declaration was made in a vain attempt to raise a defence, is no excuse. This daily happens in our courts, but for practical reasons not every accused whose evidence is rejected as false is afterwards charged with perjury (Malianga 1962 (3) SA 940 (SR) 943). INTENTION Must act on all elements with intention. Be aware he is under oath/affirmation/admonition Be aware it was made in course of judicial proceedings Dolus eventualis is adequate: if accused foresaw the possibility that it was false, but nevertheless continued, he acted intentionally. X must know, or at least foresee the possibility, that his declaration is false. Mere negligence or carelessness is not sufficient (Mokwena 1984 (4) SA 772 (T) 773). STATUTORY PERJURY Section 319(3) of CPA, Act 56 of 1955 The section renders it an offence for a person to make two separate conflicting statements on oath, whether orally or in writing, regarding the same matter. Such a person will not be liable if it is proved that when each statement was made, he/she believed each of them to be true at the time it was made.

Closely linked to the common-law offence of perjury. The legislature found it necessary to provide for this statutory offence, because: Not always easy to prove perjury under the common law. The state must prove that the statement was in fact false. It is often difficult to discharge the onus. What must the state prove? There is two sworn statement that are in conflict with each other. The statements have to be made under separate oaths. Cannot be interpreted in any manner to reconcile them The two statements cannot stand side by side since each statement destroys the truth of the other. Not required to be made in the course of judicial proceedings. REVERSE ONUS Presumption: if the accused committed the offence, it was done intentionally. Onus on accused to prove absence of intention. Constitution section 35(3)(h): an accused is presumed to be innocent until proven guilty. S v Gwandiso 1996 (1) SA 388 (CC) it was held that provisions that place a reverse onus on the accused is unconstitutional, however the section that creates the offence of statutory perjury was not challenged in the Gwandiso-case and therefore remains in the CPA of 1955 and remains valid until it is challenged in the CC.

There are two differences between common-law perjury and statutory perjury

Statutory perjury

Common-law perjury

Always two statements involved .

Only one statement is required.

Not necessary that the statement is made in the course of judicial proceedings.

Required that the statement is made in the course of judicial proceedings.

DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE Definition: Defeating of obstructing the course of justice consists in unlawfully performing any act that is intended to defeat or obstruct the course of justice and that does defeat or obstruct the course of justice. Although a person will be liable if he/she commits any of the forms of conduct, the accused will be charged with “defeating or obstructing the course of justice”. ELEMENTS any act which, defeats or obstructs the course of justice, in an unlawful and intentional manner.

Difference between defeating and obstructing Defeating

Obstructing

Focus on the outcomes of the proceedings.

Focus on the process.

Where the court as a result of the accused’s conduct reaches a wrong decision.

Where proceedings are impeded to a serious degree.

Where the court as a result of the accused’s conduct is unable to make a proper decision.

Where proceedings are interfered with to a serious degree.

E.g. An innocent person is convicted or a guilty person is discharged.

E.g. A trial is delayed or postponed or time is spent investigating the wrong person or charge.

CONTEMPT OF COURT Definition: Contempt of court consists in the unlawful and intentional violation of the dignity, repute or authority of a judicial body or a judicial officer in his judicial capacity, or the publication of information or comment concerning a pending judicial proceeding, which has the tendency to influence the outcome of the proceeding or to interfere with the administration of justice in that proceeding. ELEMENTS The act: the violation of the dignity/repute/authority of the judicial body or the judicial officer, or the publication of information or commentary concerning a pending judicial proceeding that has a certain tendency. in an unlawful, and intentional manner.

 in facie curiae – in the court, or in the face of the court  ex facie curiae – outside the court  sub iudice – still under consideration by the court A distinction is drawn between:

contempt in facie curiae, and contempt ex facie curiae. Contempt In facie curiae: In the presence of the judicial officer during a session of the court. Examples: when a person should shout, singing loudly in court, or dance in court. In such a case the judge or magistrate can summarily convict and punish. Contempt ex facie curiae occurs through actions or remarks out of court, and can take a variety of forms, such as scandalising the court by the publication of allegations which, objectively speaking, are likely to bring judges or magistrates or the administration of justice through the courts generally into contempt, or unjustly to cast suspicion on the administration of justice (Mamabolo 2001 (1) SACR 686 (CC)). failure to comply with a court order publishing information or commentary calculated to influence the outcome of a case that is still under consideration by the court (sub iudice) UNLAWFULNESS Statements by members of certain bodies such as the Legislative Assembly, when present in the Assembly, are privileged and cannot amount to contempt. Fair comment on the outcome of a case or on the administration of justice in general does not constitute contempt of court. Public debate on the administration of justice is in fact not only permissible, but also desirable in a community such as ours to ensure that the law and administration of justice enjoy the respect o...