Topic 5 - Criminal Capacity PDF

Preview

Summary

TOPIC 5 – Criminal CapacityCriminal capacity CC is the first of the mental elements. It is concerned with X’s state of mind at the time of the crime, what were X’s mental abilities at the time of the crime. Timing is important in CC, especially when looking at trial ability (what was X’s state of mi...

Description

TOPIC 5 – Criminal Capacity Criminal capacity CC is the first of the mental elements. It is concerned with X’s state of mind at the time of the crime, what were X’s mental abilities at the time of the crime. Timing is important in CC, especially when looking at trial ability (what was X’s state of mind at the time of the trial). CC also has different terms to refer to it: 1. Criminal accountability 2. Criminal responsibility 3. Criminal imputability - The question is whether X had the necessary mental abilities, whether X’s mental facilities were operating/in place at the time of the commission of the crime (whether X possesses the intellectual apparatus to be held for their criminal conduct). -

Definition - CC refers to the intellectual ability of an accused to appreciate the wrongfulness of his conduct and to act in accordance with such appreciation. - 2 legs: a) Appreciate wrongfulness (X need to know and understand that his conduct is wrong) b) Act according to such appreciation - In order for X to have the necessary CC to commit a criminal offence, both legs need to be present. Leg (a) – cognitive mental function - This relates to the cognitive mental function. - It is about X having the ability to understand right and wrong, to be able to distinguish and know the difference between right and wrong. Leg (b) – conative mental function -

This involves the actions. Whether x is able to act in terms of what is right and wrong. The appreciation (lega), X must be able to act in accordance with that distinction. X must be able to resist the temptation to act wrongfully and X has self-control.

- In order for X to be held criminal liable X needs to possess both the criminally liable, X needs to possess both the cognitive and conative mental function. - There must be insight and self-control. - For example: If X has the cognitive and not the conative mental function. This entails that X cannot have the necessary CC to commit a criminal offence (and vice versa). - However, if X can’t distinguish right from wrong, naturally X is likely not to be able to act in accordance because there is not an understanding.

Criminal incapacity CI is a defence that X can raise in terms of the element of CC. If X can prove that they lack the necessary CC to commit a criminal offence, X will succeed with the defence. CI is the converse of CC. CI refers to the state of mind characterised by the absence of CC. CI means that when X commits and offence X does not possess the necessary CC. It is critical to look at timing when dealing with CC. With CI, we need to acknowledge that X has lost his cognitive mental function, conative mental function or both. Losing your mental function along the way (refers to metal illness). We are talking about X lost the ability to distinguish between right from wrong or the ability to act in accordance with the distinction/appreciation of wrongfulness. - CI is a defence in which X alleges that they are not liable because at the time of the crime X did not possess the necessary cognitive or conative mental function.

-

Forms of CI - There 2 types of CI recognised in SA law: 1. Pathological CI DEFENCES 2. Non-pathological CI Pathological CI - This is CI deriving from a pathological source (caused by a disease or illness of the mind). - This is also known as the defence of insanity because this defence is based on a mental illness. - 2 requirements:  X must be insane at the time of the crime. X must be mentally ill/mentally retarded at the time of the crime (insanity must be an issue, if it is not an issue at that time it may be that the requirement of PCI has not been met).  The insanity must eliminate his CC (either cognitive, conative or both). The elimination of CC is the critically part of this test because, if we sat that X has both mental functions the defence of PCI cannot succeed in court. X must not be able to appreciate the wrongfulness of their conduct and not be able to act in accordance with such wrongfulness. It is critical that the impact of the mental illness/insanity must be that it eliminates X’s CC. NOTE – PCI is a statutory defence. This defence is governed by the CPA S77 – 79.

Non-pathological CI - NPCT derives from a non-pathological source. It does not derive from insanity or mental illness; it is some sort of external factors. - External factors eliminate X’s CC. - NP factors includes several different factors considered to be factors which could eliminate CC:     

Intoxication (drunk or drugged) Mental exhaustion Provocation Fear Emotional stress



Personality disintegration

- NCPI has 2 requirements:

1) X must not be mentally ill/retarded [X must be sane] 2) This NP factor must have the effect of influence X’s mind to the extent that it eliminates his CC. the impact of some NP factors on X’s mind causes him to lose his CC for a short period of time. During this period of time, X commits a criminal offence. - NCPI is a common law defence. - It was created by our courts in the 1980’s thus governed by the common law. Different types of verdicts -

A verdict is the court’s decision to either acquit or convict X. There is a difference between PCI and NPCI; both are recognised as a valid defence in SA law. However, verdicts differ when it comes to PCI and NPCI. In both cases if X succeeds with the defence, it means that X will be found not guilty (not be held criminally liable for the offence).

PCI - When X succeeds with the defence of PCI and X is found guilty, the verdict of not guilty is provided by the court by reason of X’s insanity. - The court gives this order of not guilty based on the fact that X is insane (did not have the CC to commit the offence). - X cannot resume his/her normal life. - There will be state interference. - The person could be sent to an asylum, mental institution or admitted to a state institution because of this insanity. - It is not complete acquittal. NPCI - When X is found guilty, X is acquitted. - X is free to resume his/her life as it was prior to the criminal trial. - There is no interference from the state. Diminished capacity Also known as: Diminished accountability, diminished responsibility and diminished imputability. Some people have full CC and others have none. Some people who lose some of their CC but not all. If X has 100% CC, X can be held criminally liable for an offence. When X has 0% CC, that means that X has CI and cannot be held criminally liable for a crime. Definition: DC refers to CC which has been reduced by a pathological or non-pathological factor. DC relates to the reduction in CC, the cause of such reduction could be because of the pathological or non-pathological factor. - The question to answer is whether DC qualifies as a valid defence?  DC does not qualify as a valid defence; X cannot rely on DC to escape criminal liability.  If X still has 20% or 10% or even 99% of their CC, X cannot use the defence of CI.  If there is still some CC it falls into the category of DC. DC can never be used as a valid escape of criminal liability.

-

Forms of DC

1. Pathological Diminished Capacity 2. Non-pathological Diminished Capacity PDC -

This is CC diminished by a pathological factor (insanity or mental illness). This insanity reduces X’s CC. PDC falls under a statute, the CPA S77 – 79. S78 (7) governs PDC.  X is found guilty because X still has some CC to commit a crime, but there is a deduction of CC (could be the cognitive or conative mental function).  While X is convicted, DC can assist X in giving X a lighter sentence because it diminished part of X’s CC.  X won’t be liable for a full imprisonment term.  X is insane (mental illness/defect).  DC may be mitigating factors to give X a lighter sentence.  PCD is not a defence but it can assist and serve as a mitigating factor.

NPDC - NPDC is caused by a non-pathological factor. - X is sane at the time of the commission of the offence but X’s CC is reduced/diminished to some extent by a nonpathological factor. - NPDC is governed by the common law. - If X commits a crime and X is found guilty (can be held criminally liable), but NPDC can assist X by serving as a mitigation factor in giving X a lighter sentence. - NPDC doesn’t take way X’s liability, X cannot escape criminal liability.

NOTE – There is no difference in the law governing PDC and NPDC. In both cases, X is held liable and the court can use this DC as a mitigating factor. X cannot escape liability because of DC

Case law that deals with DCC

Potgieter 1994 (1) SAR 61 (A) In this case X (woman) and V (man), were living together for a period of 6 years. During this time V subjected X to physical and mental abuse on a continuous basis (issue of mental violence). On the day of the crime, V had assaulted X seriously. After V had assaulted X, V left the house (X was at home). When V returned home X took V’s gun and shot and killed V. X was then charged with murder. X raised the defence of CI. She said that her criminal capacity was completely eliminated. She argued that she suffered from extreme emotional stress leading to an irresistible impulse to kill V (emotional stress is a form of NPCI – she was saying that she had no conative mental function, she couldn’t act in accordance with right and wrong). She claimed that she shot V while V was assaulting her. She said that her mind went blank at the time and that she shot V and did not realise that she was shooting him. However, the evidence proved that V was found dead in bed and that he was naked under the duvet cover. While V was gone during the day X called a locksmith to open the safe where V’s gun was kept. This is how she removed the gun and loaded it. The court concluded that V was actually asleep at the time he was shot, that V was not busy assaulting X at the time that he was shot. Her defence of CI failed and X was found guilty of murder. However, because of the emotional stress the court found that she did suffer from emotional stress and that her CC was in fact diminished. The court said that she was suffering of NPDC at the time that she shot V. the NPDC was seen as a mitigating factor. The trial court only sentenced her to 7 years for the murder of V. however, the matter went on appeal and the prison sentence was changed to correctional supervision (extreme case in the reduction). Sevenster 2002 (2) SACR 400 (C) In this case S went on a crime spree. He killed 2 people (man and woman) with a rock and a knife (slit the woman’s throat). He also stole 2 cars and other goods. S was charged with 2 counts of murder and 3 counts of theft. S was found guilty of all charges and was sentenced to 30 years in jail by the trial courts. However, according to the evidence it was found that S was under the influence of crack cocaine at the time he committed the criminal offences. It was also found that the cocaine had reduced S’s self-control significantly (S’s conative mental function had been diminished). The court found that S suffered from DC at the time of the crime. Because of S’s DCC the court used it as a mitigating factor on appeal; the 36 year sentence was reduced to 25 years. Marx 2009 (2) SACR 562 (ECG) In this case X and Y were married for 19 years. Their marriage had however deteriorated and became very abusive. V (the woman) became abusive and aggressive towards X. V also started having affairs with other men. She called X a “kruppel gat” because of a limp he developed due to a motor vehicle accident. She told X that she wished he would die. V started divorce proceedings against X. One day she taunted him to such an extent that she told him that she had the best sex ever with her lover. At this point X was also suicidal. He took his gun and went to V’s room and when V saw him with the gun, she encouraged him to shoot himself. Instead, he shot her 3 times and she died. X was charged with the murder of V and sentenced to 10 years by the trial court. The appeal court found that X was acting under severe DC; he could not exercise complete self-control. The court found that X shot V while suffering from NPDC. The court accepted X’s NPDC as a mitigating factor and set aside his sentence and sent back to the trial court to sentence X to correctional supervision instead.

Di Blasi 1996 (1) SACR 627 (A)

In this case X and V were married for 20 years. By the early 1990’s their marriage had broken down irretrievably, as far as V was concerned. V (the wife) instituted divorce proceedings against X in 1992. At this time X was living in London, when he heard about the divorce proceedings he was very upset. He considered it an “absolute insult” to him and decided that he is going to kill her; apparently he also wanted to kill himself. He returned to SA and found out where V was living and stalked her for a week. She was living in a flat in Hout Bay and he confronted her there. She tried to flee but she was unsuccessful. He shot her in the back once and when she had fallen down, he shot her in the head twice. X was convicted of murder and sentenced to 4 years in prison. The state appealed against his sentence. The appeal did not concern X’s criminal liability, the issue was about the sentence he received. X argued that he suffered from DC at the time he killed V and that the DC should be a mitigating factor. X called 2 expert witnesses to support his allegations. The court was however, not convinced by X’s experts. The court found that evidence showed that his actions were calculated and coldblooded. The court said that all along X had full control over what he was doing. The court said that X’s CC could not have been reduced, he knew exactly what he was doing when he murdered V. the SCA held that the 4 years was “shockingly inappropriate” and increase his sentence to 15 years. Romer 2011 32 SACR 153 (SCA) In this case X faced 3 charges, 1 charge of murder and 2 charges of attempted murder. X shot 3 people, they were all strangers. He killed 1 of them and seriously injured the other 2. All of these shooting happened at different places ad at different times. He drove from 1 crime scene to another. He shot the victims from inside his car, shooting through the window and both side windows. He tried to rely on the defence of automatism, but he was unsuccessful in doing so. He was able to drive around mostly obeying the traffic rules and even tried to escape from the police, this showed that he was able to control his bodily movements (had his conative mental function). X was found guilty as charged. He was however, suffering from psychological problems at the time of the shootings and this was because of the breakdown of his marriage. He was also on anti-depressants and other medication. He had been a patient of a psychiatric clinic a number of times. He also stayed in bed for long periods of times and had nightmares and violent tremors. The court accepted that X CC had been diminished. The court gave X a 10 year suspended imprisonment sentence and 3 years correctional supervision. The state then appealed and argued that the sentence was “disturbingly inappropriate”. The SCA disagreed; they said that the sentence was appropriate for the kind of crimes that were committed. They also said it was highly unlikely that X would commit crimes like these again. The appeal was dismissed.

Defence of youth

- Also known as the defence of immature age. - Although the defence of youth relates to age, it is a defence of CI (X’s age takes away X’s CC – X cannot have CC because of X’s age). - When this defence succeeds, it means that the court accepts that X did not have the CC to commit a criminal offence. - When a child is charged with a crime and raises the defence of youth, the child is saying that they are too young or immature to possess CC. - The defence of youth does not apply to all youth. - The defence of youth exists because our law treats young people differently from adults. - There is a particular set of rules which relates to adults and a particular set of rules which relates to children. - Children are separated from adults by the age of majority (18).  Majority – X is seen as an adult in the eyes of the law.  Section 21 of the Childrens Act changes the age of majority from 21 to 18.  Constitution provides that an adult is someone who is 18 or older. - Anybody who is under the age of 18 is considered to be a child (minor). - The CC of adults is governed by CL. There is a rebuttable presumption that an adult is doli et culpae capax. - It means that there is a presumption that an adult possesses the CC required to commit a criminal offence. - This presumption is a rebuttable presumption. It means that evidence can be produced to successfully rebut the presumption, to show that the presumption does not apply in respect of X. - All sane adults are presumed to possess both the cognitive and conative mental functions. - If X raises the defence of CI successfully, X will then escape CL. - There are presumptions that apply to children too. - There are 3 categories of children and there are different presumptions that relate to the different categories: 1. Infans 2. Impubes 3. Pubes The Infans - An infans is a child who is younger than 10 (0 – 12 years old). - Section 7 (1) of the CJA: “a child who commits an offence while under the age of 12 years does not have criminal capacity and cannot be prosecuted for that offence, but must be dealt with in terms of section 9”. - It says that any child under 10 can never have CC, never be deemed capable of committing a criminal offence. - There is an irrebuttable presumption of CI. - An infans is doli et culpae incapax (incapable of forming intention and negligence). - This presumption cannot be rebutted. It is an absolute presumption. This means that the child can never be charged or convicted (defence of youth will always be successful). - An infans may in fact possess CC, but in the eyes of the law such child will never possess the CC to commit a criminal offence. - Does this mean that a child under 10 can simply commit crimes and escape liability? The law has put in place certain provisions to assist a child who is in this sort of trouble with the law (Section 7 says that, that child should be dealt with in terms of Section 9). - Section 9 of CJA sets out the rules in relation to a child, infans, who is in trouble with the law. An infans that is in trouble with the law cannot be arrested by police, instead the police have a duty to hand the child over to their parents/guardian or a child and youth care centre. The police must inform a PO of the child’s conduct and the PO must assess the child within 7 days. After the assessment by the PO, the PO decides what is to become of the child. There a number of options available:

-

 Refer the child to the Children’s Court  Refer the child to counselling or therapy  Refer the child to an accredited programme for children  Arrange support services for the child  Arrange a meeting with the child’s parents or other relevant persons  Take no action (depends on the seriousness of the offence and the child’s particular circumstances) If the child fails to comply with the PO, the child must be referred to the Children’s Court. Section 9 is aimed at preventing children under 10 from becoming criminals. Section 9 is based on the belief that the PO can assist in encouraging the child to stop the criminal and anti-social behavior (no guarantee of this). The interventions contains in Section 9 are civil interventions, not criminal sanctions. A child should not come into contact with the CJS, in the ordinary sense that somebody who has committed a criminal offence and who has the necessary CC to do so or is deemed to have the necessary CC may encounter the system.

The Impubes - This is a child who is between 10 and 14. - The CJA deal with impubes. Section 7 (2) provides that “a child who is 10 years or older but under the age of 14 and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity in accordance with Section 11” - The state can prove th...