Topic 6 - Mens Rea - Contains the summary of lecture notes and case law PDF

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Topic 6 – Mens Rea Mens rea means “guilty mind”. This derives from the Latin maxim; actus no facit reum, nisi mens sit rea. The act is not wrongful unless the mind is guilty. Even though X may engage in conduct that is wrongful/unlawful, it does not necessarily mean that X is criminal liable. The wr...

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Topic 6 – Mens Rea - Mens rea means “guilty mind”. This derives from the Latin maxim; actus no facit reum, nisi mens sit rea. - The act is not wrongful unless the mind is guilty. Even though X may engage in conduct that is wrongful/unlawful, it does not necessarily mean that X is criminal liable. The wrongful conduct in question needs to be accompanied by a guilty mind. - MR is a mental element – We are concerned with X’s state of mind at the time of the commission of the criminal offence. It is about whether or not X’s state of mind was directed at the commission of the criminal offence. - We are concerned about whether or not X possessed the criminal state of mind at the time of the commission of the offence (not before or after). - Synonyms of mens rea:  Fault  Culpability  Blameworthiness - Definition: X acts with mens rea if their conduct is accompanied by a blameworthy or culpable state of mine. It is not just about whether the conduct was unlawful; it is about whether X’s state of mind was blameworthy or culpable at the time of the commission of the offence. The Versari or taint doctrine - Before 1965, when the Versari doctrine was in place, where it was used and enforced by the courts it entailed that X’s conduct itself was sufficient to attach criminal liability or to find X criminally liable for an offence. - Now that we have mens rea that does no longer apply. - Mens rea is a fairly new element. This element only came about in 1965 when the Versari doctrine was kicked out by the court. - Prior to 1965 the courts were not concerned about X’s state of mind during the commission of an offence when deciding whether or not X is criminally liable. - Mens rea is the mental condition which is required for X to complete the physical aspects of the crime. - Without X having a guilty mind, X would not be able to complete the physical aspects of the crime. - Prior to 1965, when the Versari doctrine was in place, it meant that the physical aspects of a crime could in fact be completed without mens rea. - The doctrine was kicked out in 1965 by the Bernadus case. - It is also known as the taint doctrine. - The doctrine entailed that it was possible for X to be liable without mens rea. It was not necessary for the prosecution to provide evidence or proof of X having a guilty mind at the time of the commission of the criminal offence. - Provided that X is liable for all the consequences of his unlawful conduct, regardless of whether his state of mind at the time of the crime was to commit a criminal offence. - The entire focus was on X’s conduct. - If X’s conduct was unlawful, then all the consequences of their actions tainted or polluted all of the consequences that flowed from such conduct. - Even if X had a completely innocent state of mind, as long as there was an unlawful result, X would be held criminally liable. - All the consequences of the illegal act are imputed o the person who performed the act.

Motsepe 1931 AD 150 (the Versari doctrine was still in place) In this case x was a truck driver and v was a young child. V climbed onto the back of the truck and X was the driver of this truck. X, however, was not aware that V had climbed onto the back of the truck. X then proceeded to drive and drove negligently. X did so while V was at the back of the truck. X’s negligent driving resulted in him crashing into a tree. As a result of the crash, V died in the accident. X was then found guilty of culpable homicide. The court found X guilty despite the fact that X did not know that V was on the truck at the time he was driving negligently. The court applied the Versari doctrine. X’s negligent driving was unlawful. This is the unlawful conduct. X was responsible for all the consequences that flowed from that unlawful conduct. Therefore, the court ruled that V’s death was a consequence of the unlawful conduct and accordingly, that X was liable for V’s death. Bernadus 1965 (3) SA 287 (A) (this case abolished the Versari doctrine) In this case X and V were in a fight. V tried to intervene to stop the fight. X threw a kierie at v to stop V from intervening in the fight. The kierie struck B behind the ear and this blow killed C. X was then charged with culpable homicide. In the trial court, the court applied the Versari doctrine. X’s fight with Y was unlawful. V’s death was seen as a consequence of X’s unlawful conduct, on this basis, X was found criminally liable for V’s death. The matter was, however, appealed. The appeal court rejected the Versari doctrine. The court held that X’s unlawful conduct by itself was not enough to convict him and instead it was also necessary to establish that X acted with mens rea or had a guilty mind at the time of the commission of the offence. In this case, even though the court rejected the Versari doctrine, it found on the facts that X did have the necessary mens rea and this mens rea came in the form of negligence. The court found that X was guilty of culpable homicide, there was not an intent to kill V. it was an accidental killing of V. Since this case, mens rea became a necessary element of criminal liability. Without mens rea X cannot be found criminally liable. Forms of mens rea - There are 2 forms of mens rea: 1. Dolus – intention 2. Culpa – negligence - Mens rea must always take one of these forms. - If neither intention nor negligence is present, it would mean that there is no mens rea and accordingly X cannot be held criminal liable. - X’s unlawful conduct must always be accompanied by either dolus or culpa. - A crime is either a dolus or culpa crime. - If H does not have dolus or culpa, X does not have mens rea. - There is however 2 exceptions are: The general principle is that every criminal offence must be accompanied by dolus or culpa. The exceptions are strict liability and vicarious liability. Strict liability specifically relates to statutory offences (not relevant to common law offences). It relates to criminal offences that parliament creates using a statute. This form of liability does not require mens rea (X can be held criminal liable without dolus or culpa). This strict liability has however been questioned and has been argued to be unconstitutional (based on the fact that not requiring mens rea could go against the constitutional rights of X – X is not given an opportunity to have a fair trial). There is also a test to see if strict liability was intended by the legislature, strict liability would have to be decided by the courts. Strict liability is not really favoured; there has been a decrease in cases which favour strict liability.

Vicarious liability is where a body is held criminally liable for the conduct of another. There are strict requirements to vicarious liability. - Examples: Murder is a dolus crime. In order for X to be guilty of murder, X must have killed V intentionally. Culpable homicide is a culpa crime. To be guilty of culpable homicide, X must have killed V negligently. Meaning of intention -

Dolus refers to X directing their mind at conducting/performing an unlawful act or achieving an unlawful result. Intention is based on subjective foresight. Subjective foresight means that X, himself, foresees the unlawful result. X foresees the unlawful result before it happens. X subjectively foresees either will break the law or that he may break the law (X anticipates the crime). The focus us upon X’s subjective state of mind (objective circumstances is not important). If X foresaw that they will or may break the law, they would have acted with dolus.

Forms of intention - Dolus directus: Direct intention – This is when X has a gun in her hand and she wants to shot V, there was subjective foresight that X was directing her mind at shooting and killing V. X had the direct intention to kill V and X did so. - Dolus indirectus: Indirect intention - Dolus eventualis: Legal/Constructive intention. - Dolus indeterminus (not the main type). - Dolus can come in any of these forms. - Any form of dolus is acceptable for establishing dolus. - Intention requires subjective foresight. - All 3 forms of dolus are defined in terms of subjective foresight. - The form of dolus is not significant for liability. - For example: If X is charged with murder, the court is not considered with what type of dolus is present. Regardless of the type of dolus, X will be found guilty. Meaning of negligence - Negligence refers to x committing an unlawful act or causing an unlawful result, without specifically directing his mind to it (there is no subjective foresight). - It is based on reasonable foreseeability. - Reasonable foreseeability means that the crime is foreseeable to a reasonable person in X’s position. - If a reasonable person is placed in X’s shoes what would that person foresee. - X himself does not foresee the crime, but a reasonable person in X’s position would have foreseen the crime. - The reasonable person would have foreseen that X’s conduct would lead to the unlawful result. - X’s liability is based on X no foreseeing what a reasonable person would have foreseen. - Negligence is about comparing X to the reasonable person in his position. - X is expected to live up to the standard of a reasonable person. The reasonable person (legal fiction or abstract entity) -

In the past it was known as a “reasonable man” (the pale middle class white male). Today, the reasonable person is gender neutral and non-racial. The reasonable person is also not an exception person. Neither abnormal with superior intelligence, nor subnormal with inferior intelligence. But simply normal with average intelligence.

- The reasonable person embodies the average person, with all of the strengths and weaknesses that come with being an average person. - A reasonable person lives a balanced live. A reasonable person does things in moderation and avoids all extremes (reasonable person is a sensible person, usually stays away from any risks). - A reasonable person does not actually exist. It is a legal fiction. - In SA law, negligence is assessed in terms of the standard of the reasonable person. - The reasonable person test is an objective standard (it is an external criterion). Forms of negligence - There are 2 forms of negligence: 1. Unconscious negligence (pure negligence) – Culpa (this is where X kills V accidently) 2. Conscious negligence – Luxuria - Either form of negligence is acceptable. Relationship between negligence and intention -

There is no relationship between the 2, besides that they are both forms of mens rea. They are totally different (opposing concepts). Intention is based on subjective foresight and negligence is based on reasonable foresight. They are mutually exclusive, they do no overlap. X cannot possess both dolus and culpa at the same time. The presence of dolus means the absence of culpa, and vice versa.

Erasmus 2005 (2) SACT 658 (SCA) In this case H and J were in a homosexual relationship, which went wrong. When the relationship ended, J wanted to take revenge against H. J then alleged hired X to harm H. X was actually supposed to throw acid into H’s face, in return for a car and cellphone. X did throw acid into H’s face and H was seriously injured. His skin on his face and upper body was stripped off by the acid. His eyes were damaged and they had to be surgically removed. He was reduced to an invalid as a result of the acid attack. X was then charged with attempted murder. However, the state could not prove that X had the intention to kill H. X was not guilty of attempted murder. X could however be found guilty of assault GBH, on the basis of dolus eventualis. X appealed, he argued that he did not foresee the injuries suffered by H, he merely though that it would make H’s skin red. X argued that he did not have the subjective foresight required for dolus. The evidence proven BARD that X did foresee that H would suffer injuries. The payment offered by J was out of proportion to attack and X initially tried to pay someone else to attack. It is not necessary to foresee the exact nature of the injuries. There was sufficient evidence to show that he complied with the foresight component. The appeal was then dismissed. Campos 2002 (1) SACR 233 (SCA) This case involved X and her 6 month old daughter. X battered the baby over an extended period of time. She inflicted numerous serious injuries; including breaking the baby’s spine (snapped her spine in 2). An expert testified in court that this kind of injury would only be seen in serious car accidents. This requires a tremendous amount of force. The baby eventually dies of her injuries. X was charged with murder. The SCA held that the state could not prove BARD that X had subjective foresight of her child’s death. Hence, C did not act with dolus, but the death was reasonably foreseeable. A reasonable person in X’s position would have foreseen the possibility of the child’s death. Hence, X was now guilty of culpable homicide (she negligently killed the baby)....