Criminal Law Notes

Criminal Law

• Criminal law is part of public law.
• Public law involves the state as a party with state authority.

Criminal Case

• Initiated when an offense is committed.
• The state prosecutes the suspect.
• Example: S (state) v Botha (accused).
• The state bears the burden of proof (onus) to prove the accused's guilt.
• Proof must be beyond a reasonable doubt, with guilt as the only reasonable inference.
• The state is dominus litis, deciding whether to prosecute.
• The aim is to punish those threatening social order.
• The accused is found either guilty or not guilty.

Crisis in the Criminal Justice System

• Over-criminalization (e.g., traffic offenses).
• Debate around decriminalization (e.g., sodomy, pornography).

Crime Control Model

• Assumes police fact-finding is absolutely reliable.
• Treats arrestees as guilty until proven innocent (e.g., USA).

Due Process Model

• Protects individuals from deprivation of life, liberty, or property without legal safeguards.
• Presumes innocence until proven guilty (e.g., South Africa).

Principle of Legality: NULLUM CRIMEN SINE LEGE

• An accused can only be found guilty if the conduct:
  • Is recognized as a crime by law.
  • Is defined clearly.
  • Was a crime before the conduct occurred.
  • The court cannot expand the definition to fit the accused's actions.

Retributive Theory

• "An eye for an eye."
• Punishment should be proportional to the crime.
• Example: Murder may warrant the death sentence.

Deterrence Theory

• Aims to discourage crime.
• Involves removing the offender from society (e.g., imprisonment) and rehabilitation.
• Deters others from committing similar crimes.

Common Law Crimes

• Examples: Murder, theft, treason, incest.
• Punishable based on Roman-Dutch legal tradition.
• Constituted by legal convictions of the community and generally observed standards.

Statutory Crimes

• Created by the legislature to address evolving societal norms.
• Examples:
  • The Drugs and Drug Trafficking Act 140 of 1992: prohibits drug possession and dealing.
  • The Maintenance Act 99 of 1998: makes it an offense to not pay required maintenance.
  • The National Road Traffic Act 93 of 1996: Driving with more than 0.05 g of alcohol per 100 ml of blood is an offense.
  • The Tobacco Products Control Act 83 of 1993: prohibits smoking in public places.
  • The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: addresses sexual offenses.

Unlawful Voluntary Conduct

• Elements:
  • Conduct (act or omission).
  • Unlawfulness (against the law).
  • Fault of the accused.

Unlawfulness

• Means unjustified, lacking justification.
• Determined by:
  • Satisfaction of definitional elements.
  • Absence of justification grounds.
• Justification grounds negate unlawfulness.
• Examples of Justification Grounds:
  • Private Defence
  • Necessity
  • Consent

Voluntary Conduct

• Accused must be aware of their actions.
• Must be capable of making and acting on a decision.
• Must have conscious control over actions.
• If conduct cannot be controlled by the person's will, it is involuntary.

Exclusion of a Voluntary Element: Automatism

• Behaving in a mechanical fashion due to:
  • Sleepwalking
  • Epilepsy
  • Mental derangement
• R v Dhlamini [1955 (1) SA 120 (T)]
  • Accused stabbed a boy in his sleep during a nightmare.
  • The court held that Dhlamini was not criminally responsible because his conduct was involuntary.

Involuntary Conduct: Automatism

• R v Ngang [1960(3)SA 363(T)]
  • The appellant stabbed the complainant in the back.
  • The appellant claimed he had a nightmare and believed he was attacked by a "tokoloshe".
  • The court concluded that the Crown had not proven intent.
  • Involuntary conduct due to subconscious fears can excuse criminal liability.

Conduct: Act or Omission

• A crime requires unlawful conduct.
• Can be a positive act or an omission.
• An act is a positive action.
• An omission is a failure to act.

General Rule

• Criminal conduct is either:
  • A positive act.
  • An omission or failure to act when there is a legal duty to act.
• Civilians generally have no legal obligation to act.

Legal Duty to Act

• Special circumstances that impose a legal duty:
  • Prior Conduct
  • Control of a Potentially Dangerous Thing or Animal
  • Special Protective Relationship

Prior Conduct

• If an accused creates a potentially dangerous situation, they have a legal duty to prevent the danger.
• Failure to act constitutes an unlawful omission.

Control of a Potentially Dangerous Thing or Animal

• A person in control of a dangerous thing has a legal duty to prevent harm to others.
• Example: Failing to repair a baboon's cage, leading to harm, can result in a conviction for culpable homicide.

Special Protective Relationship

• A legal duty arises when one person has a special or protective relationship with another.
• X has a duty to act to prevent harm to the other person.

Carmichele v Minister of Safety and Security

• Coetzee, with a known history of being a troublemaker, was released on bail.
• The prosecutor did nothing about Coetzee’s violent tendencies, even with information from a psychiatrist.
• Coetzee attacked Carmichele.
• The court held that the prosecutor owed Carmichele a duty of care.
• The duty stemmed from constitutional rights to life, dignity, and security.

Minister of Safety and Security v Van Duivenboden

• Brooks had a history of violent behavior and gun ownership.
• The police did not remove his guns, despite his threats.
• Brooks killed his daughter, wife, and himself, and wounded a neighbor (Duivenboden).
• Duivenboden sued the Minister of Police.
• The court found a legal duty on the police to submit an affidavit to prevent harm.

Minister of Safety and Security v Hamilton

• McArdell, who had a history of mental illness, shot Hamilton due to an argument.
• The police did not contact her referees when she applied for a gun license.
• Hamilton sued the Minister because the police failed to ensure McArdell was mentally fit to own a gun.

Public Office

• Holders of public office may have a legal duty to act to prevent harm.
• Minister van Polisie v Ewels
  • A policeman on duty has a duty to assist someone being assaulted.
  • Ewels was assaulted by an off-duty police officer while on duty himself, and other officers failed to intervene.
  • Ewels sued the Minister of Police because the legal convictions of the community demanded that the officers act.

Statute

• Legislative acts may impose a duty to act (e.g., income tax act, childcare act).

Contract or Other Undertaking

• Contracts can create a duty to act in criminal law.
• Pittwood Fact:
  • A railway employee failed to close a gate.
  • A horse and cart crossed the track and were hit by a train, killing both the driver and the horse.

Pittwood Issues

• Whether an omission can constitute actus reus for murder.
• Whether criminal liability can be based on a breach of a contractual duty

Pittwood Outcome

• The court held that because the defendant was under a contractual duty to close the gate, his omission could constitute the actus reus for murder.

Justification Grounds

• Unlawfulness is excluded due to a "legally valid reason".
• Examples:
  • Private Defence
  • Necessity
  • Consent

Private Defence

• Using force to repel an unlawful attack.
• Requirements:
  • There must be an attack.
  • The attack must target a legally protected interest.
  • The attack must be imminent but not yet completed.
  • Defence must be directed against the attacker.
  • The defensive act must be necessary.
  • The defence must be reasonable.
• The defender must be aware of the need for defence.

R v Zikalala

• The accused had been stabbed by the deceased five days earlier.
• The deceased attacked the accused again with a knife.
• The accused killed the deceased and successfully argued private defence on appeal.
• General rule: duty to flee but that obligation is qualified (it is not an absolute) you don't have to flee if you cannot guarantee yourself a safe escape.

Coutzie v Fourie

• Coetzee shot Fourie, his neighbor's son, whom he did not recognize.
• Coetzee claimed he acted in private defense.
• The court found that the belief he was in danger was not reasonable, and his actions were negligent.

Necessity

• Acting to protect life or another legally recognized interest.
• Requirements:
  • There must be an imminent threat.
  • No other way to avert the threat.
  • The interest protected must not be out of proportion to the interest infringed.
• S v Bradbury
  • Bradbury was part of a criminal gang and claimed he participated in a murder out of necessity, as the gang threatened him and his family.
  • The court found Bradbury guilty, as he voluntarily joined the gang and knew the risks.

Consent

• A voluntary, informed, and freely given agreement to participate in a specific action or situation.
• Volenti non fit injuria: Injury is not done to someone who consents to be injured.
• Requirements:
  • The law must recognize consent as a justification for the act.
  • Consent must be voluntary, without coercion.
  • The person giving consent must be mentally capable.
  • The person must be aware of the true and material facts.
• Minister of Justice and Others v Estate Stransham-Ford
  • The court dealt with assisted suicide (euthanasia).
  • The court ultimately held that assisted suicide is not legal in South Africa but may be reconsidered in an appropriate case.