Criminal Law: Causation and Criminal Capacity
Causation
The accused's action or inaction must have caused a specific consequence for criminal liability to be established.
The conduct must be both the factual and legal cause of the criminal act.
Factual causation: The accused's behavior must factually have caused the consequence.
Legal causation: The law must recognize that the facts caused the consequence.
Factual Causation
The accused's conduct must have resulted in the criminal consequence.
Conditio sine qua non test: Used to determine factual causation.
Latin phrase meaning 'But for the action of the accused would the consequence have followed?'
Asks whether the consequence occurred because of the accused’s actions.
If the consequence would not have occurred without the accused's actions, the accused is the factual cause.
For omissions (failure to act), the question is: If the accused had acted, would the consequence still have occurred?
If the consequence would still have happened even if the accused had acted, then the omission is not the factual cause.
Legal Causation
The accused must also be the legal cause of the criminal consequence to be found guilty.
Legal causation limits legal liability by requiring a sufficiently close legal connection between the person's action and the crime.
Tests used to determine legal causation:
Adequate Cause Test:
If an act has the tendency to bring about the consequence that occurred, the accused will be the legal cause of that consequence.
Asks if the act usually brings about that consequence in the normal progression of human experience.
In S v Mokgethi en Andere 1990 (1) SA 32 (A), one of the accused shot the deceased, a bank teller, during a bank robbery. The deceased in this case did not die immediately, but only six months later. The deceased became a paraplegic as a result of the shot and had to make use of a wheelchair. The bank teller's condition improved to such an extent that he later resumed his work at the bank. However, later he had to go back to hospital because he was suffering from serious pressure sores.
Because he had not moved around enough in his wheelchair, as doctors had advised him to
do, the pressure sores had resulted in blood poisoning, which led to his death.
The accused (the men involved in the bank robbery and their accomplice, Mokgethi) were then convicted of the murder of the deceased bank teller. Although Mokgethi was only the getaway driver, in the eyes of the law he was an accomplice and equally guilty. In an appeal, the Appellate Division reversed the conviction - that is, it overturned the initial judgment that Mokgethi was guilty of murder.
The court decided that, although the wounding of the deceased was a factual cause of his death, the injury could not be regarded as the legal cause of his death. By applying the adequate cause test, the court found that if you were shot, you would usually die from the wound or from blood loss, not from blood poisoning. There was not enough of a connection between the act of shooting the deceased and his death.
The bank teller's death was not the result of being shot, but was because of his own failure to follow his doctor's advice. His negligence served to break the chain of causation. The Appeal Court thus replaced the murder convictions with convictions of attempted murder. The bank teller got shot, but he got medical treatment and should have lived. So the crime was not murder, but attempted murder.
Novus Actus Interveniens Test:
If a new cause intervenes, the consequence may have been legally caused by the new intervening cause, not the accused’s act.
A new intervening act could be:
The act of the victim
The act of a third party
The force of nature
The intervening act is more likely to qualify as a novus actus if the consequence is unlikely to follow the initial act.
Chain of causation: A series of related/connected events beginning with an act and ending in the ultimate consequence.
Medical Treatment as Novus Actus
If a victim's death/injury was caused/made worse by medical treatment, determine if the medical conduct was negligent or improper.
Negligent treatment: Doctor failed to behave as a reasonable doctor would have.
Improper treatment: Doctor gave the incorrect treatment.
If treatment was negligent/improper, it's likely a new intervening act breaking the chain of causation.
Thin Skull Rule
A victim's pre-existing physical weakness is not a novus actus. The accused must take the victim as they find them.
Criminal Capacity
A person must possess criminal capacity at the time of the act to be criminally liable.
Criminal capacity means the person:
Understood that their actions were wrongful.
Was able to act in accordance with that appreciation (control their actions).
A person lacks criminal capacity if:
They don't understand that what they're doing is wrong, or
They know it’s wrong but can't stop themselves.
Categories of People Lacking Criminal Capacity
Youth
Children under 10 are irrebuttably presumed to lack criminal capacity.
Irrebuttable presumption: Cannot be disproven under any circumstances.
Children between 10 and 14 have a rebuttable presumption that they lack criminal capacity.
Rebuttable presumption: Can be disproven by leading evidence to the contrary.
Evidence must prove the child understood the wrongfulness of their actions and could have stopped themselves.
The presumption weakens as a child approaches 14 years old.
Once a child is over 14, they are treated as an adult for criminal capacity.
Mental Illness
Mental illness affects a person's ability to understand the wrongfulness of their actions or to act in accordance with that appreciation.
Section 78(1) of the Criminal Procedure Act 51 of 1977:
A person is not criminally responsible if they commit an offense while suffering from a mental illness or intellectual disability that makes them incapable of:
Appreciating the wrongfulness of their act; or
Acting in accordance with an appreciation of the wrongfulness of their act.
The accused must prove they lacked capacity due to mental illness on a balance of probabilities.
It must be more likely that the accused is insane than sane.
If successful, the accused is found not guilty by reason of mental illness and sent to a psychiatric institution until a judge rules they may be released.
Intoxication
Alcohol or drugs may cause intoxication, leading to a lack of understanding of wrongdoing or inability to stop wrongful actions.
However, if a person deliberately gets drunk in order to commit a crime, they will be found guilty.
Actio libera in causa rule.
Criminal Law Amendment Act 1 of 1988:
Even if a person was so intoxicated that he lacked criminal capacity, that person could still be guilty of contravening the Criminal Law Amendment Act.
You will only be liable in terms of the Criminal Law Amendment Act if you knew what the effect of consuming the intoxicating substance would be.
The penalty is equivalent to the punishment that the accused would have received had he not been intoxicated.
The fact that the accused was intoxicated at the time that he committed the crime is regarded as an aggravating factor for sentencing.
The case of S v Chretien 1981 (1) SA 1097 (A) dealt with an accused who had been very drunk when he committed a criminal act. At a party, Chretien had drunk vast amounts of alcohol. At the end of the party, while he was still drunk, he drove his car into a crowd of partygoers who were standing on the side of the street. One person was killed and five people were injured. The accused was charged with one count of murder and five counts of attempted murder. TheAppellate Division held that voluntary intoxication was a complete defence to criminal liability.
This meant that a person lacked criminal capacity if he chose to drink alcohol or otherwise become intoxicated, and then committed a criminal action while so intoxicated that he did not know that what he was doing was wrong, and while he could not control his actions.
The appeal court judges, however, stressed the importance of the degree of intoxication - that is, how drunk or how high the accused was at the time of committing the crime. A person who was dead drunk, or extremely drunk - sometimes to the point of unconsciousness, would have a criminal defence. On the other hand, a person who was only slightly intoxicated would have no criminal defence, because the intoxication would have a limited effect on his mental state. The reasoning behind this way of thinking is that someone who was extremely intoxicated would either not know the difference between right or wrong or would be unable to stop themselves acting criminally. However, someone who was only slightly intoxicated would still be able to appreciate the difference between right and wrong and would be able to act in accordance with that appreciation.
Provocation and Emotional Stress
Severe provocation and emotional stress may lead to a lack of criminal capacity.
Society generally expects individuals to control their emotions, so provocation is not usually a defense.
For a successful defense, the accused must act suddenly, in the heat of passion, before they have time to cool down and rethink the situation rationally.
The key question is: Did the provocation cause the person to lose self-control?
Automatism refers to actions committed by an accused while he is unable to control his actions.
Insane automatism: The accused is unable to control his actions because of a mental condition.
Sane automatism: The accused claims that he was unable to control his actions but where this lack of control arises from something other than a mental illness.
In another case involving provocation as a defence, S v Eadie 2002 (3) SA 719 (SCA), Eadie had been involved in an incident of road rage in which he killed another driver. He had been driving home late at night with his family when another driver overtook him and flashed his lights at him. The driver then drove at a very slow speed in front of Eadie's car. When Eadie overtook him, the driver continued to overtake Eadie's car and then slow down. When both cars stopped at a traffic light, Eadie got out of his car and assaulted the driver with a hockey stick, eventually killing him. Eadie was charged with murder. Eadie's story in court was that at the time of the murder he lacked capacity. He claimed he was acting in a situation of severe emotional stress, provocation and intoxication. However, the court disagreed. The court concluded that the deceased's aggressive and provocative behaviour did not entitle Eadie to behave as he did. An accused could only lack self-control where he was acting in a state of automatism.
Automatism refers to actions committed by an accused while he is unable to control his actions.
Automatism may be sane automatism or insane automatism.
Insane automatism refers to a situation where the accused is unable to control his actions because of a mental condition such as we have seen above when considering mental illness.
• Sane automatism refers to a situation where the accused claims that he was unable to control his actions but where this lack of control arises from something other than a mental illness.