CRW2603_ Criminal Law_ Study Notes. Latest Summary.
CRW2603_ Criminal Law_ Study Notes. Latest Summary. Definition of a perpetrator Person is perpetrator if: General Principles of liability (1) 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 Doctrine of common purpose (2) if, 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. Definition of 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 furthers the commission of the crime by somebody else. Whether someone is perpetrator, first look at definition crime and, secondly, consider whether accused's conduct, state of mind and characteristics comply with definition. Some crimes can only be committed by people complying with a certain description - e.g. - high treason only committed by person owing allegiance to SA republic. crime can only be committed by a person who has a certain occupation (e.g. a medical doctor or holder of a certain licence. accomplice, he furthers the crime committed by someone else. Court convicts somebody of crime without explicitly specifying he is convicted as accomplice to crime, it means he is convicted as a perpetrator (or co-perpetrator PERPETRATORS ( Criminal Law 260±272) 1.3.1 Co-perpetrators: unnecessary to identify principal perpetrator Person is perpetrator if he complies with all requirements for liability in definition of crime, or if the act of somebody else who is perpetrator is imputed to him in terms of common purpose doctrine. Where there is more than one participant or perpetrator, it is not always possible to select one as the principal offender. Principal offender-distinction between principal offender and other perpetrators is not important for the purposes of liability - it can important in assessment of punishment. Where several persons commit crime together and their conduct, state of mind and characteristics all comply with definition of crime, each one of them is co-perpetrator - One co-perpetrator's contribution may be more or less than that of the other. Co-perpetrators: difference between direct and indirect perpetrator irrelevant . A direct perpetrator is a perpetrator who commits the crime with his own hands or body. . An indirect perpetrator does not commit the crime with his body, but makes use of somebody else to commit the crime The distinction between a direct and an indirect perpetrator is of no significance for purposes of determining liability. For the purposes of liability as a perpetrator in commission of crime e.g. murder: . someone stands guard while his partner shoots Y dead (Mashami 1967 . drives his partner to and from scene of crime (Bradbury 1967 . tells him where he can find Y, or . stands next to him while he assaults Y, ready to help him if it is required of him (conduct assistance and encouragement to principal offender) (Mbande 1933; Du Randt 1954. . obtains his services to shoot Y (Nkombani 1963 Their conduct and culpability comply with requirements for liability set out in definition of crime - their acts also amount to a causing of Y's death. But for their acts a conditio sine qua non, Y would not have died - a passive spectator to a deed of murder cannot be held liable as a co-perpetrator (compare the position of accused no 4 in Williams 1980. Being a perpetrator of murder by virtue of the doctrine of common purpose (Criminal Law 263±272; Case Book 199±205) 18.104.22.168 General Definition of 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. Has been applied mostly to the crime of murder. Crucial requirement of doctrine is that different accused should have had same purpose. The act of Z, who 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. Only Z's act is imputed to (X) - not Z's culpability. X's liability is based upon his own culpability (Malinga 1963 Common purpose doctrine is mechanism applied to overcome difficulties inherent in proving causation where a number of people together kill somebody else. 22.214.171.124 Proof of existence of common purpose Existence of a common purpose is proved by: . On the basis of an express or implied prior agreement to commit an offence. Since people mostly conspire in secret it is very difficult for the state to prove a common purpose based on a prior agreement. . Where no prior agreement can be proved, the liability arises from an active association and participation in a common criminal design (Thebus 2003 126.96.36.199 Why it is necessary to have such a doctrine 188.8.131.52 The judgment in Safatsa Read the following decision in the case book: Safatsa 1988. The leading case on the doctrine of common purpose is Safatsa 1988. In this case the facts were the following: A crowd of about one hundred 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. In a unanimous judgment delivered by Botha JA, 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 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, but the court held that where, as in this case, a common purpose to kill had been proved, 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 to commit 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. 184.108.40.206 Active association as proof of participation in a common purpose Existence of a common purpose a participant and other members of group may be based on finding that participant actively associated with actions of other members of group. In Mgedezi 1989 Appellate Division held that, if there is no proof of a previous agreement between perpetrators, an accused whose individual act is not causally related to Y's death can only be convicted of murder on strength of the doctrine of common purpose if five requirements have been complied with: . he must have been present at the scene of the crime . he must have been aware of the assault on Y . he must have intended to make common cause with those committing assault . he must have manifested his sharing of a common purpose by himself performing some act of association with the conduct of the others . he must have intention to kill Y or to contribute to his death Somebody who was a passive spectator of events will not terms of this doctrine, be liable to conviction even though he may have been present at scene of action. Other principles which emerge from the case law are the following: . In murder cases active association can only result in liability if act of association took place whilst Y was still alive and at a stage before lethal wound had been inflicted by one or more other persons (Motaung 1990. Active association with common purpose should not be confused with ratification or approval of another's criminal deed which has already been completed. Criminal liability cannot be based on such ratification (Williams 1970. 220.127.116.11 Liability on the basis of active association declared constitutional In Thebus 2003 - liability for murder on basis of active association with execution of a common purpose to kill was challenged on grounds that it unjustifiably limits constitutional right to dignity, to freedom and security of a person right of an accused person to a fair trial. Constitutional Court rejected these arguments and declared constitutional the common-law principle which requires mere ``active association'' instead of causation as a basis of liability in collaborative criminal enterprises. One of the court's main arguments was the following: Doctrine of common purpose serves vital purposes in our criminal justice system. Principal object of doctrine is to criminalise collective criminal conduct and thus to satisfy need to control crime committed in course of joint enterprises. In crimes such as murder it is difficult to prove that act of each person or of a particular person in group contributed causally to criminal result. Insisting on a causal relationship would make prosecution of collective criminal enterprises ineffectual. Effective prosecution of crime is a legitimate, pressing social need. Thus, there was no objection to the norm of liability introduced by requirement of ``active association'' even though it bypassed the requirement of causation. 18.104.22.168 Common purpose and dolus eventualis For X to have a common purpose with others to commit murder it is not necessary that his intention to kill be present in the form of dolus directus - dolus eventualis – he foresees the possibility that the acts of participants with whom he associates himself may result in Y's death, and reconciles himself to this possibility. X is charged with murder - a number of persons, among them X, took part in a or housebreaking, and Z, one of members in the group, killed Y in course of action. question arised whether X and Z had a common purpose to kill Y. Mere fact they all had intention to steal is not necessarily sufficient to warrant inference that all of them also had common purpose to kill. One can steal killing anybody. Whether X also had the intention to murder, must be decided on the facts of each individual case. The case of Mambo 2006 -practical illustration. Three awaiting-trial prisoners planned to escape from their court cells. Plan included forceful dispossession (robbery) of a court orderly's firearm. When orderly unlocked gate of the cell so that accused could enter, X1 gripped the orderly around his neck, X2 reached for orderly's lower legs and tugged at them, causing him to lose his balance and X3 reached for the orderly's firearm in his holster on his right hip and grabbed it with both hands. As orderly wrestled to free himself from clutches of X1 and X2, X1 uttered word shoot. X3 cocked firearm and fatally shot orderly. They were convicted in the High Court on charges of murder, robbery, and escape from lawful custody. The Supreme Court of Appeal upheld convictions of all three on robbery and escape charges because these were part of their prior agreement or mandate but held that killing of the orderly did not form part of this mandate.. It therefore had to determine whether initial mandate had extended to include murder of orderly. Court held that by his conduct and culpability, X3 satisfied requirements for liability on murder charge - for his conduct (killing - orderly) to be imputed to X1 and X2, the Court had to establish that each of them foresaw the killing of the orderly as a possibility arising from conduct of one of their number, and reconciled themselves to that possibility. The Court held that by uttering the word ``shoot'', X1 had proved that he shared a common purpose with X3 in relation to murder of the orderly [par 17]. Court noted that all that X2 had done in the process of overpowering the orderly was to grab hold of his legs. In Molimi 2006. Supreme Court of Appeal held that conduct by a member of a group of persons which differs from conduct envisaged in their initial mandate (common purpose) may not be imputed to the other members, unless each knew (dolus directus) that such conduct would be committed, or foresaw the possibility that it might be committed and reconciled themselves to that possibility (dolus eventualis). Facts: X1,X2, and Z co –conspirators – planned to rob a store – store manager told X2 what time security co truck would come to get money. X1 told X2 to get 4 armed men to tackle security guard and get the money. Z and four men fled after getting money and gunfire was exchanged. An armed bystander exchanged gunfire with Z who had run into another store for refuge – one employee of that store was shot and wounded the other employee whom Z had held hostage was shot and killed. X1, X2 and Z were all convicted in the High Court on 7 counts. These were: robbery; the murder of the security guard of the store in which the robbery took place (Clicks); the murder of the security guard in the other store; the murder of the hostage held by Z in the other store; the attempted murder of the employee who was wounded in the other store and two counts of the unlawful possession of firearms. X1 and X2 appealed to the Supreme Court of Appeal against their convictions. They conceded the existence and proof of a common purpose (between X1, X2 Z) to rob store, but argued the actions of bystander which resulted in kidnapping and death of hostage and injury to an employee in other store were not foreseeable by them (X1 & X2) as part of the execution of common purpose. The court held that the attempted murder of the employee in the other store was foreseeable, for once all the participants in a common purpose foresaw the possibility that anybody in the immediate vicinity of the crossfire could be killed regardless of who actually shot the fatal bullet then dolus eventualis was present. However- kidnapping of hostage by Z and hostage's eventual murder were acts which were so unusual and so far removed from what was foreseeable in the execution of the common purpose that these acts could not be imputed to X1 and X2. They were acquitted on these charges. 22.214.171.124 Dissociation from the common purpose In certain circumstances dissociation from the common purpose can lead to negative liability. Courts have not developed specific rules relating where withdrawal will effectively terminate X's liability. But we have guidelines (defenses): (1) X must have a clear and unambiguous intention to withdraw from such purpose. If X flees, withdraws coz he is afraid of being arrested, injured, or aims to make good his escape, then withdrawal was not motivated by a clear intention to withdraw from a common purpose which he was a part of Lungile 1999 (2) X must perform some positive act of withdrawal. Mere passivity on his part cannot be equated with a withdrawal, because by his previous association with the common purpose he linked his fate and guilt with that of his companions. (3) The type of act required for an effective withdrawal depends upon a number of circumstances. In Musingadi 2005 , court listed factors: ``manner and degree of accused's participation; how far commission of crime has proceeded; manner and timing of disengagement and what steps accused took/could have taken to prevent commission/completion of the crime.'' Court added that list was not exhaustive, but laid down this principle: ``The greater accused's participation, and the further the commission of the crime has progressed, then much more will be required of an accused to constitute an effective disassociation. He may be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and just value judgment''.. (4) A withdrawal will be effective if it takes place before the course of events have reached the ``commencement of the execution''. It is ``a matter of degree and ... calls for a sensible and just value judgment'' (Musingadi supra). (5) The withdrawal must be voluntary. 1.3.5 Joining in ( Criminal Law 272; Case Book 206±211) The ````joiner--in''''.. X1, who together with X2 and X3 had already inflicted a lethal wound upon Y, runs away from the scene of the crime. While Y is still alive, Z, who has not previously agreed with X and his two associates to kill Y, appears on the scene. Because he himself harbors a grudge against Y, he inflicts a wound on Y with a club. This wound does not, however, hasten Y's death. Y dies shortly thereafter. May Z also be convicted of having murdered Y? Person in Z's position is a ``joiner-in'', because he associated himself with others' common purpose at a stage when Y's lethal wound had already been inflicted, although Y was then (ie when Z joined the assault) still alive. . if the injuries inflicted by Z in fact hastened Y's death, there is a causal connection between Z's acts and Y's death Z is therefore guilty of murder. ( Z is not a joiner-in.) .If Z's assault on Y takes place after Y has already died from injuries inflicted by X or his associates Z cannot be convicted of murder since the crime cannot be committed in respect of a corpse. (Z is a joiner-in.) . If the evidence reveals a previous conspiracy between X (or X and his associates) and Z to kill Y, Z is guilty of murder by virtue of the doctrine of common purpose, since X's act in fatally wounding Y is then imputed to Z. (Z is not a joiner-in.) The ``joining-in'' situation presupposes the absence of a common purpose between X and Z. Thus to summarise: The ``joiner-in'' is a person . whose attack on Y did not hasten Y's death . whose blow was administered at a time when Y was still alive . who did not act with a common purpose together with the other persons who also inflicted wounds on Y. Nobody denies conduct of ``joiner-in'' is punishable - question is of what crime must he be convicted? Before 1990 there was uncertainty regarding answer to this question. In certain decisions and writers, ``joiner-in'' had to be convicted of murder, and in other decisions and writers he could at most be convicted of attempted murder. In Motaung 1990 Appeal Court considered different views on matter and in a unanimous judgment – ruled that ``joiner-in'' could not be convicted of murder, but only of attempted murder. Judgement in Motaung is now the authoritative judgement on the liability of a ``joiner-in'. One of reasons advanced by court for its ruling, was the Facts: 4 people shot by police – victim among thousands who attended their funeral she was g/f of leo and was suspected of being informant – she was attacked during funeral and attach was caught on camera by TV crew. Video identified 9 as attackers and were convicted of murder – on appeal court found that while appellants actively participated in common purpose to kill deceased, she was already fatally wounded by others. However their appeal failed b/coz the accused shared a common purpose with the crowd to kill and actively associated themselves with that active purpose. following argument: ``To hold an accused liable for murder on basis of an association with crime only after all acts contributing to victim's death have already been committed would involve holding him responsible ex post facto for such acts. The criminal law is firmly opposed to liability based on ex post facto or retrospective responsibility and does not recognise it in any other situation. It would therefore be contrary to accepted principle to recognise it here.'' (ex post facto means ``after the event''.)