CRW1501 EXAM PREPARATION.

CRW1501 EXAM PREPARATION. Introduction To The General Principles Of Criminal Law. LEGALITY (continued) • A court can only convict and punish an accused for a crime if the conduct is recognised by the law (statutory or common law) as a crime. Courts, in other words, can not create new crimes. The conduct must also have some penalty attached to its commission. • The conduct of the accused person must have been recognised as a crime at the time of its commission. This rule is referred to as the ‘prohibition on retrospectivity’ and is confirmed as part of South African law by virtue of its inclusion in the South African Constitution. LEGALITY (continued) • Crimes have to be defined in clear and precise language. In other words crimes can not be defined vaguely. •A court of law must interpret the wording in the definition of a crime strictly or narrowly. This rule applies to both common law and statutory crimes. •Once an accused person has been found guilty, the above four rules also have to apply to sentencing. LEGALITY (continued) •Q: DOES THE FOLLOWING CHARGE MEET THE REQUIREMENTS OF THE PRINCIPLE OF LEGALITY? EXPLAIN. “PARLIAMENT ENACTS NEW LEGISLATION PROVIDING THAT IT IS A CRIME IF A PERSON DOES NOT DRESS PROPERLY IN PUBLIC.” [2] LEGALITY (continued) •No, this charge does not meet the requirements of the principle of legality. Not dressing properly in public is a vague, uncertain charge. There is also no penalty attached to this charge. THE FOUR ELEMENTS OF A CRIME • ACT/CONDUCT • COMPLIANCE WITH DEFINITIONAL ELEMENTS • UNLAWFULNESS • CULPABILITY ACT/CONDUCT • Voluntary, human act or omission to act • Omission more the exception: not acting in situations where a legal duty to act existed • An act is voluntary if X can subject his bodily movements to his will or intellect • Cannot be the act/conduct of an animal • Factors which exclude voluntary nature of act: absolute force; natural force; automatism (blackout, sleepwalking, dreaming). COMPLIANCE WITH DEFINITIONAL ELEMENTS •Definitional elements of a crime: the concise definition of the conduct required for a crime and the circumstances in which it took place • Murder is the unlawful and intentional causing of death of another human being • Robbery requires the violent taking of movable corporeal property belonging to another person CAUSATION •Factual causation (condition sine qua non or “but for” causation). •In other words, without X’s conduct, the prohibited result would not have occurred. •Or “but for” X’s conduct the prohibited result would not have occurred CAUSATION (continued) • Q: X shoots Y and Y dies. Is X the factual cause of Y’s death? •IN ORDER TO BE THE FACTUAL CAUSE OF Y’S DEATH, X’S CONDUCT MUST BE A CONDITIO SINE QUA NON OF Y’S DEATH. IN OTHER WORDS, BUT FOR X’S CONDUCT, Y WOULD NOT HAVE DIED. IN THIS EXAMPLE, IF IT WERE NOT FOR X SHOOTING Y, Y WOULD NOT HAVE DIED. X IS THEREFORE THE FACTUAL CAUSE OF Y’S DEATH. CAUSATION (continued) • Legal causation • Different theories used to prove legal causation • Individualisation Theory: look for the most operative factual cause of Y’s death and single out this cause. • Adequate Causation Theory: look at the cause which according to normal, human experience has a tendency to bring about a certain result. • Novus Actus Interveniens Theory: means a “new intervening event” which breaks the chain of causation (between “x’s act and the eventual result- new intervening cause of death). CAUSATION (continued) Q: X wants to kill Y. X pulls out a gun and shoots Y. However, the bullet misses Y. Y flees into the street. A passing car, driven by Z, runs Y over and Y is killed. Is X the legal cause of Y’s death? CAUSATION (continued) • IN ORDER TO PROVE LEGAL CAUSATION WE USE DIFFERENT THEORIES AND POLICY CONSIDERATIONS. • IN TERMS OF THE INDIVIDUALISATION THEORY, WE SINGLE OUT THE MOST OPERATIVE FACTUAL CAUSE OF Y’S DEATH. IN THIS EXAMPLE, THE MOST OPERATIVE FACTUAL CAUSE WOULD BE THE CAR DRIVEN BY Z WHICH RAN OVER Y. • IN TERMS OF THE ADEQUATE CAUSE THEORY, WE LOOK AT THE CAUSE, WHICH ACCORDING TO NORMAL HUMAN EXPERIENCE WOULD BRING ABOUT THE DEATH. SINCE X SHOT Y WITH A GUN, AN ORDINARY HUMAN WOULD EXPECT Y TO HAVE BEEN KILLED. THEREFORE THE SHOOTING BY X WOULD BE THE ADEQUATE CAUSE OF Y’S DEATH. CAUSATION (continued) • IN TERMS OF THE THEORY OF “NOVUS ACTUS INTERVENIENS”, WHICH MEANS “ A NEW INTERVENING EVENT/ OR CAUSE” BETWEEN X’S INITIAL ACT AND THE EVENTUAL RESULT (THE DEATH OF Y) BREAKS THE CHAIN OF CAUSATION AND CAUSES THE DEATH. IN THIS EXAMPLE, THE INITIAL EVENT WAS THE SHOOTING BY X. THE NEW INTERVENING EVENT WAS THE CAR DRIVEN BY Z WHICH RAN OVER AND KILLED Y. THEREFORE IT CAN BE SAID THAT THIS NOVUS ACTUS INTERVENIENS (THE CAR DRIVEN BY Z) WAS THE LEGAL CAUSE OF Y’S DEATH. • IN PRACTICE, THE THEORY WHICH IS MOST REASONABLE/FAIR APPLIED BY THE COURTS. NO THEORY FAVOURED OVER THE OTHER. UNLAWFULNESS • COMPLIANCE WITH DEFINITIONAL ELEMENTS NOT SUFFICIENT TO RENDER X’S ACT UNLAWFUL •IT MUST BE UNLAWFUL IN THE LEGAL SENSE • MUST BE NO GROUND OF JUSTIFICATION E.G. PRIVATE DEFENCE, NECESSITY, OFFICIAL CAPACITY ETC. WHICH X CAN RELY ON (REVISIT GROUNDS OF JUSTIFICATION) CULPABILITY • HERE WE LOOK AT X PERSONALLY/ AT HIS MIND • CULPABILITY IS MADE UP OF TWO SUB-REQUIREMENTS: • CRIMINAL CAPACITY (X’S MENTAL ABILITIES – ABILITY TO APPRECIATE THE WRONGFULNESS OF HIS ACT & ACT ACCORDING TO THIS APPRECIATION • INTENTION OR • NEGLIGENCE (REVISIT FORMS OF CULPABILITY) Grounds of Justification (Unlawfulness) • Private defence • Necessity • Consent • Official capacity • Obedience to orders