Criminal Capacity (1) - Coggle Diagram
Criminal Capacity (1)
S 78 (1) of the Criminal Procedure Act says:
"A person who commits an act.... or mental defect which makes him incapable
- (a) of appreciating wrongfulness of his/her act/omission; or
- (b) of acting in accordance with appreciation of wrongfulness
shall not be criminally responsible for such an act / omission"
Difference between a mental illness and mental defect
- Mental illness
=> Disease of the mind
=> Usually episodic or intermittent
- Mental defect
=> Intellect so abnormally low that deprives an individual of normal cognitive or conative functions.
=> Usually evident in early age and usually permanent
The difference between the onus of proof between pathological and non-pathological criminal incapacity:
- Pathological criminal incapacity - Insanity / mental illness
=> Accused must prove criminal incapacity on a balance of probabilities.
- Non-pathological criminal incapacity
=> State must prove criminal capacity beyond reasonable doubt
The three mental capacities investigated are:
- Cognitive capacity
=> A person's cognitive function in terms of thinking, reasoning and perceiving.
=> It questions whether the accused can differentiate between right and wrong
=> The test determines whether the accused is capable of appreciating the distinction between right and wrong and the wrongfulness of the conduct (state must prove, beyond reasonable doubt that the accused is capable of distinguishing between right and wrong.
- Conative capacity
=> The self-control the accused had
=> The capability of the accused to act in accordance with their distinction between right and wrong
=> Able to exercise free will, act voluntary
=> Burchell believes this is a precondition
- Affective capacity
=> The capacity relating to emotions
=> It is only applicable when relating to the previous two capacities
Criminal capacity is a subjective enquiry into the mental state of the accused at the time that the crime is committed - it is an assessment of blameworthiness.
Factors that exclude criminal capacity include:
- Pathological (mental illness)