Fault (mens rea) (2)

Introduction

Intent

Ignorance and mistake: influence on fault (intention and negligence)

Defenses excluding intent

What is ignorance / mistake?

Statutory crimes require either intent or negligence

Dolus indirectus

  • S v Joshua
  • S v Naidoo
  • S v De Blom
  • S v Goliath
  • S v Goosen
  • S v Chretien
  • S v De Oliveira
  • S v Mokonto

Negligence (culpa)

Definition and introduction

  • Is a form of fault that applies to:
    => Common law crimes such as culpable homicide (man slaughter), newspaper editor
    => Statutory crimes parliament can decide - often when common welfare at risk - such as negligent driving
  • Form of fault
  • Accused's conduct does not conform to the standard of the reasonable in the same circumstances i.e. a reasonable person in same circumstances would have acted differently, and therefore accused's conduct is blameworthy
  • Reasonable person?
    => Personification of objective standard
    => Refers to average, normal person
    => Does not take personal, subjective characteristics

No liability without fault: novus actus non facit reum, nisi mens sit rea (the act is not wrongful unless the mind is guilty)

All common law crimes require intention (except culpable homicide and contempt of court committed by an editor of a newspaper)

Implies blameworthiness because an accused initiated / planned a prohibited consequence

Fault = intent or negligence

Raio:

  1. Accused must be of a blameworthy state of mind - not just morally, but also legally.
  2. Links with theories of punishment, specifically:
    => Retribution: Just desert to get punished - exact revenge for conduct (deserves punishment if had fault)
    => Deterrence: rational actor - autonomous decision - law rightfully blames because people have free will / freedom of choice - only liable for acts that they are responsible for, conduct planned or consequences (should have been) anticipated.

A crime is not only unlawful human conduct with criminal capacity, fault must also be present

Fault investigation:

  • Looks at subjective state of mind when determining intent
  • Determines blameworthiness
  • If blameworthiness is present, determines degree of blameworthiness (intent or negligence)

Dolus eventualis

Dolus Directus

Dolus determinatus and dolus indeterminatus

Definition and introduction

Intent and motive

Cases

  • S v Hartmann
  • R v Peverett
  • S v Nkwanyana
  • R v Jolly

Dolus eventualis requirements

Ignorance / mistake of fact

Link between ignorance / mistake and intent

  • Accused must have intent
    => Intent requirements (subjective test):
  1. Direction of will towards -
  2. Knowledge of existence of all elements of the crime (circumstance / consequences mentioned in definition of proscription), including:
    Unlawfulness of conduct (knowledge / awareness of unlawful / consciousness of wrongfulness)
    E.g.
  3. Theft? Taken somebody else's wallet thinking it is yours - didn't know = no intent = defense
  4. Goosen case - mistake with regards to chain of causation
  5. Knowledge of unlawfulness defence - putative ground of justification (genuinely believe lawful / justified) e.g. thought had consent, private defence
  6. Knowledge of unlawfulness defence - ignorance of the law
  • Therefore, lack of knowledge (due to ignorance / mistake) should be relevant when establishing fault (intent)

Ignorance / mistake of law

Test for negligence

  1. Would the reasonable person in the circumstances of the accused have foreseen the possibility that the unlawful
    a. Consequence would occur, or
    b. Circumstance would exist?
  2. Would the reasonable person have taken steps to guard against that possibility?
  3. Did the accused's conduct differ from that expected of a reasonable person (i.e. did he / she fail to take reasonable steps ,etc.)
  • Reasonable foreseeability
    => Possibility, not probability of consequence must be foreseeable
    => Test is not abstract - must always determine negligence relating to the accused's actual circumstances
    => Culpable homicide: death, not merely injury must be reasonably foreseeable
  • Taking steps
    => Is possibly not necessary to take steps in following situations, as the reasonable person would not have:
    a. If possibility of risk materialising is extremely slight
    b. If it is very impractical, costly, difficult or inconvenient to take steps
    c. If activity is socially useful / is urgent or laudable, e.g. ambulance driving through a red light
  • Comparison: reasonable person and accused (failure to foresee / take reasonable steps?
    => No degrees of negligence
    a. Even a slight deviation from the standard of the reasonable person is enough to mean liability for negligence
    => But degree may play a role when punishment is imposed

Cases:

  • S v Ngubane
  • R v Mbombela
  • S v Van As
  • S v Goosen
  • S v Van der Mescht
  • S v Ngema

Test for negligence: partially subjective?

  • Courts use qualified objective test:
    => Take accused's external circumstances into account
    a. E.g. driving at night vs driving during the day
    => But are subjective knowledge / characteristics of accused even taken into account?
    => Imperitia culpae adnumeratur
    a. Lack of skill amounts to negligence
    => Expert is tested against standard of reasonable expert
    => If person has more knowledge / experience than reasonable person, this is taken into account
    => Objective test is relaxed upwards, not lowered
    a. Exception? Children
  • Discussion - lowering of reasonable person standard
    => Why maybe necessary?
    a. Other instances apart from stupidity
    => R v Mbombela
    => If (partially) subjective: what factors may be taken into account
    a. beliefs / values
    b. intelligence; level of education
    c. background; culture
    d. age (taken into account to certain extent - children)
    e. superstition
    f. other individual peculiarities?
    => S v Ngema
  • Burchell's solution: subjective v objective
    => Is not necessary / more desirable to approach negligence more subjectively
    => Subjective test for criminal capacity
    => Potentially unlimited list of factors that may lead to criminal incapacity
    a. Including above mentioned facts
    => But what about judgement in Eadie case?
    a. Not in favor of broad application
    => However if courts prepared to extend its application, can be a solution
  • Snyman's solution: subjective v objective
    => Heterogenous / diverse society makes objective test alone problematic
    => Cannot always blame accused for not complying with standard of reasonable person
    => Possible solution - divide test in two
  • Conclusion
    => Test applied by courts is definitely more objective than subjective
    => But there needs to be scope for (normative) values judgement in determining criminal liability
    => Is important for considerations of fairness to (sometimes) individualise the standard of the reasonable person - is not as relevant whether this occurs as the criminal capacity stage or when negligence is determined

Subjective enquiry of mens rea in the form of intention

Where prohibited act / consequence is the accused's main aim and object

Foresee act / consequence as virtually certain or substantially certain

Foresees possibility that another / secondary prohibited event / consequence may also ensue

Dolus determinatus - specific intent

  • Accused's will / aim and object is directed towards a specific event or consequence
  • Specific intention may go together with dolus directus, indirectus or eventualis
  • E.g.
    => A shoots B with the intention of assassinating him

Whether a person has an evil or praiseworthy motive does not influence criminal liability BUT may influence sentencing

Introduction

  • Define - the accused foresees the possibility that an unlawful consequence / event might occur, in substantially the same manner as that in which it did actually occur, or the prohibited circumstances might exist but he accepts this possibility into the bargain, i.e. he recklessly decides to carry on anyways
  • Requirements: foresight, possibility, correlation between foreseen and actual manner of consequences occurring and recklessness
  • May apply to both consequence crimes (accused foresees consequence) and circumstance crimes (accused aware of / has knowledge of specific circumstances)
  • E.g.
    => Keeping a package for someone when you foresee it might be full of drugs

Dolus eventualis and Luxuria (conscious negligence)

Dolus eventualis = accused foresees unlawful consequence and recklessly reconciles himself with it

2 elements required, both must be present for fault - mens rea - to exist:

  1. Knowledge / foresight of existence of ALL definitional elements of crime (including knowledge of unlawfulness / consciousness of wrongfulness):
    => Be aware that he / she has done something wrong which is prohibited as a crime:
    => E.g. hunting, intend to kill bok, kill person - no fault. Cannot foresee that they were going to kill a person
    => Includes conduct and causation and unlawfulness (consciousness of wrongfulness)
  2. Direction of will towards a prohibited act or result / consequence
    => Dolus = intent

Accused is at fault where he directs his/her will towards committing unlawful conduct knowing / foreseeing it to be unlawful

Forms of intention:

  • Why differentiate?
  • Grade of intention are relevant for appropriate punishments for common-law or statutory offences

Accused directs will towards performing a prohibited act / causing a prohibited consequence (aim and object was to do unlawful act / cause consequence)

Actual intent = deliberate, actual malicious

E.g.

  • A breaks into lecturers office to steal question papers
  • X's main aim was to kill Y

E.g.

  • Break into office and break door down - main aim not to cause malicious damage to door - main aim to steal papers
  • X did not intend to kill Y but beat him up badly

Unlawful act / consequence not accused's main aim and object, but accused realises that if he / she wants to achieve their main goal, prohibited act / consequence will of necessity be committed / result from the act.

BUT is not deterred and proceeds with original plan - "takes a chance" - is reckless

Accused subjectively foresees the possibility that, in achieving his main aim, the prohibited event / consequence may ensue and reconciles himself to this possibility

Irrelevant whether or not accused wished the result to follow (desire)

"Lawyer's intent"

Confined to foresight of real (i.e. substantial or reasonable) possibility of a prohibited consequence resulting or unlawful circumstance existing

Main aim an object is something else

E.g.

  • Man shooting ducks on a lake - might shoot a person who is sitting opposite him

Dolus indeterminatus - General intent

  • Accused does not direct will towards a specific event / consequence
  • No particular intention directed towards a specific victim - act may impact on anyone and identity of the victim is irrelevant / unimportant
  • General intention may go together with dolus directus, indirectus or eventualis
  • E.g.
    => A throws a bomb into a crowd or derails a train - no particular intention to kill an individual in the crowd.

Problem: motive is complex and subjective and therefore an unreliable basis for determining criminal liability:

  • Exception = negotorium gestio (acting in the interest of another) motive is relevant

Motive behind an act is irrelevant in determining whether accused acted intentionally

Moral guilt is not necessarily legal guilt

Motive = reason for conduct is separate from / independent to intent

Eg.

  • R v Peverett 1940
    => Lovers agreed to a suicide pact - idea was initiated by the woman but the man was hesitant - carbon monoxide poison coming through a pipe while sitting in a car - neither of them died though, only hospitalized,
    => Peverett was charged with attempted murder because he set everything up - reluctant - not a defence though - lack of motive / desire does not equal a lack of intent
    => Fined 30 pounds
  • S v Hartmann 1975
    => Euthenasia
    => The son entertained the intention - punished lightly
  • S v Nkwanyana 2003
    => Woman not terminally sick but suffered from depression, anorexia - tried to commit suicide several times - asked N to help her kill herself - he refused but then agreed when she said she would ask someone else
    => Point of departure = irrelevant that she consented; she planned her own killing but N was still guilty - got a suspended sentence

History before 1945

  • Presumption of intent: presumes persons intend the natural and probable consequences of their acts = problematic (what if acted without intent - neglects the accused's actual state of mine. Only concerned with what a reasonable person in position of accused would have done. Therefore, people without fault suffered punishment
  • Therefore, presumption replaced with dolus eventualis
    => Also concerns the consequences of an act - but rather requires that person should have realised that the consequences would have occurred rather than the intention of those consequences
    => Common law: dolus eventualis suffices for guilt, actual intent need not be proven
    => Some statutory crimes may expressly require actual intent

Relevant cases:

  • S v Sigwahla
  • S v Ngubane
  • S v Masilela
  • S v Goosen

Requirements::

  1. Foresight
  • Foresight of possibility of consequences or circumstances
    => Also requires correlation between foreseen and actual manner of consequence occurring
  • Accused does not necessarily desire / plan consequences; but human experience indicates that the consequence will come about / is expected
  • Subjective test (prior to 1950 was objective)
    => Accused's subjective state of mind is important
    => Only state of mind of accused - himself / herself foresaw consequences of his / her act
    => Not whether the accused ought to have foreseen
  • But foresight often determined by inferential reasoning (courts must mentally protect themselves into the position of the accused at the time)
    => Ought to have foreseen
    => Must have foreseen
    => Therefore "did in fact" foresee
  • Problem: is this not then an objective test? (i.e. conduct measured against the fictional reasonable person", not a subjective one?
  1. Possibility
  • Reconciliation / acceptance that result may occur (being reckless as regards this possibility)
  • What is the degree of possibility that consequence will occur? What is the test?
    => Certain? Probable? Possible?
    => Debate solved:
    => R v Horn 1958
    => Foresee possibility of consequence is sufficient for criminal intent
  • Foresight of real (as opposed to remote or faint) possibility?
    => Courts use various approaches
    => Synman: must be an essential and reasonable possibility - is distinction between real and remote relevant here.
    => Burchell = real possibility
    => But SA Appeal court prefers to consider the relevance of the distinction where recklessness is being ascertained (not in foresight inquiry)
  1. Correlation between manner foreseen and actual manner of consequence occurring
  • Concerns causal chain of events; what specifically does the accused have to foresee?
  • Rule only applicable to consequence crimes
  • Snyman and De Wet:
    => Accused does not have to foresee the precise or even general manner in which death occurred - accused must have just foreseen the real possibility of the consequence in general
    => Mistake as regards causal sequence is a question of causation, not intent
  • Appellate Division differs to this opinion:
    => The intention element (in consequence crimes) is not satisfied if the consequence occurs in a way that differs markedly from the way in which the accused foresaw the causal consequence
    => Must have a substantial correlation between foreseen way in which consequence might have occurred and the way that is actually occurred.
    => But where main aim and object (dolus directus) was to bring about death, in general, the way in which death occurred would be irrelevant
    => S v Goosen 1989
    => Intent element is not satisfied if foreseen consequence occurs in a way which differs markedly from the way in which the accused foresaw the causal sequence
  • Important limitations to Goosen rule
    => Relevant mistake with regards to the causal sequence context of dolus eventualis only and not dolus directus
    => Precise way in which consequences occurred does not need to be foreseen - only general way
  1. Recklessness (reconcile themselves / accepting into the bargain)
  • For the accused's state of mind with regard to acceptance of possibility of consequences
  • Recklessness = accused consciously accepts a risk
  • I.e. reconciling oneself to ensuing result / accepting foreseen possibility into the bargain / accused not deterred by prospect.
  • Also called volitional element of dolus eventualis test
    => Burchell argues that this component is unnecessary: sufficient to prove that real (as opposed to faint) possibility of consequence was foreseen
    => But case law differs from the view of dolus eventualis
    => S v Ngubane
  • SA courts accept volition especially for conscious negligence
  • Real and remote possibility?

S v Martitz 1996

Luxuria = accused foresees unlawful consequence but (negligently) does not reconcile himself / herself with it

  • Shows why important to have conscious volition

Ignorance = total want of knowledge

Mistake = there is knowledge, but wrong conclusion is implied (species of ignorance)

Must be bona fide (subjective test)

Ignorance / mistake nee not be reasonable:

  • A subjective question of fact to determine whether there genuinely was a mistake / ignorance
  • E.g. taking somebody else's wallet, Tokoloshe-case - reasonable person be more careful? Stupid mistake? Why courts allow unreasonable mistake? = it is a subjective test - cannot include objective elements - but must be genuine

Ignorance and mistake are interchangeable words in law

Mistake relating to chain of causation

  • See S v Goosen

Aberratio ictus

  • Going astray of the blow
  • E.g. A intends to kill B, shoots at him but the bullet misses and hits C, but due to A's intention to kill, A is guilty of murder of C without the prosecution having to establish an intention to kill C specifically
  • A must have foreseen C's death as a real possibility (legal intention - dolus eventualis) and accepted this risk into the bargain
  • But if did not foreseen possibility, but a reasonable person would have, A would be guilty of culpable homicide
  • Sole question - whether the accused had actual intention or dolus eventualis?

Material / essential mistake

  • must be a mistake regarding an essential fact
  • How determine if essential or not?
    => Mistake about the elements contained in the definition of proscription of crime (including unlawfulness)
  • E.g. what might be essential? Depends on crime (look at the definition of the crime)
    => Rape - non-consent sexual penetration = defence: "I did not know there was no consent"
    => Incest - sexual penetration between close family relative = defence - cannot argue no consent as not part of the definition of the crime, but could argue did not know that they were family
    => Murder - shooting what you think is an animal and then it turns out to be a human being = defence - genuine mistake regarding the punishable conduct (not a crime to kill an animal, therefore a genuine mistake)
    => Theft - taking somebody else's possession without knowledge or consent = defence - mistakenly taking a computer you thought you had been given permission to have
  • Does not include mistake as to motive, e.g. killed a man you thought was having an affair with you wife, killed the wrong twin thinking it was the other = no defence

Error in objecto

  • A mistakenly kills C thinking that C is in fact B

Critical evaluation of De Blom and Present position

  • Current position is that of De Blom
  • Support (Burchell):
    => Only fair if somebody truly was ignorant and cannot blame and say deserving of punishment (avoids injustices)
    => If not aware crime = no consciousness of wrongfulness = no intention
    => Judgement is in lone with legal theory and principle (test for intent is subjective, not objective)
  • Floodgates argument?
    => Seems to work well in practice (is not abused) and decision followed by courts
    => Defence is seldom use: usually dealing with regulatory offences (not established, well-known crimes) in the context of a work or professional environment
    => Is not more difficult to assess genuineness of mistake of law than mistake of fact - must look at circumstances of case - inferences
  • Does ignorance of the law apply for negligence?
    => Rumpf addressed in case: if work in certain sphere of activity, you must know how to act in that sphere
    => Even if the reasonable person did not know about regulation, you are specialised in the field - more knowledge, expected to know more and regulations - can be liable
    => Test for negligence is reasonable person (where as intention is subjective)
  • Criticism (Snyman)
    => Goes too far to have subjective test - unduly favors wrongdoer
    => Is too subjective - avoidable ignorance should not be a defence
    => Should be objectively reasonable

Knowledge

  • Meaning of knowledge?
    => Accused doesn't have to know that legal rule exists e.g. exact law or Act actual knowledge of the crime
    => Is sufficient if he foresees the possibility of unlawfulness (due to existence of the legal rule) and reconciles himself with it (dolus eventualis)

Introduction and history

  • Knowledge of law is required, accused must know that the law prohibits his / her conduct as a crime (unlawful)
  • Position before 1977 (Anglo-American law)
    => Ignorantia iuris neminem excusat "Ignorance (or mistake) of the law is no excuse", "everybody is presumed to know the law"
    => Therefore, ignorance / mistake of law = no defence
    => Why?
  1. Welfare of society and safety of state - cannot be judged against what that subjective person knew to be law, must be a standard set by the state
  2. People will maybe "refrain deliberately from acquiring knowledge of their legal duties
  3. Practical difficulty of disproving such a defence
    => Criticism
  4. Do not have consciousness of wrongfulness
  5. Subject test - could not have known
  6. Difficult to determine if accused bona fide did not know
  7. Many statutory crimes - impossible to know the law
  8. Therefore, fairness and justice require that genuine ignorance / mistake of law should exclude intention
  9. Logic and legal principle
  10. Snyman - impossible for a single person to know - even for a lawyer
  • Knowledge of unlawfulness in SA law
    => S v De Blom 1977
  • Ignorantia iuris (ignorance of the law) rule no longer applies in SA
  • In line with principles and logic - knowledge on the part of the accused of unlawfulness of conduct is required for mens rea in form of intention
    => Exceptions?
  1. Work in particular sphere of activity: you are expected to know the law in your field of expertise / profession - can't use ignorance as an excuse
  2. Where inherent badness / wrongness in crime i.e. murder, rape

Unlawfulness

  • Meaning of unlawfulness
    => Not necessary that accused knows the detailed requirements of the offence charged - must just know (or foresee possibility) that conduct was contrary to law in the broad sense
    => Knowing that conduct is morally wrong?
  • Ignorance and mistake
  • Youthfulness
  • Insanity
  • Intoxication
  • Provocation and emotional stress
  • Putative grounds of justification (form of mistake)

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Unlawfulness

Fault (intent)

No degrees of unlawfulness

Ex post facto objective test: Legal convictions of community (boni mores)

Established before fault

Judgement of ACT

Degrees of intent

Subjective test: blameworthy state of mind

Judgement of ACTOR

Established after unlawfulness

  • Subjectively believes that did not act wrongfully
  • Can blame actor for doing what he has done?
  • What happens if all requirements for successful reliance on a ground of justification are not met?
    => E.g. limits / bounds of defence are exceeded
  • Does accused still have a defence?
    => Can blame for genuinely believing what he did was lawful
    => Accused genuinely but mistakenly (subjectively) believes he complied with the requirements for reliance on the ground of justification - BUT is (objectively) not the case
    => He believe he is justified - intent is missing
  • But what about fault - can accused be blamed for his conduct?
  1. Intent?
    => Determined subjectively - person must have consciousness of wrongfulness
    => E.g. thought somebody had given consent but not sure - have consciousness of wrongfulness because prepared to take chance that had no consent
    => E.g. absolutely thought had consent - no consciousness of wrongfulness
    => Consciousness of wrongfulness is absent where accused bona fide but mistakenly believes he complied with the grounds of justification requirements
    => Due to mistake the accused did not direct his will towards committing a wrongful act, and therefore lacks subjective intent
    => E.g. rape - truly believed partner had given consent. Putative ground for justification?
  2. Negligence?
    => Assuming that there is no consciousness of wrongfulness, is accused necessarily guilty?
    => Must still look at negligence (if applicable)
    => Test: must measure conduct against standard of reasonable person - if accused acted unreasonably, is negligent
    => Test for negligence: Would a reasonable person have foreseen
    => E.g. Killed a man truly believing him to be a robber. Negligent option for that crime? Culpable homicide
    => BUT = exception - only applicable to crimes that allow for negligence (most crimes do not have a negligent element)
  • Application
    => S v De Oliveira
    => S v Joshua
    => S v Naidoo
    => S v Goliath
  • Conclusion
    => If a putative ground of justification is present, the element of fault is missing - therefore no criminal liability - i.e. = complete defence
    => Above principle applies to any ground of justification

Relationship between intent and negligence

Intent

Negligence

Accused knows / foresees that conduct was prohibited and unlawful

Test = subjective

Form of fault assessing blameworthiness

Degrees of intent

Accused should have known that conduct was prohibited and unlawful, but didnt

Test = mostly objective

Form of fault assessing blameworthiness

No degrees of negligence