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Fault (mens rea) (2) - Coggle Diagram
Fault (mens rea) (2)
Intent
Dolus indirectus
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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.
Dolus eventualis
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Accused subjectively foresees the possibility that, in achieving his main aim, the prohibited event / consequence may ensue and reconciles himself to this possibility
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Confined to foresight of real (i.e. substantial or reasonable) possibility of a prohibited consequence resulting or unlawful circumstance existing
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E.g.
- Man shooting ducks on a lake - might shoot a person who is sitting opposite him
Dolus Directus
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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
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Intent and motive
Whether a person has an evil or praiseworthy motive does not influence criminal liability BUT may influence sentencing
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
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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
Cases
- S v Hartmann
- R v Peverett
- S v Nkwanyana
- R v Jolly
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Introduction
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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)
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Raio:
- Accused must be of a blameworthy state of mind - not just morally, but also legally.
- 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)
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
Test for negligence
- 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?
- Would the reasonable person have taken steps to guard against that possibility?
- 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
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