Study Unit 7 (CRW2601) - Culpability and Criminal Capacity
Study Unit 7 (CRW2601) - Culpability and criminal capacity
Key:
Text book
Case law
Learning outcomes:
- Concept of culpability
- Principle of contemporaneity by:
- Applying the principle to a set of facts
- Applying the relevant case to law to a set of facts
- Distinguish criminal capacity from intention
- Opinion on whether an accused can successfully rely on the defence of non-pathological criminal incapacity, with regards to:
- 2 psychological tests
- Causes of the criminal incapacity
- Onus of proof
- Role of expert evidence
- Courts’ practice of treating this defence with great caution
7.2 The requirement of culpability in general
Criminal Law 145-155
7.2.1 Introduction
Committing an act that complies with the definitional elements and is unlawful does not sufficiently make someone criminally liable.
X’s conduct must be accompanied by culpability.
In the eyes of the law there must be a reason he can be blamed for his conduct.
This is the case if he commits the act in blameworthy state of mind.
7.2.2 Culpability and unlawfulness
Culpability need only be asked afterunlawfulness has been established.
Unlawfulness is determined by objective criteria, and it doesn’t matter who you are (old, poor etc.)
In culpability the focus shifts to the individual.
Can the accused, considering his characteristics and knowledge, be blamed for commission of the unlawful act?
Culpability can only be excluded because X lacked criminal capacity.
Grounds of justification refer only to unlawfulness NOT culpability!
7.2.3 Terminology
“Mens Rea” – is used to denote culpability. You can also use “fault”.
7.2.4 Criminal capacity and forms of culpability
Before someone can be said to have acted with culpability it must be clear that they are endowed with criminal capacity.
Criminal capacity refers to mental ability.
Criminal Capacity does is NOT sufficient to infer that X acted with culpability.
X must also have acted intentionally or negligently.
Intention and negligence are the 2 forms of culpability.
Culpability = criminal capacity + intention or negligence
7.2.5 The Principle of contemporaneity
Criminal law 148-149; case book 131-134
This means that at the time of the exact moment of the act there must have been culpability on the part of X.
If culpability exited prior to, or after the act, there is no culpability for the act.
If X is on his way to shoot and kill Y, but runs him over by accident, X is not culpable as there was no intention.
Masilela 1968 (2) SA 558 (A)
X assaulted and strangled Y, intending to kill him. Thinking he was dead he set fire to the house. Y was actually still alive, and died in the fire.
The court convicted X of murder. It did not accept the argument that these were two separate acts (and therefore no intention).
7.2.6 Classifications in the discussion of culpability
- Non-pathological
- Mental incapacity
- Youth
- Intention
- Negligence
- Intoxication
- Provocation
- Instances where culpability is disregarded
7.3 Criminal Capacity
A person is endowed with criminal capacity if he has the mental ability to:
- Appreciate the wrongfulness of his act or omission and
- Act in accordance with such an appreciation of the wrongfulness of his act or omission
7.3.2 Criminal capacity distinguished from intention
Criminal capacity is the foundation of culpability.
The question of intention or negligence is only asked aftercriminal capacity has been established.
Intention or negligence is concerned with the X’s attitude or state of mind.
7.3.3 2 Psychological legs of the test
1st leg deals with the cognitiveability to differentiate between right and wrong.
2ndleg deals with the conative ability to conduct himself in accordance with this insight into wrong and right (the ability to control your behaviour – self-control).
7.3.4 Defences excluding criminal capacity
Mentalillness and youth are “particular defences”. They depend on particular mental characteristics.
These defences are subject to rules.
General defence of criminal incapacity is known as non-pathological criminal incapacity.
This is NOT dependant on specific rules.
Eadie 2022 (1) SACR 663 (SCA) raises doubts about whether non-pathological incapacity defence still exists.
7.4 The defence of non-pathological criminal incapacity (NPCI)
Criminal Law 158-164
7.4.1 General
All defences that don’t fall under mental illness or youth fall into this category.
NPCI first described in Laubscher 1988 (1) SA 163 (A).
NP criminal incapacity does not rely on the need to prove he suffered from mental illness at the time.
X only has to prove that he suffered momentary criminal incapacity at the time, and that it was not a manifestation of a mental illness. An example would be an emotional collapse.
Until 19 February 2022 here was no doubt about NPCI. Then Eadie happened.
7.4.2 The law before 2022 (Eadie)
Facts: X consumed a lot of alcohol at a function. Y overtook X and then drove very slowly so that X could not overtake. Eventually X succeeded in overtaking Y. Y then drove at high speed behind X with bright lights on. The two cars then stopped. X assaulted Y, and Y died of his injuries. This is a case of “road rage”. Charged with murder X relied on the defence on NPCI. The court rejected his defence and he was convicted of murder.
The court held that there was no distinction between NPCI owing to emotional stress and provocation, on the one hand, and the defence of sane automatism, on the other.
If, as a result of provocation, an accused person relies on this defence, it should be treated as one of sane automatism.
Read in the case book: Eadie 2022 (1) SACR 663 (SCA)
7.4.4 The present law
Unlikely that defence of NPCI would be successful. X would have to give evidence that that cast reasonable doubt the voluntariness of X’s actions.
Summary
(1) “Culpability”, as an element of criminal liability, means that there are groundsupon which, in the eyes of the law, the perpetrator (X) can be reproached orblamed for his conduct.
(2) Culpability consists of criminal capacity plus either intention or negligence.
(3) The culpability and the unlawful act must be contemporaneous.
(4) See the above definition of the concept of criminal capacity.
(5) Criminal capacity is based upon two psychological components, or legs, namelythe cognitive and the conative legs.
(6) The cognitive component deals with a person’s insight and understanding,and is present if X has the ability to appreciate the wrongfulness of his act oromission.
(7) The conative element deals with X’s self-control and is present if X has the abilityto conduct himself in accordance with his appreciation of the wrongfulnessof his act or omission.
(8) Before 2002, it was generally accepted that there is a general defence ofcriminal incapacity apart from the defence of mental illness set out in section78(1) of the Criminal Procedure Act and the defence of youth.
(9) The general defence of criminal incapacity referred to above in the previousstatement was known as “non-pathological criminal incapacity”. In this defence,X’s mental inability is the result of factors such as emotional stress resultingfrom provocation, intoxication, shock, anger or fear.
(10) In 2002, the Supreme Court of Appeal, in the case of Eadie,held that thereis no difference between the defence of non-pathological criminal incapacityresulting from provocation or emotional stress, on the one hand, and thedefence of sane automatism, on the other.
(11) It is submitted that until such time as there is more clarity in our case law onthe question whether the defence of non-pathological criminal incapacity stillexists, the judgment in Eadie should be limited to cases in which X alleges thathis incapacity was caused by provocation or emotional stress. If he alleges thathe momentarily lacked capacity owing to other factors, such as intoxication,the defence of non-pathological criminal incapacity still exists.
(12) It is submitted that if, as in the Eadie case, X alleges that he lacked capacityas a result of provocation or emotional stress, he can escape liability only ifhe successfully raises the defence of sane automatism.