A - GENERAL PRINCIPLES OF CRIMINAL LAW

A - GENERAL PRINCIPLES OF CRIMINAL LAW 2019 Certificate in Forensic Investigation Techniques, Wednesday 28 August 2019

GENERAL PRINCIPLES OF CRIMINAL LAW General overview of Criminal Law • Definitions & Elements • Economic Crime • Criminal liability • https://www.youtube.com/watch?v=50dqchEbS4Q • https://www.youtube.com/watch?v=JLwvbYXidFM

PART 1: General overview of Criminal Law: definitions

DEFINITION OF A CRIME • ‘Any conduct defined by law as a crime and for which punishment is prescribed.’ • Sources of criminal law: • Common law (unwritten law, based on principle and precedent); • Case Law or Codified law (common law reduced to writing). • Statute (crimes created by legislation);

DEFINITION OF A CRIME • Basic requirements of a crime: • Conduct • Causation • Unlawfulness • Culpability • Fault

PART 2: General overview of Criminal Law: economic crime

ECONOMIC CRIME • Crimes committed with the aim of gaining some economic advantage, normally by dishonesty of some sort. • Examples of Common Law Offences: • Theft; Embezzlement; Theft by false pretences; Fraud; Forgery; Uttering

ECONOMIC CRIME Examples of Statutory Offences a. Prevention and Combating of Corrupt Activities Act 12 of 2004:- • General crime of corruption; + Specific forms of corruption within the public & private sectors.

ECONOMIC CRIME Examples of Statutory Offences b. Prevention of Organised Crime Act 121 of 1998 (POCA):- • Crime of racketeering; + Participating in racketeering activity; + Crime of money laundering; + Crime of participating in criminal gang activity; + Asset forfeiture provisions.

PART 3: General overview of Criminal Law: criminal liability

OVERVIEW OF CRIMINAL LIABILITY • LIABILITY’ = ‘GUILT’ • Three essential elements of criminal liability: • 1. Unlawful conduct; • 2. Criminal capacity; • 3. Fault.

1. UNLAWFUL CONDUCT • Must be: • Human conduct; • Voluntary conduct; • Unlawful conduct. • Unlawful conduct = “Conduct defined by law as a crime”; ie, must conform to the definition of a particular crime; and must comply with the principle of legality.

1. UNLAWFUL CONDUCT The Principle of Legality: • ‘No punishment without law, no punishment without crime, no crime without a lawful punishment.’ • What does this mean?

1. UNLAWFUL CONDUCT The Principle of Legality - implications: • A person may only be punished for conduct that is defined as a crime by law; • The law must have been in force and applicable to the person at the time of the conduct; • Courts cannot create new crimes, or extend the definitions of existing ones;

1. UNLAWFUL CONDUCT The Principle of Legality - implications: • The definitions of crimes should be reasonably precise & settled; • Where the law is ambiguous, it should be interpreted in favour of the accused.

1. UNLAWFUL CONDUCT • Forms of unlawful conduct: • Committing an act prohibited by law; • Failing to comply with a duty imposed by law (prohibited omissions): Crimes of ‘pure’ omission / Failure to protect/rescue; • Causing a consequence prohibited by law (eg, death – murder & culpable homicide); • Being in a prohibited state of affairs (statutory offences; eg, possession of contraband).

1. UNLAWFUL CONDUCT In addition: • Participating in a crime committed by another person: • Doctrine of common purpose; • Accomplice liability; • Accessories after the fact. PLUS anticipatory crimes such as Attempt; Incitement; Conspiracy

1. UNLAWFUL CONDUCT Defences excluding (negativing) the unlawfulness of conduct (justification): • Private defence of persons or property; • Necessity (including compulsion); • Impossibility; • Obedience to superior orders; • Public authority; • Lawful disciplinary chastisement - ??????????????????????? • Consent.

2. Criminal capacity • Culpability, ‘mental guilt’ Culpability = Criminal capacity + Fault • CRIMINAL CAPACITY (psychological responsibility): • Two elements (BOTH must be present): 1. Insight = the ability to appreciate the wrongfulness of one’s unlawful conduct (‘cognitive’ component – depends on the accused intellectual capacity); 2. Self-control = the ability to act in accordance with that appreciation • (‘conative’ component – depends on the accused’s ability to control his behaviour).

2. Criminal capacity • Defences excluding criminal capacity: • Mental illness/defect; • Youth; • Intoxication; • Psychogenic sane automatism.

3. FAULT • FAULT (MENS REA) (the ‘guilty mind’) • ‘Actus non facitreum nisi mens sit rea’ • (A person does not commit a crime unless the mind is guilty) • Forms of fault: • Intention (dolus) • Negligence (culpa)

3. FAULT • INTENTION (DOLUS) • A subjective enquiry; • Based on the accused’s actual state of mind at the relevant time; • Usually determined by inferential reasoning (logical deduction).

3. FAULT • INTENTION (DOLUS) • Forms of intention: • Dolusdirectus (actual intention) • Dolusindirectus (subjective foresight of a certainty) • Doluseventualis (subjective foresight of a possibility; conscious risk-taking)

3. FAULT • INTENTION (DOLUS) • Test for doluseventualis • Did the accused subjectively foresee the possibility (risk) of conducting himself unlawfully? And, if so: • Did he reconcile himself to that possibility (accept it ‘into the bargain’), by persisting in his course of conduct, regardless of the foreseen risk?

3. FAULT • NEGLIGENCE (CULPA) • An objective enquiry; • Based on the standard of foresight and conduct of the hypothetical reasonable person.

3. FAULT • NEGLIGENCE (CULPA) • TEST FOR NEGLIGENCE = • Would the reasonable person in the same circumstances as the accused have foreseen the possibility of conducting himself unlawfully; and, if so: • Would the reasonable person have taken steps to guard against that possibility; and, if so: • Did the accused fail to take those same steps?

3. FAULT • DEFENCES EXCLUDING FAULT • Mistake/ignorance of fact (including putative justification); • Mistake/ignorance of law. • To exclude dolus the mistake/ignorance must be: • Genuine (honest) • Essential (material) – must relate to one of the definitional elements of the relevant crime

3. FAULT • DEFENCES EXCLUDING FAULT • To exclude culpa: • The mistake/ignorance must also be reasonable; and • The accused must have acted reasonably in light of his mistake.

3. FAULT • FAULT IN STATUTORY OFFENCES • Can take the form of: • Intention (dolus); or • Negligence (culpa); or • Only one of the ‘higher’ forms of dolus; or • ‘Strict’ or ‘no-fault’ liability.

3. FAULT • FAULT IN STATUTORY OFFENCES • All depends on the intention of the legislature, as indicated by the wording of the section; eg:- • ‘Maliciously’, ‘knowingly’, ‘corruptly’, or ‘fraudulently’ usually denote dolus; • ‘Reasonably’ usually denotes culpa.

3. FAULT • FAULT IN STATUTORY OFFENCES • Secondary rules of interpretation • Where the legislature’s intention is not clear from the wording of the section, secondary rules of interpretation must be invoked.

3. FAULT • FAULT IN STATUTORY OFFENCES • Two basic presumptions: • In the absence of clear indications to the contrary:- • 1. Some form of fault is required (presumption against ‘no-fault’ liability); AND • 2. The form of fault is dolus rather than culpa (ie, dolus is the ‘criminal norm’).

3. FAULT • FAULT IN STATUTORY OFFENCES • Indications to the contrary:- • 1. Language &/or context of the prohibition / injunction; • 2. Scope & object of the legislation; • 3. Nature &/or extent of the penalty; • 4. Difficulty of proving dolus; • 5. Considerations of reasonableness.

TO BE CONTINUED

A - GENERAL PRINCIPLES OF CRIMINAL LAW