Topic 2.2

Question 1

What is the rule of voluntary conduct and criminal ?

Answer 1

For a conduct to be criminal, it must be voluntary and cause the unlawful consequence, as held in Goliath.

Question 2

What is te general rule of voluntariness?

Answer 2

The general rule is that one should not attract liability for events not under one’s control

Question 3

What does voluntariness mean?

Answer 3

Voluntariness means that the accused conduct was subject to the control of his free will

Question 4

What are the two types of automatism?

Answer 4

• Sane automatism: Due to involuntary conduct: externally. This is the true state of automatism (“psychogenic automatism”)
• Insane automatism: Due to mental illness: internally. This deals with mens rea (capacity)

Question 5

What is automatism?

Answer 5

Involuntary conduct is called automatism

Question 6

What does voluntariness only matter for actus reus and not mens rea?

Answer 6

Voluntariness does not have a bearing on the state of mind of the accused, only their physical capability to control their bodily movements

Question 7

What does S v Mahlinza case state about sane automatism?

Answer 7

In S v Mahlinza case, it was stated that sane automatism is an unconscious, involuntary action resulting from a malfunctioning of the mind caused by some external factor or stimulus such as a blow on the head, the consumption of alcohol or drugs; being under the effects of an aneasthetic; while Insane automatism is an illness of the mind, a pathological malady.

Question 8

What are the consequences of sane automasim?

Answer 8

• The accused is mentally sane and only momentarily behaves involuntarily;
• If the sane automatism is established, the conduct requirement is negated;
• Onus rests on the State to disprove the state of automatism alleged, this is beyond a reasonable doubt
• The accused merely has an evidentiary burden to establish the automatism on a balance of probability
• Results in full acquittal.

Question 9

What are the consequences of insane automatism?

Answer 9

• The accused suffers from a mental pathology or mental illness;
• If insane automatism is established, it will negate capacity, which is a mens rea requirement;
• Onus is on the accused to prove mental illness as all citizens are presumed to be sane;
• Result is “not guilty by reason of mental ilness”, the accused is incarcerated in a mental institution until such time as they are no longer a danger (not a full acquittal).

Question 10

What is the exapmble of sane automatism that may negate voluntariness?

Answer 10

1. Reflex movements and spasms (mechanical activity);
2. Unconscious acts;
   Acts during sleep or in a near sleep state (somnambulism) [Dhlamini];
3. Heavy intoxication which renders the accused “dead drunk” [Chretien] [Johnson]
4. Application of superio force; absolute force (vis absoluta) and relative force (vis compulsiva)
5. When the accused suffers from:
   6.1 Concussion;
   6.2 Epileptic attack [Mkize] [Victor] [Schoonwinkel];
   6.3 Hypoglycemia (low blood sugar) [Van Rensburg] [Stellmacher];
   6.4 Hysterical disassociation [Mahlinza] [Kok] (mental illness)
   6.5 Black-out [Trickett]

Question 11

What are the facts in S v Tricket case?

Answer 11

In S v Tricket case, a young woman who was healthy raised the defence of blackout when charged with reckless and negligent driving, her evidence is that her vehicle suddenly swerved into the oncoming lane of traffic and collided with another vehicle. No medical or other evidence was given except the accused’s testimony. It was held that although the accused seemed honest, she had not held her defence significantly strongly due to a lack of medical evidence and a lack of her own positive statement that she was suffering the condition at the time

Question 12

What is the principle found in the S v Tricket case?

Answer 12

In S v Tricket, the principle holds that the accused must establish their automatism on a balance of probabilities and must adduce some medical evidence of their conditions and that it was operating at the time the act or omission took place

Question 13

What is absolute force?

Answer 13

Absolute force is physical force operating directly on the accused body.

Question 14

What is relative force?

Answer 14

Relative force is if a threat operating on the mind of the accused, acting out of necessity, unless it was not reasonable for the accused to act from the threats

Question 15

What are the facts in S v Goliath case?

Answer 15

In S v Goliath, two accused came upon the deceased, the first accosted him and asked him for a cigarette and for money, when the deceased replied that he had no money, he stabbed him in the chest and ordered the second accussed to tie him up and when he objected the first accused threated that he would stab him if he didnt tie him up. Once the second accused tied the deceased up, the first accused stabbed him 12 times causing his death. Accused two is charged as an accomplice to murder.

Question 16

What is the principles in S v Goliath case?

Answer 16

It was held that the second accused acted under the compulsion, and was acting from a place of sane automatism and therefore was granted a full acquittal

Question 17

What are the facts in the R v Dhlamni case?

Answer 17

In R v Dhlamni case, the accused was charged with murder in that he’d unlawfully and with intent to kill stabbed the deceased three times with a knife after the deceased had stooped down to pick up a mat where the accused had been sleeping. Evidence adduced that the accused had just awakened and that he had been reacting mechanically in response to a nightmare. Other evidence revealed that the accused and the deceased were on good terms and there was no bad blood between them and they were family friends. The evidence showed that the two parties were cordial earlier in the evening, had not fought, and there was no possible motive for the accused to kill the deceased.

Question 18

What was held in the R v Dhlamni case?

Answer 18

It was held that the accused was acting involuntarily whilst in a state of somnambulism, reacting to a dream and therefore acting involuntarily. He was acquitted of all charges including culpable homicide.

Question 19

What are the facts in R v Mkize case?

Answer 19

In R v Mkize case, the accused who suffered from epilepsy was charged with the murder of his sister. On the day in question, the accused had been cutting meat when he suffered an epileptic fit which resulted in stab wounds from which his sister later died. There was no evidence that the accused had any warning of the attack.

Question 20

What is the principle in the R v Mkize case?

Answer 20

It was held that the Court found on a balance of probability that the accused had suffered an epileptic attack at the time of stabbing his sister, as the state failed to prove its case beyond a reasonable doubt. The accused was in an unconscious state and the acts of stabbing were a result of blind reflex activity. The accused was acquitted of all charges due to sane automatism

Question 21

What does Actio in liera causa mean?

Answer 21

Actio in libera causa means the act was not in his control, but the cause of the involuntariness was within his control, and therefore still caused the unlawful consequences.

Question 22

What is antecedent liability used for?

Answer 22

This is used by the state to help disprove a sane automatic state.

Question 23

What was is the principle behine antecedent liability?

Answer 23

Even though the accused was involuntary at the time of the unlawful conduct, was there a time immediately preceding the state of automatism where the actus rea and mens rea coincided (where the Accused acted voluntarily and with either negligence or dolus eventualis).

Question 24

What are the facts in R v Victor case?

Answer 24

In R v Victor case the accused was charged with reckless and negligent driving. Whilst driving on a public road, the accused had suffered from an epileptic seizure, lost control of the vehicle and collided with a pedestrian and another vehicle. The accused conceded that he had an attack before whilst driving although no one was hurt. The accused defense was that he was involuntary at the time because the seizure negated his conscious will

Question 25

What were the two alternative bases holding the accused liable that the court found in R v Victor?

Answer 25

1. If the accused had warning signs of the attack, then his antecedent conduct was continuing to drive despite these warning signs, thus, the prior conduct immediately preceding the unconscious state was deciding to drive despite having a warning sign. - The State could not prove beyond a reasonable doubt that he had a warning sign before the seizure. 2. Even if he had no warning signs, the accused knew he was epileptic and thus, the voluntary conduct immediately preceding the unconscious state was driving knowing that he had had an attack before and might again. - The Court accepted this basis.

Question 26

What was found in R v Victor?

Answer 26

The court held that there was a time immediately prior to the automatic state where the AR and MR existed at the same time. His conduct of driving knowing he could have an attack and mens rea, negligence (on the basis that a reasonable person who knew they might have an attack while driving would not drive alone).

Question 27

What are the facts in R v Shoonwinkel case?

Answer 27

In R v Schoonwinkel case, the accused was charged with culpable homicide as a result of a motor vehicle collision in which two people were killed. The accused's defense was that at the time of the accident, he was suffering from an epileptic fit and his mind was a blank, he had a rare form of epilepsy in which the full symptoms had not fully presented themselves. The accused had only had two previous minor attacks, the last of which was a considerable period of time before this attack.

Question 28

What is held in R v Schoonwinkel case?

Answer 28

On the facts, there was no basis for establishing antecedent liability. It was held that the accused was acquitted, as there was involuntariness which was medically proven as seen in Mkize.

Question 29

What are the facts in S v Van Rensburg case?

Answer 29

In S v Van Rensburg case, the accused was charged with reckless and negligent driving. The accused defense was that at the time of the accident, he was suffering from hypoglycaemia (low blood sugar). The accused had consulted a pathologist on the day in question and blood tests had been done, but he was not advised by the doctor that he might become drowsy and that he should not drive. Whilst driving, the accused started feeling tired and soon thereafter collided with another vehicle

Question 30

What was held in S v Van Rensburg case?

Answer 30

It was held that the antecedent conduct could not be proven beyond a reasonable doubt that the accused continued to drive even after it was clear to him that he had become tired as he could have gradually become more drowsy without conscious awareness thereof. It further showed that negligence could not be proven beyond a reasonable doubt, that a reasonable man in a position would have foreseen a sudden drop in sugar levels.

Question 31

What is important to distinguish in when dealing with antecedent liability?

Answer 31

When dealing with antecedent liability, it is important to distinguish between conditions which existed at the time of the conduct and those which arose only afterwards and which were brought about by as a result of the accident/incident.

Question 32

For a person to be liable on the basis of his/her prior voluntary conduct, What requirments need to be met?

Answer 32

- The involuntary act or omission must have been preceded by some voluntary conduct on the part of the accused. - The accused’s prior voluntary conduct must be causally connected with his/her later involuntary conduct. - The prior voluntary conduct must have been culpable in the form required by the definition of the crime in question (whether intention or negligence)

Question 33

What was held in the S v Henery case?

Answer 33

S v Henry case held that while it would appear from the evidence to be generally accepted that automatism results in amnesia it follows that the converse is not true. In other words, amnesia is not necessary indicative of automatism. An accused person therefore may quite genuinely have no subsequent recollection of a voluntary act giving rise to criminal responsibility

Question 34

What is important to know when dealing with antecedent liability?

Answer 34

When dealing with antecedent liability, it is important to distinguish between conditions which existed at the time of the conduct and those which arose only afterwards and which were brought about by as a result of the accident/incident.

Question 35

What is the difference between sane and insane automatism?

Answer 35

Sane automatism is automatism brought about by an external source, temporary clouding that prohibits you from controlling your bodily movement. While insane automatism is a preexisting condition and is internal, that is not temporary, and this negates capacity.

Question 36

What are the facts in S v Mahlinza?

Answer 36

In S v Mahlinza case, the accused killed her 6-month-old child. She claimed to have done this unconsciously while in a state of hysterical dissociation. Medical evidence revealed a long history of depression and post-partum depression which went untreated and culminated in a hysterical dissociation.

Question 37

What was held in S v Mahlinza?

Answer 37

It was held that sane automatism is an unconscious, involuntary action resulting from a malfunctioning of the mind caused by some external factor or stimulus such as a blow on the head, the consumption of alcohol or drugs; being under the influence of an anaesthetic. Insane automatism is an illness of the mind. The accused was not guilty due to mental illness and she was ordered to spend time in psychiatric care until she was no longer a danger to herself or others.

Question 38

What is the principle extracted from S Mahlinza?

Answer 38

S v Mahlinza shows us that if the involuntary conduct is due to a temporary clouding or malfunctioning of the mind brought on by something temporary and external, this is automatism and will negate voluntariness (actus reus). If the involuntariness is caused by a mental illness, then this negates the element of capacity

Question 39

What are the facts in S v Stellmacher?

Answer 39

In S v Stellmacher case, the accused had been on a strict weight-reducing diet for weeks. He had not eaten anything on the day in question and had performed strenuous physical labour for work. At 6 pm, the accused went to a pub and started drinking heavily – he had at least half a bottle of brandy on his own. The accused claims to have lost control and lapsed into an automatic state during which he pulled out his gun and shot at random people in the bar, killing one. Medical evidence revealed that the accused was suffering from hypoglycemia and or epilepsy of a short duration which may have been precipitated by the accused’s fasting and drinking. The legal question was whether this was a mental illness.

Question 40

What was held in S v Stellmacher?

Answer 40

The court held that what the accused was suffering from was not indicative of a pathological disorder but rather, it was a temporary clouding of the mind not attributable to any mental illness but rather, attributable to external stimuli such as the alcohol and fasting which led to the hypoglycemia. Thus, this was a case of automatism and not mental illness.

Question 41

What are the facts in S v Kok?

Answer 41

In S v Kok case, the accused had been charged with 2 counts of murder and 1 count of attempted murder. He was a superintendent in the SAPS. On the day in question, he drove to the Botha’s family home and shot and killed Mr and Mrs Botha with a 9mm pistol. While the shooting was in progress, Botha’s son emerged from the bathroom and the accused produced a shotgun and aimed it at him. The son managed to escape. The accused’s defence was that he lacked capacity in that he had suffered from depression and post-traumatic stress disorder as a result of his work within the SAPS. Medical psychiatric evidence was led confirming the diagnosis. According to the psychologist, the accused’s disorder was characterised by ‘dissociative re-enactments of traumatic events’, in this case, ‘house penetrations’. The psychologist testified that according to him, the automatism suffered by the accused was not ‘psychotic’ illness and should be regarded as ‘sane automatism’.

Question 42

What was held in S v Kok?

Answer 42

It was held that sane automatism is not a psychiatric term, it is a legal term to describe automatism arising from something other than mental illness or defect. When looking at the defence of ‘not guilty by reason of mental illness’ which is provided for in s 78 of the Criminal Procedure Act, there is no requirement that the mental illness must be psychotic in nature, it is enough that legal capacity was not present due to the mental illness. Whilst the court could not rule on what condition exactly the accused was suffering from, it is clear that the accused was not capable of appreciating between right and wrong and or acting in accordance with that appreciation (the test for capacity). Lacking capacity requires detainment in a psychiatric hospital or prison until it can be shown that the accused is no longer a danger to himself or others

Question 43

What was the principles in S v Kok?

Answer 43

S v Kok case, is authority for the consequences of the defences of automatism and mental illness. If the accused is suffering from sane automatism, he can be fully acquitted as the element of voluntariness (conduct) is negated. If the accused is suffering from mental illness, the element of capacity is negated and a full acquittal is not possible since the accused must be detained in a psychiatric hospital.

Question 44

What part of the Criminal Procedure Act deals with the capacity of a person with mental illness?

Answer 44

Sections 77 to 79 of the Criminal Procedure Act 51 of 1977 deal with capacity of an accused who has a mental illness, this is known as the “defence of insanity”.

Question 45

What does section 79 of the CPA hold about mental illness?

Answer 45

Section 79 holds that a defence of a person suffering from a mental illness or intellectual disability must be determined with the aid of psychiatric evidence. Further, a court cannot reach a finding of criminal non-responsibility without hearing expert evidence by psychiatrists.

Question 46

What does s78(1) of the CPA state?

Answer 46

It states that A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or intellectual disability will not be criminally responsible for such an act if the there state makes them incapable: (a) of appreciating the wrongfulness of his or her act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission

Question 47

Where is the test found about the defence of mental illness criminal responsibility?

Answer 47

If the defence of mental illness is raised, the test to determine the accused's criminal responsibility set out in section 78(1) of the Criminal Procedure Act.

Question 48

What was held in Stellmacher case about the term mental illness o intellectual disability?

Answer 48

The term “mental illness” or “intellectual disability” refers to a pathological disturbance of the mental faculties, not to a temporary clouding of the mental faculties which cannot be ascribed to a mental disease, but merely to external stimuli such as alcohol or drugs or even provocation as held in the Stellmacher case.

Question 49

What does section78(6) of the CPA state?

Answer 49

Section 78(6) provides that if the defence of mental illness is successful, the court must find them not guilty.