Unlawfulness Flashcards
(34 cards)
Why are there defences to unlawfulness?
Despite perpetrating prohibited conduct or causing an unlawful consequence, an accused may escape criminal liability by raising a recognised defence excluding the unlawfulness of the conduct. Some circumstances may justify the performance of the conduct.
List all of the defences negating unlawfulness
1) consent
2) disciplinary chastisement
3) entrapment
4) impossibility
5) necessity
6) negotiorum gestio
7) obedience to superior orders
8) private defence
9) public authority
10) trivial instances (de minimis non curat lex)
Elaborate more on 1) consent
Although a person can consent to have certain rights curtailed, in delict for example, crime is considered to be a harm to the community, and so it does not lie within the power of the victim of a crime to render the act not unlawful by consenting to suffer the harm. Hence, consent on the part of the victim will not serve to excuse the crime of the offender. For example, a person cannot choose to be murdered and have the murderer preclude criminal liability by way of the deceased’s consent. However, there are instances where consent of the victim will negate unlawfulness.
What are the requirements for consent?
a) the complainant’s consent in the circumstances must be recognised by law as a possible defence
b) it must be real consent
c) it must be given by a person capable in law of consenting
How does consent negate the crime of rape and theft?
Crimes which involve the absence of consent (e.g. rape) require that absence of consent be proven beyond reasonable doubt. However, consent given by a person over the age of 16 to sexual penetration negates the crime of rape. Similarly, for theft, the presence of consent given by the owner to the accused may negate the crime of theft.
Can one consent to medical treatment?
One may also consent to be injured during the course of medical treatment, provided that the medical practitioner has informed the patient of the material or serious risks of harm involved in medical procedures. Where the patient is unconscious, an operation may still be justified on the ground of necessity. Although one cannot consent to being killed, they may consent to being denied life support should they sustain life-threatening injuries/ailments.
How about consent to sport and entertainment?
Lawful sport may be voluntarily played on the assumption that risk of bodily injuries incurred while the game is being played, will be regulated according to the rules.
When may consent be a defence?
1) rape
2) theft
3) medical treatment
4) sports and entertainment
5) death (withdrawing life support)
What were the facts and issue in Clarke v Hurst?
Dr Clarke had signed a living will, requesting of his family and physician that, in the event of there being no reasonable expectation of his recovery from an extreme physical or mental disability, he be allowed to die rather than live by artificial means. His wife duly applied to be appointed his curatrix personae, with the power, even were this to result in his death, to authorise the discontinuance of his treatment. The Attorney-General opposed the application, arguing that Mrs Clarke was effectively asking for a declaratory order to end a life, and declined to undertake not to prosecute if this should transpire.
Can one consent to their own death and absolve any participants in their death from criminal liability for murder/culpable homicide etc.?
What was held in Clarke v Hurst?
There may be circumstances when allowing a terminally ill person to die with dignity under controlled medical conditions, might not be considered contrary to the legal convictions of the community, and thus may not be considered wrongful. Some of the circumstances might include:
1) good faith on the part of the medical practitioners administering the procedure, 2) approval of the procedure by close family/court,
3) the existence of a living will agreeing to the procedure or
4) the fact that the procedure involves an omission rather than a positive act causing death.
On the facts, the application was therefore granted, and the court ordered that Mrs Clarke would not be acting wrongfully or unlawfully if she authorises or directs the discontinuance of the naso-gastric or any other non-natural feeding regime for the patient and/or if she withholds agreement to medical or surgical treatment of the patient save such treatment as may seem to her appropriate for the comfort of the patient.
Elaborate more on 2) real consent
Real consent can either be unilateral or mutual, as required by law. Active consent must be required, not submission. Where one does not know the risks involved, they cannot consent to the harm caused e.g. being hit with a pillow that actually contains bricks. Having sex with an HIV positive person. If one fails to disclose their HIV status and has unprotected non-consensual sex, they are guilty of both rape and attempted murder [Nyalungu].
Elaborate on 3) persons capable of consenting
People who lack capacity include:
1) youth - children below the age of 12 cannot consent
2) mental defect and intoxication
3) unconsciousness
4) substituted consent
Is disciplinary chastisement a recognised defence?
Corporal punishment is illegal in South Africa, both as a criminal punishment, in schools [Christian Education v Minister of Education] and even in private homes.
What were the requirements for disciplinary chastisement?
a) guardian
b) corrective
c) reasonable/moderate
d) bona fide
Provide a case summary of YG v S
The child, M, was sitting on YG’s bed using the family iPad. The appellant entered the room and accused M of watching pornographic material, which is strictly against the Muslim faith. M denied that he was watching pornographic material, but the appellant persisted with the accusation. When M refused to admit to the accusation, the appellant struck M in the chest multiple times. M lost his balance and fell off the bed, striking his head against the door of the bedroom. While on the floor, the appellant kicked M in the chest four times. The appellant was tried for assault with intent to do grievous bodily harm. As his defence, he argued that he did not intend to assault M. Rather, he ‘intended to discipline him out of concern to show him what is right and wrong’. The appellant testified he had done nothing more than exercise his right as a parent to chastise M by administering reasonable corporal punishment for the indiscipline noted.
Is there ever justification for permitting the use of corporal punishment against a child, which would otherwise constitute assault but for the invocation of the defence of disciplinary chastisement?
While parents have a prerogative power to discipline their child, the defence should not be invoked to negate an unjustifiable breach of the rights of the child. The Constitution is explicit in its exposition of such rights, conferring equal protection from ‘all forms of violence’ whether from a ‘public or private source’. Furthermore, even where the level of chastisement inflicted is adjudged to fall within the ambit of ‘reasonable’, such an act invariably involves a measure of violence and thus breaches the physical integrity of the child. On the basis of such reasoning, the Court determined the defence to be no longer applicable due to its fundamental incompatibility with the rights conferred to every individual citizen under the Constitution.
Is 3) entrapment a defence?
Where a police officer seeks to secure a conviction by inducing an innocent part to engage in criminal conduct, the party shall not be held criminally liable. This defence is not recognised in SA law, and is governed by Section 232A of the Criminal Procedure Act.
Elaborate more on 4) impossibility
If it is physically impossible for the accused to comply with a positive obligation imposed by law, then they cannot be held criminally liable (for example, if you cannot pay taxes because you are in a coma). It is not sufficient for it to be extremely difficult to do. Rather, it must be physically impossible.
What are the requirements of impossibility?
a) there must be a positive obligation imposed by law,
b) compliance with which was physically impossible
c) through no fault on the part of the accused
Define 5) necessity
The defence arises when a person, confronted with a choice between suffering some evil and breaking the law in order to avoid it, chooses the latter alternative. A reasonable person must have been unable to resist the threats that the accused faced. An exception to this defence involves gang members, who know that they might be compelled to act unlawfully.
What are the requirements of necessity?
a) a legal interest of the accused must have been endangered
b) by a threat which had commenced or was imminent,
c) but which was not caused by the accused’s fault;
d) it must have been necessary for the accused to avert the danger;
e) and the means used for this purpose must have been reasonable in the circumstances
Is there a legal obligation to suffer harm?
There may be circumstances where an accused is legally obliged to suffer the harm and so may not attempt to avoid it e.g. X awaiting a sentence of imprisonment, or a police officer running away from danger whilst on duty. However, there is no general duty to endure harm. Extreme poverty is not a defence to theft, and so people are obliged to endure starvation.
Elaborate more on a legal interest
The harm must be of a physical nature e.g. death, serious bodily injury, damage to property, family life, personal freedom. Economic necessity is not recognised by law [Canestra].
Can one kill out of necessity?
Yes [S v Goliath]
Provide a case summary of S v Goliath
X and Y came upon Z one evening. Y accosted Z and asked him for some money and a cigarette. When Z replied that he had no money, Y stabbed him in the chest and ordered X to tie him up under threat that unless X obeyed, Y would stab X to death. X then bound Z’s arms behind his back and Y proceeded to stab Z twelve more times until he collapsed and died. The trial court found Y guilty of murder and sentenced him to death, but acquitted X on the ground that he had acted under Y’s compulsion.
Was compulsion a defence to murder?
The majority held that compulsion not being a defence to murder is only obiter dicta. Most other important continental countries regarded compulsion (such as a death threat) as a valid defence excusing criminal liability for murder. The whole factual situation must be closely examined and judged with the greatest circumspection, when determining whether the defence of compulsion stands. In general though,
the ordinary person views their life as being more valuable to them than that of another. Left open whether compulsion would exclude the unlawfulness and fault elements of liability, and thus failed to determine where the true basis of this defence lay.
The minority held that compulsion cannot justify the killing of an innocent person, unless the intent of the perpetrator was wholly excusable because of the absence of a blameworthy state of mind. Hence, he treated compulsion as a factor affecting mens rea rather than the unlawfulness of the conduct.
