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Criminal Law Notes (Semester 1)
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Everything you need to know from lectures from Semester 1. Provides detailed descriptions
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CRW2602 ASSIGNMENT 2 QUIZ MEMO - SEMESTER 2 - 2024 - UNISA - (UNIQUE NUMBER: - 635283 (DISTINCTION GUARANTEED) – DUE DATE : 20 SEPTEMBER 2024.
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Criminal Law NotesWeek 1&2: 15/02/23
Distinguishing features of crime:
- Seriousness of the consequences
- State has the right to impose punishment
- Burden of proof: on the State, beyond a reasonable doubt BRD (this makes sense
because of the vast power differential between states machinery and accused
individual AND reality that majority of accused individuals are poverty stricken)
o *The accused must only raise evidence of a reasonable doubt. State has the
burden to disprove BRD
o “BRD” is unlike civil which is balance of probabilities
- Hierarchy of wrongs- suggested by States stake in criminal law.
o Some wrongs are not appropriate for legal use (e.g. breaking friends promise)
o Some wrongs are appropriate for civil liability (e.g. breaking a contract) but
not serious enough for criminal liability
o Suggests a threshold of seriousness in criminal liability- many offenses are
created by Parliament as a way of regulating an activity/social space e.g.
littering or driving with a valid driver’s license.
- Focuses on legality rather than morality
o Necessary for certainty in the law (principle of legality)
o Less about what is right & wrong and more about legal & illegal
o Boundaries of criminal law are the product of exercises of political power in
specifical parts of history
Tie binding all forms of criminal conduct:
- The general elements/ principle of criminal liability= the underlying building blocks
from which all crimes are built
- If any pieces from the image below are missing, there is no conviction
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,Key concepts in criminal law:
- Principle of fair labelling= ascribing the correct label to the corresponding conduct and
state of mind (heart of criminal law)
- Can’t just consider the content, must also look at the scope
- Scope of liability= reach of the law (how far does/ should the criminal sanction extend?)
A wide scope enters the domain of a police state
o number of crimes in existence impacts the reach of the criminal law (over
criminalisation makes law abiding harder)
o manner in which individual crimes are defined: makes the law more/ less
narrow. (E.g. intention to kill also includes intention to cause bodily harm,
then the scope of the law has grown because more people would fall under
the definition of murder)
o modes of liability that extend beyond a completed crime also grows the
scope of the criminal law (inchoate/incomplete crimes- e.g. conspiracy,
common purpose- expanding the concept of perpetrator, accomplice and
accessory liability)
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,Voluntary Conduct (building block 1)
Voluntary conduct:
(1)Positive Action
(2) Omission
(3) State of affairs
a. Voluntary conduct= conduct controlled by the accused’s conscious free will
S v Chretien 1981 (1) SA 1097 (A) at 1104, per Rumpff CJ:
‘If he is so drunk that he lies performing involuntary muscle movements with his arm or foot
and someone should be hit and injured by such involuntary movement, there would in any
event be no question of an act, in the same way as a sleepwalker’s movements cannot
constitute an act. In criminal law an act is only an act when it is controlled by the will’.
b. Conduct already recognised by the courts as involuntary:
- Dhlamini 1955 -‘mechanical activity’ as a result of ‘half-waking’ from a nightmare
- Mkize 1959; Schoonwinkel 1953 -‘blind reflex activity’ or ‘unconsciousness’ as a
result of epilepsy
- Chretien 1981 – ‘dead drunk’ because of intoxication
- Naidoo 1971 –conduct during sleep
- R v Johnson 1970 –conduct during a black-out
- Charlson 1955 –arteriosclerosis from a cerebral tumour
- Smit 1950 –concussion
- Van Rensburg 1987 -hypoglycaemia (low blood-sugar after blood tests)
- Campher 1987–provocation
c. Defense for voluntary conduct: automatism
- Insane automatism: results from mental illness (defense of insanity) – only common law
exception on the onus of proof in a criminal trial resting on the state “BRD”. Accused
must prove from a balance of probabilities that they were suffering from a legally
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, recognised pathological condition, when conduct occurred, and that this condition
rendered them an automaton.
- Sane automatism: Any other involuntary action (e.g. sneeze and arm hits person next to
me)
d. Exception to the defense:
- ACTIO LIBERA IN CAUSA (Dutch courage rule)
‘Criminal liability can arise from prior voluntary conduct (coupled with the
requisite mens rea / fault at that time) which is causally linked to the
unlawful consequence, even though at the time of the consequence resulting, the
accused was in fact acting involuntarily’ (Burchell)
o E.g. I get blind drunk to have the courage to commit a crime and when I
commit the crime I am then an automaton. This will not work. One
cannot escape liability.
- To rely on automatism, the defence must have some evidential foundation for the
defence. If reasonable doubt is created as to the defendant’s voluntariness, then a
complete acquittal will result. However, any evidence of automatism will be heavily
scrutinised (people are presumed to act voluntarily)
e. Omissions:
- Example: Walking home & see a child in the river who can’t swim. I want to get home to
watch series. Can I be held liable for failing to save the child’s life?
o Not my child & not a life saver- cannot be held responsible
- General rule= there is no legal duty on people to act (law requires people not to cause
harm to each other but doesn’t require us to benefit each other)
- Exceptions= there is a legal duty to act if the legal convictions of the community support
such a finding (derived from the BoR) . These legal convictions of the community must
be confirmed by the court.
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