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CRIMINAL LAW Lecture 1
Law – public and private
Criminal law falls within the public law
Public law – State & citizens
State is the party to all cases
State v Accused
Victim/complainant lays a charge
State then steps into the shoes of the complainant
Name & title of case shows name of the accused (A)
NB! No defendant – only A
Site only the name of the accused
Criminal- state v accused
What is criminal law? (a.
(a.k.a
k.a off
offence)
ence)
Law of crime & punishment
Operative when crime is (allegedly) committed
Determines guilt & sentence of A
Definition: A legal wrong p
punishable
unishable by the State.
“A crime is a legal wrong ffor
or when the off
offender
ender is liable to be prosecuted and, if
convicted, punished by the state.
state.””
Contains 2 essential aspects:-
1) Unlawful conduct
2) Threat of state punishment
Crime = conduct forbidden by law under threat of punishment
Criminal liability
A guilty (convicted) or innocent (acquitted)
If guilty = criminally liable/ A incurs criminal liability
If innocent = not criminally liable/does not incur criminal liability
1
,Criminal liability = central concept
It is a detailed investigation.
5 ELEMENTS OF CRIMINAL LI
LIABILIT
ABILIT
ABILITY
Y
Conduct (physical)
Unlawfulness (physical)
Causation (physical)
Criminal capacity (mental)
Mens rea (mental)
1-3 are physical elements
o What x does
o Behaviour/ actions/ conduct
4+5 are mental elements
o What x thinks
o State of mind
o Mental abilities+ mental processes
- Guilty only if all 5 elements are satisified
- Key to criminal liability
seldom have to investigate all
identify the problematic element(s)
if anyone not satisfied then x to be acquitted
TEST OF CRIMINAL LIABILIT
LIABILITY
Y
SUBJECTIVE OBJECTIVE
X’s state of mind Objective circumstances
Internal focus External factors
Mental Physical- not x’s state of mind
NB! Exception – negligence (element of mens rea)
2
, However, - negligence is tested with reason, but is a mental element
- External standard of reasonable person
- Therefore, tested objectively (physical)
Sometimes, test is hybrid – luxuria (mixed, subject v object)
Criminal trial tests guilt or innocence
Parties to a criminal trial –
- S (could be represented by Prosecutor)
- A (person alleged to have committed a crime
- Court (Judge or Magistrate)
Adversarial system = Accusatorial system
Contest = S V A
Court = control & decides outcome
5 STEPS OF A CRIMINAL TR
TRIAL
IAL
1) Charge/Indictmen
Charge/Indictmentt (by State)
2) Plea (verb=to plead) – either guilty or not guilt
guilty
y
3) Hearing (only if A pleads not g
guilty
uilty
4) Verdict
5) Sentence (if convicted)
____________________________________________________________
CRIMINAL LAW Lecture 2
Presumption of innocence
- is the most fundamental principal in C.L
- X is innocent until proved guilty
- Or until the P.I. is rebutted
Definition: The P
P.I
.I imposes upon the state the onus to prove the g
guilt
uilt of the
accused beyond a reasonable doubt (BARD).
3
, Case law: Ndlovu 1945 AD: ‘In all criminal cases it is for the Crown to establish
the guilt of the accused.’
Zuma 1995 CC: ‘ It is always for the Prosecution to prove the guilt of the
accused..’
P.I consists of: - 2 parts
1) Onus of proof
proof: the legal duty to prove guilt/legal burden of proof - duty
of state to bear the burden of proof
- The State (S) has to convince the court that X d id commit the crime
- If successful, State has met the onus of proof i.e. S has discharged its
burden of proof
- If unsuccessful, State hasn’t met its onus i.e. S has not discharged
burden therefore X must be acquitted.
- The law presumes that X is innocent.
- State to rebut PI
- Prove X has satisfied all 5 elements
- If PI rebutted, X liable
- If PI not rebutted, X not liable
- Duty on State to prove X is guilty
- No duty on X to prove innocence
- Exception: defense of insanity
- Reversal of onus i.e. it shifts to the A
2) Standard of proof
Standard of Proof – beyond a reasonable doubt (BARD) = degree of
proof i.e the quality of evidence to rebut PI
- standard = proof BARD
- Proof BARD – only a reasonable verdict is a guilty verdict
- Evidence must convince a reasonable person (RP) that X is guilty
4
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