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

2. GENERAL PRINCIPLES OF CRIMINAL LAW
General overview of Criminal Law
Definitions & Elements
Economic Crime
Criminal liability

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4. PART 1: General overview of Criminal Law: definitions

5. 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);

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

7. PART 2: General overview of Criminal Law: economic crime

8. 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

9. 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.

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

11. PART 3: General overview of Criminal Law: criminal liability

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

13. 1. UNLAWFUL CONDUCT Must be: Human conduct; Voluntary 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.

14. 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?

15. 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;

16. 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.

17. 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).

18. 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

19. 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.

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21. Culpability = Criminal capacity + Fault
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).

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

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

25. 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).

26. 3. FAULT INTENTION (DOLUS) Forms of intention:
Dolus directus (actual intention)
Dolus indirectus (subjective foresight of a certainty)
Dolus eventualis (subjective foresight of a possibility; conscious risk-taking)

27. 3. FAULT INTENTION (DOLUS) Test for dolus eventualis
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?

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

29. 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?

30. 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

31. 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.

32. 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.

33. 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.

34. 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.

35. 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’).

36. 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.

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38. TO BE CONTINUED