LAW 2599 Lecture Notes - Lecture 2: Rational Agent, Intellectual Disability, Social Stigma
23 May 2018
School
Department
Course
Professor
CRIMINAL LAW AND RESPONSIBILITY-
element analysis for determining liability
RESPONSIBILITY
Who can be held responsible?
❖ legitimate to hold responsible rational adults
whose mental capacity is undiminished by mental
impairment or intoxication; who aren’t subject to
force or duress; who can exercise true choice
❖ voluntary conduct at heart of criminal
responsibility
➢ conscious mind must be present
➢ actions must be willed
➢ no voluntary reflex/ shattered psychological
blow (Falconer); accident, mental
impairment
STEP 1: under s 269D Criminal Law Consolidation
Act 1935 (SA) a persons mental competence to commit
an offence is presumed, unless the person is found, on
investigation, to be mentally incompetent to commit
the offence.
❖ Rationale= individuals are rational beings, have
the ability to reason, can exercise free choice and
should therefore assume responsibility for our own
actions
STEP 2: Can D be held criminally responsible?
1. children
a. <10: cannot commit an offence Young
Offenders Act 1993 (SA) s 5
b. 10-14: common law presumption of doli
incapax- presumed the child does not have
capacity to know the difference between right
and wrong and cannot form mental element
i. Can be rebutted- Show child knew
behaviour was wrong instead of
mischievous R v M (1977) 16 SASR 589:
12 year old charged with murder, evidence
admitted showing he had an appreciation
of right and wrong
c. 14-18: criminally responsible, but subject to
special principles and procedures under Young
Offenders Act 1993 (SA) and Youth Justice
Administration Act 2016 (SA)
2. intoxication
a. controversial- not covered in course,
i. intoxicated person not a rational actor,
conduct not voluntary/ not able to form
requisite fault element, not criminally
liable; OR
ii. person chooses to become intoxicated, so
responsible for actions that flow from that
decision
3. mental impairment (*also argue automatism)
a. D can rebut presumption they are mentally
competent by arguing they suffer a mental
impairment, onus of proof is on the defence,
on the balance of probabilities s 269D CLCA
b. a person is mentally incompetent if…
suffering from a mental impairment and, in
consequence of the mental impairment:
- s 269C(1)(a) CLCA does not know the
nature and quality of the conduct; or
- s 269C(1)(b) does not know the conduct is
wrong; that is, the person could not reason
about whether the conduct as perceived by
reasonable people is wrong; or
- s 269D(1)(c) is totally unable to control
the conduct
c. s 269A CLA- interpretation
- ‘mental illness’ means a pathological
infirmity of the mind (incl temporary)
- ‘mental impairment’ includes (a) mental
illness; or (b) intellectual disability; or (c)
a disability or impairment of the mind
resulting from senility
4. Automatism (*also argue mental impairment)
a. Onus not on defence
b. Better defence than mental impairment
because if proven, NO liability attaches
c. Physical/ psych blow to healthy mind causing
disassociation that causes the person to
complete the physical element of an offence,
but are not liable
i. Drugs, shock, trauma, blow to head,
neurological disorder, sleepwalker
WHY SOCIETY CRIMINALISES
❖ Protection
❖ Punishment
❖ Expressing social values/ morals
❖ Delineating boundaries of acceptable behaviour
❖ Response to undesirable behaviour
➢ Necessary part of a fully functioning liberal
democracy, but must be used with caution
➢ State’s most coercive tool- can lead to arrest,
expensive and lengthy trial, liberty revoked for
years, life long social stigma
WHAT SOCIETY CRIMINALISES
❖ ‘crime’ = an action or omission that the state
prohibits by statute or common law, and violation
of which it protects and punishes
❖ MODEL FOR DEFINING A CRIME
works well with serious offences (murder etc), not
with minor offences such as speeding etc
1. Moral wrong
2. Responsible actor, informed, rational, able to
make decision
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Criminal law and responsibility- element analysis for determining liability. Legitimate to hold responsible rational adults whose mental capacity is undiminished by mental impairment or intoxication; who aren"t subject to force or duress; who can exercise true choice. Voluntary conduct at heart of criminal responsibility. No voluntary reflex/ shattered psychological blow (falconer); accident, mental impairment. Step 1: under s 269d criminal law consolidation. Act 1935 (sa) a persons mental competence to commit an offence is presumed, unless the person is found, on investigation, to be mentally incompetent to commit the offence. Rationale= individuals are rational beings, have the ability to reason, can exercise free choice and should therefore assume responsibility for our own actions. Step 2: can d be held criminally responsible: children, <10: cannot commit an offence young. 12 year old charged with murder, evidence admitted showing he had an appreciation of right and wrong: 14-18: criminally responsible, but subject to special principles and procedures under young.
