Study Unit 8 (CRW2601) - Criminal capacity: mental illness ...



Study Unit 8 (CRW2601) - Criminal capacity: mental illness and youthKey:Text bookCase lawLegislationLearning outcomes:Defence of mental illnessBoth the biological (or pathological) and the psychological leg of the testCauses of the criminal incapacityOnus of proofRole of the expert evidence from psychiatrists and/or psychologistsDecide when to use mental illness or non-pathological criminal incapacityThe respective criteriaOnus of proofNeed for expert evidenceVerdict in the case of a finding of incapacityDistinguish between the result of a successful reliance of criminal incapacity and a finding of diminished criminal incapacityOpinion on whether a child of under 14 should be found criminally incapable on account of their age8.2 Mental IllnessCriminal Law 164-1728.2.1 IntroductionCriminal capacity may be excluded because of mental illness of the accused (previously defence of “insanity”.Since 1977 the subject has been governed by section 78 of the Criminal Procedure Act 51 of 1977.One of the few general principles of criminal law to be regulated by statute.Important source: Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons (from 1960s) – known as the Rumpff Report.8.2.2 Contents of section 78(1)TestA person who commits an act or makes an omission which constitutes an offence and who at the time of such conduct suffers from mental illness or mental defect which makes them incapable:Of appreciating the wrongfulness of their actOf acting in accordance with an appreciation of this wrongfulnessShall NOT be criminally responsible for such act or omission (shall lack criminal capacity).8.2.3 Analysis of section 78(1)Note: In order to succeed BOTH legs of the test must be complied with.There must be a causal connection between the two.8.2.4 Mental illness or mental defectThis requirement means the following:Pathological disturbance of mental abilities. Does NOT refer to temporary clouding of mental facilities by external stimuli. E.g. alcohol or drugs, or provocation Mahlinza 1967 (1) SA 408 (A) 417. Court must get expert evidence given by a psychiatrist.Mental illness need not have originated in the mind. E.g. hardening of the walls of an artery).May be of a temporary or permanent nature (lucid interval allowed).Chronic abuse of alchol/drugs can lead to a recognised mental illness. Bourke 1916 TPD 303; Holliday 1924 AD 250.A mental defect (can tell from an early age) can be distinguished from a mental illness (which happens later in life).8.2.5 Psychological leg of the testThe question is not merely whether a person is mentally ill, but whether their mental illness resulted in the impairment of certain mental abilities.This part of the test is divided into 2 parts:Distinguish between right and wrong (cognitive)Act in accordance with the ability to distinguish right and wrong (conative)Kavin 1978 (2) SA 731 (W)X shot and killed his wife and 2 children. Attempted to kill a third child. So they could all be reunited in heaven. He had money troubles.The court held that even though he could appreciate the wrongfulness of his conduct, he could not act in accordance with that appreciation because of his mental illness.Evidence found that it was not an impulsive act, but premeditated. This is NOT a defence of non-pathological incapacity. 8.2.6 Onus of proofSection 78(1A) of the Criminal Procedure Act provides that everyone is presumed not to suffer from mental illness or mental defect until the contrary is proved on a balance of probabilities. Burden of proving insanity rests on the party raising the issue.8.2.6 VerdictIf defence of mental illness is successful the court must find X not guilty by reason of mental illness/defect.The court can give one of the following orders:X be admitted to and detained in an institution and be treated as if she were an involuntary mental health care userX be released subject to such conditions as the court considers appropriateX be released unconditionallyIf unconditionally released, the court can find that X had a mental illness/defect at the time of committing the act, but is now 100% fine again.There is another order the courts can make in serious cases:MurderCulpable homicideRape Serious violenceOrThe court considers it necessary in the public interest, that X be detained in a psychiatric hospital or prison, until a judge decides based on the mental health care act (section 47), that X:Remain a state patientBe reclassified as a voluntary or involuntary mental health care userBe discharged unconditionallyBe discharged conditionally8.2.8 Diminished responsibility or capacity Court can take into account diminished responsibility due to mental illness when sentencing X. Borderline between capacity and incapacity is a question of degree (not black or white).A person can have a mental illness but still be able to appreciate right from wrong and act accordingly. X will then not succeed with a defence of mental illness.Diminished responsibility can lead to a less sever sentence.8.2.9 Mental abnormality at the time of at the time of trialDifference between an allegations by X:That she was mentally abnormal at the time of the commission of the actAnd that she is mentally abnormal at the time of the trialRead Criminal Law 172A court cannot try a mentally abnormal person.8.3 YouthChild Justice Act 75 of 2008 deals with youth as a factor that may exclude criminal capacity.Minimum age for criminal capacity (section 7):Under 10 years does not have criminal capacity10-14 is presumed to lack criminal capacity, unless state can prove they do have capacityThe state must prove beyond reasonable doubt that a child 10-14 can appreciate between right and wrong and act in accordance. SummaryMental illness(1) See the above definition of the test to determine whether X may succeed with the defence of mental illness.(2) The test to determine whether X may succeed with the defence of mental illness is set out in a statutory provision, namely section 78(1) of the Criminal Procedure Act.(3) The abovementioned test comprises a pathological leg (which refers to a pathological disease that X must have) and a psychological leg (which refers to X’s cognitive and conative functions).(4) The onus of proving the defence of mental illness rests on the party raising the defence.(5) If this defence succeeds, X is found not guilty, but the court may order that X be detained in an institution or a psychiatric hospital or prison.Youth(6) A child who commits an offence while under the age of ten years is irrefutably presumed to lack criminal capacity and cannot be prosecuted for an offence.(7) A child who is ten years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity.(8) The State must prove beyond reasonable doubt the capacity of a child who is ten years or older but under the age of 14 to appreciate the difference between right and wrong at the time of the commission of an alleged offence and to act in accordance with that appreciation. ................
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