Defences excluding criminal capacity

1.Mental illness (insanity)

2.Youth

3.Non pathological criminal incapacity

THE DEFENCE OF NON-PATHOLOGICAL CRIMINAL INCAPACITY

Pathological means emanating from a disease, All the instances in which X relies on criminal incapacity as a defence, other than cases in which he relies on mental illness and youth, fall under this heading. One can also refer to this defence as the ``general defence of criminal incapacity'' in order to distinguish it from the particular defences of mental illness and youth, which also deal with criminal incapacity.

In Laubscher 1988 (1) SA 163 (A), the Appeal Court first described this defence as

``non-pathological criminal incapacity''. The court adopted this description of the

defence in order to distinguish it from the defence of mental illness created in

section 78 of the Criminal Procedure Act. (This latter defence will be discussed later on.)

 The court stated that the defence created in section 78 applies to pathological

disturbances of a person's mental abilities - in other words, the cases in which

these disturbances can be traced to some illness of the mind. The defence of non pathological criminal incapacity, on the other hand, may succeed without any need of proving that at the time of the commission of the act X was suffering from a

mental illness. For this defence to succeed, it is sufficient to prove that X lacked

criminal capacity for only a relatively brief period and that the criminal incapacity

was not a manifestation of an ailing or sick (pathological) mental disturbance; it

would therefore be sufficient to prove that for a relatively brief period during the

commission of the act X, owing to, for example, an emotional collapse, was unable

to act in accordance with his insights into right or wrong.

Please read on the case of Eadie 2002 (1) SACR 663 (SCA). Read on the position before aand after 2002.

Criminal capacity-mental illness and youth

MENTAL ILLNESS

Criminal capacity may be excluded by the mental illness or abnormality of the accused (X). The defence of mental illness was previously known as the defence of ``insanity''. The latter term has, however, fallen into disfavour in modern psychology. Some of the most important sources dealing with the subject refer to it as ``mental abnormality'' or ``mental illness'', and for this reason we prefer to use the expression ``mental illness''.

The test to determine the criminal capacity of mentally abnormal persons is contained

in section 78(1) of the Criminal Procedure Act 51 of 1977, which reads as follows:

A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable:

(a) of appreciating the wrongfulness of his or her act or omission; or

(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission,

üshall not be criminally responsible for such act or omission

Note that the words ``shall not be criminally responsible'' in this section in fact mean ``shall lack criminal capacity''

Before discussing the contents of section 78(1) the following diagram setting out the test is provided:

Mental illness or mental defect

We first consider the first leg of the test in section 78(1), namely that at the time of the commission of the act X must have been suffering from a mental illness or mental defect. This requirement means the following:

(1) The words ``mental illness'' or ``mental defect'' refer to a pathological disturbance of the mental faculties. ``Pathological'' means ``sick'' or ``diseased''. The words ``mental illness'' or ``mental defect'' do not refer to a mere temporary clouding of the mental faculties due to external stimuli such as alcohol, drugs or even provocation. Thus if X temporarily loses her wits because a brick fell onto her head, her condition could not be described as a ``mental illness''.

(2) It is clear from the further subsections of section 78 and from section 79 that whether X was suffering from a mental illness or mental defect must be determined by the court with the aid of expert evidence given by psychiatrists. The psychiatrists will examine X while she is detained in a psychiatric hospital or any other place designated by the court and then report their findings to the court.

(3) It is not necessary to prove that a mental illness or defect originated in X's mind: the defence may be successful even if the origin of the illness was organic (ie stemmed from X's physical organs, as opposed to her mind). An example in this respect is arteriosclerosis (ie a hardening of the walls of an artery).

(4) The duration of the mental illness is not relevant. It may be of either a

permanent or a temporary nature. In the latter case it must of course have

been present at the time of the act. If X was mentally ill before and after the

act but she committed it at a time when she happened to be sane, she does

not lack criminal capacity. Such a lucid interval between periods of mental

illness is referred to in legal terminology as a lucidum intervallum (``lucid

interval'').

(5) Although intoxication in itself does not constitute mental illness, the chronic abuse of liquor can lead to a recognised mental illness known as delirium tremens (Bourke 1916 TPD 303; Holliday 1924 AD 250). If X committed the act while she was in this condition and the condition resulted in her lacking the required mental abilities, she may successfully rely on the defence.

(6) A ``mental defect'' can be distinguished from a ``mental illness'' in that it is characterised by an abnormally low intellect which is usually evident

already at an early stage and is of a permanent nature. ``Mental illness'' on

the other hand, usually manifests itself later in life and is not necessarily of a

permanent nature. A mental defect usually hinders a child's development or

prevents the child from developing or acquiring elementary social and

behavioural patterns.

Onus of proof

Section 78(1A) of the Criminal Procedure Act 51 of 1977 provides that every person is presumed not to suffer from a mental illness or mental defect until the contrary is proved on a balance of probabilities. According to section 78(1B), the burden of proving insanity rests on the party raising the issue.

This means that if the accused raises the defence of mental illness the burden of proving that she suffered from mental illness at the time of the commission of the unlawful act rests upon her. If the state (prosecution) raises the defence, the burden of proof rests on the state.

Verdict

If the defence of mental illness is successful, the court must find X not guilty by reason of mental illness or mental defect, as the case may be (s 78(6)). The court then has a discretion (in terms of s 78(6)) to issue any one of the following orders:

(1) that X be admitted to, and detained in, an institution stated in the order and treated as if she were an involuntary mental-health-care user contemplated in section 37 of the Mental Health Care Act 17 of 2002

(2) that X be released subject to such conditions as the court considers appropriate

(3) that X be released unconditionally

An example of a case in which the court may decide to release X unconditionally is a case in which the evidence shows that, although X might have suffered from mental illness when she committed the wrongful act, at the time of her trial she was, mentally, completely normal again.

There is another possible order that the court can make in certain serious cases

1)If X has been charged with

(i) murder

(ii) culpable homicide

(iii) rape or

(iv) another charge involving serious violence, or

(2) if the court considers it necessary in the public interest the court may direct that X be detained in a psychiatric hospital or a prison until a judge in chambers (i.e., upon the strength of written statements or affidavits placed before the judge, without evidence necessarily being led in open court) makes a decision in terms of section 47 of the Mental Health Care Act, 2002. The judge in chambers may order that the state patient

(1) remain a state patient

(2) be reclassified and dealt with as a voluntary, assisted or involuntary mental health care user in terms of chapter V of the above-mentioned Act

(3) be discharged unconditionally

(4) be discharged conditionally