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Reflections on a general defence of criminal incapacity: description of cause of mental inability irrelevant
The defence of criminal incapacity is currently divided into two categories, namely pathological and non-pathological criminal incapacity. A court will always first attempt to establish whether the defence is one of pathological criminal incapacity, in other words, whether the accused at the time of the commission of the crime was suffering from some known pathology in the form of a mental illness, or not. This will determine whether the court is statutorily obliged to send an accused for observation in terms of section 79 of the Criminal Procedure Act. If, according to the court, an accused was not suffering from a mental illness or mental defect and the defence is not one of pathological criminal incapacity, a court retains a discretion whether to refer an accused for observation.111 The need for expert assistance and evidence is accordingly determined not by the criminal incapacity itself, but by the cause of the incapacity. The question that inevitably arises is whether the time has not arrived to establish a general defence of criminal incapacity with mental illness as one factor which could have an influence on criminal capacity. It is submitted that a general defence of criminal incapacity will not only create legal certainty, but will provide a more judicially sound approach to the application of the defence of criminal incapacity.
Bergenthuin correctly states that one of the main reasons why criminal capacity has not yet attained complete recognition as a requirement for criminal liability, is because a general criteria for the establishment of criminal capacity has not been formulated.112 With the recognition of criminal capacity as a prerequisite for criminal liability, be it as a distinct and separate element of a crime or as a requirement for culpability, a person who lacks criminal capacity will not be held liable due to the recognition of criminal capacity as an element or prerequisite for a crime.113 Bergenthuin correctly observes that upon close scrutiny of the Chretiendecision,115 there is no indication that intoxication, for example, should be singled out as a ground for criminal incapacity. Accordingly other grounds can also exclude criminal capacity.116 It is submitted that the views of Viljoen AJ and Boshoff AJ (acting) are correct. Although this is a relatively older decision, the need for change and development pertaining to the defence of non-pathological criminal incapacity, has not changed. It is submitted that there is a need for the development of a general defence of criminal incapacity where the reliance placed on this defence will not be determined by the alleged cause of incapacity, but rather on the lack of criminal capacity itself. Any factor which causes a person to lack the ability to appreciate the wrongfulness of his or her actions or to act in accordance with an appreciation of wrongfulness, will be relevant in determining the existence or lack of criminal capacity.
By developing a general defence of criminal incapacity the aim is to provide legal certainty and a clear set of rules and norms to be applied in each case where this defence is raised. The development of such defence presupposes the additional establishment of strict rules and requirements when relying on this defence. By requiring an accused to establish a solid foundation for the defence, abuse of this defence will be curbed. It is also at this point where expert evidence plays a pivotal and vital role. Due to the biological-psychological nature of the test for criminal incapacity and the intrinsic nature of this defence, the ipse dixit of an accused that he or she lacked criminal capacity, should never be sufficient. Expert evidence should be a prerequisite to support such an averment. In order to attain a more balanced and just view, it should be required that both defence and State retain their own experts. By establishing a general defence of criminal incapacity, the emphasis will accordingly not fall so severely on the cause of the incapacity, but rather on the lack of criminal capacity itself. Such development will also be more in line with our Constitutional values. The further development and implementation of the concept of diminished criminal capacity will further guarantee a just and fair outcome where criminal incapacity is raised.123
Traditional approach in respect of expert evidence
The traditional approach in respect of expert evidence in support of the defence of non-pathological criminal incapacity, is that it does not fulfil an indispensable function and that the defence can succeed in the absence of such evidence.202 It is, however, doubtful whether this defence will ever be successfully established in the absence of expert evidence. Snyman correctly submits that it is very important for an accused who relies on the defence of non-pathological criminal incapacity to adduce expert evidence in order to corroborate his or her alleged incapacity at the time of the commission of the act as it is difficult for a court to determine an accused’s mental abilities at the time of the commission of the act in the absence of such evidence.203 Expert evidence in this regard will form part of the foundation that an accused has to establish in support of such defence. According to the traditional approach, the court is in a position to decide on its own, taking into account the medical evidence and all the facts of the case, the issue of the accused’s alleged criminal incapacity.204
According to the traditional approach expert evidence is thus not a prerequisite for a successful reliance on this defence. In a few decisions it was held that expert evidence does not fulfil an indispensable function and is not essential in support of the defence of non-pathological criminal incapacity207. The decisions in Laubscher, Calitz and Lesch all illustrate this traditional approach to expert evidence and will briefly be discussed. In S v Laubscher208 the appellant was a 23-year old medical student. He was highly intelligent and emotionally very sensitive. He embarked on a relationship with one C, who later became pregnant whereafter they married. The appellant’s parents in-law did not accept him and were cold and aloof towards him. On the day the fatal shooting occurred the appellant had arranged to collect C and their child. When he went to fetch C, however, she told him that she no longer wished to go with him and he was told to leave the house. He left the house but later returned demanding that he be given the child. He fired into various rooms of the house with his pistol and killed C’s father.
At his trial for murder and attempted murder, it was contended on behalf of the appellant that he had suffered a total psychological breakdown or disintegration of his personality of a temporary nature and that he acted involuntarily. The court, per Joubert JA, held that although the appellant’s actions had been irrational, he had acted voluntarily in that he had the powers of discernment and restraint so that he had not been criminally unaccountable, but rather suffered diminished responsibility. With regard to diminished responsibility the court noted:209
Referraal in terms of section 78(2) and 79 of the Criminal Procedure Act where the defence of non-pthological criminal incapacity is raised
Before 2002, the Criminal Procedure Act did not provide for a referral in terms of section 79 if the defence of non-pathological criminal incapacity was raised.258 The Criminal Matters Amendment Act259, however, changed matters in respect of the defence of non-pathological criminal incapacity. If an accused is referred for observation, such referral will be conducted and reported on in accordance with section 79 of the Criminal Procedure Act. It should be noted that such referral could be effected at the request of the accused, the State as well as the court. In S v Volkman262 the court had to interpret and apply section 78 (2). The facts of the case were as follows. The accused, Ernest Heinrich Volkman, was charged with murder. He subsequently indicated that he intended raising the defence of non-pathological criminal incapacity as a defence. The State then applied for the accused to be observed for reasons other than pathological causes. The defence did not object to this request but requested the court that the observation takes place at daytime.
The court, per Hockey AJ, ordered the referral of the accused to Valkenberg Psychiatric Hospital for the purposes of conducting an enquiry and for a report to be prepared in accordance with section 79. Such report had to specifically include a finding as to whether the capacity of the accused to appreciate the wrongfulness of the act for which he was charged, or to act in accordance with an appreciation of the wrongfulness of the act, was, at the time of the commission thereof, affected by a non-pathological condition or by any other cause. The accused’s bail conditions were also amended to make provision for the accused to report to the Medical Superintendent every Monday to Friday from 08h30 to 17h00. The State then brought another application to the extent that the accused be admitted for observation on a full-time basis as opposed to observation during daytime hours only. Hockey AJ also notes that psychiatric evidence is not indispensable, but that the court should be mindful of the helpful role of such evidence.264 Professor Kaliski, who gave evidence on behalf of the State, stated that the conditions at Valkenberg Psychiatric Hospital to which the accused would be subjected if he was to be referred for observation, were appalling and abject. Professor Kaliski accordingly stated that these conditions were undignified and in violation of basic human rights of patients.265 The main consideration in this case was whether it would have been in the interest of justice to order that the accused be referred for observation in terms of section 78 (2) for a period of 30 days as requested by the State considered against the backdrop of the inhumane conditions at Valkenberg Psychiatric Hospital.
CHAPTER 1 CONCEPTUALIZATION AND PROBLEM STATEMENT
1 Introduction and orientation
2 Conceptualization
3 Problem statement and hypotheses
4 Central theoretical statement
5 Methodology
CHAPTER 2 THE DEFENCE OF NON-PATHOLOGICAL CRIMINAL INCAPACITY: ASSESSING THE FUNDAMENTAL NEED FOR EXPERT EVIDENCE AND LEGAL CERTAINTY
1 Introduction
2 Mode of discussion
3 Constitutional foundation
4 Reflections on the history and development of the defence of nonpathological criminal incapacity
5 Reflections on a general defence of criminal incapacity: Description of cause of mental inability irrelevant
6 Lack of criminal capacity to be distinguished from sane automatism
7 Burden of proof
8 Defence of non-pathological criminal incapacity ought not to succeed easily
9 Expert evidence
10 Referral in terms of section 78(2) and 79 of the Criminal Procedure Act where the defence of non-pathological criminal incapacity is raised
11 Principles of expert evidence through the cases
12 The impact of section 79(7) on the defence of non-pathological criminal incapacity
13 Provocation and non-pathological criminal incapacity
14 Intoxication and non-pathological criminal incapacity
15 Battered woman syndrome and non-pathological criminal incapacity
16 Amnesia and non-pathological criminal incapacity
17 Diminished criminal capacity
18 Conclusion
CHAPTER 3 PATHOLOGICAL CRIMINAL INCAPACITY AND THE CONCEPTUAL INTERFACE BETWEEN LAW AND MEDICINE
1 Introduction
2 Constitutional foundation
3 Historical development of the defence of pathological criminal incapacity
4 Defining and assessing competency to stand trial
5 Analysis and assessment of pathological criminal incapacity
6 Defining and assessing “mental illness” and “mental defect” as threshold requirements in support of the defenceof pathological criminal incapacity
7 The role and application of the DSM-IV and the ICD-10 in assessing pathological criminal incapacity
8 Clinical disorders of legal significance
9 Towards a plea of non-triability and criminal incapacity
10 The causal nexus between mental illness and impairment of the cognitive and conative capacities in the incapacity enquiry
11 Burden of proof
12 Procedural aspects of the defence of pathological criminal incapacity
13 Referral for observation by the panel of experts for purposes of the enquiry and the role of expert evidence
14 Admissibility of statements by an accused during the enquiry
5 Disposition of the insanity acquittee
16 Diminished criminal capacity
17 Conclusion
CHAPTER 4 THE ROLE OF FORENSIC EXPERT EVIDENCE IN ESTABLISHING CRIMINAL INCAPACITY
1 Introduction
2 Constitutional foundation
3 The foundational principles of expert evidence
4 The probative value and weight of expert evidence
5 The presentation and evaluation of expert evidence
6 Ethical issues pertaining to the forensic assessment conducted by experts
7 The forensic report
8 A draft ethical code for mental health professionals serving as expert witnesses
9 Conclusion
CHAPTER 5 MASTERING FORENSIC EXPERT EVIDENCE: REFLECTIONS FROM THE UNITED STATES OF AMERICA
1 Introduction
2 Mode of discussion
3 Constitutional foundation
4 Setting the stage: From Frye to the Federal Rules of Evidence
5 Scientific reliability and validity of expert evidence by mental health experts – applying the Daubert resolutions
6 Ethical considerations pertaining to forensic psychiatry and psychology
7 Conclusion
CHAPTER 6 CONCLUSION AND RECOMMENDATIONS
1 Introduction
2 Synopsis
3 Conclusions
4 Recommendations
5 Proposals
6 Possible criticisms and lacunae in respect of research
7 Implications and possibilities for further research
8 Synthesis
