Non-Pathological Criminal Incapacity

Let’s create a scenario that could be along the lines of something you could only imagine happening in a movie. Or better yet, a scenario that has actually happened a few times in the world that we live in, but seems to be so farfetched you couldn’t possibly believe that it could be true.

Imagine one day you go out with friends; the purpose is to have the time of your life. You wake up the next morning with your stomach in cramps, you’re terribly nauseous and your head feels so sore - it’s as if it’s about to split in two.

You try to re-gather your thoughts and come to the frightening realisation that you can barely remember a thing that happened. While you’re in a state of complete disorientation there is a knock on your door, it’s the Police, and they’re there to arrest you for murder.

At first, you’re shocked and angry, you didn’t do anything wrong! How can they be there to arrest you? It becomes clear that someone at your party yesterday, was killed. It was even someone that you knew well, and they were stabbed in the chest three times.

The Police immediately go through your house, find a knife covered in blood hidden under a couch, with a blood covered shirt in the washing basket.

Your fingerprints are the only ones that can be found on the knife; and the shirt belongs to you. The blood on the shirt matches the blood of the deceased. As far as the Police are concerned, it’s just about ‘case closed’.

Now, you’re stuck in this situation where you have absolutely no recollection of anything the previous night; obviously the Police don’t believe you, and you spend the night in jail left with your thoughts.

Your case draws nearer: there are numerous witnesses who saw you with the deceased - let’s say one even heard screaming and saw you running away with blood all over your shirt. The facts completely stand against you, but you still cannot remember a thing.

Your Attorney sends you for a bunch of tests to see if you possibly suffer from epilepsy, schizophrenia, or some other disease or abnormality that could be used as a defence. These sorts of defences would be considered as automatism. Automatism is a state that you find yourself in where you have absolutely no control over your body – which essentially acts as a robot or on auto-pilot – so you are just not the one driving it.

All of these tests come back negative. You have no medical condition which could provide a reason for acting in the way you did. Why does this make a difference though? Whenever you are charged with a crime, it is necessary to prove that you actually had capacity to act. That at the time when the act was committed you were aware of what was happening, and you were fully able to differentiate between right and wrong.

In the absence of any medical condition, which would support a state of sane or insane automatism, there is something referred to as non-pathological criminal incapacity. This means that there was some other factor that is not necessarily caused by a disease or disability which severely hampered your capacity to act. Although this defence is not often successful, provision is made for it in our law.

A case which was used to rule out provocation as a defence is S v Eadie (196/2001) [2002] ZASCA 24. In this case, the appellant was previously convicted of murder and obstructing the ends of justice. In a road rage incident, the accused beat a fellow road user to death with a hockey stick. He then hid it away and showed the Police a pair of jeans which were clean instead of the ones that were covered in blood. The accused stated that he was provoked to such an extent that he was no longer able to appreciate the difference between right and wrong.

This defence was unsuccessful in the High Court in Cape Town. The Appellant relied on the defence of non-pathological criminal incapacity, which was caused by severe emotional stress, provocation as well as a degree of intoxication. The appellant held that at the time the act was committed he was unable to distinguish between right and wrong and therefore lacked the capacity to act. The appellant submitted that the State failed to prove beyond a reasonable doubt that he had the required capacity.

It has been established in our law that when an accused person relies on a defence of temporary non-pathological criminal incapacity, it is the onus of the State to prove otherwise. The Court went on to state the following:
  • “In discharging the onus, the State is assisted by the natural inference that in the absence of exceptional circumstances a sane person who engages n conduct which would ordinarily give rise to criminal liability, does so consciously and voluntarily;

  • An accused person who raises such a defence is required to lay a foundation for it, sufficient at least to create a reasonable doubt on the point;

  • Evidence in support of such a defence must be carefully scrutinised;

  • It is for the Court to decide the question of the accused’s criminal capacity, having regard to the expert evidence and all the facts of the relevant case, including the nature of the accused’s actions during the relevant period.”

The Court was of the opinion that every person who drives a motor vehicle can reasonably foresee possible altercations on the road. Although the appeal was dismissed, this case still lays out a clear foundation on which such a defence may be raised.

Many people are unable to distinguish the difference between sane automatism and non-pathological criminal incapacity.

A person who acts in a state of sane automatism would typically have been subjected to a great deal of stress producing a state of internal tension building to a climax which in most cases is reached after the person concerned has endured ongoing humiliation and abuse.

The climax is triggered by an event that is unusual in its intensity, or unpredictable in its occurrence. When one acts in this state one’s cognitive functions are absent. This means that actions are unplanned, and one is unable to appreciate surrounding events. Acts perpetrated in this condition may appear to be purposeful, but should typically be out of character. When the period of automatism has passed the person concerned comes to their senses, quite bewildered and horrified by the results of such actions, and lends assistance to the victim. There would be no concerted effort to escape from the scene. Persons acting in this manner usually claim amnesia.

Griesel J states that although sane automatism and non-pathological criminal incapacity are very similar in nature, if not the same, they are still completely different defences. The learned judge stated that the distinction between the two might be one without a difference. Griesel J stated that, “At the same time, however, it is clear that in many instances the defences of criminal incapacity and automatism coincide. This is so because a person who is deprived of self-control is both incapable of a voluntary act and at the same time lacks criminal capacity.”

In the case of S v Ramdass, the accused agreed that the evidence which the State had compiled against him overwhelmingly suggested that he was guilty of murder, but he had no recollection of the event as he was under the influence of alcohol and crack cocaine.

The Judge stated that he was satisfied that the evidence showed beyond a reasonable doubt that it was the accused who killed the deceased. But it is important to establish that a person had the necessary capacity and intention (or negligence) to kill, in order for them to be punished. Capacity in this context refers to the appreciation of wrongfulness and the ability to act in accordance with that appreciation.

It used to be the case that voluntary drunkenness which did not result in a mental disease was no defence in respect of an offence committed during such a state of drunkenness. This decision was however, overturned in S v Chritien wherein the Appellate Division stated:

“Whenever a person who commits an act is so drunk that he does not realise that what he has done was unlawful or that his inhibitions have substantially disintegrated, he can be regarded as not being criminally responsible. If there is a reasonable doubt, the accused ought to be given the benefit thereof. Someone who is dead drunk and is not conscious of what he is doing is not liable because a muscular movement which is done in this condition is not a criminal act. If someone does an act (more than an involuntary muscular movement) but is so drunk that he does not realise what he is doing or that he does not appreciate the unlawfulness of his act, he is not criminally responsible.”

Now, this is not to say that getting drunk so that you have a little bit of ‘liquid courage’ will be a defence. If this is the case, it can be shown that getting so drunk as to inhibit your own morals or thoughts was done so intentionally and the defence will fall away as premeditation may be proven.

Amnesia in itself is not a defence, but is a factor which is to be taken into account when trying to establish automatism or a lack of criminal capacity.

In the case of S v Ramdass, the accused’s defence was that due to the consumption of alcohol and crack cocaine he did not have criminal capacity to realise that what he was doing was wrongful, and to act in accordance with such appreciation. He went on to state that he had no intention to kill the deceased. Whether he had amnesia or not, it was a factor to be considered, and the State bears the onus to prove beyond a reasonable doubt that the accused in fact have criminal capacity.

The Court went on to state that:
“I am conscious of the need for caution in finding too readily that a person who had killed someone is not criminally responsible because he acted involuntarily or without criminal capacity. Rumpff CJ said in Chretien this may bring the administration of justice into disrepute. Nevertheless, this does not mean that the court may shirk its duty to determine whether the guilt of an accused person was established beyond a reasonable doubt. If there is a reasonable doubt as to his criminal capacity then he must get the benefit of the doubt.”

Therefore, if we go back to our story in the beginning of this piece; you’re now either in prison or you have been released on bail. You are busy with an ongoing trial in which you are trying to argue that you did not do something on a night of which you have absolutely no recollection.

It is possible that arguing that you did not do something would be futile, remember; your fingerprints are on the knife; witnesses saw you arguing and running away covered in blood; and, the clothes as well as the knife were found at your house. All evidence points towards the fact that you in fact did commit the crime.

The better argument to use would be to argue that you did not have the ability to appreciate the difference between what is legally right or wrong, and you were completely unable to act in accordance with that appreciation. Once you use this defence, it becomes the State’s responsibility to prove otherwise. They may call witnesses to testify to your sanity at the time of the event, they may call their own experts who could try to disprove your current claim of amnesia.

When it is time for you to present your case to the Court, you need to make sure that every part of your testimony remains exactly the same at all times. You will also need to get experts who are able to testify that due to external influences in your life, you were no longer able to act like a normal human being. You also need a very strong foundation on which to build your defence, as this defence is rarely successful. If you have all of the above, you should have been able to create doubt in the mind of the Judge. Once you have created this doubt, the State has lost. Remember that in criminal cases, the State has to prove guilt “BEYOND A REASONABLE DOUBT”.

Such a defence is complicated and very difficult to prove. As it does not happen frequently, it may be hard to find an Attorney who has experience with this defence. It is very important that if you are faced with such a tragedy, you have an Attorney who will be honest with you; explain the risks involved; and also, your likelihood of success. Finally, if you are able to get such an Attorney, then you at least have a chance of placing enough doubt over the State’s case, to walk out of Court a free person again.
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