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LEARNING UNIT 1 - PARTICIPATION IN CRIME Cheat Sheet (DRAFT) by

Participation in a crime and multiple offenders involved in the commission of crimes, and engage with the doctrine of common purpose and how it applies to multiple offenders in the commission of a crime.

This is a draft cheat sheet. It is a work in progress and is not finished yet.

THEME 1: INTROD­UCTORY PRINCIPLES

LO1: Define a perpet­rator in the commission of a crime and differ­entiate between different types of perpet­rators
A person is a PERPET­RATOR if
a) his conduct, the circum­stances in which it takes place and the culpab­ility with which it is carried out are such that he satisfies all the requir­ements for liability;
b) if he acted together with one or more persons and the conduct required for a conviction is imputed to him by virtue of the principles relating to common purpose.
The different persons who may be involved in the commission of a crime are divided into 3 catego­ries: perpet­rators, accomp­lices & access­ories after the fact.
ACCOMPLICE
Somebody who does not satisfy all the requir­ements for liability contained in the definition of the crime;
does not qualify for liability ito the principles relating to common purpose BUT who unlawfully and intent­ionally furthers its commission by somebody else.
Consci­ously associates themselves with the commission of a crime by assisting the perpet­rat­or/­co-­per­pet­rators, giving them inform­ati­on/­advice OR offering them the opport­unity or means to commit the crime or facilitate its commis­sion.
ACCESSORY AFTER THE FACT
a) somebody who, after the commission of the crime, unlawfully and intent­ionally helps the perpet­rator or accomplice to escape liability.
b) only comes in AFTER the commission of the crime
CO-PER­PET­RATORS
If several persons commit a crime together, it is unnece­ssary to single out who can be the perpet­rator and that helpers, must necess­arily fall into a different category.
1) not always practical to identify one principle perpet­rator as the principle offender or actual perpet­rator
2) if several people commit a crime and all comply with all the requir­ements for perpet­rators, they are simply co-per­pet­rators
3) two persons may act in such a way that each contri­butes equally to the crime
DIRECT & INDIRECT PERPET­RATORS
a) An indirect perpet­rator is somebody who commits a crime through the instru­men­tality of another. b) the distin­ction that may be drawn between direct & indirect perpet­rators is irrele­vant. c) direct­/in­direct perpet­rators are suitable terms to describe a factual situation. d) the difference between the two has no bearing on a person's liability
LIABILITY OF PERPET­RATOR NOT ACCESSORY IN NATURE
a) liability of a perpet­rat­or/­co-­per­pet­rator is based on his own act and his own culpab­ility.
b) DOES NOT depend on the commission of a crime by somebody else; his liability is completely indepe­ndent
LO 2: Explain the need for and the role of the doctrine of common purpose
NECESSITY OF DOCTRINE OF COMMON PURPOSE
1) If several people acting together killed 'Y', it is always impossible to ascertain with certainty who amongst them contri­buted casually to 'Y's' death
2) It may be without a doubt that at least one of the group, namely the shooter, caused Y's death but there are also situations in which the conduct of no single one of them can with certainty be described as a cause of Y's death.
LO3: Define the doctrine of common purpose
THE DOCTRINE OF COMMON PURPOSE: SUMMARY OF PRINCIPLES
Courts apply a scientific doctrine to enable it to convict several people acting together of murder - doctrine of common purpose
1) If 2 or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.
2) In a charge of having committed a crime which involves the causing of a certain result, the conduct imputed includes the causing of such result
3) Conduct by a member of the group of persons having a common purpose which different from the conduct envisaged in the said common purpose may not be imputed to another member of the group unless the latter knew that such other conduct would be committed, or foresaw the possib­ility that it might be committed & reconciled himself to that possib­ility.
4) A finding that a person acted together with one or more other persons in a common purpose is not dependent upon proof of a prior conspi­racy. Such a finding may be inferred from the conduct of a person or persons.
5) A finding that a person acted together with one or more other persons in a common purpose may be based upon the first-­men­tioned person's active associ­ation in the execution of the particular criminal act of the other partic­ipa­nt(s). HOWEVER, in a charge of murder this rule applies only if the active associ­ation took place while the deceased was still alive and before a mortal wound or mortal wounds had been inflicted by the person or persons with whose conduct such first-­men­tioned person associated himself.
6) If, on a charge of culpable homicide the evidence reveals that a number of persons acted with a common purpose to assault or commit robbery and that the conduct of one or more of them resulted in the death of the victim, the causing of the victim's death is imputed to the other members of the group as well, but negligence in respect of the causing of the death is not imputed.
THE DOCTRINE OF COMMON PURPOSE - GENERAL
- If 2 or more people in acting in common purpose to commit a crime, the conduct of each of them in the execution of that purpose is imputed to the others.
- Common purpose is not couched in general terms and therefore, not confined to one type of crime only. mostly found within the context of the crime of murder
- The persons must all have had the intention to murder and to assist one another in committing the murder.
- The basis of the doctrine is the idea that each member of that plot gave the other an implied mandate to execute the unlawful criminal act.
DIFFERENCE BETWEEN PRIOR CONSPIRACY & ACTIVE ASSOCI­ATION
Restri­ctions to common purpose doctrine
~ If reliance is placed on a prior agreement or conspiracy between the partic­ipants, it is enough to prove that X agreed with the wide and general common design of conspi­rators.
~ If reliance is placed not on a previous conspi­racy, but on active associ­ation, there must be proof that X associated himself, not with the wide and general common design, but with the specific act, whereby the other partic­ipants committed the crime.
COMMON PURPOSE AND DOLUS EVENTUALIS
For X to have a common purpose with others to commit murder, it is not necessary that his intention to kill be present in the form of dolus directus
It is enough if his intention takes the form of dolus eventualis
COMMON PURPOSE IN CHARGES OF CULPABLE HOMICIDE
1. One cannot intend to be negligent
2. An inference can be drawn that the common purpose doctrine can never be applied to convict people of culpable homicide
3. If there are diffic­ulties in proving causation, the doctrine can be applied in charges of culpable homicide, see decision in Nkwenja, Magmoed v Janse van Rensburg, read with Sefatsa
LO5: Evaluate the consti­tut­ion­ality of the doctrine of common purpose with reference to applicable case law
COMMON PURPOSE DOCTRINE IS CONSTI­TUT­IONAL
In Thebus, the ConCourt held that the doctrine is compatible with the Consti­tution.
~ X's rights to dignity & freedom aren't infringed
~ If the doctrine didn't exist,
1) there would have been acceptable situations convicting only the person who had actually committed the principle act
2) whereas those who have intent­ionally contri­buted to the commission of the crime would have been guilty.
LO4: Identify the requir­ements of an effective withdrawal from a common purpose
1) To escape conviction on the ground of a withdrawal from the common purpose, X must have clear intention to withdraw from such a purpose;
2) To succeed with the defence of withdr­awal, X must perform some positive act of withdr­awal;
3) The withdrawal must be voluntary, if X withdraws upon discov­ering that the police had uncovered the plot, the withdrawal is not voluntary;
4) The withdrawal will amount to a defence only if it takes place before the course of events start taking place;
5) The type of act required for an effective withdrawal depends upon a number of circum­stances
6) The role played by X in planning to commit the crime has a strong influence on the type of conduct which the law requires him to perform t succeed with a defence of withdrawal
ACTIVE ASSOCI­ATION IN COMMON PURPOSE
It follows that prior agreement is not the only form of common purpose liability.
2 categories of common purpose
1) where there is prior agreement to commit a common offence;
2) where liability arises from an active associ­ation and partic­ipation in a common criminal design with the requisite intention to commit a crime
If there is no proof of prior agreement, the following 5 REQUIR­EMENTS must be met according to the decision in Mgedezi
1) X must have been present at the scene of the crime;
2) X must have been aware of the assault on Y;
3) X must have intended to make common cause with the person or persons committing the assault;
4) X must have manifested his sharing of a common purpose by himself performing some act of associ­ation with the conduct of others;
5) X must have intended to kill Y
 

THEME 2: JOINING-IN (LATE-­COMER)

LO6: Define a "­joiner in" (late-­comer) and apply the definition to a factual scenario in S v Motaung
X, acting either on his own or together with others in a common purpose, has already wounded Y lethally.
THEREAFTER
~ While Y is still alive, Z, who has not previously (expressly or tacitly) agreed with X or his associates to kill Y, arrives at the scene & inflicts an injury on Y, which blow does not hasten his death;
Y dies from the wound inflicted by X
~ The person in Z's position is referred to as "­joi­ner­-in­"
 

THEME 3: ACCOMP­LICES

LO7: Define an accomplice with reference to case law
A person is guilty of a crime as an accomplice if he, unlawfully & intent­ionally engages in conduct whereby he furthers the commission of a crime by somebody else.
~ By furthers is meant, any conduct whereby a person facili­tates, assist­s/e­mco­urages the commission of a crime, gives advice concerning its commission or makes it possible for another to commit it.
REQUIR­EMENTS FOR LIABILITY AS AN ACCOMPLICE
1) Accessory nature of liability
2) Act/Om­ission which furthers the crime
3) Unlawf­ulness
4) Intention
IMPOSS­IBILITY OF BEING AN ACCOMPLICE TO MURDER
~ For a person to be an accomplice to murder, he would intent­ionally have to further somebody else's commission of the crime, without his own conduct qualifying as a co-cause of the death.
~ If his conduct is a co-cause of the death - he is a co-per­pet­rator
~ It is impossible for somebody to be an accomplice to murder
~ One cannot further Y's death without casually furthering it.
PUNISHMENT
The same punishment may be imposed on an accomplice as on the perpet­rator
This doesn't mean the court may not in certain circum­stances impose a heavier or lighter sentence on an accomplice than on the perpet­rator
The extent to which the accomplice furthered the commission of the crime plays an important role in determ­ining the extent of the punish­ment.
 

THEME 4: ACCESS­ORIES AFTER THE FACT

LO9: Examine this category of partic­ipation in the commission of a crime with reference to the need for its continued existence in our criminal law
DEFINITION
A person is an accessory after the fact to the commission of a crime if, after the completion of a crime, he unlawfully & intent­ionally engages in conduct intended to enable the perpet­rator of, or accomplice in, the crime to evade liability for his crime, or to facilitate such a person's evasion of liability.
ASSISTING THE PERPET­RATOR TO EVADE LIABILITY
~ An accessory after the fact protects either the co-per­pet­rator or accomplice
~ X must commit some act whereby he enables a person who has committed a crime to evade liability
THUS, X does not commit the crime if he is a witness to the commission of a crime to which he is not a party, and simply quietly walks away.
~ The position is different if X is a policeman, an omission by him to report the commission of a crime amounts to being accessory after the fact.
INTENTION
1) The Accessory after the fact must render his assistance intent­ionally
2) He must know that the person he is helping committed the crime
3) He must intend to enable the perpet­rator of or accomplice in the offence to evade liability for his offence, or to facilitate such a person's evasion of liability.
4) Dolus Eventualis may suffice
5) One is capable of being an accessory after the fact in respect of a crime requiring negligence
ACCESSORY CHARACTER OF LIABILITY
~ There can only be an accessory after the fact if somebody else has committed the crime as a perpet­rator.
~ One cannot be an accessory after the fact for a crime committed by oneself.
~ If the person who helps the perpet­rator after the commission of the offence agrees with him before its commission to assist him therea­fter, the picture changes comple­tely.
PUNISHMENT
~ Section 257 of Criminal Procedure Act provides that, the punishment of an accessory after the fact may not exceed the punishment which may be imposed in respect of the crime committed by the perpet­rator.
~ The Accessory After the Fact did not partic­ipate in the actual crime, he is usually sentences more leniently than the perpet­rator.

THE SAFATSA JUDGEMNT

THE FACTS
~ A crowd of about 100 people attacked Y, who was in his house
~ They pelted the house with stones, hurling petrol bombs through windows
~ Catching him as he was fleeing from his burning house, stoning him, pouring petrol over him and setting him alight
~ The appellants (6) were part of the crowd
COURT'S FINDING
Their conduct consisted of acts such as grabbing hold of Y
- wrestling with him, throwing stones at him, exhorting the crowd to kill, forming part of the crowd which attacked him, making petrol bombs and setting Y's house alight
UNANIMOUSE JUDGEMENT
~ The court confirmed the convic­tions of the six accused who were convicted of murder
~ The court based its conviction on the doctrine of common purpose
~ The court found that they all had the common purpose to kill Y