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LEARNING UNIT 2 - INCOMPLETE CRIMES Cheat Sheet (DRAFT) by

The law does not only forbid completed crimes, but also certain forms of preceding forms of conduct directed at the commission of a crime, namely attempt, conspiracy and incitement to commit it. These crimes are known as "inchoate crimes."

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

THEME 1: ATTEMPT

LO1: Explain the need for punishing incomplete crimes with reference to the THEORIES OF PUNISHMENT
RATIONALE
The reason for punishing this antici­patory conduct must be found rather in the relative theories of punish­ment, and more especially in the preventive and reform­ative theories.
The police are better able to uphold the law and protect the community if they may apprehend criminals who have as yet committed only acts which normally precede the commission of crime.
Mainte­nance of law and order would suffer seriously if police were unable to intervene when they saw people preparing to commit crimes, but could take action against them only once the harm had been done.
The reason for the applic­ation of the reform­ative theory in this connection is that people who commit these antici­patory crimes are as much of a danger to society as those who have completed a crime, and therefore are in need of reform­ative treatment
LO2: Summarise the rules relating to the REQUIR­EMENTS for punishing an attempt to commit a crime
~ Mere intention to commit a crime is not punishable
~ One is liable once they have committed an act - once a resolve to commit a crime manifests itself in some conduct
~ HOWEVER, there does not have to be completed crime before X may be guilty of attempt.
SUMMARY OF RULES RELATING TO ATTEMPTS
1) A person is guilty of attempting to commit a crime if, intending to commit that crime, she unlawfully engages in conduct that is not merely prepar­atory but has reached at least the commen­cement of the execution of the intended crime
2) A person is guilty of attempting to commit a crime even though:
~ The commission of the crime is imposs­ible, if it would have been possible in the factual circum­stances which she believes exist.
~ She volunt­arily withdraws from its commission after her conduct has reached the commen­cement of the execution of the intended crime
LO3: Discuss the four forms of attempt & indicate whether a subjective or objective approach is followed with each form.
COMPLETED ATTEMPT
X has done everything she can to commit the crime
INTERR­UPTED ATTEMPT
X's actions are interr­upted
ATTEMPT TO COMMIT THE IMPOSSIBLE
It is impossible for X to commit or complete the crime
VOLUNTARY WITHDRAWAL
X of her own accord abandons her PLAN OF ACTION
SUBJECTIVE & OBJECTIVE APPPRO­ACHES
Subjective approach
Place all emphasis on X's intention - converting her evil thoughts into actions
Objective approach
Mere intention is not enough
To determine liability for attempt to commit the imposs­ible, our law adopts a subjective approach
Liability for interr­upted is determined ito OBJECTIVE APPROACH
An OBJECTIVE APPROACH is also applicable if X volunt­arily withdraws from her criminal scheme
COMPLETED ATTEMPT
If X has done everything she set out to do in order to commit the crime, but the crime is not completed, she is then guilty of attempt
LO4: Indicate when a person's conduct is no longer an "act of prepar­ati­on" but has reached the "­com­men­cement of the execution or consum­mat­ion­" stage on relation to interr­upted attempt
X's activities are interr­upted before she can succeed in completing the crime.
Courts have developed a objective criteria for differ­ent­iating between punishable & non-pu­nis­hable attempts
The criterion provides a distin­ction between:
~ Acts of prepar­ation
~ One of execution or consum­mation
If what X did was merely a prepar­ation for the crime, there is no attempt
~ if the acts were more than acts of prepar­ation & were in fact acts of consum­mation, X is guilty of attempt
Material Facts in Deciding whether there was a "­com­men­cement of the consum­mat­ion­":
~ X's physical proximity to the object or scene of the crime
~ Interval of time between the moment when X was caught and expected completion of crime
~ The question of what natural course of events was likely to have been and whether X was likely in control of events
~ Whether X still had the opport­uni­ty/time to change her mind about going ahead with the crime
how courts distin­guish between an act of prepar­ation (whether X is not guilty of attempt) and an act of consum­mation (in which X is guilty of attempt)
A) MERE ACTS OF PREPAR­ATION
X merely prepares the poison which means to administer to Y later when she gets appreh­ended
B) ACTS OF CONSUM­MATION
1) X qualifies to be convicted of attempt
2) X, trying to escape from custody, breaks the glass and wooden frame of the window in her cell
3) X, trying to break into a house, puts a key into a door
LO7: Identify the 3 REASONS why conduct would constitute an attempt to commit the impossible
ATTEMPT TO COMMIT THE IMPOSSIBLE
The action is no longer merely an act of prepar­ation but has passed the boundary line separating the 'COMME­NCEMENT OF THE CONSUM­MATION'
(1) X uses the wrong means to achieve her aim
(2) X lacks the qualities required in the definition of the crime to commit the crime
(3) X intending to kill Y, shoots at Y while Y is lying in her bed. Unknown to X, Y has already died from a heart attack before the shots were fired.
PUTATIVE CRIME
a crime that does not exist, but which X believes it does
In Davies, the court formulated 2 EXCEPTIONS to the general rule that 'attempt' to commit the impossible is punish­able.
(1) a statutory crime may exclude liability for attempt in circum­stances that would be impossible to achieve the criminal aim
(2) If what the accused was aiming to achieve was not a crime an endeavor to achieve it could not
~ By mistake of law, he thought that his act was criminal, constitute an attempt to commit a crime.
VOLUNTARY WITHDRAWAL
~ There is no punishable attempt if X volunt­arily withdraws from her criminal plan of action, before the conduct constitute the commen­cement of the consum­mation
~ Question is whether a withdrawal after this stage but before completion of the crime consti­tutes a defence to a charge of attempt
~ Voluntary withdrawal after the commen­cement of the consum­mation is no defence
THEREFORE X will be guilty of attempt
Criticism of Punishment
Withdrawal takes place after the first harm has already been done.
~ the attempt ought to be punishable
~ the position is different if X withdraws before having conflicted any harm or damage
INTENTION
A person can be guilty of attempt to commit a crime if only she had the intention to commit that particular crime.
'Inten­tion' bears the same meaning as intention to commit the completed crime and dolus eventualis is therefore sufficient
Neglect attempt is notionally imposs­ible:
~ one cannot attempt, intend to be negligent
THEREFORE there is no such thing as 'attempt to commit culpable homicide'
PUNISHMENT
A lessor punishment is usually imposed for attempt than for the completed crime
From the RETRIB­UTIVE THEORY OF PUNISHMENT - either no harm or less harm has been caused.
 

THEME 2: CONSPIRACY

LO10: Define the crime conspiracy as contained in S18(2)(A) OF RIOTOUS ASSEMBLIES ACT 17 OF 1956
PROHIB­ITION OF CONSPIRACY
~ Punishable ito section 18(2)(a) of Riotous Assemblies Act 17 of 1956
~ The crime of conspiracy is not limited to acts relating to riotous assemblies
~ The definition is wide enough to cover conspiracy to commit any crime
PURPOSE OF PROHIB­ITION
Conspiracy is the consid­eration that the mere agreement by a number of people to commit a crime, even though the conspiracy is not executed, creates a danger to society
the will of many people to commit a crime is a greater potential danger than the will of a single person to commit a crime
SUCCESSFUL CONSPIRACY
~ S18(2)(a) does not differ­entiate between a successful conspi­racy, and one not followed by any further step towards the commission of the crime.
~ It is possible to charge and convict a person of contra­vening this provision even if the crime envisaged has in fact later been committed
there is an absolute prohib­ition on the state to charge someone with conspiracy if the main crime has in fact been committed.
THE ACT
a) the actual entering into an agreement
b) implied conspiracy
c) mere knowledge is not enough
d) umbrella spoke conspiracy
e) chain conspiracy
f) direct commun­ication between all conspi­rators not required
g) general aspects of the act of conspiracy
INTENTION
Intention may be divided into 2 COMPON­ENTS:
(1) X must have the intention to conspire with another, and
(2) she must intend to commit a crime or assist in its commission
If X sells Y an article knowing full well that Y will use it to commit a crime, her mere knowledge will not constitute conspiracy
PUNISHMENT
ITO s18(2) of the Riotous Assemblies Act 17 of 1956, the conspi­rator is liable to the same punishment as the person convicted of committing the crime
a lighter punishment ought to be imposed for conspiracy than the main crime
 

THEME 3: INCITEMENT

PROHIB­ITION OF INCITEMENT
~ incitement to commit is punishable ito *s18(2) of the Riotous Assemblies Act 17 of 1956
~ the section speaks of 'incites, instig­ation, commands or procures' which will be referred to as 'incit­ement'
SUCCESSFUL & UNSUCC­ESSFUL INCITEMENT
The crime is formulated widely, liability for incitement is not only depended on whether Y had committed the crime
A person ought to only be charged with contra­vening s18(2)(b) if the incitement has been unsucc­essful
If the incitement has been succes­sful, X may be charged as co-per­pet­rat­or/­acc­omplice to the commission of the main crime.
PURPOSE & CONSTI­TUT­ION­ALITY OF PROHIB­ITION
The reason for prohib­ition of incite­ment:
to prevent crime at an early stage before serious damage is done
The aim:
*to discourage people who incite others to commit crimes
THE CONSTI­TUTION VS STATUTORY OFFENCE OF INCITEMENT
In Economic Freedom Fighters v Minister of Justice and Consti­tut­ional Develo­pment:
~ the consti­tut­ion­ality of the statutory offence of incitement was unsucc­ess­fully challe­nged.
~ the basis for the challenge was premised on the offence set out in s18(2)(b) that it unjust­ifiably infringed the right to FREEDOM OF EXPRESSION contained s16 of the Consti­tution
the court held as follows:
That while the provision infringes s16 of the Consti­tution,
~ such an infrin­gement is reasonable and justif­iable ito the limitation clause contained in s36(1) of the Consti­tution
~ the restri­ction on FREEDOM OF SPEECH arising out of this provision, is not wholesale in nature but merely a prevention on influe­ncing the minds of others to commit unlawful acts
in applying this analysis
the court returned to the purpose of the prohib­ition of incitement and;
to ensure that, "we do not live in a society of fear, marked by the threat of acts which have already been determined as undesi­rable and unlawf­ul"
HOWEVER, the majority in ECONOMIC FREEDOM FIGHTERS v MINISTER OF JUSTICE AND CORREC­TIONAL SERVICES
The court took a different view, holding that:
~ the infrin­gement on the right to freedom of expres­sion, inherent in the fact that s18(2)(b) crimin­alises incitement to commit any offence was not justif­iable
~ the court chose to read in the word "­serious offenc­es"
~ this merely enables the provision to still subsist, until the legisl­ature redrafts it to make it consti­tut­ion­ality compliant.
THE ACT OF INCITEMENT
A) Influe­ncing another to commit a crime
~ an inciter is one who reaches and seeks to influence the kind of another to the commission of a crime
*~ the crime is completed the moment X influences Y in some other way
B) Ways in which incitement may be committed
~ incitement may be explicit or implied
C) Conduct that does not qualify as incitement
if X merely describes to Y the pros and cons of a proposed commission
D) The concre­tiz­ation (final steps/­stages) requir­ement
X's words which he addresses to Y should not be too vague or equivocal
a) the type of crime to be committed by Y must be adequately specified
b) X must specify the person, group of persons or object in respect of which the crime should be committed
what is not required is that X should know the identity of the person or persons incited
c) Incitement by omission not possible
INTENTION
a) GENERAL - incitement can never be incited neglig­ently
b) X must believe that Y will have the required intention
c) Exceeding the limits of the incited crimes
X's liability for incitement is limited to the incitement contained in her words of incitement
d) Incitement subject to a condition
INCITEMENT TO COMMIT THE IMPOSSIBLE
X incites Y to put her hand in Z's pocket and steal money from the pocket.
~ X believes that there is money in Z's pocket, but there isn't
~ This is referred to as incitement to commit theft
CHAIN INCITEMENT
Incitement is possible if X does not incite Y, to commit the crime herself but engages Y to commit the crime.
IMPOSSIBLE TO INCITE A PERSON WHO LACKS CRIMINAL CAPACITY
Incitement is only possible in respect of someone who is endowed with criminal capacity.
RELATI­ONSHIP BETWEEN INCITE­MENT, CONSPIRACY & ATTEMPT
1) Attempt to commit incitement
x posts a letter to Y in which she incites Y to commit a crime, but the letter is interc­epted in the post.
2) Incitement to attempt
x gives y a firearm loaded with blank cartridges and asks Y to shoot Z
3) Overla­pping between incitement & attempt
certain acts of incitement may qualify as attempts to commit the main crime
4) Overla­pping between incitement & conspiracy
* If x incites y to commit a crime, and Y agrees to do so, conspiracy is present.
PUNISHMENT
S18(2)(b) of the Riotous Assemblies Act 17 of 1956 says, if the inciter is found guilty, she is 'liable on conviction to the punishment to which a person convicted of actually committing the offence would be liable'