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Criminal Lecture Notes Term 2

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Grounds of Justification Introduction:  The accused will escape liability if his conduct is lawful or justifiable.  Thus the accused will only be found guilty if his conduct is unlawful.  South African law tests unlawfulness negatively – there is an assumption that if the accused commits a prohibited action it is unlawful unless there is a defence on the facts.  Distinguish between: 1. Defences which negate mens rea or capacity and –  These do not apply to crimes of strict liability but rather to crimes which require mens rea.  Differ in standard depending on whether the crime is a crime of culpa or dolus. 2. Defences which negate the unlawfulness of the actus Reus –  These apply to crimes of strict liability and all crimes.  Standard is the same regardless of whether the crime is one of culpa or dolus.  Thus the ground of justification is the same and is tested objectively  Unlawfulness is the same for everyone  Unlawfulness evaluates the act (actus reus)  Court is entitled to create a new ground of justification. Ultimately unlawfulness is a matter of the LCC. Clark v Hurst NO   General Rule: An act is punishable if it is unlawful. Therefore if the act is lawful, then, the accused will escape liability i.e. it will be a ground of justification. The grounds for justification may be as follows: 1. Private Defence (self defence)  Definition: A person who is the victim of an unlawful attack of his person, property or other re ...
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