'n Ondersoek na nie-patologiese ontoerekeningsvatbaarheid en die regverdiging vir die voortbestaan van gesonde outomatisme en aanverwante verwere in die Suid-Afrikaanse strafreg

[摘要] English: A controlled, voluntary human act is the basic element of criminal liability. If the act is not subject to the will, it is involuntary and excludes the act and therefore criminal liability. This defence is known as automatism. This condition of involuntariness can arise as a result of insanity or due to reasons other than insanity. If the accused were insane at the time of committing the offence and he successfully raises an automatism defence, he is sent for mandatory confinement in a psychiatric institution. The problem created by this legal provision of mandatory confinement is that an accused who was insane at the time of the crime, but sane at the time of the trial, must be confined in a psychiatric institution even though he is considered sane. In order to avoid this injustice, the courts have distinguished between 'insane automatism and 'sane automatism. Cases where an involuntary action has occurred for reasons other than insanity have involved a defence of sane automatism and, if successful, have resulted in full acquittal. The reason for creating the term 'sane automatism was to avoid the said unjustified functioning of the law. Courts worldwide have approached this defence with caution, as it can easily be abused. In Canada there is such strong objection to the sane automatism defence that all cases of automatism are forced into the category of insane automatism in order to protect the public. The protection of the public against dangerous criminals therefore enjoys priority over pursuit of the accused individual's possible innocence and freedom. The excessive use of the insane automatism defence to this end has resulted in sane automatism becoming legal fiction in Canada. Amendments to legislation in South Africa have given courts wider discretion and they are no longer compelled to confine the accused to a psychiatric institution. The legislation is no longer unjust, with the result that the distinction between 'insane automatism and 'sane automatism is no longer necessary. The position of the courts in the United Kingdom is very similar to that in South Africa. UK courts also have wider discretion in their judgements, and the defence of automatism in the United Kingdom is restricted to cases where there was a total loss of volition. Impaired or reduced volition is not sufficient. The distinction between insane and sane automatism is also applied here, and both external and internal factors are considered when determining the type of automatism. In Australia too little attention is given to the conative mental faculty. An unconscious act may lead to involuntariness, but this is not necessary always the case. A person may also act involuntarily and be conscious of his/her actions. In Australia the courts are inclined to consider only the cognitive mental faculty. Both the cognitive and conative mental faculties must be considered. A wilful act indicates the cognitive mental faculty, i.e. the person was conscious and aware of what he/she was doing. An intended act, on the contrary, indicates the ability of the person to control his/her actions, i.e. the so-called conative mental faculty. The automatism defence (no longer sane automatism) must still be retained, but as an ordinary defence that is indicative of an involuntary act, and therefore the absence of one of the elements of a crime (but without a specific indication of whether it is sane or insane automatism). Automatism must therefore be limited to grounds for exclusion of the element of an act, i.e. the voluntary and personal conduct of the accused.

[发布机构] University of the Free State