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 âinsane
automatismâ and âsane automatism.â Cases where an involuntary action has
occurred for reasons other than insanity have involved a defence of "sane
automatismâ and, if successful, have resulted in full acquittal. The reason for
creating the term âsane automatismâ 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
individualâs 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 âinsane automatismâ and âsane automatismâ 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.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-08212006-135839 |
| Date | 21 August 2006 |
| Creators | Lambrechts, Hein |
| Contributors | Prof T Verschoor |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-08212006-135839/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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