The thesis deals with the constitutionality of the burden of proof in cases of mental illness. Mental illness is one of the factors recognized by South African law that negates criminal liability. The law that applies in South Africa today in relation to the defense of impunity is contained in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the M'Naghten rules and the irresistible impulse test which had appeared in South African law almost a century earlier .
Section 78(1) of the Criminal Procedure Act provides that, in order not to be responsible for an alleged crime, the accused must have committed an act which constitutes a crime and, at the time of committing that order, must have suffered from a mental illness or mental disorder that rendered him unable to (a) recognize the wrongfulness of his actions; or (b) act in accordance with an assessment of the wrongfulness of its actions. Due to changes in the law, any party claiming mental illness as a defense is expected to prove on a probable basis that the accused was mentally ill at the time of the commission of the crime. Lawyers and mental health professionals often disagree due to the differences in the interpretation and application of mental illness in the respective professions.
A comparative study of the laws relating to the defense of inadmissibility in English law and in the United States is undertaken. In all three legal systems, the burden of proof has always been on the defense to prove its case on the balance of probabilities.
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Following this recommendation, the statutory formulation of the rules for determining the criminal responsibility of the mentally ill was included in the Criminal Procedure Act of 1977.27 Mental illness – "a pathological disturbance of the defendant's mental capacity and not merely a temporary mental confusion attributable not to mental abnormality but to external stimuli such as alcohol, drugs or provocation."28. Mens rea- guilt on the part of the perpetrator, a culpable mental state with which the perpetrator acts29.
Criminal responsibility- The disease or mental defect must have a certain effect on the person's abilities to warrant a finding that he is not criminally responsible 32. The person must lack the ability to (a) appreciate the illegality of his actions or ( b) acts in accordance with the evaluation of the injustice of his act33. I will then consider the constitutionality of the burden of proof placed on the mentally insane and explore.
This provides a platform to explore some of the difficulties that arise when psychological concepts of mental illness (or disorder) intersect with legal ones. The term "mental illness" or "mental defect" refers to a pathological disturbance of the mental faculties, not a temporary clouding of the mental faculties that cannot be attributed to a mental illness.
Pathological
The term "mental illness" has no scientific medical meaning, but rather is a legal term used. The condition from which the accused is suffering must therefore be the result of some known or identifiable mental illness43. Mental abnormalities that are not a result of disease, but are caused by the temporary effect of external stimuli, are not diseases44.
Endogenous
Mental Defect
Fitness to Stand Trial---------------------------------------------------9-11
The accused was charged for the attempted assassination of the then Prime Minister, Dr Verwoerd. In S v van Graan64 the accused was referred for observation in terms of section 77 and 78 of the Criminal Procedure Act. Almost as controversial and problematic as the legal definition of insanity is the assignment of the burden of proof and the ultimate issue of evidence72.
In Ndlovo, Davis AJA concludes that the burden of proof rests with the state to prove the guilt of the accused beyond reasonable doubt. In all criminal cases it is for the Crown to establish the guilt of the accused, not for the accused to establish his innocence. In criminal cases, the burden of proof always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt.
The reason for the shift of charges in the case of the defense of insanity in English law is that normally the presumption of mental capacity is sufficient to prove that the accused acted knowingly and voluntarily212. A major reform in the form of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 resulted from dissatisfaction with the way those found unfit to plead not guilty by reason of insanity were treated under the Criminal Procedure (Insanity Act of 1964). )222. The trial of John Hinckley raised many questions about the proper distribution of the burden of proof for insanity225.
This led to the reconsideration of the position by many states and by Congress228. Based on the presumption of sanity, the onus is on the accused to present evidence of insanity230. Today, about two-thirds of the states that accept the insanity plea now place the burden of proof on the defendant, usually by a preponderance of the evidence246.
The other state jurisdictions place the burden of proof on the prosecutor to disprove the elements of the defendant's insanity defense beyond a reasonable doubt250. Section 78 of the Criminal Procedure Act, subsection 1, provides that in order not to be responsible for an alleged crime, the defendant must have committed an act that constitutes an offense and must have suffered from a mental illness or mental defect at the time of the commission. which rendered him incapable of (a) understanding the wrongfulness of his actions; or (b) acts in accordance with a judgment that his actions are wrong291. In relation to common law295, the accused has the duty to prove his criminal insanity on a balance of probabilities296.
The presumption of innocence provided for in Article 35(3) of the Constitution requires the state to bear the full burden of proof in relation to every element of the criminal offense297. Only after the state has proven every element of the crime beyond a reasonable doubt does the burden of proof shift to the accused to establish reasonable doubt298. In S v Kok310, Scott JA drew attention to the anomaly in relation to the allocation of the burden of proof depending on whether the accused pleaded pathological or non-pathological disability.
To date, there has been no definitive decision regarding the application of the presumption of innocence and the assignment of the burden of proof to violations of regulations326.
BURDEN OF PROOF AND PSYCHIATRIC TESTIMONY