NON-PATHOLOGICAL INCAPACITY
AUTOMATISM
CONSCIOUS
UNCONSCIOUS
(ALTERED STATE OF CONSCIOUSNESS)
AMNESIA PRESENT ACCUSED SELDOM HAS AMNESIA
MINIMAL GOAL DIRECTED BEHAVIOUR LOTS OF GOAL DIRECTED BEHAVIOUR
BUT COURTS PRETEND OTHERWISE THAT
HAS TRIGGER MECHANISMS IT IS NOT A LOT (CONFLATE THE ACTS)
SEE MOSES CASE
HAS TRIGGER MECHANISMS
USE TERMS INVOLUNTARY, OR HAD NO COURTS USE PHRASE LOST SELF
CONTROL) TO EXPLAIN THE AUTOMATIC CONTROL TO EXPLAIN LACK OF
STATE CAPACITY
ALTERNATIVE PHRASES USED BY COURTS
TO EXPLAIN BEHAVIOUR: ROBOTIC, ALTERNATIVE PHRASES USED:
AUTOMATION, REFLEXIVE TO EXPLAIN EMOTIONAL STORM, RED RAGE,
ACCUSEDS BEHAVIOUR FLOODED WITH EMOTIONS.
THE COURT DOES NOT VIEW THE
ACCUSED AS ACTING AT ALL IF ACTING COURT STILL VIEWS YOU AS HAVING
INVOLUNTARILY. THEREFORE NO ACTUS COMMITTED AN ACT, BUT YOU LACKED
REUS (OR ACT) NO GUILT VERDICT CAPACITY.
IF NO CAPACITY CAN ALSO BE AQUITTED
(SAME AS WITH AUTOMATISM) (TILL
EADIE CASE THAT IS)
THIS RAISES QUESTIONS:
1. ALL HUMANS MUST HAVE SOME FORM OF CAPACITY. OTHERWISE YOU CANNOT
FUNCTION IN SOCIETY.
2. SOMETHING IE TRIGGER MECHANSIMS CAN REMOVE CAPACITY.
3. IF TRIGGER SEVERE ENOUGH, CAN ACT IN STATE OF AUTOMATISM THIS MEANS CAPACITY
IS TOTALLY ABSENT (IE WHY THE COURT REFERS TO, UNCONSCIOUSNESS AND ALSO
REFERS TO FACT THAT ACCUSED HAS NOT HAVING ACTED AT ALL (ACTUS REUS)
4. NONPATHOLOGICAL STATES YOU ARE CONSCIOUS. HOW DO WE KNOW PERSON IS
CONSCIOUS ? LOTS OF GOAL DIRECTED BEHAVIOUR, REASONING PRESENT, AND
REMEMBERANCE OF EVENTS
5. PROBLEM IS: COURTS USE WRONG TERMINOLOGY FOR NON PATHOLOGICAL INCAPACITY:
THEY STATE ACCUSED LACKS CAPACITY OR LOST SELF CONTROL. THIS IMPLIES A TOTAL
LOSS OF SELF CONTROL. THE COURTS THEN ALSO SAY THE SAME THING HAPPENS IN
AUTOMATISM: THE ACCUSED ACTED INVOLUNTARY OR COULDN’T CONTROL HIMSELF
SUGGESTING TOTAL LOSS OF CONTROL OR INVOLUNTARINESS OF BEHAVIOUR.
6. SEE THE POSITION IN UNITED STATES AND BRITAIN: LOSS OF SELF CONTROL IS NOT AN
ALL OR NOTHING CONCEPT IN THOSE COUNTRIES. RATHER IT IS CAPABLE OF BEING
GRADED. FROM FULL CAPACITY TO DIMINISHED CAPACITY. THEREFORE PROVOCATION IS
NOT A COMPLETE DEFENCE IN THOSE COUNTRIES. THE COURT RECOGNISES THAT
EMOTIONAL STRESS ETC CAN IMPACT/IMPAIR AN ACCUSEDS CAPACITY IE DIMINISHES IT
BUT DOES NOT MAKE IT ABSENT. THEREFORE INSTEAD OF CHARGING ACCUSED WITH
MURDER, WILL CHARGE WITH LESSER OFFENCE.
7. SOUTH AFRICA USES PSYCHOLOGICAL CONCEPT OF FAULT. THIS MEANS THAT
DIMINISHED CAPACITY ONLY IS TAKEN INTO ACCOUNT AT SENTENCING. IF AN ACCUSED IS
CHARGED, THE CHARGE SHOULD BE CORRECTLY REFLECTED AND NOT TAKEN INTO
ACCOUNT AT SENTENCING. FURTHER WE ONLY HAVE TWO OPTIONS FOR ACCUSED FACED
WITH CRIME IN CASES OF NON- PATHOLOGICAL INCAPACITY IE AQUITT OR CONVICT. THEY
FEEL SYMPATHY FOR THE ACCUSED AND THEREFORE TENDED TO ACQUITT THE ACCUSED.
8. CONCLUSION: IF YOU ARE SHOWN TO BE ACTING VOLUNTARILY BY GOAL DIRECTED
BEHAVIOUR BEING PRESENT, THEN CAPACITY IS ALSO PRESENT AND NOT ABSENT AS
COURTS CLAIM
9. QUESTION THEN FOR US TO DETERMINE IS TO WHAT EXTENT IS IT PRESENT????
DEPENDING ON LEVEL OF TRIGGER MECHANSISMS IN CASES. IS THE ACCUSED OPERATING
AT 60% DUE TO THE EMOTIONAL STRESS OR EVENTS THAT OCCURRED. THIS BETTER
EXPLAINS THE PRESENCE OF GOAL DIRECTED BEHAVIOUR AND THE FACT THE ACCUSED
CAN REMEMBER EVENTS.
