In S v Eadie 2002 (1) SACR 663 (SCA), the Supreme Court of Appeal delivered a judgement which raised doubt whether the defence of non-pathological criminal incapacity is still available in our law.
The facts in this case were the following: X, a keen hockey player, consumed a large quantity of liquor at a social function. Late at night he got into his car and drove home. On the way Y, the driver of another vehicle, overtook X’s car and then drove very slowly in front of him in such a manner that X could not overtake him. After a while X did succeed in overtaking Y, who then drove at high speed behind X with his headlights on bright. The two cars then came to a halt. X, very angry, got out of his car, grabbed a hockey stick which happened to be in the car, walked to Y’s car and smashed the hockey stick to pieces against it. He then assaulted Y continuously, pulled him out of his car and continued to batter him outside the car while lying on the road. Y died as a result of the attack.
The above factual scenario demonstrates an incident known as “road rage”. On a charge of murder X relied on the defence of non-pathological criminal incapacity. The court rejected his defence and convicted him of murder.
The court discussed previous decisions dealing with this defence extensively, and then held (in par. 57 of the judgement) that there is no distinction between non-pathological criminal incapacity owing to emotional stress and provocation, on the one hand, and the defence of sane automatism, on the other. More specifically, there is, according to the court, no difference between the second (cognitive) leg of the test for criminal capacity (i.e. X’s ability to act in accordance with his appreciation of the wrongfulness of the act, in other words, his ability to resist temptation) and the requirement which applies to the conduct element of liability that X’s bodily movements must be voluntary. If X alleged that, as a result of provocation, his psyche had disintegrated to such an extent that he could no longer control himself, it amounts to an allegation that he could no longer control his movement and that he therefore acted involuntarily. Such a plea of involuntary conduct is nothing else than a defence of sane automatism.
The court did not hold that the defence of non-pathological criminal incapacity no longer exists, but in fact, made a number of statements which implied that the defence does still exist. At the same time, it nevertheless declared that if, as a result of provocation, an accused person relies on this defence, his defence should be treated as one of sane automatism (a defence which can also be described as a defence by X that he did not commit a voluntary act.) The court emphasised the well-known fact that a defence of sane automatism does not succeed easily, and is in fact rarely upheld.
After the Supreme Court of Appeal decision in Eadie, it is highly unlikely that an accused will succeed with an argument that, as a result of non-pathological criminal incapacity he acted voluntarily, but merely lacked criminal incapacity.
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