KNOWLEGDE OF UNLAWFULNESS 4 August 2016

HISTORY

Prior to 1977: ignorance of the law not a defence to criminal liability.

Based on a ‘state welfare/collective welfare argument’
State determines what is unlawful, based on public policy reasons and subjective
ignorance should not change this. Also concern that if ignorance of law allowed as
defence, people would deliberately remain ignorant, part of civil responsibility as
citizen is to inform oneself of the law

De Blom:
FACTS: Accused, Mrs de Blom, had been convicted in trial court of unlawfully
taking money and jewellery out of the country in contravention of the exchange
control regulations.

Appeal:
Rumpff CJ emphasised that both counts in relation to money and jewellery required
mens rea. Court recognised that accused knew that required permission to take the
money out of the control i.e. exchange control regulations existed in respect of money
therefore she had knowledge of unlawfulness in respect of the money she took out of
the country. But in relation to the jewellery, she did not know that permission was
required – alleged that she had travelled a number of times, carrying jewellery back
and forth and had never been stopped before. Her ignorance of the law affected
whether she knew that she was acting unlawfully.

Conclusion: State failed to show that the lack of knowledge was not genuine and
therefore no intention could be established. State also failed to prove that the
ignorance of unlawfulness was unreasonable therefore negligence could not be
established either.

Knowledge of unlawfulness = SUBJECTIVE DETERMINATION

Assessed from perspective of the accused on the facts of the case

Effect of De Blom: ignorance of the law, where genuine, can negate mens rea
Knowledge on the part of the accused, in relation to the unlawfulness of his conduct,
is now always a requirement for mens rea in form of intention

Criticisms:
Emphasis on subjective element of the genuineness of the knowledge of
unlawfulness too soft on criminals.
(a) Should not be taking into account a subjective assessment to negate intention
merely based on the genuineness of the ignorance, should also take into account the
reasonableness of the ignorance (but this conflates intention and negligence).
Objective criteria and facts can be employed in inferential reasoning to assess the
subjective genuineness of the knowledge.
(b) Floodgates argument: if allow knowledge of unlawfulness to negate intention,
will have everyone claiming ignorance of unlawfulness. But case law since De Blom
indicate that there has been no floodgates
BIT unlikely that a genuine ignorance of unlawfulness could be successfully pleaded
in relation to the main common law crimes such as murder, rape etc.
More relevant in more peripheral specific crimes eg. exchange control regulations
(c) Very difficult to determine the genuineness of claims of ignorance of the law –
where an accused testifies that there was evidence of ignorance of the law, will be
sufficient to establish doubt so state will not meet the burden. Therefore more cases
able to be successfully negated i.e. state will succeed in fewer convictions

DE BLOM PROVISO

If working in a sphere of activity, ought to know the law related to that sphere of
activity.

Critique:
If apply the De Blom proviso at the stage of genuineness, we are conflating intention
and negligence. Where accused testifying to their genuine lack of knowledge, but due
to area of expertise is deemed to have certain knowledge – standard of reasonableness
not genuineness being imposed.
Therefore argument that De Blom proviso should only be applied where intention has
been negated and there is an enquiry for negligence.

Application to police officers?

Does apply to a putative section 49 level, but more difficult for them to do so as they
do fall within the de blom proviso. Assumption that policemen trained to be able to
assess risk and danger and to respond appropriately therefore more difficult to
succeed with private defence or putative section 49.

Nel:
Trained policemen cannot easily make the argument that they misunderstood the
scope of section 49

TYPES

i) Ignorance of the law

ii) Mistake as to an essential element of criminal liability

STANDARD OF KNOWLEDGE REQUIRED

Sufficient for accused to foresee the possibility of unlawfulness and proceed

regardless of whether it was unlawful.
Not necessary to prove actual knowledge that conduct was unlawful
Knowledge relates to the unlawfulness of the conduct itself and not the
consequence (unlike dolus eventualis assessment of foreseeability)
Accused need not know the details of the law
Eg. the detailed requirements of offence charged or exact wording or section of law
Merely required that the accused foresaw the possibility that what he was doing
was contrary to the law in the broad sense.