how's this for a defence argument?!?!?!

[Eldron]

I'm impressed - I expected to read hundreds of "she's guilty - send her to jail and crucify her on the way" style posts but all I see is common sense and logic. Mayb there is hope for us cyclists

 

Personally (much as I don't want to) I accept her defence - the main reason being that the witnesses reported seeing no brake lights after hitting the cyclist and travelling over the pavement. Typical driver response to any "unusual" sound or situation is to slam on brakes...

 

She was either asleep or passed out.

 

What is sad is how cheap life is - a loss of concentration, unroadworth car, driver on cell phone can mean death to a pedestrian/cylist. People should view driving as controlling a speeding death machine rather than a waste of time getting from point A to point B - perhaps that change in perspective would result in less deaths on the road (motorised and non motorised).

 

 

[Andyr249]

Plausible defence. Form of incapacitation. It is a different story if the woman was prone to fainting and knew or foresaw the possibility of fainting while driving and still drove regardless. Then she would be held criminally liable. At varsity we studied a few criminal cases that dealt with that. If I remember correctly one accused even got acquitted for killing someone in his sleep. He was having a nightmare and hit out and killed his family member. But he wasn't in control of his body at the time.

 

interesting that you should mention that. the same publication recently published a story about a man who was cleared of murdering his wife by strangulation in his sleep. i think there was also a rape case where the perpetrator was said to be sleeping during the act. will see if i can find some links.

 

I will have a look in my Crim Law textbook to get a bit more info. What many people don't understand is that you need all the elements of a crime to be present to have criminal liability. Capacity is one of them and various things can impact on criminal capacity. Incapacity due to fainting, as in this case, strikes out the capacity so there is no liability. You kill someone in private defence. Technically you unlawfully killed another person so it is murder. But the private defence strikes out the fault requirement.

[Andyr249]

I don;t buy her excuse.

 

Sound to me like the type of excuse a clever lawyer paid by wealthy people will dream up to keep his client out of jail.

 

the woman is a murderer and she should be behind bars. Hers tears outiside the court house are tears of guilt.

 

She has to live with herself from here on.

 

She would nver have got away with that defence on the mainland where she woul;d be assumed to be liable and the onus would be upon her to prove she blacked out.

In the UK' date=' (Like SA) her word is taken.

 

Don;t be surprised to find more drivers using this excuse in SA. Our moral fibre is already micron thin

[/quote']

 

Incapacitation is not the easiest to prove. Yes, she is a murderer because she unlawfully end the life of a human being. But she lacked capacity which is one of the requirements for criminal liability. Factually you could have committed the act but in order to be guilty you need capacity.

[fandacious]

if she did black out, then it would be manslaughter?

 

 

 

surely there must be some liability on her behalf?