Kritiese perspektief op die rol van amnesie by die vasstelling van strafregtelike aanspreeklikheid

Abstract

Amnesia, being the inability to acquire and retain new memories and the possible impairment of retrieval of previously acquired memories, manifests as an increasingly popular defence in South African criminal courts. It is particularly raised in support of a defence of automatism or criminal incapacity. This article presents a critical perspective on the assessment of amnesia by South African criminal courts. The reluctance of courts to accept claims of amnesia is attributable to the poor interface of law and psychiatry in the assessment of amnesia. Gaps exist between psychological knowledge of amnesia and knowledge required by courts for the correct judicial application of the principles pertaining to amnesia. The article also provides a theoretical exposition of the law applicable to the burden of proof where amnesia is raised as part of a criminal defence.