Lying in the Sun

Masipa's Judgement - 5

Masipa's Judgement - 5

Aberratio Ictus (the going astray of the blow)

Aberatio Ictus means the going astray of the missing blow or missing of the blow.   In Aberratio Ictus ‘A’ intends to kill ‘B’ but misses him and kills ‘C’ 

It follows that ‘A’ has intention in respect of ‘C’ only if he foresees or foresaw the possibility of ‘C’s death in which event he would be guilty of murder dolus eventualis.  Or, for culpable homicide.  If ‘C’s death, was reasonably foreseeable in which event he would be guilty of culpable homicide!

On the other end -  Error in Objecto cares with  ‘A’  intending to kill ‘B’   He shoots and kills ‘C’ whom he mistakenly believes to be ‘B’

In these circumstances ‘A’ is clearly guilty of the murder of ‘C’

(Judge Masipa quotes case law again)

‘A’s intention is directed at a specific pre-determined individual although he is in error as to the exact identity of that individual.  In other words ‘A’ intends to kill that individual irrespective of whether the name of the individual is ‘B’ or ‘C’

There’s thus in the case of Error in Objecto so to speak an un-deflected mens rea which falls upon the person it was intended to affect.  The error as to the identity of the individual therefore is not relevant to the question of mens rea.

It is so, that the aberratio ictus rule derived support from two appellate division decisions (quotes cases)

In terms of the rule then, because of ‘A’s intention to kill,   ‘A’ is guilty of the murder of ‘C’ without the Prosecutions having to establish an intention to kill ‘C’ specifically.

Recent case law however moved away from this (Judge explains why and the cases she is quoting from)   she continues to explain the legal position as it now stands she quotes:

‘Nowadays criminal liability is not regarded as attaching to an act or a consequence unless it was intended by mens rea.   Accordingly if ‘A’ assaults ‘B’ and in consequence ‘B’ dies ‘A’ is not criminally responsible for his death unless:

(a)    He foresaw the possibility of resultant death yet persisted in his deed reckless whether death ensued or not.


(b)   He ought to have foreseen the reasonable possibility of resultant death.

In (a) the mens rea is the type known as Dolus Eventualis, and the crime is murder.

In (b) the mens rea is culpa and the crime is culpable homicide.    Close quote.

My view is that we are not here dealing with aberattio ictus.  As there was no deflection of the blow it would therefore serve no purpose to say anything more about it.

We are clearly dealing with error in objecto or error in persona in that the blow was meant for the person behind the toilet door who the accused believed was an intruder.

The blow struck and killed the person behind the door.   The fact that the person behind the door turned out to be the deceased and not an intruder, is irrelevant.

The starting point however, once more, is whether the accused had the intention to kill the person behind the toilet door whom he mistook for an intruder.  The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person.   In other words he raised the defence of Putative Private Defence.

Judge Masipa quotes case law again.

‘A distinction was drawn between Private Defence as a defence excluding unlawfulness which is judged objectively, and Putative Private Defence which relates to the mental state of the accused.

She quotes case law again

From a juristic point of view the difference between these two defences is significant.  A person who acts in private defence acts lawfully provided his conduct satisfys the requirements laid down for such a defence and does not exceed its limit.   The test for private defence is objective -  Would a reasonable man in the position of the accused have acted in the same way?

In Putative Private Defence it is not lawfulness that is an issue but culpability… 

If any accused honestly believes his life or property is in danger but objectively viewed, they are not - the defensive steps he takes cannot constitute private defence.   If in those circumstances he kills someone his conduct is unlawful.   His erroneous belief that his life or property was in danger may well (depending on the precise circumstances) exclude dolus, in which case the liability for the persons death based on intention will also be excluded.

At worst for him he can then be convicted of culpable homicide.   Close quote.

In murder the form of culpability requires intention. 

The test to determine intention is subjective.  In the present case the accused is the only person who can say what his state of mind was at the time he fired the shots that killed the deceased.  

The accused has not admitted that he had the intention to shoot and kill the deceased or any other person for that matter.  On the contrary he stated that he had no intention to shoot and kill the deceased.

The Court is however entitled to look at the evidence as a whole and the circumstances of the case to determine the presence or absence of intention at the time of the incident.

In the present case on his own version the accused suspected that an intruder had entered his house through the bathroom window.  His version was that he genuinely, though erroneously believed that his life and that of the deceased was in danger.   There is nothing in the evidence to suggest that this belief was not honestly entertained.   I say this for the following reasons.  The bathroom window was indeed open so it was not his imagination at work when he thought he heard the window slide open.  He armed himself with a loaded firearm and went to the direction of the noise.  He heard a door slam shut.  The door toilet was indeed shut when he fired four shots at it after he heard a movement inside the toilet.  On his version he was scared as he thought the intruder was coming out to attack him.  There is no doubt that when the accused fired shots through the toilet door he acted unlawfully.  There was no intruder, instead the person behind the door was the deceased, and she was dead.

I now deal with dolus eventualis or legal intent.   The question is:

1.  Did the accused subjectively forsesee that it could be the deceased behind the toilet door?

Not withstanding the foresight did he then fire the shots thereby reconciling himself to the possibility the deceased in the toilet.

The evidence before this Court does not support the State’s contention that this could be a case of dolus eventualis.

On the contrary the evidence shows that from the onset the accused believed that at the time he fired shots into the toilet door the deceased was in the bedroom while the intruders were in the toilet.

This belief was communicated to a number of people shortly after the incident. 

(Judge Masipa continues by stating the names of the persons and at which time, Pistorius related to each his story of the intruder.)

It follows the accused belief that his life was in danger, excludes dolus.

The  accused therefore cannot be found guilty of murder, dolus eventualis.

That however is not the end of the matter as culpable homicide is a competent verdict.
11th September 2014

Website Builder