Opinionista Nicholas Taitz 12 September 2014

Judge Masipa was right on Dolus and murder

Whether or not you believe Oscar Pistorius’ version of events or trust him as a reliable witness, you cannot fault Judge Masipa’s understanding of the law.

The partial handing down of judgment in the Pistorius case by the Honourable Judge Masipa has predictably resulted in a storm of controversy, with some people hailing the verdict as a vindication of Oscar’s innocence, whilst many others lament his acquittal on murder. As a matter of law, the Learned Judge has been much criticised in social media and online articles for an alleged misunderstanding and misapplication of the principles relating to intention in criminal law, specifically a form of intention known asdolus eventualis. The purpose of this article is not to agree with Judge Masipa’s acquittal on the charge of murder, for reasons I will briefly allude to below, but rather to defend her correct understanding and application of the principles of intention in general, and dolus eventualis in particular.

Before coming to this legal point, let me say that I personally do not agree with factual aspects of the judgement as I have heard it so far. This is not the subject of this article, but in short it is my view that Pistorius’ defence relied upon an extremely implausible version, and that given his various fundamental contradictions in his evidence, taken together with the inherent implausibility of his version, it should not have been accepted as raising a reasonable doubt in relation to murder. However, this is a factual issue which depends on the judicial weighing of evidence – and is not the subject of this article. Rather, my subject here is the question of intention to commit murder, and how the Learned Judge applied (and correctly so in my view) this principle.

Intention is an essential element for the crime of murder. Most South Africans have learned this basic principle in the course of this sensational trial, but there is quite a lot more to the analysis of intention than what is involved in the ordinary concept, or layperson’s idea, of intending to do something.

Essentially, in order for Pistorius to be acquitted of murder, he needed to advance a version with one key proposition at its heart: that in the minutes and moments leading up to his pulling the trigger four times, it never once crossed his mind that it could be Reeva Steenkamp behind that toilet door. This factual proposition is essential to his defence. If there was even a hint of a thought in his mind that the person behind the door could be Reeva Steenkamp, even a 2% or 3% likelihood, and he acted anyway believing that the far greater probability was that it was an intruder behind the door, his whole defence would fall away entirely and he would clearly have the requisite dolus eventualis to have murdered Reeva Steenkamp.

We must bear in mind that the Honourable Judge accepted that Pistorius’ version was reasonably, possibly true. The burden on Pistorius to raise a defence is not to prove his version on a balance of probabilities, or to show that his version is probable or more likely than anything else. In fact, the standard of proof required of a Defendant in relation to his defence is extremely low: he must simply set out a defence which could reasonably, possibly be true. This involves two components, first that the defence must be possible, and secondly, that the defence is not only possible but is one that a reasonable person could accept as being possibly true in the circumstances.

Judge Masipa accepted it as reasonably, possibly true that in the moments leading up to firing the fatal shots, there was no thought whatsoever in Pistorius’ mind that the person behind the door could be anyone other than an intruder, and in particular that it could be Reeva Steenkamp. Again, I have some difficulty with accepting this version as reasonably possibly true, but that is a debate for another time. We must assess Judge Masipa’s application of the law in light of the factual defence which she accepted, on the evidence, to pass the bar or being reasonably possibly true (which we must bear in mind is an extremely low bar).

Now, there are several types of intention in criminal law. There is what is known as direct intention, dolus directus, which is where it is the accused’s conscious aim and direct object to kill the particular person that they end up killing. This is a classic case of murder most foul, where for various reasons one person disposes of another. Clearly, given the defence which Judge Masipa accepted as reasonably possibly true, there can be no dolus directus on the part of Pistorius to kill Reeva Steenkamp.

There are two other types of dolus which are recognised in our law, dolus eventualis and dolus generalis. The classic case of dolus eventualis is where a bank robber plans to rob a bank and takes a loaded gun with him, in the hope that he will not have to use it, but actually foreseeing the possibility that he may have to use it in the course of the robbery and he acts anyway accepting that possibility. In the course of the robbery, he uses his firearm and kills someone, although it was not his direct aim and object to do so. That is the basic concept of dolus eventualis, but there is more detail to it which I will revert to in a moment. Dolus generalis is a similar concept to dolus eventualis; however, the logical distinction between the two is that in the case of dolus eventualis, the particular victim is foreseen, whereas in the case of dolus generalis the classic example is someone firing into a crowd of people knowing full well that one or more persons may be injured or killed, but not having any thought as to which specific person or persons this may be. All three of these types of intention can be sufficient for a finding of murder.

However, there is more to the concept of dolus eventualis. In the leading textbook on criminal law by Prof Burchell, it is stated that “Dolus eventualis exists where the accused foresees the possibility that the prohibited consequence might occur, in substantially the same manner as that in which it actually does occur, or the prohibited circumstance might exist and he accepts this possibility into the bargain (i.e. as reckless as regards this possibility).

Many commentators have come out and said that he clearly foresaw that any person behind the door would be killed as a result of him firing the four shots. I do not take issue with this view, but it is not sufficient for a conviction of murder of Reeva Steenkamp. This is because the intention to kill is not the only requirement for there to be a conviction of murder in relation to Reeva Steenkamp: fundamentally, Pistorius’ intention must have been to act unlawfully in order to be convicted of murder. At page 153 of his well-known textbook, Prof Burchell states that “In these cases the accused has proceeded mistakenly or in ignorance of the true legal position regarding his resort to private defence. His ignorance or mistake serves to deprive him of the mens rea for the crime charged. Thus although his defence of private defence may fail, the accused may nevertheless escape liability on the ground that he lacked the intention to act unlawfully.

The real position is that even if Pistorius had dolus generalis or dolus eventualis to kill any person behind that door (as he no doubt did – one or the other, and the distinction sometimes becomes quite fuzzy between these two), he still did not intend to kill anyone unlawfully. He thought he was killing someone who was about to attack him – in other words, he did not intend to kill unlawfully, in his own mind. This is a fundamental aspect from a legal point of view.

Indeed, the true nature of Pistorius’ (now successful) defence in this case is one of so-called putative self-defence. This is a somewhat confusing concept, as it is not the same as real self-defence. In genuine self-defence, the accused must show that he faced a real threat to his life, in objective terms, which he responded to by killing. Real self-defence negates unlawfulness. However, putative self-defence is really a very different matter, which is described by Prof Burchell as follows: “Where the accused genuinely believes that a defence excluding unlawfulness exists, whereas it does not, or that he or she is acting within the bounds of a legitimate defence, whereas he or she is exceeding these bounds, then he or she lacks fault (mens rea) in the form of intention. If the mistake is reasonable as well as genuine, the accused will not be negligent either.” Prof Burchell quotes as authority for these propositions, inter alia, the case of S v de Oliviera 1993(2) SACR 59(a), where the Court drew the distinction between objective self-defence which affects unlawfulness, and putative self-defence, which affects fault.

Why is all of this relevant? Because if Pistorius intended to kill anyone who was behind that door, and also believed completely in his mind that whoever was behind that door was a threat to his life, then he has a successful defence to murder of putative self-defence. This is an intention-based defence – he did not intend to kill unlawfully. And such an intention (which he did not have) is an essential element of any murder conviction.

In other words, although he intended to kill another human being, he only intended to do so in a manner which in his mind was a lawful one, namely that he was defending himself. If what he believed in his mind were true, and there were a robber behind that door armed to the teeth, then it is not difficult to see how in his mind he could view his actions in shooting through the door as lawful. Even if he was mistaken about the lawfulness of shooting through a door, that does not matter: the question is whether his intention was to act unlawfully, even if his intention was polluted by panic and/or a flawed understanding of what would be lawful in the circumstances and possibly his own psychological proclivities and anxieties.

As Prof Burchell points out, “If a mistake is reasonable as well as genuine, the accused will not be negligent either”, but the converse is also true. If the mistake is genuine, then the accused is acquitted on murder on the basis that his intention, although to kill, was not to kill unlawfully; if his having that state of mind is not acceptable based on the objective reasonable man test, then he will be guilty of culpable homicide but not murder. That is essentially the position now with Mr Pistorius.

So, turning back to a number of commentators who have criticised Judge Masipa for her application (in their contention a wrong one) over the dolus eventualis principle and murder, let me quote from Prof Pierre de Vos: “But although this might show that he did not subjectively foresee that he would kill Steenkamp, it says nothing about subjectively foreseeing that he would kill who he had thought was an intruder hiding behind the door. Given all the evidence presented in Court about Pistorius’ knowledge of guns and what the bullets he used would do to a person, it is unlikely in the extreme that Pistorius did not foresee that the person behind the door (who he might have thought was an intruder) would be killed.

And we find another commentator, Gushwell Brooks, saying that “He should have reasonably foreseen the possibility that he could kill whoever was behind that locked door, no matter who it was. With the recognition that he could cause the death of that person, and the dolus eventualis definition being ‘legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences’, how is a finding that Pistorius had no intent correct?

The answer to these commentators is that the mere fact that Pistorius intended to kill whoever was behind that door does not render him guilty of murdering Reeva Steenkamp. If the Court accepts it as reasonably possibly true and the only thought in his mind (which is what the Court seemed to accept – and I have not had the chance to read the Judgment as it is not out yet) then it is clear that his intention was to kill whoever was behind that door on the complete understanding that they were an intruder threatening him. In other words, he genuinely believed that he had a defence excluding unlawfulness, namely that he was about to be attacked. The intention to kill must also be accompanied by a knowledge or intention that the killing is unlawful, and if this is not present then there can be no conviction on the basis of murder.

The main point of this article is simply to emphasise that the legal criticisms of Judge Masipa which have been advanced by various commentators are mistaken. Again, from Prof Burchell: “The objective test of private defence has the consequence that the Court may decide that although the defender believed that he was entitled to engage in a defensive attack, objectively viewed the situation was not one in which he was justified in resorting to a defence or, if he was, the steps taken in defence exceeded what was necessary to repel the attack.” He goes on to say “What is the position where, for instance, the attack was in fact lawful but the accused thought it was unlawful, or where the accused mistakenly believed that his life was in danger (see R v Atwood 1946 AD 331 at 340) or that he was using reasonable means to avert the attack? In such cases the accused may nevertheless escape liability on the ground that he lacked the intention to act unlawfully.

The reader will find a number of cases mentioned at pages 346 and 347 of Prof Burchell’s excellent textbook, all supporting this clear principle.

Finally, Prof Burchell sums up as follows: “Since intention is tested subjectively, the question of whether the accused knew he was exceeding the bounds of private defence must be determined by examining the state of mind of the accused himself and especially his perceptions and beliefs relating to the attack and his defence. Thus, if, as the result of a mistake, the accused himself genuinely believed the attack was unlawful, or that his life was in danger, or that he was using reasonable means to avert the attack, he should escape liability for a crime requiring intention or the ground that he did not intend his conduct to be unlawful.

It is quite clear that the above legal principle applies to Pistorius, always assuming that one accepts his version as reasonably possibly true (which is a different question, and beyond the scope of this article). As I said above, if I were the Judge in this matter I would have difficulty in accepting his version as reasonably possibly true for many other reasons, but given that the Honourable Judge did indeed accept this, her application of the law relating to intention, dolus, and unlawfulness in the context of a murder charge, was perfectly correct. DM



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