The case of paralympic Oscar Pistorius shooting of his girlfriend has been interesting to watch as it unfolds. Events of the night in question have been coming to light through the bail hearing. Though there has been much in the way of misinformation being fed to journalists, it now seems certain that the prosecution are charging him with premeditated murder, whilst his defence seems to be one of mistaken identity and he was acting in self defence thinking the person in the toilet was a burglar. Picking up on something the prosecutor stated (and I paraphrase), 'to kill is to kill, irrespective of who the victim is. If he (the accused) intended to kill, it is murder.'. This has got me thinking, are the prosecution thinking of murder along the lines of transferred malice? Or more appropriately under South African law dolus indeterminatus (an error in object)?
As any criminal law student should by now know, if A, intending to kill B, kills C having mistaken him for B, the doctrine of transferred malice will apply and A will be guilty of murder. In Latimer (1886) 17 QBD 359 Lord Coleridge CJ stated:
"It is common knowledge that a man who has an unlawful and malicious intent against another, and in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act and has that which the judges call general malice, and that is enough."
So would the possibility of transferred malice or the South African equivalent apply in the case of Oscar Pistorius, if the prosecution could prove he had intent to kill the apparent intruder and hence, find him guilty of murdering Reeva Steenkamp?
Turning to the South African law on self defence, it is wider than English law, courts will accept the defence in circumstances that perhaps an English court wouldn't. For instance, it is acceptable to shoot an intruder in the home if life is in danger, either the accused or the life of another, the fear doesn't have to be reasonable to an objective bystander, self defence is much the same as English law so long as the accused holds that fear, a South African court will often take the darkness and disorientation of the night into account. Further there is no equality of weapons as in some jurisdictions, a court will accept shooting someone with a gun, if the attacker is holding a knife, or even unarmed. Where a South African court will draw the line though is where an intruder is running away, or trying to escape. The facts that seem to be unfolding is that Reeva Steenkamp was killed in a locked toilet, within the bathroom, in a crouching position behind the toilet, shots were fired through the door. Would this be self defence if Oscar Pistorius thought he was shooting an intruder? Especially in light of his Twitter remark in November, 'Nothing like getting home to hear the washing machine on and thinking its an intruder to go into full combat recon mode into the pantry! waa.'
The doctrine of dolus indeterminatuse could be used if the court finds that Oscar Pistorius did not fear for his life and he intended to kill the 'intruder' who was locked in the toilet, irrespective of who the victim was, he would be found guilty of the murder of Reeva Steenkamp as 'an error in object'.
It will be interesting to see how this case goes, as at the moment all we have is a bail hearing. Maybe the prosecutor has in mind a dolus indeterminatuse argument should he feel his premeditated murder line is a weak one.