Wednesday, 20 February 2013

Oscar Pistorius and Transferred Malice?

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.


  1. This analysis of self-defence law is unsatisfactory.

    First, it seems lifted without credit from

    Second, it therefore adopts that article's unjustified claim that SA law grants more leeway than English. Every wide aspect it describes - from the right to kill in defence of life, to the lack of an equality of arms rule, to the leeway given to householders at night - applies in English law (Criminal Justice and Immigration Act 2008 s76). In fact, in at least one sense English law is even wider than South African: self-defence that was reasonable in the circumstances that D honestly, but unreasonably, though existed is lawful in England (R v Gladstone; R v Clegg) but not in South Africa (according to

    Clearly, this difference in leeway is enormously consequential in this case, where his alleged mistake will be extremely hard to justify as 'reasonable'.

    It may well be true, as the original article asserts, that the reasonableness standard is much more strictly interpreted in England than in SA, but in light of a) the fact the jury, not the courts, are the main interpreters, b) the enormous leeway given to those who act in self-defence (see R v Palmer on 'weighing to a nicety', codified in the CJIA 2008 s76) and c) the fact that, now, the Crime and Courts Act s43 allows householders to use disproportionate force in self-defence, this seems rather unlikely.

    From my understanding, however, even English law would be unlikely to give him the defence of self-defence in these circumstances: to argue he feared for his life from a burglar behind a locked door would be stretching things rather far, even if not quite as far as the infamous Martin case.

    Finally, however, in one respect SA law might save him: there are some cases from the 1960s allowing you to kill in defence of property (something very likely to be 'unreasonable' by any standard under English law). If these were applied, then, theoretically, he could have a defence (if his mistake were reasonable). However, it is strongly doubted they would continue in force today, especially in light of the new constitution's right to life. (See Heller and Dubber, Handbook of Comparative Criminal Law 2011, 470).

  2. Thank you for observations.

    In relation to your first point however, this article has not been lifted from another source. As can be clearly seen though I write a paragraph on self defence, the main argument in this blog article is in relation to the doctrine of transferred malice (or SA equivalent) which the Telegraph article makes no reference to.

  3. In relation to your argument that my analysis is unsatisfactory, what I state is, is that SA law 'will accept the defence in circumstances that perhaps an English court wouldn't.', which is why I feel it is wider. What I mean by that is due to higher crime rate in SA, a person found in these circumstances could quite reasonably feel his life is in danger. In England, if a burglar was in a bathroom, I would suggest that life isn't in danger, however these circumstances in a SA home, due to the higher crime rate, especially with guns, I'd suggest life could be in danger. By me saying a court in SA will accept circumstances that perhaps an English court wouldn't is in relation to these fears. Perhaps i should have expanded on this point, but as my article is with reference to a potential transferred malice prosecution, I didn't feel it necessary to expand my self defence point.

    In addition, your point about the Crimes and Court Act 2013, it did not receive Royal Ascent until April 2013, this blog piece was written in February 2013. Further the legislation will not allow for retrospective actions, so would not apply in any case.

    Finally, your final paragraph of self defence historically has allowed for killing in defence of property, justifies my assertion that SA self defence law has been applied more widely than English self defence law.

  4. Dear Paul,

    Thanks for the reply. A few clarifications: sorry, I did not mean to suggest the whole article was a plagiary or anything, simply that the self-defence part of it was apparently derived from this Telegraph article and that, consequently, it adopted that article's apparent errors.

    Second, yes the CCA point is of course correct - hence my use of the word 'now'. I was not suggesting it would be *legally* relevant to any comparison. Rather, I was using it as one sign of the ways in which English law tended not to be stricter/more sympathetic to burglars than SA law.

    Now, I still disagree with your main analysis. It does create a plausible prima facie case: maybe juries are a little more lenient on householders there because life is objectively more endangered. But on two levels, I think the evidence contradicts it. First, as before, the way the courts have interpreted 'reasonableness' - above all in householder cases - has been extraordinarily forgiving to the defender. Again, to quote Palmer (PC, but good authority, now codified in the CJIA):

    'it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.'

    Second, on an empirical level, the evidence for what happens in concrete cases supports this. Hence this (admittedly flawed) trawl was quoted in parliamentary briefings on the recent Tory changes to self-defence law:

    'An “informal trawl” by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had attacked intruders in houses, commercial premises or private land. Only 7 of those appeared to have resulted from domestic burglaries.
    Examples of prosecutions included a case where a man lay in wait for a burglar on commercial premises, caught him, beat him, threw him into a pit and set him alight.
    Examples of decisions not to prosecute included a case where a woman took a baseball bat off a burglar and hit him over the head, fracturing his skull.'

    In light of this, it seems difficult to argue (without more evidence, that is) that SA law is likely to be more lenient than English law on this.

    When one takes into account that English law is more lenient in allowing unreasonable mistakes - something particularly relevant to this case - it becomes still harder to argue it.

    On the final point, about defence of property - well, yes, but I could equally cite the English case of R v Hussey 1924 (D shot a man who was trying to unlawfully evict him; held that one could even *kill* to prevent yourself from being dispossessed) to argue that English law allows killing in defence of property, and that it is therefore wider than SA law. But in reality, it's almost certainly bad law by this point - just as the 1960s cases in SA.