QUESTION

EXPLAIN THE VERSARI IN RE ILLICITA DOCTRINE TO THE ZIMBABWEAN

CRIMINAL LAW HIGHLIGHTING THE ELEMENTS OF CRIMINAL LIABILITY.

INTRODUCTION

"The idea of this doctrine is that liability does not extend to the classical guilt in the
forms of dolus (Intention) and culpa (Negligence) of Roman law, but that liability may
be found for consequences which are accidentally realized as a consequence of a
prohibited conduct. This notion was related to the principle of the church in cases of
religious irregularity that the unworthy should be excluded from the exercise of
ecclesiastical functions. The ethical standard of the church was high; it demanded
absolute moral innocence so that responsibility over the injury should not be traced to
any wrongful conduct of the actor. This was articulated by Binavince Emilio S in "The
Ethical Foundation of Criminal Liability" (1964) 33 Fordham Law Review.

Definition of Terms

VERSARI IN RE ILLICITA DEFINED

Versari in re illicita was defined by Professor Feltoe G in Criminal Law Guide 2006 as
basically the doctrine laid down that a person is liable for all the consequences
stemming from an initial unlawful activity.

Craig Stern’s Valparaiso University Law Review Volume 35 No. 3 (2001) Berkeley
Electronic Press quoted Sanford H Kadish, Reckless Complicity in defining the
doctrine, the maxim may be given more fully: versari in re illicita imputantur
omnia quae sequuntur ex delicto (One who traffics in the illicit is responsible for all
wrongs that ensues)

Defined by Burchell and Milton in Principles of Criminal Law, who articulated that
both the Roman Dutch Law and the English common law recognized and applied a
principle that a person could be held liable for the unintended consequences of an
illegal activity. In South Africa this principle is known as the Doctrine of versari in re
illicita. In terms of this doctrine if an accused robs a bank and a security guard fires a
shot at the accused but misses and accidentally hit a passerby, in terms of the doctrine
of versari in re illicita the robber should be held criminally liable for the death of the
passerby.

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CRIMINAL LAW DEFINED

Masango C, Zimbabwe Republic Police, Criminal Law Manual (1995), defined

criminal law as “… that part of the public law which deals with the punishment of illegal
behaviour of a subject by the state- mainly dealing with unlawful conduct, namely crime
and punishment”.

According to Burchell J and Milton J, in Principles of Criminal Law (2005), 3rd

Edition, defined Criminal Law as “ that branch of national Law which defines certain
forms of human conduct as crime and provides for punishment of those persons with
criminal capacity who unlawfully and with guilty mind to commit crime”

CRIMINAL LIABILITY DEFINED

Is one of the most significant words in the field of law, liability means legal
responsibility for one's acts or omissions. Failure of a person or entity to meet that
responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court
order to perform (as in a breach of contract or violation of statute). www.legal-
dictionary.thefreedictionary.com/Criminal liability

RATIONALE BEHIND THE DOCTRINE OF VERSARI IN RE ILLICITA

In Craig Stern’s Valparaiso University Law Review Volume 35 No. 3 (2001) it was
highlighted that the canon law had used the doctrine of versari in re illicita not for
homicide, but for the discipline of priests in liturgical matters. The principle is explained
below by Bodenstein H.D.J, South African law Journal, Phases in the
Development of Criminal Mens Rea (1919).

The rule was used to decide the question whether a priest who had been the cause of
death of a person (or some other forbidden effect) was still entitled to officiate as such.
If a priest unintentionally kill a person on a hunting expedition when he had intended to
shoot a hare. If he was entitled to hunt as he did, it would be enquired into whether
the accident would have been foreseen and avoided by him or not. If he in no way to
be blamed for the death, he would not become irregular. If, however, he had been
poaching, the question whether he could in any many have foreseen the accident and
avoided it was not gone into at all. The mere fact that he originally acted unlawfully
was sufficient to impute to him the subsequent death and to render him irregular. This
part of the rule is commonly explained as a concession of the church to popular opinion
at a time when people where inclined to attach more importance to the effect caused
than to the state of mind of the wrongdoer towards the effect.

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Further the rule was generally taken to support responsibility for an evil triggered by an
unlawful act, not to support the presence of a mens rea in the actor. So, applying the
principle to the criminal law of homicide, and in such a way as to supply malice
aforethought and not just manslaughter liability, was no subtle nuance. It was major
alteration of the law.

Even so, biblical law, if not the Cities of Refuge Law, in some sense likely lies behind
Coke’s doctrine. A – perhaps the – classic statement of the principle of versari in re
illicita given by St Thomas of Aquinas in the Summa Theologiae. One will be
responsible for a homicide if he removes an obstacle that would otherwise prevent its
occurrence, if he was under a duty not to remove that obstacle.

DOCTRINE OF VERSARI IN RE ILLICITA VERSUS PRINCIPLES OF CRIMINAL

LIABILITY

It is a salient principle of legal ethics that a person ought not to be punished for
wrongful acts unless the perpetrator’s conduct was attended by a blameworthy state of
mind (fault). The principle encapsulated in the maxim actus non facit reum nisi
mens sit rea (the act does not render the perpetrator culpable unless there is a
criminal intention). Johan D. Van der Vyver in The International Criminal Court
and the Concept of Mens Rea (2004).

The author went further and expressed that the notion of fault is comprised of either
intent (dolus) or negligence (culpa) in which he stated that a wrongful act is
committed intentionally if the perpetrator contemplated the illegality and or harmful
consequences of the act. Negligence denotes the mental disposition of a person who
commits wrongful act, and although the person who committed the act did not intent to
act illegally or to cause the harmful consequences of the act in so doing he or she
deviated from conduct expected of a reasonable man within the same circumstances.

Section 17 of Criminal Law (Codification and reform) Act Chapter 9:23, defines
mental element, in relation to a crime, as any intention, knowledge, realisation of a real
risk or possibility, or negligence with which that crime is committed. This being the case
versari in re illicit is premised outside this perimeter.

G Feltoe in Criminal Law Guide 2006 stated in brief the constraints that the
doctrine impress on the legal system he avowed that, in early law the doctrine of
versari in re illicita was applied but this doctrine has been discredited in and
discarded from our law. It may not be used in our law as a basis for liability. The reason
why this doctrine was ejected from our law is that it is grossly unfair and it violates the
basic principle that a person can only be convicted of a crime if the essential physical
and mental requirements for the crime with which accused is charged are present.

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It meant that the only requirement for the doctrine to sustain a conviction is that once
that preceding unlawful conduct was proved, accused would automatically be held
criminally liable for all the consequences resulting therefrom. The doctrine insisted on
transferred malice (as in the example in definition of terms where a security guard in a
bank robbery tried to kill a bank robber but accidentally shot a passerby and the robber
should be held criminally liable for the death of the passerby) of which it is unmerited.

Doctrine highly unfair as accused can end being punished completely disproportionately
to the nature of his original criminality (Commits minor crime and punished for major
crime. In the case of S v Mitchell and another (1991) Case Number 83/90 AD,
accused who were drunk and were in a moving vehicle they threw stones at
pedestrians. Accused number one hit a school child with a paving brick and they were
both convicted. The doctrine of versari in re illicita was applied to arrive at the decision
to find the second accused liable for the offence although he did not deliver the fatal
blow. On appeal the second accused’s conviction was set quashed. In arriving at the
decision Nestadt J.A. stated that ‘His (first accused) throwing of a brick at deceased
therefore cannot for any purpose be imputed to second appellant (or the other two). To
do so, on the basis of the unlawful joint enterprise to throw stones, would amount to an
application of versari in re illicita doctrine. Second appellant cannot therefore be found
guilty of an assault on deceased. He must be acquitted.’ Smith and Hogan in their book
Criminal Law (1988) Sixth Edition, Butterworths, London expounded what they called
the old famous case of Saunders and Archer, its result explained the concept of
transferred malice. They said that it is reconcilable with the principle Accused intended
to murder his wife, on the advice of another, gave her a poisoned apple to eat. She ate
a little of it and gave the rest to their child. Accused loved the child, yet he stood by
and watched it eat the poison, of which it soon died. It was held that the accused was
guilty of murder, the judges agreed that, the person who gave the advice, who of
course was not present when the child ate the apple was not an accessory to this
murder.

Furthermore if the accused had been absent when the child ate the apple it is thought
that this would have a case of transferred malice which would have made the provider
of the advice also liable; but the accused’s presence and failure to act made the killing
of the child, in effect a deliberate, and not an accidental, departure from the agreed
plan. It was – as well put in Kenny, “as if Saunders had changed his mind and on a
later occasion had used such poison as Archer had named in order to murder some
quite different person of whom Archer had never heard”

Foster, however, stated the rule rather more widely than this: “So whenever the
principle goes beyond the terms of solicitation, if in the event the felony committed was
a probable consequence of what was ordered or advised, the person giving such advice
will be an accessory to such felony”

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THE ZIMBABWEAN SIUTUATION IN RESPECT OF DOCTRINE OF VERSARI IN
RE ILLICITA

According to G. Feltoe in Commentary on the Criminal Law (Codification and

Reform) Act [Chapter 9:23] All crimes except strict liability crimes require proof of
some mental ingredient. In the past the Latin tag, mens rea, was used to refer to the
state of mind or mental element. The literal translation of mens rea is “guilty mind”.

Section 12-17 of the Criminal Law (Codification and Reform) Act Chapter 9:23
deals with different state of minds required for criminal liability. Our existing law
recognizes three such states of mind, namely (in descending order form the most to
least blameworthy), 1. Intention and knowledge (Actual Intention), 2. Realisation of a
real risk or possibility (Legal Intention) and Negligence.

According to Criminal Law (Codification and Reform) Act Chapter 9:23 , where
intention is an element of the crime, the test is subjective, that is, whether the accused
actually possessed that state of mind at the relevant time. What should be established
is did the accused intend to engage in the conduct or produce the consequences he did.

Where knowledge is an element of the crime the test is also subjective, what should be
established is, did the accused had knowledge of the relevant fact or circumstance.

Where Realisation of a real risk or possibility is an element of the crime, the test is
subjective and consists of whether he was aware as to the existence of real risk or
possibility, other than a remote risk or possibility and whether he was reckless despite
realizing that there is a real risk or possibility and continue to engage in an unlawful
conduct. Furthermore in prosecuting the component of awareness is proved, whilst
recklessness is inferred from the fact that: 1. relevant consequences actually ensued
from the conduct of the accused and, 2. relevant fact actually existed when the accused
engaged in the conduct.

Where negligence is an element of any crime, the test is objective consists of the
enquiry whether the accused person was blameworthy in that – a reasonable man in
the same situation as the accused would not have performed the unlawful act; or the
accused failed to perform the act with competence with which a reasonable in the same
situation would have performed that act.

Furthermore the legislature may create strict liability crime. G. Feltoe in Commentary
on Criminal Law (Codification and Reform) Act Chapter 9:23 expounded that, A
strict liability crime is one where the accused is liable even though he acted neither
intentionally nor negligently. In other words the state does not have to prove any
mental element and accused is liable simply on the basis that he committed a
prohibited conduct. After the above evaluation of the States of mind recognized in the

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Zimbabwean law there is need to explore how the doctrine of versari in re illicita fits or
cannot fit in the Zimbabwean situation.

The Zimbabwe situation in regard to the doctrine versari in re illicita can be best
described by the unreported case of S v Machembo (2008) HH 2-2008. The
accused person unlawfully drove a vehicle which was carrying eight passengers without
lights through three police check points. The police officers unsuccessfully failed to stop
him which prompted police officers at the third checkpoint who had been alerted to fire
two warning shots and later fired at the vehicle and in the process hitting a passenger
aboard the vehicle and killing him. The trial magistrate applied the doctrine of versari in
re illicita which made the driver accountable for the death of the passenger and he
convicted him of Culpable Homicide. The Regional Magistrate did not agree.

On review of the case Makarau JP concurred with the Regional Magistrate and held
that ‘In casu, it seems to me that the accused person took a deliberate and conscious
act to disobey the Police that night. His actions in failing to stop were grossly negligent.
In this instance the greater misdeed incorporates the lesser… The state case in my view
flounders on the aspect of foreseeability of death arising from his failure to obey the
instruction to stop. It was at night. The facts are silent on whether he was aware that
the police who stopped him for the third time before the shooting were armed. It is
accepted that by driving away from the roadblock he created a dangerous situation but
the death that ensued was not reasonable foreseeable. It was neither the direct result
nor the natural and probable consequences of his failure to obey the police instruction
to stop’.

She went on further to say that, ‘I agree with the learnt Regional magistrate that the
conviction of for Culpable Homicide was wrong. The accused should have been charged
with Contravening section 43 of the Road Traffic Act, supra. It remains the unfettered
prerogative of the Attorney General to charge him with that offence, if he so wishes. In
my view, the conviction and sentence cannot stand’.

CONCLUSION

According to Bodenstein H.D.J, South African law Journal, Phases in the

Development of Criminal Mens Rea (1919) stated that, in order, therefore, to
decide whether a particular act is at all punishable, and if so, to what degree, it is, at
the present day, incumbent on lawyers to draw a line (1) between the cases in which
the unintentional causing of an effect is blameworthy or not, to distinguish accident
(casus fortuitus) from culpable negligence and (2) and to distinguish dolus from
culpa.

In Principles of Criminal Law (2005) 3rd Edition, Burchell and Milton stated that after
examining the versari doctrine, the Court the court in Van der Mescht’s case
concluded that it was not in accordance with contemporary views on the basis of
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criminal liability and thus should not be followed in South African law. It is thus always
necessary, when determining the liability of an accused, to guard against imposing
liability simply for the unlawfulness of the conduct without proof of the fault of the
accused in regard to the specific crime in question. Courts should be vigilant in ensuring
that the versari in re illicita doctrine does not again surface, even in a disguised form.
The approach adopted by the South African court is the same scenario prevailing in our
justice system this day in Zimbabwe as expressed in the case highlighted above.

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BIBLIOGRAPHY

Bodenstein H.D.J, (1919), Phases in the Development of Criminal Mens Rea

www.lareau-law.ca/versari

Burchell and Milton (2005), Principles of Criminal Law 3rd Edition, Juta

Craig Stern’s Valparaiso University Law Review Volume 35 No. 3 (2001) Berkeley
Electronic Press. www.scholar@valpo.edu

G. Feltoe in Commentary on Criminal Law (Codification and Reform) Act Chapter 9:23
Legal Resource Foundation, Harare.

G Feltoe, (2006), A Guide to Criminal Law In Zimbabwe, Legal Resource Foundation,

Harare.

Johan D. Van der Vyver, The International Criminal Court and the Concept of Mens Rea
(2004) https://litigation-essentials.lexisnexis.com

Masango C, (1995), Zimbabwe Republic Police, Criminal Law Manual, Juta.

Smith and Hogan, Criminal Law (1988) 6th Edition, Butterworths, London

Criminal Law (Codification and Reform) Act Chapter 9:23 (2004) Printflow, Harare

Legal Dictionary, www.legal-dictionary.thefreedictionary.com/Criminal liability

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