DEFENCES EXCLUDING INTENTION 4 August 2016

A person who is proved to have voluntarily committed unlawful conduct with

criminal capacity may still escape liability by raising defence that excludes fault.

Crimes requiring intention – may escape liability where reasonable doubt exists as
to whether possessed intention

MISTAKE

Ignorance vs mistake:
Ignorance: implies total want of knowledge in reference to subject matter
Mistake: admits knowledge but implies wrong conclusion
Either may negate intention, whether actual or dolus eventualis

Reasonableness?
NB: mistake or ignorance need NOT be reasonable, only essential and genuine
Essential: must relate to an essential element of the crime in question (unlawfulness)
Genuine: in fact must have been unaware or mistaken as to unlawfulness element –
must be honest and bona fide, not feigned

DISTINGUISHED FROM:

i) Aberratio Ictus
i.e ‘going astray of the blow’
Different from mistake, consequences merely turn out to be different from those the
accused expected.
eg. A fires a gun intending to kill B, but misses and ends up shooting and killing C.
Rule: because A intended to kill someone, A is guilty of killing C without burden
being on the state to prove intention to kill C specifically.
Khoza: “where a person commits an act intending to murder one person and kills
another he is guilty of murdering that other person”

What happens if A did not at all foresee the possibility of killing C? Is this not
incompatible with subjective test for intention?
Should only be guilty of murder where foresaw the death of C as a real possibility.

Mavhungu
Abberatio ictus criticised for deviating from dolus eventualis
In abberatio ictus situations, liability depends on ordinary principles of fault (mens
rea)

Abberatio ictus does NOT have application in our law where no foreseeability
that the blow could go astray i.e. could not have foreseen possibility of C being shot

ii) Error in Objecto

i.e mistake as to the identity of the victim

eg. A intending to kill B, shoots and kills C, whom he mistakenly believes to be B.

Intention to kill relates to B not C.
A’s intention directed at a specific predetermined individual, although in error as to
exact identity of that individual i.e. intends to kill individual regardless of whether
name of individual is B or C

Questions to consider when reading Kelly’s article:

Role of identity in dolus eventualis
Relationship between identity and knowledge of unlawfulness
Distinction between aberratio ictus and error in objecto