Mistake
MISTAKE
NULLIFIES INTENTION
In the previous sections
explained explained
that intention must relate to
(1) the act
(2) all the circumstances set out in the
definitional elements, and
(3) the unlawfulness of the conduct
X must be aware of all these factors. If
she is unaware of any of them, it cannot be said that she intended to commit the
crime. If such knowledge or awareness is absent,
it is said that there is a ``mistake'' or ``error'' on X's part: she imagined
the facts
to be different from what they in fact were; in other words, mistake
excludes or
nullifies the existence of
The following are two examples of mistake
relating to the act (or – what amounts to
the same - the
nature of the act):
(1) Within the context of the crime of
malicious injury to property, X is under the impression that
she is fixing the engine of somebody else's motorcar that has
developed problems,
whereas what she is in fact doing to the engine amounts to causing ``injury'' to it.
(2) Within the context of the crime of
bigamy, X thinks that she is partaking in a communion service
in a church, whereas the service in which she is partaking is in
fact a marriage ceremony!
The following are two examples of mistake
relating to circumstances set out in the definitional elements:
(1) X is hunting game at dusk. She sees a
figure which she takes to be a buck, and shoots at it. It turns out that she has killed a
human being. She will then not be guilty of murder, since she did not
intend to kill a human being.
(2) (Within the context of the statutory
crime of unlawfully possessing drugs) X thinks that the container containing powder
which she received from a friend is snuff to be used by her as a cure for a
certain ailment, whereas it in fact contains matter
listed in the statute as a drug which may not be possessed.
The following are two examples of mistake
relating to unlawfulness:
(1) X thinks that she finds herself in a
situation of private defence because Y is threatening her
with a revolver, whereas Y is merely joking and the ``revolver'' is in fact a toy.
(2) X believes that there is no
legislation or legal rule which prohibits her from possessing a
rhinoceros horn, whereas there is in fact such legislation. We
shall discuss
mistake relating to the unlawfulness of the conduct in some
more detail
below.
MISTAKE NEED NOT BE REASONABLE
Whether there really was a mistake which
excludes intention
is a question of fact.
What must
be determined is X's true state of mind and conception of
the relevant
events and
circumstances. The question is not whether a reasonable person
in X's
position would
have made a mistake.
MISTAKE MUST
BE MATERIAL
Not every wrong impression of facts qualifies
as a mistake, thus affording X a defence. Sometimes X may be mistaken about a
fact or circumstance, and yet not
be allowed to rely on his mistake as a
defence.
What
would the position be if X intended to shoot Z, but it subsequently
transpired that
she mistook her victim's identity and in fact shot Y? Here her
mistake did
not relate to whether she was killing a human being but to the
identity of
the human being. Murder is committed whenever a person unlawfully
and intentionally
kills a human being, and not merely when a person kills the
particular human
being she intended killing. For this reason X in this case is
guilty of
murder. Her mistake about the object of her act (error in objecto)
will not
exclude her
intention. Her mistake was not material here.
MISTAKE RELATING TO THE CHAIN OF CAUSATION
This form of mistake can occur only in
the context of materially defined crimes, such as
murder. X believes that the result will be brought about in a certain
manner; the
result does ensue, but in a manner which differs from that foreseen
by X.
The following
are examples of this type of mistake:
•X sets
about killing Y by pushing her off a bridge into a river, expecting that
she will
drown; in fact, Y is killed because in her fall she hits one of the pillars
of the
bridge.
• X
shoots at Y, but misses; Y, who suffers from a weak heart and nerves, in fact
dies of
shock.
Goosen 1989 (4) SA 1013 (A).
THE GOING ASTRAY OF THE BLOW (ABERRATIO
ICTUS)
DOES NOT CONSTITUTE A MISTAKE
Description
of concept
Aberratio
ictus means
the going astray or missing of the blow. It is not a form of
mistake. X
has pictured what she is aiming at correctly, but through lack of skill,
clumsiness or
other factors she misses her aim, and the blow or shot strikes
somebody or
something else.
Examples
of aberratio ictus are
the following:
(1) Intending to shoot and kill her enemy
Y, X fires a shot at Y. The bullet strikes
a round iron pole, ricochets and strikes
Z, who is a few paces away, killing her.
(2) X wishes to kill her enemy Y by
throwing a javelin at her. She throws a javelin at Y, but just after the javelin has left
her hand, Z unexpectedly runs
out from
behind a bush and in front of Y and the javelin strikes Z, killing her.
(3) Intending to kill her enemy Y, X
places a poisoned apple at a spot where she expects Y to
pass, expecting Y to pick up the apple and eat it. However, Z,
and not
Y, passes the spot, picks up the apple, eats it, and dies.
What all these examples have in common is
that the blow aimed at Y went awry
and struck somebody else, namely Z. In
order to decide whether in these types of
situations X has committed murder, it is
necessary to ascertain whether X can be
said to have had intention in respect of
Z's death.
Judging
aberratio ictus situations
The most important judgment relating to aberratio
ictus is
that of Holmes JA in
Mtshiza 1970
(3) SA 747
(A).
This judgment accords with the concrete-figure approach set
out above. The judgment confirms
that factual
situations in which
there is an
aberratio
ictus should
be judged as follows:
(1) X will normally always be guilty of
attempted murder in respect of Y - that is, the person she wished to, but did not,
kill.
(2) As far as X's liability in respect of
the person actually struck by her blow (Z), is concerned, there are three possibilities:
(a) If she had foreseen that Z would be
struck and killed by the blow, and had reconciled herself to this possibility,
she had dolus
eventualis
in
respect of
Z's death and is guilty of murder in respect of Z.
(b) If X had not foreseen the possibility
that her blow might strike and kill someone other
than Y, or, if she had foreseen such a possibility but had
not reconciled
herself to this possibility, she lacked dolus eventualis
and
therefore
cannot
be guilty of murder. However, this does not necessarily
mean that X is not guilty of any crime.
Murder is not the only crime of
which a person can be convicted if she
causes another's death. There is
also the possibility of culpable
homicide, which consists in the unlawful
negligent causing of the death of
another. As we point out below in our
discussion of negligence, X will be
negligent in respect of Z's death if the
intention to kill is absent, but if, as a
reasonable person, she nonetheless
ought to have foreseen that she could
cause the death of the victim (Z).
In that event, X will be guilty of
culpable homicide.
(c) Only if it is established that both
intention (in these instances mostly in
the form of dolus eventualis) and
negligence in respect of Z's death are
absent on the part of X, will X be
discharged on both a count of murder
and one of culpable homicide.
SUMMARY
(1) The intention must relate to the act,
the circumstances contained in the
definitional elements and the
unlawfulness of the conduct. X must be aware
(have knowledge) of all these factors. If
she is unaware of any of these factors, it cannot
be said that she intended to commit the crime. X is then mistaken as to
the
existence of these factors.
(2) Mistake need not be reasonable to
exclude intention. The test to determine whether mistake
has excluded intention is subjective.
(3) In order to exclude intention, the
mistake must be material. Mistake is
material if it relates to the act, the
circumstances set out in the definitional
elements or the unlawfulness of the
conduct.
(4) In Goosen
the
Appellate Division held that a mistake with regard to the chain
of causation may indeed exclude intention
provided the actual chain of events
differed materially from that envisaged
by the perpetrator.
(5) (a) Aberratio
ictus or
the going astray or missing of the blow refers to a set of
facts in which X aims a blow at Z, the
blow misses Z and strikes Y. This
is not a form of mistake
(b) In order to determine whether, in
such a set of facts, X is guilty of an
offence, one should merely apply the
normal principles with regard to
intention and negligence.
(c) It is wrong to apply the transferred
culpability approach in an aberratio
ictus factual situation, that is to argue that
because X had intended to kill
a human being and did just that, she
necessarily had the intention to kill the actual victim.
(6) Absence of awareness of unlawfulness
excludes intention.
(7) Awareness of unlawfulness implies
that X is aware -
(a) that her conduct is not covered by a
ground of justification
(b) that the type of conduct she engages
in is actually regarded by the law as constituting an
offence
(8) The effect of the decision in De
Blom
is
that ignorance of or a mistake about the law excludes intention.
i found this very helpful thank you!
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