MURDER―WHATDO YOU MEAN ? IT’S HARDLY A TRAIN SMASH!

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass―an idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.”

―Charles Dickens, “Oliver Twist”, Chapter 51

First allow me these three preliminary fictitious examples before bringing it all back home:

EXAMPLE 1

Suppose a seasoned pilot, given his expertise, can execute highly complex and life-threatening mid-air manoeuvres in any which way possible. He would often, and against regulations, take passengers aboard on some of his aforementioned exploits; each and every time succeeding in executing these escapades with textbook aplomb. One day the plane crashed. Ten of his fourteen passengers died and the other four were injured seriously. Our pilot himself had also been seriously injured and spent five days in hospital, escaping death by a narrow margin.  He is charged with ten counts of murder in respect of the deceased and four of the attempt thereof in respect of the injured. The prosecution knew that proving murder with direct intent would be out of the question (perhaps understandably so). Instead they relied on murder with legal intent (dolus eventuaslis). What had to be proved therefore was that the accused: (i) subjectively foresaw the possibility of the deaths ensuing from his conduct; and (ii) reconciled himself with that possibility.

The Judge found that requirement (i) had been proved―so far, so good. However, the court found in favour of the accused regarding requirement (ii). Thus spoke the Judge: “The accused is not guilty of the ten murders in that he had not, for the following reasons, reconciled himself with the possibility of these deaths ensuing:

 

·       the accused is a qualified and seasoned pilot;

·       he had each and every time before  successfully indulged similar quixotic exploits with or without passengers on board;

·       therefore, this time around he also subjectively entertained the possibility that he would succeed;

·       this subjective believe having thus been established, entailed that he had not reconciled himself with the possibility of these deaths ensuing;

·       furthermore, this accused himself suffered serious injuries;

·       if it were held that he had reconciled himself with the possibility of these deaths, it would mean that he must also have reconciled himself with the consequence of his own;

·       and such possibility could hardly be imputed to him.

[The Judge thereupon, for reasons I need not entertain here, convicted on ten counts of culpable homicide and acquitted on all four attempts thereof]

 

EXAMPLE 2

 

1.     A gunman inserts one round in a revolver, spins the cylinder, and puts the barrel against the head of a willing participant. However, he also places the back of his own hand flat against the participant’s head. This is ostensibly his guarantee to the participant whom he thereby purports to assure that he is absolutely subjectively convinced that the gun will not discharge.; in the unlikely event of this, the bullet would then have to hit his own hand also; this the participant could rest assured the gunman would not risk. Then he would pull the trigger and the gun does not fire.  This happens umpteenth times. However, one day he pulled a trigger too many, blowing away his participant‘s head. He himself is admitted to hospital, stays there for five days, almost having died of loss of blood.

 

He is acquitted of murder for the very reason that he had been dabbling in his version of Russian roulette on many a successful occasion, that every time when he had pulled the trigger, no bullet had ever been discharged. He could therefore not now suddenly be adjudged to have subjectively reconciled himself with the possibility that his game of chance would literally back fire

 

Furthermore, had not he himself almost died in his own adventure? This being the case, how could it possibly be held that the accused could ever have reconciled himself with the deceased’s dying without absurdly first contemplating that he had reconciled himself with his own demise?

 

 

EXAMPLE 3

 

Counsel for a serial rapist, now charged with murder upon the death of one of his victims, argues as follows:

 

“M’Lord, my client is used to sexually violating his victims. He’d done it many, a many time. His trademark, over and above the sexual assaults had been to scar each victim by methodically slashing their faces with a sharp knife. M’Lord as the forensic psychologist testified, it’s in the very nature of his sadistic endeavours that he must abide by this procedure, he relishes in this, he prides himself on this, these knife wounds are obsessive condiciones sine quibus non (conditions to his violent sexual assaults without which his crimes could not be). He had been doing this with surgical precision. Deviation from this ritual would not match his psychological make-up. In fact M’Lord this was what the forensic psychologist (the State’s own witness) testified. In casu he had once more taken utmost care to stick to his obsessive behaviour: a sexual assault, followed by the slashing of the deceased face several times. M’Lord, how could this professional mutilator of his victims’ bodies have reconciled himself thereof that suddenly this time around there would (and this is my respectful submission) be an unfortunate accident resulting in his also slitting the deceased throat? He had never been a murderer simply because he prides himself on his meticulous textbook mutilation of his victim’s faces only. Subjective reconciliation of the possibility of death ensuing, given the forensic psychologist’s expert evidence, would be anathema to my client’s way of doing things.”

 

“And besides, when the knife slipped, my client accidently also cut his own wrist and sustained such severe injuries that he spent five full days in hospital and he himself escaped death narrowly. If it were argued that my client had reconciled himself with the possibility of the deceased dying, then it would absurdly have to be conceded that my client had subjectively reconciled himself with his own death ensuing. And this M’Lord, I respectfully submit would defy logic!’

Lest you might regard all these examples as farfetched, let now consider the judgment of Brand JA in S v Humphreys 2013 (2) SACR 1 (SCA). I quote:

[1] The appellant, then in his late fifties, was charged in the Western Cape High Court, Cape Town before Henney J with ten counts of murder and four counts of attempted murder. All these charges arose from a single incident which occurred on 25 August 2010 when a minibus, driven by the appellant, was hit by a train on a railway crossing near Blackheath on the outskirts of Cape Town. There were fourteen children in the minibus, ranging in ages between seven and sixteen years. Ten of the children were fatally injured in the collision, which gave rise to the ten charges of murder. Four of them fortunately survived, but were seriously injured. They were cited as the complainants in the four charges of attempted murder. At the end of the trial the appellant was convicted as charged on all fourteen counts and sentenced to an effective period of 20 years’ imprisonment.

[4] What then happened, according to the eyewitnesses was that the appellant overtook the line of vehicles on their right-hand side and approached the crossing in the lane destined for oncoming traffic. The crossing is controlled by two booms in Buttskop Road, one for traffic from the east – as the appellant was approaching – and the other for traffic from the west. Because the booms are positioned on different sides of the railway line, they can be avoided, even when they are down, by going onto the lane intended for oncoming traffic and by then returning to the correct lane to pass the boom on the other side. On both sides of the railway line there are also large stop signs as well as other traffic signs indicating a railway crossing. In addition there are large red warning lights directed at traffic in Buttskop Road that start flashing when a train approaches the crossing and just before the booms come down.

On appeal this accused’s four murder convictions (as with our fictitious accused above) were reduced to culpable homicide. [He was furthermore completely acquitted of all four attempted murder charges, but this note does not deal with this aspect]

Here is another excerpt from the SCA judgment, in justification for reducing Judge Hennery’s convictions of murder to that of culpable homicide.

18] . . . .  Put differently, the appellant must have been indifferent as to whether he would live or die. But there is no indication on the evidence that the appellant valued his own life any less than the average person or that it was immaterial to him whether or not he would lose his life. In consequence I do not think it can be said that the appellant had reconciled himself with the possibility of his own death.

[19]           My second reason for concluding that the appellant did not reconcile himself with the consequences rests on the evidence that the appellant had successfully performed the same manoeuvre in virtually the same circumstances previously.

Let me summarise Brand JA as follows:

1.                the accused himself had been seriously injured  when the trail hit his taxi, therefore he could hardly be said to have reconciled himself subjectively with the ten deceased dying; such conclusion would mean that he had subjectively reconciled himself with his own death;

 

2.                the accused’s previous adventurous exploits, having courted disaster and getting away with it, made assured him subjectively that he could in this matter survive again;

3.                a seasoned risk-taker, he could therefore not have reconciled himself subjectively with the possibility that he would fail this time around, with death as a consequence.

It would be presumptuous of me to criticise Brand JA on his exposition of the law relating to dolus eventualis. It would even be presumptuous to agree with the learned Judge of Appeal (which by the way, I do). But this having been conceded, suffice it to say that, If the law supposes this (which I am afraid it does), then the law is an ass―an idiot. And so am I.