COLUMN: When is it murder?

2016-07-05 06:00

Over the past few years there has been much debate about the difference between murder and culpable homicide.

It is only recently, with the Oscar Pistorius trial, that the difference between the two concepts has been debated and become a hot topic on social media. It has certainly raised interesting yet controversial issues.

This is largely controversial and not clear as one would think, especially after the Supreme Court of Appeal set aside the finding and conviction of the court a quo on culpable homicide of Pistorious, and substituting it with a finding of murder. As a consequence, the accused sentence was trumped up to a minimum of 15 years.

Murder is a serious offence and can be punishable by a minimum sentence of up to 15 years to life. Culpable homicide is less serious and could be punishable by only a few years depending upon the circumstances.

The assumption by some laypeople is that if an accused kills a victim, the action is automatically perceived as murder. That position is incorrect.

As a result of the above perception, many asked the question: “Why Oscar was not charged with murder as opposed to the the lesser crime of culpable homicide?” As we know this has now been substituted and his charge has now been changed to murder and we are awaiting the sentence that fits the revised charge.

In a nutshell, the difference between the charges is rather simple: murder requires intention while the culpable homicide requires negligence.

Murder is the intentional, unlawful killing of another human being. Murder therefore requires that the accused acted with the intention to kill. In other words, the accused strategically planned the unlawful act of murder. Alternatively, it can be “legal intention” as discussed below.

Culpable homicide, however, is deemed a potentially unforeseeable, unplanned accident.

The fundamental question, from a criminal law perspective, did the accused act with the intention necessary for a charge of murder?

In recent years the concept of intention has extended to cover not just deliberate but foreseeable conduct.

The accused does not mean nor intend for the unlawful act to happen, but he must have foreseen that it might happen. This is referred to as dolus eventualis.

An example of dolus eventualis is where someone decides to burn a block of apartments occupying 20 families.

He might not have had the clear intention to kill anyone in the apartments but the law recognises that he intended the death of some people by his actions. In essence, by foreseeing the possibility of death (however remote) and acting regardless, he had the intention to commit murder.

Importantly, the accused does not have to foresee the result as a probable outcome of his conduct, but he must at least have foreseen the outcome as a possibility.

In a nutshell, the test for dolus eventualis is whether the accused foresaw the remote possibility of harm. It is then deemed “legal intention” and the charge will be murder.

Culpable homicide, like murder, is a form of unlawful killing. The difference is that murder is intentional, whereas culpable homicide is a negligent act of killing.

How does the court draw that distinction?

The court uses an objective test to ascertain if the act was negligent. In other words, to show negligence the Prosecution must show that a “reasonable man” in the position of the accused, would not have foreseen the death as a result of the consequences.

The question is therefore: did the accused foresee the possibility of killing someone when he fired the gun (culpable homicide) or must the accused have foreseen the possibility of killing someone (murder)?

The test is one of the “reasonable man” – the court will examine what the objective circumstances of a “reasonable man” would have been in the situation of the accused.

The conclusion of the examination will determine the outcome.

This column was contributed by Denzil Jacobs, an admitted advocate with expertise in commercial law. For guidance on legal issues email him on dr.ddj@­hotmail.­com.

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