The accused, in the middle of the night, shot at the deceased, who was his girlfriend, on thinking that some intruder had entered the house. The deceased was inside a toilet which was locked and out of the four shots that the accused fired, three-hit her.
Whether the act of the accused was intentional in exercise of private defence?
Section 51(1) of Criminal Law Amendment Act, No. 105 of 1997
S v. Adair Oliveira: Objective test for private defence.
The accused told the Court that the fear of someone coming to attack him was so much that he did not have the time to think and just fired. He mentioned that he never did form an intention to shoot. On this, the Court questioned as to why the accused loaded his gun if he never had the intention to shoot, as he could have easily used something like a bat if the intention was just to hit. Moreover, the Court agreed with the State that if he did not have the intention to shoot, then the claim of private defence cannot be taken. The Court observed that there was an error in object, in which there is a mistake with respect to identity, but there is intention to kill. In such a case, the accused will be guilty and the mistake of identity is irrelevant. The Court, having concluded that there was an intention to shoot, now had to determine whether there was an intention to kill. The court pointed out that the test for intention of murder is a subjective one, and the accused did not foresee that he could kill the individual behind the door. For culpable homicide, the test is the reasonable man with the accused’s disabilities test. The Court pointed out that a reasonable man with his disabilities would foresee that firing four shots had the potential of causing death. With regard to private defence, the Court observed that the force was too excessive and a reasonable person under the same circumstances would not have acted in the same way.
The accused was held not guilty of murder, but was held guilty for culpable homicide as the firing of four shots was excessive for the danger apprehended and cannot be considered to be an act done in private defence.