Dolus eventualis

Exploring Mental State in Criminal Liability

Criminal liability hinges not only on the perpetrator’s outward conduct but also on their mental state, commonly known as dolus or intention. There are three forms of intention: direct intention (dolus directus), indirect intention (dolus indirectus), and the focus of this article, dolus eventualis.

Direct intention involves a person consciously directing their will towards achieving a prohibited result or performing a prohibited act.¹ For instance, person A poisons their abusive husband’s drink, intending to kill him. Since she administers the poison with the deliberate aim of causing death, this is dolus directus. Dolus directus is the form of intention that aligns closely with the ordinary understanding of “intention.”

Indirect intention occurs when the prohibited act or result is not the individual’s primary goal, but they recognise that it will inevitably follow in pursuit of their objective. For instance, person B places a bomb in a building intending to destroy important documents. They are aware that security guards are always present inside the building and that the explosion will inevitably kill them. Even though the person’s primary goal is to destroy the documents, they have dolus indirectus regarding the deaths of the guards because they know it will inevitably happen.

Dolus eventualis, however, represents a departure from traditional notions of intention. It is defined as foreseeing the possibility of committing an unlawful act or causing an unlawful result while pursuing a primary goal. In criminal law, person A may be held to have acted with intention in the form of dolus eventualis if they direct their will to commit an unlawful act, and realise that their conduct may result in the anticipated unlawful consequences, yet they still persist with his unlawful act.²

Dolus eventualis requires two key elements:

Subjective foresight of the possibility; and
Reconciliation or indifference towards this possibility.

This indifference is akin to recklessness, where an individual proceeds with their actions despite foreseeing the risk involved.³ For instance, if the person B (mentioned above) places their bomb in a building to achieve their goals aware that someone might be inside but proceeding regardless, they exhibit dolus eventualis. Even if they hope that no one is harmed, their indifference to the risk means that, legally, they intended the consequences of his actions.

The legal test for dolus eventualis scrutinises whether the perpetrator not only foresaw the possibility of the result but also accepted it as a potential outcome. This conative aspect (volitional component) is crucial in distinguishing dolus eventualis from mere knowledge or appreciation of risks.⁴ In practice, determining dolus eventualis often relies on inference rather than direct evidence of intent. Courts typically evaluate whether the individual reconciled themselves to the foreseeable risk, emphasising that intention in this context includes a deliberate acceptance of the possible consequences.⁵ Some scholars argue that recklessness is redundant in defining dolus eventualis. As such, they advocate for a single test based on subjective foresight. However, courts consistently uphold the requirement for both foresight and indifference towards the outcome.

In the case of Humphreys v S,⁶ the accused, Jacob Humphreys was the driver of a minibus transporting schoolchildren. His route included a railway crossing equipped with booms. Upon approaching the crossing, he encountered stationary cars ahead of the lowered booms, awaiting the passing of a train. The booms, positioned on opposite sides of the railway line, had enough space between them for vehicles to bypass them by overtaking the queue on the right, entering the opposing traffic lane, and then swiftly manoeuvring back into their designated lane to clear the crossing. Despite flashing warning lights, Humphreys chose this risky manoeuvre. Upon entering the crossing, the minibus was struck by a train, resulting in the tragic deaths of ten children, with four sustaining serious injuries. Humphreys faced charges and was convicted of murder for the ten fatalities and attempted murder for those who survived.

He appealed these convictions to the Supreme Court of Appeal (SCA), focusing on the concept of dolus eventualis. It was undisputed that Humphreys subjectively foresaw the possibility of causing the children’s deaths through his actions. However, the pivotal issue was whether he had accepted this outcome as a likely consequence (the conative element). The court inferred that he may have harboured a belief that the collision would not occur. The court reasoned that to conclude otherwise would imply Humphreys had also reconciled himself with the prospect of his own death, a deduction unsupported beyond reasonable doubt. Consequently, the court found that Humphreys had not met the conative requirement of dolus eventualis. As a result, his convictions for murder were overturned and replaced with convictions for culpable homicide. Similarly, his convictions for attempted murder were set aside, and his sentence was reduced from 20 years to eight years imprisonment.

While the court’s exposition on the principles of dolus eventualis was comprehensive, criticisms arose regarding its application of these principles to the specific facts of the case. Was it truly implausible to argue that Humphreys had not accepted the possibility of a collision and consequently his own demise? His actions mirrored those of someone playing “Russian roulette,” displaying extreme recklessness. This critique aligns with the view that the court’s reasoning rested on shaky logical and psychological foundations.

In contrast, the case of S v Qeqe⁷ presents a more straightforward application of dolus eventualis. Here, Sonwabo Qeqe, having stolen a car, led police on a high speed chase through a township during daylight hours when children were present on the streets. His erratic driving, including veering onto pavements and swerving across lanes, resulted in the deaths of three children. The court found him guilty of murder, determining that he had foreseen and accepted the risk of causing their deaths.

Dolus eventualis hinges on whether person A, foreseeing a possible outcome of their actions, reconciles themself to that outcome. If they foresee an outcome but unreasonably believes it will not occur, dolus eventualis is precluded, and negligence (conscious negligence or luxuria) may be established. The distinction between dolus eventualis and conscious negligence, clarified in cases like S v Ngubane, centres on person A’s volitional acceptance of the foreseen risk, not just its cognitive acknowledgment.

Illustratively, if person C throws a heavy rock off a cliff knowing that hikers are passing below, their attitude towards the risk,⁸ determines the presence of dolus eventualis. Conversely, if they believe their precision ensures safety,⁹ their subsequent accidental injury of a hiker would suggest conscious negligence, not dolus eventualis.

The test for intention is inherently subjective. The court must ascertain person A’s state of mind at the time of the act, not what they should have foreseen objectively. Direct evidence of intention, such as a confession, simplifies matters. However, in most cases, person A denies intent, and the court must rely on indirect evidence. This may include person A’s conduct at the time of the act and contextual circumstances. The danger of adopting an objective standard when inferring person A’s intention must be avoided. The court should not substitute its judgment for person A’s subjective state of mind.

The application of the subjective test requires caution against retrospective reasoning or relying solely on what an ordinary person might have perceived in similar circumstances. Legal pronouncements suggesting an accused “must have foreseen” an outcome should be interpreted cautiously, ensuring they reflect actual foresight by the accused, not merely an objective expectation. The distinction between what they did foresee versus what they should have foreseen remains critical in determining their mental state.

The SCA’s judgement in the Oscar Pistorius case provided further clarification on the principles of dolus eventualis. That judgement can be read here.

Witten by Theo Tembo