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It Was Only A Mistake Your Honour!

The “Oscar Pistorius story” brings out some interesting, yet common sense factors about the “general defences”. Self-defence has to be reasonable and proportionate, but you don’t have to wait until you’ve actually  been attacked before acting in self defence. It might be reasonable to shoot an intruder in your home, but only after you’ve fairly established that there is a really serious threat to your own safety and no other reasonable defensive or evasive action would meet the exigencies of the situation. Simply “encouraging” the intruder to leave is always preferable to meting out physical violence. The example of the drunk who enters in error and the burglar intent on rape makes the point most succinctly.

In certain circumstances, provocation may be a partial defence to murder, but only if the response is proximate and may be properly described as causally linked. It might be difficult for a man who kills his wife’s lover, a week after finding them in bed together, to claim that his actions had been provoked as a matter of law. They probably were provoked as a matter of fact, but that is not the legal test. Mistake is probably the most unusual of the general defences. What the law allows for is not a mistake as to the state of the law (ie ignorance) but a genuine mistake as to some material fact or set of facts. There would have to be a robust and rigorous inquiry as to the reasonableness of the mistake, in the light of the prevailing facts, before judgement is made however.

Life is not like a bad Western where the “good guy” shoots first and asks questions later. In real life, one is expected to ascertain, verify, stipulate and clarify before acting. “Doing the right thing” is the difference between negligence and dilligence; it’s the difference between the law-abiding citizen and the criminal mind. Almost every criminal act involves a mistake at some level. It’s good for society that not every mistake provides  a legal defence at some level.

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