Pre‐Natal Injury and Transferred Malice: The Invented Other

Abstract

The doctrine of transferred malice has few champions among academic lawyers. It operates to explain the decision of a court in cases where an accused, acting with the requisite mens rea of an offence, causes a result which is unintended in some way. For example, the accused, intending to kill A, shoots at A but misses and kills B, who is standing next to A. The fact that the accused is found guilty of the murder of B, even though he bore no ill-will towards B, is said to be based on the notion of the 'malice' towards A being 'transferred' to B. Some have argued that this doctrine is inconsistent with our notions of subjective responsibility' and that its use should be abandoned. From a different standpoint, Patient2 has argued that the doctrine is outdated and misleading, and that a straightforward application of the principles of actus reus and mens rea makes its use unnecessary. In many criminal law courses, this topic tends to be dealt with by a cursory reference to some nineteenth-century cases, with little discussion of its applicability in recent times. In view of this, it is surprising to see the doctrine being given a new lease of life by the Court of Appeal in Re Attorney General's Reference (No 3 of 1994).4