“One moment of extreme irresponsibility”: notes and comments on Humphreys v S and the volitional component of dolus eventualis in the context of dangerous or irresponsible driving

Abstract

The judgment of the Supreme Court of Appeal (SCA) in Humphreys v The State has provided a measure of clarity as to the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The court held that references to “recklessness” on the part of the accused should be approached with caution so as not to conflate the test for dolus eventualis with that for aggravated (or “conscious”) negligence. In more general terms, the judgment also provides guidance as to what constitutes appropriate charges in response to dangerous or irresponsible driving that results in death or serious injury to innocent persons. It is submitted that, in general, the more aggressive prosecutorial strategy of the National Prosecuting Authority (NPA) towards irresponsible and reckless driving, under which such drivers are now more likely to be charged with murder and/or attempted murder, remains justified (and necessary) notwithstanding the outcome of the Humphreys case. However, through the use of a hypothetical example substantially similar to the Humphreys case, it is argued that, in future, the NPA’s prosecutorial efforts in such cases must be guided by the interpretation of the legal principles of dolus eventualis in Humphreys and by the specific facts at its disposal.