“BUT I DIDN’T MEAN TO…” A USELESS EXCUSE
If “A” with intention to harm “B” points and shoots his gun at “B” but the bullet misses “B” and instead hits C in the hip, “A” is still responsible for the injuries to “C”. Essentially, the legal doctrine establishes that when the intention to harm one individual but inadvertently causes a second person to be injured, the perpetrator is held responsible. Therefore, person must be mindful that intending to cause harm to a particular person and harming another by accident or mistake, does not absolve them from legal liability of the harm inflicted on the unintended. This principle of law is called ‘Transferred Malice’.
The prosecutor is usually required to establish “A” had a criminal intent and that “A” also knew that another person would be harmed by his action and wanted the harm to occur or is indifferent as to whether the harm occurred.
So imagine this scenario where John went to a bar on a on evening, subsequent to entering the establishment John gets into a fight with another man. With the intention to cause harm, John took off his belt and hit the man with the belt; the belt ricocheted off and hit a woman in the face. John was held liable for the injuries inflicted on the woman despite the fact that he did not intend to harm her. The scenario given above is part of the facts from an actual case in 1886. It is important to note that what is essential is that the mensreas (guilty mind) which, he had to cause harm to the man was transferred to the woman who was harmed.
Another example of transferred malice was the case of R. v. Saunders (1573) 2 Plowd 473, where the Defendant gave his darling wife an apple to eat but it was poisoned by arsenic. His intention was to kill her to marry another lady. His wife having tasted the apple gave it to their daughter who ate it and later died. The Defendant was convicted of the murder of his daughter. The intention to kill his wife was transferred to his daughter.
A sad Jamaican case that came to national attention some years ago when Patricia Perry, a teacher from New Providence Primary School who was flogging a student when a young male student came up behind the student being flogged.The belt buckle from the belt the teacher was using struck the little boy in his eye. The boy suffered severe damage to his eye and lost sight in in the said eye. The teacher was arrested and charged. The prosecution argued at trial that flogging was illegal and in any event the eye injury to the little boy was transferred malice. The trial judge rejected the prosecution’s submission about transferred malice and freed the teacher of all charges.
There are exceptions, limits and controversy as it relates to the doctrine of transferred malice. A noted exception to the doctrine of transferred malice in that themens rea for an offence against the person cannot be transferred to a property damage offence, as they are entirely different offences. So where John was trying to inflict injuries on a man but his belt buckle ricocheted and let’s say broke a window, the mensrea, which he had towards the man, would not have been transferred to the property/object. Some legal scholar are also of the view that the doctrine is unnecessary and that it caused too much confusion in law.
In sum, to invoke a saying from a Jamaican granny: “stone nuh havenuh eye” remains relevant and a saying to guide all of us in our actions. Claiming that you didn’t mean to or it was an accident will get you nowhere, especially if serious injuries are inflicted and you had intended to inflict serious injuries. To avoid trouble with the law, one should always be mindful of his/her actions and the consequences that are likely to flow from those actions. A word to the wise is sufficient.
Keith N. Bishop is an Attorney-at-Law and senior partner in the law firm of Bishop & Partners. He may be contacted at or by WhatsApp at 876-460-8231.