A Probative Argument of Intention
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/00220183231187610 |
| Author | Tshepo Bogosi Mosaka |
| Date | 01 December 2023 |
A Probative Argument of Intention
Tshepo Bogosi Mosaka
University of Cape Town, South Africa
Abstract
This article develops the basic argument for proving intention in criminal adjudication. The
evidential proof of an accused’s state of mindis a very old problemthat arises from aneven
older moral quandry of distinguishing between unlawful killings that are accidental from
those that are intentional for punitive purposes. Intentional unlawful killings typically attract
much greater responsibility and punishment than killings by accident. The necessity of proving
intention for an unlawful killing arises generally from an alleged killer claiming: ‘I didn’t mean to
do it’. This denial can in turn be disambiguated into two cognitive (epistemic error) and vol-
itional (muscular accident) sub-categories. Historically, pre-modern fact-finders saw them-
selves as being limited to relying on confessions and expert marabout to prove an alleged
killer’s intention in the face of these denials. The article deploys contemporary rationalist
methods of logical argumentation for the proof of intention in criminal adjudication. The argu-
ments made in the paper are pitched at a theoretical level and without necessarily reflecting a
detailed exposition of the existing doctrine of one particular jurisdiction.
Keywords
Proof, evidence, intention, argument, inference, fault
Introduction
This article develops the basic argument for proving intention in criminal adjudication within common
law and non-common law jurisdictions around the world. The evidential proof of an accused’s state of
mind is a very old problem that arises out of an even older moral quandary, namely: whether, and in
what ways, should we distinguish between unlawful killings that are accidental from those that are inten-
tional.
1
For as long as human beings have been killing one another,
2
the moral inclination to punish
Corresponding author:
Tshepo Bogosi Mosaka, Public Law, Faculty of Law, University of Cape Town, Kramer Law Building, Rondebosch 7700, South
Africa.
Email: tshepo.mosaka@uct.ac.za
1.RGoff, ‘The Mental Element in the Crime ofMurder’(1987) 22(1) Israel Law Rev 1 at 1; JWC Turner, ‘The Mental Element in
Crimes at Common Law’(1936) 6(1) Cambridge Law J 31 at 33 (‘Of course in early times the difficulty felt in ascertaining the
mind of man’).
2.See LM Friedman, Crime Without Punishment: Aspects of the History of Homicide (CUP, Cambridge 2018) 1; KJ Kesselring,
Making Murder Public: Homicide in Early Modern England, 1480–1680 (OUP, Oxford 2019) Ch 1; J Kivivuori, et al., Nordic
Article
The Journal of Criminal Law
2023, Vol. 87(5-6) 329–343
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231187610
journals.sagepub.com/home/clj
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