Defences to Crimes

DR. SIANG'ANDU
 Learning Outcomes
By the end of this session, you should be able to;

1. Explain defences available to a defendant/accused person that can be relied upon to

eliminate criminal liability with reference to relevant authorities;

2. Explain specific defences with reference to relevant authorities.

What is the effect of defences?
)lo- Where general defences applies, the law presumes that the accused person is incapable of
committing the offence.

)lo- The D may commit the AR with the requisite MR & yet escape liability because he or she has a
valid defence.

)lo- For example, D may have intentionally killed the victim , but have been acting in self defence
(SD) because the victim was trying to kill the D.

)lo- In such a case , assuming the requirements of SD are met, D escapes liability.
 General rule
)lo- criminal liability is imposed on a blameworthy actor who causes a prohibited harm.

)lo- If the D has a valid defence then D is deemed not to be blameworthy therefore deserves to
escape criminal liability.

)lo- Term 'general defences' is used to imply that these defences are available to all crimes.

)lo- However there are defences that are not general but specific to particular crimes.

)- For example, provocation and diminishing responsibility are defences only available to murder,
reducing liability to manslaughter. { read provisions of the PC where the two defences are
addressed].
Justification & Excuses
)- The general defences are broadly divided into two groups; those which are referred to as
justificatory and those which are excusatory in nature.
)- For example, the former are used to justify an accused person's criminal liability and the later
are those that excuse an accused's criminal conduct.

)- Justificatory defence establishes that what the A person did was permissible in law, or society
would not condemn him or her for the conduct.

)- Excusatory defences recognise that what the accused person did was not morally acceptable,
but claim that A cannot be held accountable due to that fact that he or she lacks capacity, or is
.insane.
)lo- Justificatory defences negatives the wrongfulness of the proscribed act.

)lo- Excusatory defence negative the blameworthiness of the actor.

Need to distinguish between defences that constitute a justification & those that seek to excuse
the D

1. Those that provide a justification for the D's conduct

2. Those that excuse the D's conduct

•How does one determine whether a particular defence is justificatory or excusatory in nature?

•All depends on effect of the defence.

Justification
* A defence is justificatory (for the purpose of CL) whenever it denies the objective wrongness
of the act
* This means a justificatory defence affirms the act, state of affairs or consequences are, On
balance, to be socially approved.

* approve the act of D

See G. William , - The Theory of Excuses' [1982] Crim. LR. 732 at 735.
Examples of Defences which are
Justificatory in nature
1. Self-defence & prevention of crime (interest of the person attacked are greater than those
of the attacker).

2. Duress.

3. Necessity - common law defence. Where a lesser evil is committed in order to prevent a
greater evil ( criminal damage is caused to save the lives of 20 people.

4. Consent - Force against a person who has consented is justified unless if that force results in
something more serious like death, or grievous bodily harm.
 Excusatory defences
)lo- Defences that deal with mental incapacity.

)lo- A defence is excusatory when a wrongful, act has been committed, but because of the
excusing circumstances, the wrongdoer is not morally to blame for committing that act.

Paul Robinson argues in relation to excuse

'Those defence may admit the wrongfulness of the accused person's act but excuse the actor
because conditions suggest that the actor is not responsible for his deed' 'Criminal Law of
Defences: A Systematic analysis' 82 Col. LR (1982)

s. 11 PC
)- The D's conduct is excused/ held not to be guilty For example an insane person is said not to be
blameworthy.

)lo- Other examples of excusatory defences include: unfit to plead, doli incapax/ infancy,
ignorance of fact, mistake, intoxication, diminished responsibility, and provocation.

)- infancy provide an excuse for the accused person's acts.

)lo- Defences of diminished responsibility and provocation do not fully exonerate the defendant.

)lo- What is the effect of the defence of provocation?

 Mental Incapacity- Infancy/Lack
of Age (I)
•What is the law on infancy?

•sec 14 Penal Code, Cap 87

•The law set a minimum age when criminal responsibility can be established

•In Zambia a person under the age of eight is not criminally responsible for any act or omission

•Below age 8- There is a presumption in law that a child under the age of 8 is incapable of
committing an offence.

•They are said to be doli incapax.

 Mental Incapacity - Infancy/Lack
of Age (II)
• Therefore if a child below 8 steals something & brings it home. Parents who receives that thing
is not liable to be convicted for receiving stolen goods since the act of the child could not
amount to stealing or theft - Walters v. Lunt (1951) 35 Cr. App .R. 94.

•However if an adult encourages a child under the age of 8 to commit a crime, the child performs
an AR. The law treats such a child as an innocent agent & the adult becomes the principal
offender

•Note last point will be addressed in great detail in the next topic - under the heading - Parties
to Crime
 Mental Incapacity - Infancy/Lack
of Age (Ill)
•Below 12 yrs

•General rule - A child over 8 yrs of age but below 12 yrs of age at the time of commission or
omission of the offence in question is presumed by the Criminal law in Zambia to be incapable of
committing the offence

•Prosecution would need to prove that D knew that their act was wrong

•Need (knowledge) beyond reasonable doubt

•Therefore prosecution must prove that child realised that his or her act was wrong either
morally or legally- Gorrie ( 1918) 83 JP 136
Sec 14(3) - The law assumes that a male child under the age of 12 is incapable of having carnal
knowledge ( of a woman or girl)
Therefore a 12 yr old or below cannot be convicted of any offence that requires sexual
intercourse such as rape, or defilement.

S. 14 of the PC should be read in conjunction with the Juveniles Act 1956 and its subsequent
amendments.

Look at the definition of a child under the age.

Read the Act and note what he says in relation to sentencing children.
 Mental Incapacity - Insanity (I)
Y What do you understand by the term insanity?

;... What is the presumption of insanity?

 Insanity
•Presumption of Sanity - Read s11 Penal code, Cap 87 of the laws of Zambia.

• Criminal law is applied to rational people with sound minds.

•Defence of insanity is addressed in s12 Penal code, Cap 87 of the laws of Zambia;

•Read s12 Penal code, Cap 87 of the laws of Zambia;

•What does the provision provide? What does this mean?

What is insanity?
)lo- Insanity - disease through the mind;

)lo- Definition of insanity is a legal one & not a medical one as shown in HL decisions of R v.
Sullivan (1984) AC 156 & R v. Hennesty (1989)
 Mental Incapacity - Insanity (II)
•Persons who are found to lack such capacity may be dealt with in accordance with the rules in
the PC, the Criminal Procedure Code and the Mental Disorder Act Cap 305.

•The court dealing with an accused person, who is found to be insane may be declared/adjudged
as 'not guilty by reason of insanity. 1

•such a special verdict entails that the person concerned may be detained and confined in 'any
mental institution, prison or other place 1 'during the president>s pleasure 1, until the president
authorizes a discharge.
 ...._ '-"" 1' 1' '-"" I '-""

Sankalimba v. the people (1981)

ZR 258
The court held that:
'The appellant quite clearly intended in the least to do grievous harm to his victim. Owing to his
mental illness, however, he believed his victim to be an animal. We are satisfied , that he was
not criminally responsible for his actions because at the time, due to his mental illness, he was
incapable of understanding what he was doing, which brings him within the ambit of section 12
of the PC. In the circumstances, the appellant is not guilty by reason of insanity. The conviction
for murder and the attendant sentence are set aside. We order that the appellant be detained
during the president's pleasure.
 Mental Incapacity - Insanity
• Question of fitness or unfitness leading case - in regards to fitness is Pritchard (1836) 173 ER
135

• it was held;

D must demonstrate that he was possessed 'sufficient intellect to comprehend the course of the
proceedings in the trial'

•More recent statement in regards to the test of fitness in the case Friend (1997) 2 ALL ER 1012 -
'The test of unfitness is whether the accused will be able to comprehend the course of the
proceedings so as to make a proper defence'
 Insanity - Fitness to plead
• Before an accused is subjected to criminal proceedings, they is need for the accused to be fit to
plead, accused needs to have the capacity to understand the reasons as to why they are been
subjected to the criminal proceeding.

Example-: Malita Banda v. The People (1978) ZR 223 (SC) Supreme Crt

Read the decision!

 512 PC and the M'Naghten's case
(1843) 10 C & F, 200, 8 Eng. Rep. 718
•Defence of insanity is based on sec 12 Penal Code (PC);

•Principles set out by sec 12 are similar to those referred to as 'M 1 Naghten Rules 1 drawn from
English law decision M 'Naghten 's case

• what were the facts of the M'Naghten's case (1843) 10 C & F, 200, 8 Eng. Rep. 718;

•What was the decision?

•What were the principles established?
•Compare and contrast the M'Naghten's rules with section 12 PC.
I - I I V '"'4 ::J I I '- '-" I I I ' '"'4 I ' - " ~ I - I I V '"'4 ::J I I '- '-" I I ~

case (1843) 10 C & F, 200, 8

Eng. Rep. 718
• M'Naghten case provided the basic governing principles governing sanity defence in England &
Wales & other common law jurisdictions.
f\//'Naghten' Rules According to
the Doctrine
Mental abnormality sufficient to constitute a defence to a criminal charge must consists of three
elements:

1. The accused at the time of the act must have suffered from a defect of reason;

2. This must have arisen from disease of the mind;

3. The result of it must have been that the accused did not know the nature of his act or that
it was illegal.
Insanity - Disease of Mind
Meaning of disease of mind- Joseph Mutapa Tobo v. The people (1985) ZR 158 (HC)

Read the decision to appreciate how the defence is applied within the Zambian context.
Nutshell - Insanity
Where the D relies on the defence of insanity, the burden of proof lies on the D to prove his/her
insanity on a balance of probabilities
The main focus in the defence of insanity is to establish the D was insane at the time of
commission of the alleged crime;

Medical reports/ evidence is essential in proving or disproving insanity however crt has have
discretion to reject such evidence

Who bears the burden of proof in insanity cases?

 Self Defence
)- self -defence (SD) - Necessary defence;

)lo- Described as a justificatory defence in nature;

)lo- One may lawfully cause death without being criminally liable.
)- What is the law in relation to Self- defence?
)lo- Identify the relevant law in the Penal Code, Cap 87 of the Laws of Zambia;
)- what does it provide?
)- what does this mean?
 I I I'- I '- I ~I '- I ~ \ .,_, ~ I I ~""'I t-' ' - I I I I I '---'

the use of reasonable force by a

person
1. In order to defend herself/himself from any criminal attack;

2. To defend another person from attack;

3. To protect or defend his property;

4. To protect or defend the property of another person;

5. To prevent crime ;
* Essence of the above section is that a person is permitted to use reasonable force in SD or
prevention of crime. But D must believe that it was necessary.....
Force must be Reasonable
Necessary

Proportional - not more than what was required to repeal the attack

Test- objective - Reasonable person

Elisha Malume Tembo v. The People (1980) ZR 209 Supreme Court

Read the case!

Meaning of term 'Force must be
Necessary'
Clarkson & Keating p. 305 argue that the meaning of the phrase involves a consideration of the
following issue;

1. The necessity for any defensive action

2. The amount of responsive force that may be used

3. The duty to retreat - The law insists that X must demonstrate by actions that he or she
does not want to fight (see The People v. Mudewa (1973) ZR 147 High Crt for Zambia) -

4. The imminence of the threatened attack

Force must be necessary
1. Person must believe that his action was necessary.

2. The amount of force that is used must be reasonable under the circumstances.
General rule is that response must be proportionate to attack

3. It is agued that if it is possible to escape from the attack by retreating then it is unnecessary &
unreasonable to use defensive force ..
The use of reasonable force must be necessary to avoid harm

According to Kulusika 'necessity means that the force used was not avoidable as a lesser
violence or no violence would not have been adequate to defend oneself or prevent crime 1 p.
244
Explain with authorities instances where one can use self defence?
 Conduct Deemed Permissible -
Consent
~Certain crimes are only defined in such a manner that they can only be committed without the victim's consent eg
Rape.

~ In such a case D who claims a person was consenting to sexual intercourse is not pleading consent as a defence
but claiming that one definitional element of crime is missing - AR;

~ C = AR + MR + AVD

~ Here consent is treated as a defence to an offence;

~ D admits that they have committed the full AR of the offence, but claims that the consent of the victim justifies
the wrong he would have otherwise committed. (protection of human autonomy idea of freedom for human
beings to consent) but where do we draw the line?

~ The validity or invalidity of the victim's consent is measured against the degree of harm.

~Exception also includes participation in sports which have a high risk of injury or death such as rugby or boxing.
Consent
For instance Euthanasia is unlawful, therefore a person who deliberately kills another, even
though the victim consents will be guilty of murder despite the fact that the victim is a cancer
patient and only has days to live. (see R v. Brown (1993) 2 ALL ER 75 (HL). See 5.236

* Public policy demands that people should not harm each other for no good reason.
However a husband who branded his initials on the wife's buttocks at her request using a hot
knife was held not guilty of assault of causing actual bodily harm ( R v. Wilson [1996] 3 WLR 125
- exception to the general rule

In R v Wilson - D convicted of assaulting wife contrary to sec 47 of Offences against the Person
Act 1861. However the branding was said to have been done with love & not aggression hence
lack of hostility which is an essential factor assault.
The Limits of consent
Consent is limited for what is regarded as unacceptable purposes

Read SS 235 & 236 of the PC Chapter 87 of the Laws of Zambia.

Where consent results in serious harm, it is considered as invalid and criminal liability may be
established - S 235 PC.

In circumstances where one consents to causing their own death. Consent would be considered
to be invalid & criminal liability will be imposed under ss.236 PC, Cap 87.
 Mistake
• Defence consists of Mistake of fact & mistake or ignorance of law

•Mistake of fact - Sec 10 PC Cap 87

•If D makes a mistake as to the element of AR, D cannot be held liable absence of MR.

•Mistake needs to be reasonable s. 10 PC- contrary to the decision in DPP v. Morgan (1975) 2 ALL
ER 347 (HL) it matters how reasonable the mistake is.
 Mistake or ignorance of law
• General Rule - Ignorance of law is no excuse

•The Law - PC, Cap 87, 5.7

•In Criminal law there is a presumption that one is aware of what conduct/s are prohibited

•The fact that one mistakenly assumes that what they are doing is not a criminal offence cannot
lead to one escaping criminal liability.
Mutambo & Five Others v The People
(Crt of Appeal of Zambia, 1965)
)lo- Read the case:
 Intoxication
)lo- What is Intoxication? How can it be defined?

General rule - Intoxication is never a defence to criminal liability where D has the required MR

Intoxication may either be voluntary or involuntary

Voluntary intoxication - Intoxication resulting from intentional taking of drinks or drugs.

Where intoxication is involuntary Dis acquitted as deemed to lack the MR

The law on intoxication - PC, Cap 87, S. 13

General rule is that voluntary intoxication is not a defence to any criminal charge.
Exception to the General Rule
Intoxication will be a defence where

1. Consequences Intoxication leads to a disease of mind making the person insane within the
M 'Naghten rules ( same as those under s.12)

2. Offence charged requires a specific intention, intoxication prevents D from having the
necessary intention (OPP v. Majewski [1976])

Examples of crimes of specific intent ie- murder (Beard [ 1920] AC 479, wounding or causing
grievous bodily harm with intent Bratty [ 1963] AC 386; Theft
In other words - drunkenness can only be a defence to crimes that require proof of intention
(such as murder)

& it cannot be a defence to crimes that can be committed recklessly such as manslaughter.

•Intoxication cannot be a defence in offences which requires proof of recklessness;

•Involuntary intoxication can be a defence to any offence but only when it prevents the D from
having the MR for the offence charged (OPP v. Majewski)
Voluntary intoxication
Can be a defence to offences of specific intent & not basic intent

Specific intent offences include murder, theft, robbery, burglary

Basic intent offences include manslaughter.
Involuntary intoxication
Where a Dis reduced to a state of intoxication through not any fault of his own ( because for
example the drink was laced)
He cannot be blamed for his action & will have a defence to any criminal charge
However this protection only extends only to D who is so intoxicated that he does not form MR

Drugs taken as part of medication

Intoxication negatives MR hence D escapes liability
Intoxication
Read the decision:

Mulonda v The People [1978] SCZ

Exercise
What is the general rule with regards to intoxication?

when can it be used as a defence?

Duress
Duress is recognised in Zambia where all the requirements of the defence are satisfied.

Duress as a defence arises where X commits an offence under threat of death or the infliction of
grievous harm.

It can also arise in a situation where one is found in situation where there is cause of
apprehension of death or grave harm without there being human threat.

The law recognizes one defence of Duress. That has two types.
1. Duress by threats and

2. Duress of circumstances.
2 types of Duress
1. Duress by threats arises where there is a human being whose aim is to force or coerce X into
committing the specified offence; or else X or another person to whom Xis responsible will
suffer death or serious harm.
2. Duress of circumstances - arises where X may be forced to commit an offence due to
apprehension of death or serious harm, if he or she does not do so, but there is no any person
directing that offence to be committed.
The law is set out in s. 16 PC ( as
amended by Act No 13 of 1990)
16 (1) Except as provided in this section, a person shall not be guilty of an offence if he does or
omits to do any act under duress or coercion.
0
(2) For the purpose of this section, a person shall be regarded as having done or omitted to do any act under
duress if he was induced to do or omit to do the act by any threat of death or grievous harm to himself or another
and if at the time when he did or omitted to do the act he believed (whether or not on reasonable grounds):
(a) that the harm threaten was death or grievous injury;
(b) That the threat would be carried out-
(i) Immediately; or
(ii) before he could have aby real opportunity to seek official protection.
if he did not do or omit to do the act in question; and
(c) That there was no way of avoiding or preventing the harm threatened.
(3) In this section 11 official protection" means the protection of the police or any authority managing any prison or
other custodial institution, or other authority concerned with the maintenance of law and order.
Duress
According to s. 16 duress is committed where an accused person is threated by another with
death or grievous harm if he or she does not commit or omit to commit an offence.

The A person should not have an opportunity to make a choice as to avoiding the commission of
the offence, either by escaping, preventing or seeking official protection.

This is because the harm threatened would be executed immediately or without delay.

The accused must be under extreme pressure so that he or she has no choice but to act as
threated.
If the accused person meets all the requirements the PC provides that it would be unjust to
punish him or her, thus shall not be guilty of an offence.
Criteria for Duress under the
Penal Code s. 16
)- The threat ( or circumstances X encounters) must make X to apprehend death or grievous
harm.

)- Threat is directed against X( or the circumstances makes X to apprehend) death or grievous

injury to himself or herself or another person.

)- The court must take into account X's perceptions and conduct, whether on reasonable grounds
or not in deciding on the availability of the defence of duress.
 Criteria for Duress under the
Penal Code s. 16
)- The commission of the offence was caused by the threats which X relied upon.

);o- x believed the threats would be carried out immediately.

);o- x could not have any opportunity to seek official protection.

)- There was no way of evading or preventing the harm threatened.

)- This has to be established by evidence that X really tried as required.

)- That X has not voluntarily exposed himself or herself to the threats (or circumstances) to justify
the commission of the offence charged.
 Necessity
)- authority for defence- R v Dudley and Stephens (1884) 14 QBD 273

)- choice made to justify necessity must be evaluated as being objectively right or at least the
lesser of two evils [R v Dudley and Stephens (1884) 14 QBD 273 ].

)- R v Dudley and Stephens (1884) 14 QBD 273 - 'necessity is no defence to murder, but it is a
defiance to other crimes.

)- Common law defence that does not have a written basis in Zambia.

)- Read - R v Dudley and Stephens (1984) 14 QBD 273 .

Superior Orders
No such a defence as the defence of Superior Orders in English Law.

The same applied to Zambian Criminal Law.

However, how far are Superior Orders justifiable?

Lord Salmon in the duress case of Abbott (1976) 2 WLR 462 said that the idea of a defence of
Superior Orders 'has always been universally rej ected.'

R v. Smith (1900) SCR 561 - It was held that a soldier is responsible by military and civil Jaw and
it is monstrous to suppose that a soldier could be protected when the order is grossly and
manifestly illegal. Of course, there is the other proposition that a soldier is only bound to obey
lawful order and is responsible if he obeys an order not strictly lawful.

Issues of Superior Orders mostly considered in international law.

Exercise
Dettol and Sanitizer are a married couple. Sanitizer has been having an extra-marital affair for
over two years now. When Dettol finds out about the affair he is so upset but after a few days
Sanitizer asks for forgiveness and things seem to return to normal. After three days, Dettol sees
a text from Sanitizer 1s lover which confirms that the affair is not yet over. He takes a gun and
shoots his wife in the head. Sanitizer dies immediately. Dettol gas since been arrested and
charged with murder.

Dettol has since resolved to seek advise on whether he can escape criminal liability for the death
of Sanitizer.
Write a reasoned judgement assess whether Dettol can be held criminal liable for the death of
Sanitizer.
Readings
Kulusika, Simon. Text, Cases and Materials on Criminal Law, 2006 - Chapter 4

Kulusika, Simon E. Criminal Law in Zambia: Doctrine Theory and Practice, 2020 - Chapter 13

Hatchard J., and Ndulo, M. Case Book on Criminal Law, 1993 - Chapter 3

All cases listed on the Teaching Plan