PRELIMINARY MATTERS

• Malum in se: one that is wrong or evil in itself - Conduct that is considered universally to be wrong,
regardless of whether a law exists concerning it and regardless of where it occurs e.g. murder

• Malum prohibitum: one that is wrong because it is prohibited - Conduct that is considered criminal
only because it is prohibited by law

• Categories of Offences in order of seriousness:

i. Offences punishable by death (capital offences) - e.g. murder, treason and high treason

ii. First degree felonies - normally attract a prison term of up to life sentence - e.g. rape, and causing
harm with the use of an offensive weapon

iii. Second degree felonies - attract a term of imprisonment not exceeding 10 years e.g. abortion, causing
harm, and threat of death - Offences involving dishonesty, e.g. stealing, robbery, defrauding by false
pretences attract sentences of up to 25yrs

iv. Misdemeanours - normally attract a prison term not exceeding 3 years v. Offences Punishable by
fines

PRINCIPLE OF LEGALITY(Art. 19; Tsatsu Tsikata)

• encapsulated in the Latin maxim nullum crimen, nulla poena sine lege praevia lege poenali

• No crime is committed and no punishment can be imposed without the act having been prohibited
and the punishment having been prescribed by a law enacted before the act was committed.

• Nullum crimen sine praevia lege - An act or omission to act is only a crime if before the act or omission
was committed, there was a law declaring the act or omission in question as a punishable offence

Article 19(5): A person shall not be charged with or held guilty of a criminal offence which is founded on
an act or omission that did not at the time it took place constitute an offence

• Nulla poena sine praevia lege - An act or omission to act is only a crime if a specific penalty has been
previously prescribed for that act or omission

Article 19(11): No person shall be convicted of a criminal offence unless the offence is defined and the
penalty for it is prescribed in a written law

• Overbreadth and Vagueness - a statute is vague and overbroad where it either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application.

• The Rule against Double Jeopardy - Once a person has been tried for an offence, he cannot be tried
again for the same offence, whether his trial ended in an acquittal or a conviction. - Where a person
causes harm to another, and the victim is still alive, the accused is not in jeopardy of being charged for
murder at his trial for causing harm. If the victim eventually dies, the accused may be charged for
murder [Sec 115 of Act 30]
PUNISHMENT

It entails the infliction of suffering or some other unpleasant visitation by a deliberate act of the
authority of the State on an offender after he has been lawfully convicted for an offence

• 2 main theories: Retributive and utilitarian

i. Retributive Theory

• classic retributive theory: Steeped in revenge – in the nature of Mosaic law. - The offender should be
paid back in his own coin – “lex talionis”

• Proportionality Theory: Punishment must fit the crime. - i.e. the moral culpability of the offender
justifies the punishment

ii. Utilitarian Theories

• accredited to the English jurist, Jeremy Bentham.

• punishment must be a means to an end. It should not be imposed for its sake – it must serve a
purpose. - The purpose it serves being the end - Here, the focus is on the beneficial consequences of
punishment

• Beneficial consequences of punishment

a) Deterrence: Punishment is imposed to communicate to the community that such conduct would not
be tolerated thereby supposedly reducing the incidence of crime.

▪ General Deterrence: focuses on the effect of punishment on society at large. Such sentences tend to
be severe – the offender

Kwashie: police officers ceased contraband goods and used them for their own selfish designs. Held on
appeal that since the offence was of a very grave nature, the sentence must not only have been punitive
but it must also have been a deterrent or exemplary in order to mark the disapproval of society of such
conduct by police officers.

▪ Specific Deterrence seeks to discourage the individual offender from repeating the commission of a
crime.

b) Prevention: removing the individual offender from society to render him physically incapable of
committing further crimes

c) Reform and Rehabilitation: aimed at assisting the offender to turn a new leaf by adopting a lifestyle
different from the criminal one through moral education

d) Atonement and Reparation: the offender is made to compensate the victim for the damage or injury
resulting from his criminal conduct
Section 35(1) of the Courts Act, 1993 (Act 459):Where a person is charged with an offence before the HC
or a Regional Tribunal, the commission of which has caused economic loss, harm or damage to the State
or any State agency, the accused may inform the prosecutor whether the accused admits the offence
and is willing to offer compensation or make restitution and reparation for the loss, harm or damage
caused.

ELEMENTS OF A CRIME

i. Actus Reus: a prohibited act or omission, i.e. the physical element - May be an act, or an act together
with the surrounding circumstances, or an omission to act when required to do so

ii. Mens Rea: a prohibited mental state with which the particular act or omission is done. - Differs from
offense to offense: E.g.

▪ intentional conduct that is proscribed,

▪ knowledge of the unlawfulness of the conduct

The 2 elements must coincide in respect of the same event for the act to amount to a crime - Actus non
facit reum nisi mens sit rea: an act does not make a man a criminal unless the mind be guilty.

Strict liability offence: offences where the law dispenses with the requirement mental element.

INTENTION (Section 11)-(mens rea)

1. Direct Intent: there is a rebuttable presumption that a man intends the natural and probable
consequences of his actions

2. Oblique Intent: where a person engages in conduct for a particular purpose and the means chosen
causes other effects as well, the accused is not excused from liability if his act achieves an undesired
consequence, as long as the undesired consequence was foreseeable at the time the act was committed

3. General or Indeterminate Intent: where a person engages in criminal conduct against a crowd or an
assembly of people without really intending to harm a particular person, and a member of the group is
harmed thereby, the accused will be liable even though the eventual victim was not within his direct
contemplation

R v. Gyamfi: A threw a stone, at a group of CPP supporters, which hit the dec’d, who died from injuries
sustained therefrom. A was found guilty for manslaughter because there was sufficient intention to
cause harm by the act of throwing a large stone into a crowd

4. Transferred Intent: a man who has an unlawful and malicious intent against another, and, in
attempting to carry it out, injures a third person, will punished as if the initial intention was to harm the
injured person

Ametewee: A, a police officer who was on duty at the Flagstaff House, fired 3 shots at the President. One
of the shots hit and killed the President’s body guard. - any defence available to the accused or any
extenuating factor that works to the advantage of the accused, had the harm occurred to the intended
victim, will still be available to the accused although the harm occurred to another person

Proof of Intent (Objective test):

• The presumption is to the effect that a person intends the natural and probable consequences of his
actions.

• The presumption may be rebutted by showing that that person believed that the act would probably
not cause or contribute to cause the event, or that there was not an intention to cause or contribute to
it

Serechi v. The State: AGC employees were conveying firewood trucks on a locomotive train pushed non-
employees, who had jumped on the train, off the train.

• Intention is the will to engage in an act, while motive is the feeling that prompts the desire to engage
in the act.

CAUSATION (Sections 13,64 & 81)

A causal connection must be established between the accused and the act that constitutes the actus
reus.

In law, we are not concerned with the factual or de facto scientific cause rather the legal cause i.e. a
finding of the person that set a chain of events in motion. In law, to cause, is to bring about an event or
state of affairs by one’s own act or endeavour

Section 13

• It is a question of fact whether an event is fairly and reasonably to be ascribed to a person’s act to
have been caused by that act.

• To establish the responsibility of the accused for the actus reus, it must be proved that the accused
caused or contributed to cause the prohibited event - mere suspicion will not do R v. Yeboah: A fatally
injured man was discovered a short distance from the direction where the accused had been leading a
chase shouting “thief”. Held: there was no evidence connecting the accused with the death of the
deceased

• Joint Causation: Where an event is caused by the acts of several persons acting jointly or
independently, each of the persons who intentionally or negligently contributed to cause the event
has…caused the event; - but a matter of exemption, justification, extenuation, or aggravation which
exists in the case of any one of those persons shall have effect in favour of that one person, whether it
exists or not in the case of any of the other persons

• Novus Actus Interveniens: there must be an unbroken chain of causation between the act of the
accused and the event - Although the accused may have set a chain of events in motion, if a factor or
the act of another person interposes itself between the act of the accused and the ensuing event to
break the chain of causation, the accused will not be held liable
▪ Applies only if the accused had no cause to take that factor into account while directing his mind to his
action or if it was an unforeseen event. - A person who intentionally causes an involuntary agent to
cause an event, shall be deemed to have caused the event

▪ Involuntary agent: an animal; any other thing; a person who is exempted from liability to punishment
(infant or insane) - An act reasonably done to rescue the victim or render medical assistance, even if the
actor is not legally bound to help, does not relieve the accused from liability, if death occurs from the
attempt to rescue or to render assistance

▪ The accused ought to have contemplated that some person, upon seeing the victim, would attempt to
rescue or render assistance to the victim ▪ Accused will not be liable if the second cause is so
overwhelming as to make the original wound merely part of the history. - An act done to avoid detection
of an earlier act does not operate to break the chain of causation.

▪ Thabo Meli: hit the victim on the head to kill him and thinking he was dead rolled him off a cliff. Victim
actually died of the exposure outside.

Section 64- Novus Actus & Death.

• “Take your victim as find him warts and all”

• An existing illness or susceptibility, e.g. infancy, old age, disease, intoxication, of the victim does not
negative causal connection

R v. Twum v. The Republic: A hit the dec’d, an able-bodied and healthy looking policeman, in the face
whereupon he fell down and bled from the nose and mouth and he died the next day. The medical
evidence showed that apart from the cracked skull resulting from the blow, the dec’d had oedema of
the lungs which could have killed him later. Held, on appeal, that despite the evidence of oedema, the
blow was the proximate cause of death.

• The victim’s action or inaction after the infliction of harm does not break the chain of causation unless
the victim’s behaviour subsequent to the injury was unreasonable. - E.g. the refusal of the victim to
undergo treatment or her lack of proper care for herself

R v. Blaue: Dec’d was a member of the Jehovah’s Witness. She refused a blood transfusion, due to her
religious beliefs, although she had lost a lot of blood from attack by D with a knife which had pierced her
lung.

• The acts of physicians ordinarily do not break the chain of causation.

• Unskilful treatment does not relieve the accused from liability unless: - death could not have been
foreseen as likely consequence of the treatment, or - the treatment is grossly negligent i.e. so great as to
support a conviction for manslaughter

• Time lapse may operate to break the chain of causation - The accused cannot be held liable if the
victim died a year and a day after he inflicted the harm

Section 81- death must be caused by physical harm

• An act done calculated to cause harm not by physical means but through emotional distress and
psychological harm, i.e. grief, terror or emotion, will not fix the accused with liability

• A person is not blameworthy for causing an event through spiritual means. - no liability for causing
death through witchcraft or juju - a person’s witchcraft cannot be set up as a defence for inflicting harm
on her

• Contributory negligence, e.g. by trespass, negligence, act, or omission does not lie as a defence for
causing harm to another person. Section 68: Where harm is unlawfully caused to a person within GH,
but the death as a result of the harm, occurs outside GH, the person who caused or abetted the causing
of the harm may be tried and punished as though the death occurred in GH

CAPACITY

1. Article 57(5): “The President shall not, while in office as President, be personally liable to any civil or
criminal proceedings in court.”

2. Infants (sec. 26): the age of criminal responsibility is 12 years - a person under twelve years of age is
incapable of committing a criminal offence. doli incapax (has no capacity for mischief)

DEFENCES

• Complete defence: operates to exculpate the accused from liability

• Partial defence does not entirely excuse criminal liability. It goes either to reduce a charge to a lesser
offence or to reduce punishment to a lesser sentence

1. CONSENT(Sec. 14& 42) (Complete defence) Section 14- specific rules on consent

• Several offences are defined requiring the lack of consent e.g. the offence of rape is made out when
the lack of consent to sex is established.

• Consent validly obtained and sanctioned by law excuses from criminal responsibility - must be
voluntarily given and the person giving the consent must be of full age and capacity. - Retrospective
consent will not do - Consenting to something is regardless of liking the thing or how disagreeable the
thing turns out to be.

• Capacity to Consent: Persons who cannot give consent to any act: - A child under 12 years - With
respect to sexual offences, a child under 16 years - Insane person - A person who is unable to
understand the nature or consequences of his action by reason of immaturity - A permanently
incapacitated person - A temporarily incapacitated person like an intoxicated person, or drugged person
or a comatose person

• Vitiating Factors: consent obtained such means is void and incurably bad. - Consent is obtained any
vitiating factor if it would have been refused but for the existence of that factor. i. Fraud or Deceit - The
person giving the consent must be fully informed of the circumstances of the transaction in order to
make a fully informed choice - Half-truths will not do. R v. Williams: Presbyterian choirmaster and voice
lessons trainer had sexual intercourse with girl under the pretext of creating a passage in her vagina with
his penis to make her sing better by easing her breathing since she was not getting her notes right.

ii. Duress: an act done with force, harm, constraint, or threat, with intent to cause a person, against that
person’s will to do or abstain from doing an act vitiates consent. [Section 1] - For consent to be vitiated
by duress, the act inducing consent need not be of extreme violence

iii. Undue influence: involves one person taking advantage of a position of power over another person -
consent that is obtained by or under the exercise of any kind of authority; or by the exercise of authority
by operation of law but which is exercised otherwise than in good faith (i.e. mala fides) - The law
jealously guards the interests of the weaker party in:

▪ Parent/child

▪ Guardian/ward

▪ Priest/member of parish

▪ Solicitor/client

▪ Doctor/patient

▪ Employer/employee –

If a person in a position of authority or influence takes indecent liberties with a person subject to his
authority or influence without the person’s consent, though the person does not resist, he is liable to be
punished as for an assault.

iv. Mistake of fact: may be as to the nature of the act, or the identity of a person - it must be a
fundamental mistake - A fundamental mistake is one that goes to the root or the heart of a consent
given

v. Mala fides consent by 3rd parties on behalf of another: consent, when given, must be in good faith for
the benefit or the good of the person on whose behalf it is given.

Section 42- Limits placed on the right to consent

• A person cannot consent to:

i. His own death –

R v. Pike: the accused was found guilty of manslaughter for the death of his mistress. She died as a result
of the inhalation of a dangerous anaesthetic which she had consented to doing, so that he could satisfy
his sexual passion of copulating with an unconscious woman. - A person who commits euthanasia
cannot set up the consent of the victim as an excuse

ii. The infliction of a wound or a grievous harm on him

R v. Donovan: girl consented to being severely caned by A for sexual gratification. Held: Where a person
is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury
is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under
such circumstances, that its infliction is injurious to the public as well as to the person
• Exceptions for medical treatment

i. Consent by a person for the infliction of a wound or a grievous harm may be justified if the wound or
harm is caused, in good faith, for the purposes or in the course of medical or surgical treatment - It does
not extend to improper treatment or negligent mistreatment

ii. Consent for the use of force against a person for the purposes of medical or surgical treatment or for
his benefit may be given: - by a parent or guardian on behalf of a child under 18yrs against the will of the
child

▪ the child cannot revoke the consent - by a prison authority on behalf of prisoner - by a medical
authority on behalf of an insane person

iii. Force may, in good faith and without negligence, be justifiably used on a person for the purpose of
medical or surgical treatment or for his benefit if that person is unable to give or withhold consent by
reason of intoxication, or insensibility e.g. coma - A person authorised by that person or by law to give or
refuse consent may dissent.

• Where the intent to cause harm is established, the consent to fight is rendered ineffective in law as a
matter of public policy whether the fight is lawful or unlawful

• Revocation of consent: Consent once given, may be revoked, and when it is revoked, it ceases to have
effect or justify force

2. INSANITY (Sec 27)-(partial defence)

• It is a combination of factors or states of affairs from which the law draws a conclusion as to the sanity
or otherwise of a person

• Law on insanity derived from the principles of McNaughten established by UK judges after the
McNaughten case. Daniel McNaghten, who suffered from what today would be called paranoia,
actuated by the morbid delusion that he was being persecuted by “Tories shot and killed the Secretary
of Prime Minister. He was acquitted on the ground of insanity.

• At common law everyone is presumed to be sane.

• A successful plea of insanity does not lead to an acquittal. - It leads to the special verdict i.e. “guilty but
insane” [Sec. 137 of Act 30; sec. 27 of Act 29] - Under the special verdict, is kept away from society often
in a mental institution “till the pleasure of the President be known” – sec. 137 of Act 30

• Rebuttal of the presumption of sanity: i. Where there is a defect in the mental faculty which renders
the accused incapable of knowing the nature and consequences of his actions - i.e. if that person was
prevented, by reason of idiocy, imbecility, or a mental derangement or disease affecting the mind,

R v. Windle: A after discussing on several occasions at work gave his insane wife a fatal dose of aspirin.
Later, he told the police that he supposed he would be hanged for it. Held: “A man may be suffering
from a defect of reasoning, but, if he knows that what he is doing is wrong – and by ‘wrong’ is meant
contrary to law – he is responsible.” - The defect of the mind may be ascertained from medical history
and the acts of the accused contemporaneous to the event; i.e. his acts immediately before or at the
time of the act, or immediately after the act - a senseless killing lacking motive is not in itself an
indication of a deranged condition of the mind. Other factors must add up to upset the presumption of
sanity - Collins alias Derby: a man allegedly suffering from schizophrenia inflicted extensive injuries on
the victim at the victim’s farm.

ii. a mental delusion which renders the accused an unfit subject for punishment - The consideration here
is that the accused lives in a world of his own and he is oblivious of happenings in fact and in reality –
thus, it is sufficient if the accused acts while in a state of mind induced by mental disease, in which a
false belief is held that cannot be shaken by facts or reality - Such a state of mind may be temporal or
permanent

Moshie: A on the belief that his landlord had come from Kumasi with a number of men to take him to
the Asantehene to be killed. And in an act of purported self-defence killed his landlord, chased other
people in the village and wounded a woman and proceeded to cut a little boy up with a cutlass.

- Under insane delusion there is no requirement that the mental delusion should lead to an incapacity to
control one’s conduct

▪ This does not mean that the person has an irresistible urge to act – but that the person has no
consciousness of acting

- The law looks at the degree or quality of the incapability of the mind that caused the delusion and not
the subject or substance of the particular delusion. ▪ A person is fit subject for punishment if he is
morally blameable for the act - The accused must have been labouring under the delusion at the time of
the incident not subsequently.

3. AUTOMATISM (impaired consciousness)

• Automatism, in legal terms, is any abnormal state of consciousness that is regarded as incompatible
with the existence of mens rea, while not amounting to insanity.

• Occurs when a person acts without his cognitive faculties

• There is no provision in Act 29 concerning automatism, but a Ghanaian court will hold that a
temporary blackout during which a crime is committed would be considered as a defence of automatism
since the mind, at the time in question, was absent Dogo Dagarti: appellant killed his wife and claimed
that he did so during an epileptic fit and that he had no recollection of what happened Held (on appeal):
It is true that the learned trial judge’s statement of the law that the defence of automatism is not
applicable to this country is too wide, for although automatism is not stated in our law to be a defence
to crime, yet there are cases where an act may be done by a person under automatism in such a
situation that in law the act cannot be said to be the act of the person who did it.

4. IGNORANCE OR MISTAKE OF FACT/ OF LAW (Sec 29)

• Ignorance of fact is a complete defence. - A person who acts in ignorance of a fact has no intention of
engaging in a forbidden conduct

• Ignorance of Law is no defence. - a person who acts not in ignorance of a fact but in ignorance of the
law, intends to engage in the prohibited conduct, although she does not know that that conduct is
prohibited by law
R v. Tolson: remarried under a bona fide belief in the death of her 1st husband. Held: At common law an
honest and reasonable belief in the existence of circumstances which, if true, would make the act for
which a prisoner is indicted an innocent act, has always been a good defence Honest and reasonable
mistake stands, in fact, on the same footing as absence of reasoning faculty, as in infancy, or perversion
of the faculty, as in lunacy.

• Nyameneba v. The State: members of a religious sect using Indian hemp but calling it “herbs of life”

• Reliance on custom is no defence.

5. JUSTIFIABLE USE OF FORCE (Sections 30-45)

• Section 30: the justifiability of the use of force is determined by law.

• Section 31: grounds on which force is justified

- express authority given by an enactment; or

- authority to execute the lawful sentence or order of a Court;

- authority of an officer to keep the peace or of a Court to preserve order;

- authority to arrest and detain for felony; -

authority to arrest, detain, or search a person otherwise than for felony;

- necessity for the prevention of or defence against a criminal offence;

- necessity for defence of property or possession or for overcoming the obstruction to the exercise of
lawful rights; - necessity for preserving order on board a vessel;

- authority to correct a child (below 14 years), ward (below 16 years) servant, or other similar person, for
misconduct;

- consent of the person against whom the force is used.

• Section 32: Principle of proportionality and necessity. Force must be - reasonably necessary in the
circumstances - proportional to the harm feared.

• Section 37: a person may justify the use of force or harm in self-defence or the defence of another,
which is reasonably necessary extending in case of extreme necessity even to killing.

• Section 38: force in unlawful fight is not justifiable.

• Section 43: a person who is justifiably using force may use the force on a 3rd party who us obstructing
him from the use of force.

• Section 45: a person who assists another in the justifiable use of force is himself justified to the extent
of the person.

6. PROVOCATION (Sec. 52-56) (Partial defence)

• Where a crime is committed in circumstances of extreme anger, the law takes the view that
responsibility of the person angered is not total due to the extraordinary emotional state of anger in
which he was put.

Classic Definition of Provocation: “…some act, or series of acts, done…which would cause in any
reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control,
rendering the accused subject to passion as to make him or her for the moment not master of his mind.[
Devlin J in Duffy]

• The defence can only be raised by an accused who is under a charge of a crime of homicide - Sec 52: A
person who intentionally causes the death of another person by unlawful harm commits manslaughter
and not murder or attempted murder, if that person was deprived of the power of selfcontrol by an
extreme provocation given by the other person as is mentioned in sections 53, 54, 55 and 56 Section 53-
situations which amount to extreme provocation

i. an unlawful assault and battery: “an unlawful assault and battery committed on the accused person by
the other person, in an unlawful fight or otherwise, which is of a kind, in respect of its violence or by
reason of accompanying words, gestures, or other circumstances of insult or aggravation, that is likely to
deprive a person of ordinary character and in the circumstances in which the accused person was, of the
power of self-control”

• Components:

- unlawful assault and battery which is violent in itself, or

- unlawful assault and battery accompanied by words, gestures, insults or aggravation.

• The assault and battery committed on the accused must be one that is likely to deprive a person of
ordinary character the power of self-control. - The accused, in fact, must have been deprived of his
power of self-control

• Mere words do not amount to provocation - The words must accompany an assault and battery.

- Abusive or insulting words by themselves, however violent, cannot amount to provocation

• The test rests on that of person with ordinary character - “an ordinary person” means an ordinary
person of the community to which the accused belongs [sec 54(2) - the defence cannot be called in just
because the accused is easily irritable or is irascible.

ii. Apprehension of deadly attack: “the assumption by the other person, at the commencement of an
unlawful fight, of an attitude manifesting an intention of instantly attacking the accused person with
deadly or dangerous means or in a deadly manner.”

• If upon the commencement of an unlawful fight the victim puts the accused under an apprehension of
a deadly attack, by his actions, then if the accused proceeds to kill the victim in pre-emptive defence, his
liability will be reduced from murder to manslaughter

iii. Adultery or sodomy in one’s view an act of adultery committed in the view of the accused person
with or by the wife or the husband, or the criminal offence of unnatural carnal knowledge committed in
the husband’s or wife’s view on the wife, or the husband, or child;
• Entails causing death upon seeing: - the spouse commit adultery or - a person perform sodomy on
their spouse or child.

• The accused must catch the spouse in the adulterous act or the person performing sodomy in
flagrante delicto (red handed)

• In the case of a visually challenged person, the expression “in the view of”, should be interpreted as
“to the hearing of”

Kekey: the appellant, a visually impaired old man, suspected his wife of infidelity. He claimed he heard
his wife in the room with a man and killed her after she had helped the lover to escape.

• When the defence will not lie:

- Circumstances in which recent sexual intercourse may be inferred.

- After the fact knowledge of the adultery or sodomy

- mere suspicion

- A confession of adultery, without more

- A statement by a spouse that he/she intends to commit adultery

iv. violent assault and battery committed on loved one a violent assault and battery committed in the
view or presence of the accused person on the wife, husband, or child, or parent, or on any other person
who is in the presence and in the care or charge of the accused person.

• presence suffices

- the accused need not have actually seen the act Section 54-exclusionary circumstances

i. where the accused was not in fact deprived of the power of self-control.

ii. time lapse or the recovery of self-control …that, after the provocation was given, and before the
accused did the act which caused the harm, a time elapsed or circumstances occurred that an ordinary
person might have recovered self-control. - reaction of the accused must be spontaneous, leaving no
room for reflection. - lapse of time or the recovery of one’s composure, negatives the element of
spontaneity and the requirement that the accused must have lost his power of self-control.

– cooling down period depends on the circumstances of each case

iii. The accused forming a previous intention to harm or kill the provocateur or to engage him in an
unlawful fight before the provocation was given.

- The accused will be deemed to have formed a previous intention to cause death where, in the course
of a fight, he uses deadly or dangerous means, when the victim has not used or commenced to use
deadly or dangerous means.

- Also applies where the accused intended or prepared to use deadly or dangerous means way before he
was provoked
 iv. The instruments or means employed by the accused or the cruel or other manner in which he used
the instruments or means.

- The rationale is that great cruelty, excessive or overwhelming force, or ruthlessness speak of
premeditated mens rea

Section 55- Mistake as to person giving provocation

• a lawful act may amount to provocation, notwithstanding its lawfulness, if the accused did not believe
or had no reasonable means at the time of knowing or had no reasonable ground for supposing that the
act was lawful

Section 56- Mistake as to matter of provocation

• General rule is that provocation by a person is not provocation to kill a third party • Where the
accused is provoked by a person and he ends up killing another person, he will be entitled to the
defence of provocation if it is shown that he killed the other person under the mistaken belief, on
reasonable grounds, that that other person was the provocateur

INCHOATE OFFENCES

• Ordinary meaning: something that is beginning to develop or only partly formed

• There are also crimes that may be termed as double inchoate offences

– e.g. ▪ conspiracy to abet ▪ abetment of a conspiracy

1. ATTEMPT- section 18

• An attempt includes both:

- an act which if completed will amount to a criminal offence,

- a complete act which does not achieve the desired result or object Sec 18(1): A person who attempts
to commit a criminal offence shall not be acquitted on the ground that the criminal offence could not be
committed according to the intent by reason of the:

- imperfection or other condition of the means,

- circumstances under which they are used,

- circumstances affecting the person against whom, or the thing in respect of which the criminal offence
is intended to be committed,

- absence of that person or thing

• As with conspiracy, the prosecution can only charge an accused with attempt to commit a specific
crime

• The actus reus is an overt act, while the requisite mens rea is intent to commit the substantive crime
Dua: the appellant during an altercation with his wife allegedly said to her: "Whether I get the money or
not, today I will kill you." He subsequently attacked her with a knife and inflicted on her several injuries.
Held: “It is not necessary that in a charge of attempted murder the prosecution should prove all the
elements of the principal crime of murder, except that the victim did not die. the unlawfulness of the
harm inflicted is only evidence of an intention to kill… The principal ingredient of the offence of
attempted murder is the intent to kill.”

• Where the requisite mens rea is recklessness, recklessness as to consequence may not suffice but
recklessness as to circumstance may suffice - Recklessness as to consequence refers to collateral risk:
where a person is engaged in an activity to achieve a specific result, but due to lack of care, the activity
results in an undesired but foreseeable consequence - Recklessness as to circumstance refers to aims or
objects or purposes of an act.

• The facts are taken as the accused believed them to be

- If, on the supposed facts, he would have been guilty of an attempt, then he is guilty of it

- Thus, a person may be guilty of attempting to commit an offence even if the facts are such that the
commission of the offence is impossible.

- Shipvuri: the accused was held liable though unknown to him, the substance he believed to be a
narcotic was in fact harmless powder

• If a person does something believing he is committing a crime, but what he does is in law not a crime,
he is not guilty of an attempt.

• To amount to an attempt, the act done must have been such as may be regarded as an irrevocable
step toward the commission of the offence that lends itself to no other interpretation. Obeng, (Amissah
JA): I think a useful test to apply is to ask whether the conduct of the accused, looked at objectively,
without regard to any subsequent confessions or admissions which the accused may have made, can be
considered as aimed only at the commission of the particular offence.

Punishment & Defences of Attempt- Sec 18

• Except in the case of attempted murder, a person convicted of an attempt is liable to be punished to
the same degree as if he committed the substantive crime

• A person under imprisonment for 3 years or more who attempts to commit murder is liable to suffer
death. [Sec 49]

• Where an act which amounts to an attempt to commit one crime is at the same time the actus reus of
another crime (e.g. attempted rape may be indecent assault) the convict is liable to be punished either
for the attempted offence or for the completed offence

• Attempts merge in the substantive offence i.e. where the substantive offence is actually committed,
the accused cannot be charged with attempting to commit the offence

• Any defence available in respect of the substantive offence is also open to the attemptor

2. PREPARATION

- Section 19 A person who prepares or supplies, or has in possession, custody, or control, or in the
possession, custody or control of any other person on behalf of that person, any instrument, materials,
or means, with the intent that the instruments, materials, or means, may be used by that person, or by
any other person, in committing a criminal offence by which life is likely to be endangered, or a forgery,
or a felony, commits a criminal offence and is liable to punishment in like manner as if that person had
attempted to commit that criminal offence

• The mens rea requirement of intent is very important - merely having in your possession or in the
possession of another person on your behalf, such instruments, materials or means without the
requisite mens rea will not fix one with culpability

• The focus of the law is on instruments, materials or means that cannot innocently be possessed except
with the intention of committing a crime

• A person who prepares to commit a crime is liable to be punished as though attempted to commit a
crime

3. ABETMENT- Section 20

• Principal: a person who actually commits a crime

• Accessory: a person who incites or helps with the commission of the crime by the perpetrator, though
he does not in fact commit the crime himself

▪ he is not present (whether actual or constructive) at the crime scene when the offence is committed

• For a charge of abetment to succeed, the act complained of must precede or be contemporaneous
with the commission of the offence

C.O.P. v. Sarpey: a police constable, allowed a vehicle carrying stolen goods to pass him without
checking the contents. He was charged with and convicted for abetment SC held: an act constituting
abetment of a crime must precede it or must be done at the very time when the offence is committed.
Abetment must be contemporaneous in place, time and circumstance with the commission of the
offence. In this case, Sarpey's conduct although suspicious, did not amount to abetment. Sec 20: A
person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner
purposely aids, facilitates, encourages, or promotes, whether by a personal act or presence or
otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or
promoting the commission of a criminal offence by any other person, whether known or unknown,
certain, or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting the
other person in respect of that criminal offence

• To incur liability, there are three general ways of engaging in these verbs o directly or indirectly o
purposely o for the purposes of Instigate

• Instigation speaks of incitement.

• it involves words or conduct suggested to another person intended to persuade him to adopt a line of
criminal conduct (i.e. sowing criminal ideas)

• It may take various forms, such as, suggestion, proposal, request, exhortation, gesture, argument,
persuasion, inducement, goading, arousal of interest etc.
• Merely instigating another is enough to ground liability

– it matters not whether the instigation had any effect on the intended person.

[Ex parte Morgan] Command: Involves giving instructions to another for that other to commit a crime. It
often occurs in the context of service men. Counsel: connotes advising or admonishing a person to
commit a crime Procure: to get another to commit a crime.

• Procurement may take the form of making arrangements for equipment for the commission of the
crime or of hiring or getting an expert, e.g. professional assassin, to do the job. Aiding: involves lending
assistance or help to another to commit a crime

Thambiah: a man opened a bank account under a false name and description, which account was used
to dispose of forged checks. Held liable for abetment. The man’s actions in opening and maintaining the
account showed an intention that it should be used as a vehicle for presenting forged checks, and that
that intention was implemented when the check came to be presented. At that time, the man became
guilty of abetting its presentation

• If a man helps another in preparation for crimes of a certain nature with the intention that the other
shall commit crimes of that nature, he abets those crimes when they come to be committed

• A person who supplies an instrument which is essential to the commission of a crime is liable as an
abettor. [National Coal Board v. Gamble]

• The abettor’s help may be given before or during the commission of the crime.

• Help includes co-operation – e.g. acting as a look-out

• The abettor need not share the mens rea of the principal - it is enough if the abettor knows that he is
helping with a crime. Encourage: connotes moral and psychological support to the principal that fortifies
his resolve to commit the crime

• A person may be held as an abettor by being present at the crime scene and applauding the efforts of
the principal without actually rendering assistance [Coney]

• A person does not become an abettor merely by failing to prevent an offence

• The mere presence of a person at the scene of crime does not render him guilty of the crime or make
him an accomplice Coney: “Encouragement does not of necessity amount to aiding and abetting, it may
be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by
misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage
intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids
and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a
crime, even of a murder.

Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and
purposely present witnessing the commission of a crime, and offered no opposition to it, though he
might reasonably be expected to prevent and had the power so to do, or at least to express his dissent,
might under some circumstances, afford cogent evidence upon which a jury would be justified in finding
that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury
whether he did so or not.

• Presence at the time of the commission of the offence would render a person culpable if it is shown
that the was on purpose, and was intended to lend support to the principal

• Mere intention to encourage is not in itself enough. There must be an intention to encourage; and
there must also be encouragement in fact

Facilitate: connotes easing or making easy the commission of a crime. –

For liability to arise, it must be shown that the person knew that a crime was going to be committed and
he eased the circumstances for the principal by his act or omission Promote: knowingly providing the
financial or material resources to the principal to commit the offence

• In all acts of abetment, the abettor must do the act complained of purposely or for the purpose of
securing the commission of the act of the principal. - unintentional or negligent acts that tend to render
assistance to the principal would not do

• The act of abetment must have been done with the intention of securing a crime – thus, where one is
asserting a legal right or charting a legal course, he is within his rights, and liability does not arise even if
it was foreseeable that others would take advantage of the situation to commit a crime Consequences
of Abetment

• Where the offence abetted is actually committed, the abettor is deemed to have committed the
offence

• Sec 65: where a superior officer commands a subordinate to kill unlawfully knowing that the killing will
be unlawful: - if the subordinate officer who was commanded to do the killing believed that he was
under a legal duty to obey the command, his liability may be reduced from murder to manslaughter. -
the superior officer’s liability will not thereby be reduced to abetment of manslaughter or attempted
manslaughter Punishment for Abetment

• An accessory cannot be guilty of a more serious offence than the principal

• An abettor is liable to be punished in the same way as the principal where the offence is actually
committed, or the principal is apprehended during the continuance of the endeavour to commit the
offence

• Where the offence is not actually committed, the abettor is also punishable in the same manner as if
the offence had actually been committed

• However, where the offence is not actually committed and the offence abetted carries the death
penalty, the abettor is liable to suffer imprisonment for life

• If a person, who is within the jurisdiction, abets the doing of an act beyond the jurisdiction, which act if
done in the jurisdiction would be a criminal offence, that person is liable for abetment Where different
offence is committed [Sect 21]

• The accessory is responsible only for crimes that are committed within the contemplated purpose of
the crime he abetted - the abettor is liable for abetting the offence he intended to abet and those which
are within the scope of what he intended to abet - Indices to determine liability: whether the offence
actually committed was

▪ a probable consequence of the endeavour

▪ substantially the same as that which the abettor intended to abet

▪ is within the scope of the scope of the abetment

• A person, who abets a riot or unlawful assembly with the knowledge that the rioters or unlawful
assemblers intend to use or are likely to use violence, is liable for any offence committed by any of the
rioters or unlawful assemblers in executing the riot or unlawful assembly, although the abettor did not
intend to abet the particular offence that was committed aside of the riot or the unlawful assembly

Defences to Abetment- Sec 20

• An abettor may be entitled to a defence, although his coabettors or the principal is not entitled to that
defence

• where the act of the principal amounts to no crime, the abettor would be entitled to an acquittal.

• There are two possible defences to abetment

i. countermand or revocation

ii. withdrawal

• a secret decision to withdraw will not do “a person who changed his mind about participating in the
commission of an offence but who failed to communicate his intention to the other persons engaged in
the offence did not thereby effectively withdraw from the commission of the offence and was liable as a
secondary party. In order to escape liability for the commission of the crime, the secondary party had at
least unequivocally to communicate his withdrawal to the other party.

[Rook] Trial for Abetment- Sec 20 An abettor may be tried

• before, with, or after the trial of the principal

• even if the principal is dead or is otherwise not amenable to justice

• before, with, or after any other abettor, whether the abettor and any other abettor abetted each other
in respect of the criminal offence or not, and whether they abetted the same or different parts of the
criminal offence

4. DUTY TO PREVENT FELONY- Section 22

• A person who, knowing that another person designs to commit, or is committing a felony, fails to use
all reasonable means to prevent the commission or completion of the felony, commits a misdemeanour

5. CONSPIRACY- Sections 23 & 24

Section 23: Where two or more persons agree to act together with a common purpose for or in
committing or abetting a criminal offence, whether with or without previous concert or deliberation,
each of them commits a conspiracy to commit or abet the criminal offence
• What constitutes conspiracy: - agreement by two or more persons to commit a crime - agreement by
two or more persons to abet a crime

- 2 or more persons acting together to commit a crime

- two or more persons acting together to abet the commission of a crime

• The main determinant is the element of agreement geared toward the commission of a crime - A legal
fiction is instituted that the very plot or plan or agreement to commit a crime is both an actus reus and a
mens rea in itself, hence a crime

• Acts not punishable: - Harboring of criminal intentions in one’s mind - Mere communication of a
criminal intent, is not a crime - Communication of one’s criminal intentions to another, without more.

• The offence of conspiracy can be committed in respect of all substantive offences

• Sec 24(2): a court having jurisdiction to try the substantive offender also has jurisdiction to try the
inchoate offender - Where a new offence is created, there could be liability for a conspiracy to commit
that offence although the statute creating the offence does not specifically say so [Ex parte Ofosu-
Amaah (No.2)]

• Sections 23(1) and 24(2) are of general application

– thus the prosecution can add a conspiracy charge to any offence

• Elements

i. Plurality of Minds: the offence contemplates the involvement of at least two persons since a person
cannot agree with himself

- A man can conspire with his wife

- The other party to the agreement must be a person

Blay: the appellant took a sum of money from the complainant claiming that he would invoke a spirit
which could multiply that sum. A took the C to the beach to perform said rituals. On 2 of the occasions,
the A spoke and a voice replied to the hearing of the accused. The bag of “money” given to C turned out
to be a bag of newspapers cut in currency notes. A was found liable for conspiracy to defraud. Held (On
appeal): the charge of conspiracy could not be sustained because conspiracy involved an agreement
between two or more human beings and not between one human being and an unknown voice or spirit.

• Person: implies that one may be held liable with conspiring with a legal person.

- May be a natural person or a corporate person [sec 1]

• Since one person cannot be guilty of conspiracy, on a charge of conspiracy, if all the accused are
acquitted except one, the remaining one must also be acquitted, unless it is proved that he conspired
with some other person not named in the charge or at large - this rule only applies where all the accused
are tried together.

• 1 person can be held guilty of conspiracy where the conspirators are unknown; on the run or are not
amenable to justice, e.g. diplomats Bossman: as a result of adverse findings made against the accused
persons at the Ollennu Commission of Inquiry into irregularities and malpractices in the issue of import
licences, the accused were charged with conspiring with the Minister of Trade to extort money, and to
commit wilful oppression. One conspirator was acquitted. It was held that in that case, the remaining
conspirator should also be acquitted on the charge.

• On question of whether a person can be held liable for conspiracy where the co-conspirator is an
undercover police officer. Two schools of thought:

- The unilateral approach: The law does not require that the agreement must be genuine. if the
individual in question intends to join with others to commit a crime and he believes he has so joined,
this should be sufficient to found liability regardless of the actual fact of agreement.

▪ it does not detract from the culpable state of mind of that individual

- The bilateral approach: based on what is termed the “defence of impossibility” – which is to the effect
that the two minds must both be culpable for any one of them to be guilty of conspiracy. This is because
the thrust of the offence is the agreement – so if one is in fact agreeing to the proposition, but the other
is indeed pretending to be agreeing, the two minds are seemingly ad idem but factually at cross
purposes

ii. The Agreement: The crime of conspiracy is complete as soon as the words of the agreement are
spoken - The conspirators will be liable even if

▪ the crime plotted is to be committed in the future

▪ the plot has started to fall apart iii. Intent: (requisite mens rea): the two minds must agree on the
criminal object.

- Liability arises only where the person assents to or approves of the criminal scheme - Knowledge of
the existence of the agreement must be proved against each alleged participant - A person becomes a
member of a conspiracy only by his own acts or declarations

• When a person will not be liable: - Merely being informed of the conspiracy - Merely listening in on a
discussion of a criminal adventure - The mere presence of a person at the scene of a crime, without any
implicating evidence - If he dissociates himself from the agreement even if he was present when the
agreement was procured

• Proving the fact of agreement - an uphill task because it is rare in conspiracy cases to find direct
evidence of the agreement. - The fact of agreement may be proved by evidence of subsequent acts,
done in concert, and so indicating a previous agreement

Commissioner of Police v. Afari: In that case, the appellants were charged with conspiracy to defraud by
false pretences. It was argued that there was no evidence of an agreement between the appellants and
that since the only evidence adduced was in respect of the substantive charge of fraud by false
pretences, it was irregular to include in the charge a count of conspiracy. The SC held that the law of
conspiracy as contained in section 23 (1) of Act 29 is wider in scope and in content than the English law
on that subject. That in Ghana, the offence of conspiracy consists not only in the criminal agreement
between two minds, but also acting together in furtherance of a common criminal objective. - This
decision suggests that often-times where two or more persons act together, it presupposes that there
was an agreement of their minds contemporaneous to their act, unless it can be shown that their acting
together was merely by chance or plainly fortuitous - The agreement may be inferred from the conduct
or statements of the accused.

Azametsi: all the appellants and the dec’d belonged to one fishing group of which the first appellant was
the head. In a discussion at their meeting that the time for their yearly sacrifice was at hand, a decision
was secretly reached by some of the members of the group that the deceased was the one who ought
to be offered for the sacrifice. The dec’d was suddenly gripped while walking home and taken to the
house of the first appellant, where he was killed and buried in a bathroom in that house. Held: That it is
not always easy to prove agreement by evidence, but it can be inferred from the conduct of and
statements made by the accused persons. In the present case if the evidence of the first appellant's wife
that the first appellant was present during the killing of the deceased and later procured other persons
to dump the dead body in the sea was accepted, then the presence of the first appellant in the
bathroom where the killing took place, could not be accidental but was in furtherance of the common
purpose.

Forms of agreement: The agreement may be reached with different people at different times and places

i. Chain Conspiracy - All the individuals are involved in one conspiracy and linked by a common purpose
although they may have been recruited at various times or places (i.e. joined together as a chain link) -
They may not even be acquainted or have corresponded with one another.

▪ Each member may only know the one who enrolled him or the one he enrolled - A person who joins or
participates in the execution of a conspiracy which was previously planned before his admission, is
equally as guilty as the planners even if that person did not take part in the formulation of the plan or
did not know when or who originated the conspiracy.

• The general rule is that in a chain conspiracy the participants are liable for the whole and not just the
part they played

Otchere: 5 accused persons, as members of the United Party in exile, were alleged to have held
meetings in Lomé where it was agreed to overthrow the Government of Ghana by unlawful means and
also that the last three accused persons subsequently joined in the said conspiracy. The prosecution
maintained that in furtherance of the said agreement Obetsebi Lamptey came to Accra in May 1962,
and that the attempted assassination of the President at Kulungugu on the 1st August, 1962, and the
series of bomb outrages perpetrated in various parts of Accra thereafter were in furtherance of the
objects of the agreement.

ii. Wheel or Umbrella Spoke Conspiracy - A single person at the center enrols all the other members who
remain unknown to each other - All the other members are unrelated except that they are linked to a
common co-conspirator who is the hub connecting the others like a bicycle wheel or umbrella frame - In
such a case, each conspiracy is treated as a separate count and is thus severable or separable from the
others Scope of Liability

• The effect of sec 24(1) read together with sec 23(1), especially the phrase “whether without a previous
concert or deliberation” is that all persons engaged in a conspiracy are deemed to have approved all
actions thereunder - i.e. The general rule is that the acts of a co-conspirator in furtherance of the
conspiracy are binding on the others
• For a conspirator to be held liable for the acts of a co-conspirator, the acts of the co-conspirator must
be in furtherance of the conspiracy - each of the participants is answerable for the acts done in
pursuance of the joint adventure including such acts as were incidental to and necessary for the
achievement of the adventure and were in the contemplation or ought to have been in the
contemplation of the participants at the time the adventure was embarked upon - The other
participants will not be liable for the unauthorized acts or for acts that go beyond the scope the
adventure

Teye alias Bardjo: appellants together with two other persons, agreed on a joint enterprise to break into
and enter the decd's house to steal therefrom. In the course of the execution of the joint enterprise, the
3rd A went beyond what had been agreed upon, by killing the decd because the deceased had
recognised him and mentioned his name. It was held that he alone should be responsible for the death
of the deceased.

Defences to a Charge of Conspiracy

• no defence to a charge of conspiracy

• A conspirator cannot countermand: i.e. to revoke, cancel or rescind a decision

• Conspiracy is an offence that is committed the moment two or more people agree so even if the
person countermands, it is too late because the agreement has been reached.

• Recanting by changing one’s mind and abandoning the acts necessary in carrying out the proposed
criminal venture, cannot undo the act of previous agreement. [Boahene]

Section 24: Punishment for Conspiracy

• Conspiracy does not merge in the actual or substantive offence. A conspirator is liable to be punished:
- for the substantive offense where the offence is actually committed - as if he abetted the commission
of the offence where the substantive offence is not committed,

• Sec 21: punishment for abetment is the same as punishment for the substantive offence, except in the
case of murder - Therefore, in effect, a conspirator is punished in the same way as the perpetrator of the
substantive offence, whether or not the offence is actually committed Jurisdiction -Sec 23

• where the person is within the jurisdiction and agrees with another person who is outside the
jurisdiction for the commission of or abetment of a crime in the jurisdiction or outside the jurisdiction,
the courts have jurisdiction to try the matter. [Otchere]

• Sec 23(3): For this purpose, “criminal offence” means an act which, if committed within the
jurisdiction, would be a criminal offence

FATAL OFFENCES AGAINST THE PERSON

• These are made of crimes constituting physical harm to the body of a person

• Homicide is not a crime per se. It is a term used to describe a state of affairs - It is the killing of a
person whether lawfully (Non-Culpable homicide) or unlawfully (Culpable homicide) - The act or acts
constituting homicide must have been done intentionally, recklessly or as a result of gross negligence
1. MURDER (section 46-47) (intentional homicide)

• A person who commits murder is liable to suffer death. [S 46] Section 47: “whoever intentionally
causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced
to manslaughter by reason of extreme provocation, or other partial excuse, as mentioned in section 52.”
• To establish murder, it must be proved that:

i. a death has occurred

ii. the death was by harm inflicted by the accused - “harm”: any bodily hurt, disease, or disorder,
whether permanent or temporary [Section 1]

iii. the harm was unlawful - “unlawful harm”: harm which is caused intentionally or negligently, without
any of the justifications [Section 76] - if the harm was caused with some justification, the accused will be
exculpated from liability for murder

iv. the accused had the intention to kill the victim - The mens rea is an intention to cause death. - Intent
to kill is may be inferred from

▪ the nature, manner and circumstances of the harm.

▪ the ferocity or brutality of the act

▪ the instrument or weapon used in killing or the manner in which the harm from which death results is
inflicted - where a person does an act in good faith, for the purposes of medical or surgical treatment,
an intent to cause death shall not be presumed from the fact the act was or appeared likely to cause
death [section 67]

• A judge has a duty to direct on manslaughter in a murder case

2. MANSLAUGHTER (Section 50-51) (unintentional homicide)

• Manslaughter is a first-degree felony [Sec. 50]

• Manslaughter is various kinds of unlawful killing short of murder - Murder is associated with intent to
kill whereas manslaughter is associated with killing simpliciter without any intent to do so - A person
convicted of manslaughter is liable to imprisonment for life or any lesser term. [section 296 of Act 30] 3

Types of Manslaughter

i. Murder Reduced to Manslaughter (Sec.47; 52)

• Reduced by reason of extreme provocation or other matter of partial excuse

• Section 52: Determining Circumstances - deprivation of the power of self-control by extreme

provocation given by the deceased [section 53] - justifiable causing of harm to the deceased and that in
causing this justifiable harm he caused excess harm resulting from such terror of immediate death or
grievous harm as in fact deprived him for the time being of the power of self-control - acting in the
belief, in good faith and on reasonable grounds, that one is under a legal duty to cause the death or to
do the act - a woman, causing the death of her child of less than 12 months old, at a time when the
balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving
birth to the child or by reason of the effect of lactation consequent upon the birth of the child
(lactational psychosis)

ii. Manslaughter caused by Negligence

Section 51: A person who causes the death of another person by an unlawful harm commits
manslaughter, but if the harm causing the death is caused by negligence that person has not committed
manslaughter unless the negligence amount to a reckless disregard for human life.

• Negligence simpliciter: “A person causes an event negligently if, without intending to cause the event,
he causes it by voluntary act, done without such skill and care as are reasonably necessary under the
circumstances.” [Sec 12] - for an unlawful harm caused by negligence to amount to manslaughter, it
must amount to a reckless disregard for human life

• Section 51: negligence amounting to a reckless disregard for human life. - it must connote a lack of due
care, heedlessness and even rashness - The concept of recklessness denotes either:

▪ doing an act which amounts to the taking of unjustified risk, or

▪ engaging in conduct which involves the taking of unjustified risk even though the actor does not know
of the risk - The test of what constitutes recklessness is an objective one.

• Where a person is under a legal duty to prevent harm to another person, that other person will be
guilty of manslaughter if the harm which he failed to prevent results in the death of the other person [R
v Instan] - So as long as it is shown that the failure to perform the duty recognized by law amounted to a
reckless disregard for human life iii. homicide caused by unlawful harm without intention to kill

3. GENOCIDE (Section 49A)

• A person who commits genocide is liable on conviction to be sentenced to death.

• A person commits genocide where, with intent to destroy, in whole or in part, any national, ethical,
racial or religious group, that person: - kills members of the group; - causes serious bodily or mental
harm to members of the group; - deliberately inflicts on the group conditions of life calculated to bring
its physical destruction in whole or in part; - imposes measures intended to prevent births within the
group; - forcibly transfers children of the group to another group.

4. ABETMENT OF & ATTEMPTED SUICIDE (SECTION 57)

• The abettor of suicide, whether or not the suicide is actually committed commits a first-degree felony.
• The attemptor of suicide, whose crime is a misdemeanour

5. ABORTION (SECT. 58)

• Abortion or miscarriage is the premature expulsion or removal of conception from the uterus or womb
before the period of gestation is completed.

• The law does not make the abortion itself a crime. The crime consists in an act done with intent to
procure or cause an abortion

• The offence covers where:

i. a pregnant woman uses any means with intent to procure her own miscarriage

ii. anyone else unlawfully uses means, with such intent - the offence is committed

▪ where the effort has been made for that purpose even if the mother is not pregnant

▪ a woman is induced to cause an abortion ▪ a woman is induced to consent to causing an abortion is an

offence

• The drug or noxious substance administered to cause the abortion or miscarriage need not be
poisonous

• What constitutes an offence

Aiding and abetting a woman to cause an abortion - Attempting to cause abortion - Supplying or
procuring any item or implement or drug knowing that it is intended to be used to cause abortion

• The mens rea of the offence is intentional conduct Lawful Abortion-Section 58(2)

• Abortion is lawful if the person committing it is: - a registered medical practitioner specializing in
gynaecology - Other registered medical practitioner

▪ in a Government Hospital

▪ a registered private hospital or clinic

• Circumstances for lawful abortion:

i. where the pregnancy is the result of a crime - it must be requested by the victim or her next of kin or
the person in loco parentis

ii. where the continuance of the pregnancy would result in injury to the pregnant woman

iii. where there is a substantial risk of abnormality or disease in the child when born or later develop an
abnormality - the abnormality or disease must be a serious one

iv. Any act which is done in good faith and without negligence, for the purposes of medical or surgical
treatment of a pregnant woman is justifiable, although it causes or is intended to cause abortion or
miscarriage, or premature delivery, or the death of the child [Sec. 67(2)]

6. CHILD AS OBJECT OF HOMICIDE (Section 60-61; 66)

• For a child to be the object of homicide it should have been completely brought forth alive from the
body of the mother

• It is not necessary a) that a circulation of blood, independent of the mother’s circulation, should have
commenced in the child, or b) that the child should have breathed, c) that it should have been detached
from the mother by severance of the umbilical cord.

• It is murder or manslaughter, to cause death to happen to a child after it becomes a person, within the
meaning of this section, by means of harm caused to it while it was in its mother’s womb (i.e. before it
became a person) AttorneyGeneral’s Reference (No. 3 of 1994
• Whoever intentionally and unlawfully causes harm to a living child during the time of its birth shall be
guilty of seconddegree felony [section 60] - The time of birth includes the whole period from the
commencement of labor until the time when the child so becomes a person that it may be murder or
manslaughter to cause its death [section 61]

• Section 61: The law presumes that harm was caused to the child before its death; when death occurs
where: - harm is caused to a child during the time of its birth, - upon the discovery of the concealed
body or the child, harm is found to have been caused to it

7. CONCEALMENT OF BODY OF CHILD AT BIRTH (Section 62-63)

• Section 62: It is an offence for any person to conceal the body of a child who has been brought forth,
whether such child was born alive or stillborn, with the intent to conceal the fact of its birth, existence,
or death, or the manner or cause of its death

• This is not a strict liability offence - The mens rea is the intention to conceal the fact of birth, existence,
or death, or the manner or cause of the death

• Section 63: For a concealment to amount to an offence under section 62, it matters not that the
concealment was intended to be permanent or temporal - The abandonment of the body of a child in a
public place is concealment if the purpose of the abandonment is to conceal the fact of the child’s birth
or existence - The offence does not arise unless the child was at least than 6 months old in the mother’s
womb. - There must be an intention to conceal the birth, existence, or death of a child from the whole
world, other than the persons who abetted or consented to the concealment

▪ A concealment from a particular person or persons only does not come under section 62.

Donkor v. The Republic: Appellant, an 18-year-old girl became pregnant by a man she claimed to be her
boyfriend. There was some interference with the pregnancy by this boyfriend. As a result, the baby was
expelled and it was found in a public latrine. She said she had been afraid upon seeing the blood and
was headed to her friend’s house to tell her. Held: the offence of concealment was not a strict liability
offence. To succeed on the facts of the case, the prosecution needed to prove the following: - That the
Appellant was delivered of a baby, - That she either secretly deposited it or abandoned it in the public
latrine, - That the foetus was six months or above, and That she deposited or abandoned the same with
the view to concealing its birth, death or existence from the whole world other than those who were
accomplices to the crime

• What constitutes secret disposition and abandonment is a question of fact depending on the
circumstances.

NON-FATAL OFFENCES AGAINST THE PERSON

1. CRIMINAL HARM TO THE PERSON (Sect 69 – 83)

• Causing harm is a second-degree felony [Section 69]

• Inflicting a disease or disorder on the victim will fix the accused with liability [section 1] - mental
distress alone may not be sufficient unless accompanied by a mental disorder

• The harm must have been caused intentionally and unlawfully

Brobbey v. The Republic: “an essential element for the constitution of the crime of causing harm
contrary to section 69 is that the harm or damage must not only be intentional but also unlawful. Mere
harm or damage without more is insufficient.”

i. Female Genital Mutilation (FGM) (Section 69A)

• But now, a person who performs FGM commits a second felony and liable to imprisonment of not less
than three years

ii. A person who you intentionally hinders another person from: - Escaping from a wrecked vessel, -
Lawful personal protection - Another person against harm, will be deemed to have intentionally caused
harm to him if he suffers any harm. [section 83]

iii. Use of offensive weapon (Section70)

• A person who intentionally and unlawfully causes harm to any other person by the use of an offensive
weapon commits a first-degree felony.

• The culpability of the accused depends on the nature of the object or the manner in which it was used
• One test for determining whether an object is offensive is whether it can be used for an aggressive
purpose

iv. Exposing child to danger (Section 71)

• A person commits a misdemeanour who unlawfully - exposes a child to danger - abandons a child
under twelve years; - exposes a physically or mentally handicapped child to danger - abandons a
physically or mentally handicapped child in a manner that is likely to cause harm to the child.

• The child should be under eighteen years

v. Negligently Causing Harm (Section 72)

• The punishment is lesser than if you intentionally cause harm

• The prosecution needs to establish that although the accused did not intend to cause harm, he caused
the harm by a voluntary act, done without the skill and care that are reasonably necessary under the
circumstances and that the accused did so cause the harm without any justification recognized under
our criminal law [Sections 12 & 76]

• The degree of negligence need not amount to a reckless disregard for human life

vi. Negligently Causing Harm- while operating or engaged in a dangerous thing (Section 73)

• A person who negligently endangers the life of any other person, whiles operating a dangerous thing
commits a misdemeanour

• Circumstances: Where the person: - Is solely or partly in charge of a steam-engine, machinery, ship,
boat, or dangerous thing or matter of any kind, - Has undertaken or is engaged in medical or surgical
treatment of a person, - Has undertaken or is engaged in the dispensing, supplying, selling,
administering, or giving away of a medicine or a poisonous or dangerous matter.
• A person who in good faith, for the purposes of medical or surgical treatment, intentionally causes
harm to another person which, in the exercise of reasonable skill and care according to the
circumstances of the case, is or ought to have known to be plainly improper, is liable to punishment as if
the harm had been caused negligently [Section 82]

vii. Threat of Harm or Death (Section 74-75)

• To be culpable for threat of harm, it must be established that the accused intended to put the victim in
fear of an unlawful harm [Sect 74]

• To be culpable for threat of death, it must be established that the accused intended to put the victim
in fear of death [S. 75]

• Section 17: definition of “threat” includes - a threat of criminal force or harm, - an offer to abstain
from doing, or to procure any other person to abstain from doing, anything anything the threat of which
is a threat of criminal force or harm - It is immaterial whether the matter of the threat will be

▪ executed by the person using the threat or

▪ against or in relation to the person to whom the threat is used, or

▪ by, or against, or in relation to any other person. - A threat may be conveyed to a person

▪ by words, or by writing, or in any other manner,

▪ directly, or through any other person, or in any other manner. Under sections 69, 69A and 70, the
requirement is that the accused must have engaged in an overt or positive act

viii. Causing Harm by Omission(Section 77-80)

Section 77: A person causes harm by an omission, if harm is caused by that person’s omission to perform
a duty for preventing harm as mentioned in section 78, and not in any other case.

• A person is only culpable for harm caused by omission if he is under a duty to act

• Section 78: A duty to act may arise by:

- Imposition of law,

- Voluntary assumption or under a contract,

- Virtue of a position,

- A lawful order of a court,

- Lawful order of a person

Section 79: Duty to give access to the necessaries of health and life.

Who is under that duty?

- a spouse to the other spouse who is actually under the control of that spouse;

- a parent to the parent’s child actually under the control of the parent,
▪ child must be underage or without capacity to be able to obtain those necessaries;

- a guardian of a child to the child actually under the control of the guardian. - A woman, who is
delivered of a child to the newly-born

- A person who wrongfully imprisons another person to that other person - A person who has agreed or
undertaken to supply any of the necessaries of health and life to another person whether that other
person is a servant, an apprentice - A person lawfully charged by another

• “Necessaries of health and life” includes proper food, clothing, shelter, warmth, medical or surgical
treatment, and any other matter which is reasonably necessary for the preservation of the health and
life of a person. Section 80: Explanation as to office

The duty is sufficiently constituted in the case of a person:

(a) who is actually discharging the duties belonging to that office or employment, or

(b) who is acting as if under that agreement or undertaking with respect to another person.

(2) A person is not excused from liability for failure to discharge a duty on the grounds that another
person is also under the same duty, whether jointly or independently and whether on the same or on a
different ground.

Section 81- Exceptions to causing an event

1. a person has not caused harm to another person by omitting to supply the other person with the
necessaries of health and life, unless it is proved against that person that the other person, by reason of
age or physical or mental state, or by reason of control by the accused person, could not by reasonable
exertion have avoided the harm; [R v Instan]

2. the disease or disorder which a person suffers as the inward effect of grief, terror, or any other
emotion is not harm caused by another person, although that emotion has been caused by that other
person whether with intent to cause harm or otherwise;

3. the harm which a person suffers by execution of a sentence of a Court in consequences of a

prosecution instituted, prosecuted, or procured, or of evidence given or procured to be given, by
another person, whether in good faith or not, is caused by that other person; and

• a person is not excused from liability to punishment for causing harm to another person, on the
grounds that the other person personally, by trespass, negligence, act, or omission, contributed to
causing the harm.

2. ASSAULT (Sections 84-88)

• A person who unlawfully assaults another person commits a misdemeanour. [Sect 84]

• Sect 85- Different kinds of assault. “assaults” includes - assault and battery, - assault without actual
battery, - imprisonment.
• An assault is unlawful unless it is justified on one of the grounds mentioned in Chapter One i.e.
justifiable use of force

• The required mens rea, is intentional conduct

• The prosecution need not specify the specific assault - the nature of the assault may be deduced from
the facts of each case

i. Assault and Battery (Section 86)

Section 86: A person makes an assault and battery on another person, if without the other person’s
consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of
exciting the other person to anger, that person forcibly touches the other person.

• The contact may be direct or indirect through an involuntary agent

• Two forms of intention must be present. - Intentional contact - Made with the intention of causing
harm, fear, pain or annoyance or exciting to anger

• The requirement of “forcible touching” does not mean that the contact should have been done
vigorously or violently - Once the contact is unpermitted, there is notional forcibility - The use of any
degree of force against the person will suffice.

• Defences - Consent i.e. if the assault is transient and trifling

▪ No consent for grievous bodily harm. ▪ where consent has been obtained by deceit, an intention will be
inferred, to make the act of assault a criminal assault

▪ A person who is insensible or unconscious or lacks the capacity to give consent will be deemed to be a
victim of assault - Where the accused and the victim were engaged in a game or sport that is authorized
by law and is conducted in a way not serious or dangerous to life

• A person is touched if: - her body is touched

- any clothes or other thing in contact with her body or with the clothes upon her body are or is touched,
although her body is not actually touched

ii. Assault without Actual Battery(Section 87) Section 87: A person commits an assault without actual
battery on another person, if by an act apparently done in commencement of an assault and battery, he
intentionally puts the other person in fear of an instant assault and battery

• States of mind: - the victim must expect that force is about to be applied to him, - the actor must
intend to create that expectation

• No blow need be struck - The actor need only do something inducing the victim to believe that he will
instantly receive a blow or other application of force unless he does something to avoid it - A person can
make an assault without actual battery by moving, or causing any person, animal or matter to move,
towards another person, although he, or such person, animal, or matter, is not yet within such a
distance from the other person as that an assault and battery can be made
 • The apprehension of an instant assault and battery must be reasonable. - It must be apparent from all
the circumstances to the other person that the accused has the ability or means to carry out the assault
and battery

• a conditional threat amounts to assault - e.g. “If you don’t move, I’ll break your neck”

• Mere words alone cannot suffice, unless the words are accompanied by some action apparently
indicating an intention to commit an assault and battery

iii. Imprisonment (Section 88) Section 88: A person imprisons another person if, intentionally and
without the other person’s consent, he detains the other person in a particular place, of whatever
extent or character and whether enclosed or not, or compels him to move or be carried in any particular
direction

• Circumstances: Detention or compulsion constituted, - by force or by a physical obstruction to a

person’s escape, - by creating the belief that the other person cannot depart from a place, or refuse to
move or be carried in a particular direction, without overcoming force or incurring danger or harm, pain
or annoyance, - by creating the belief that the other person is under legal arrest - by creating the belief
to the other person of immediate imprisonment if the other person does not consent to do, or to
abstain from doing, an act.

• It is unnecessary for the prosecution to prove actual violence iv. Cruel customs/ practices in relation to
bereaved spouses (Section 88A)

• A person who compels a bereaved spouse or a relative of the spouse to undergo a custom or practice
that is cruel in nature commits a misdemeanour

• A custom or practice is cruel in nature if it amounts to assault and battery, assault without actual
battery or imprisonment

3. KIDNAPPING (Sections 89-90)

• Kidnapping is punishable as a second-degree felony.

• Elements [Section 90]:

i. imprisoning a person and taking him out of the jurisdiction of the court without his consent (i.e.
outside of the country) ii. unlawfully imprisoning a person within the jurisdiction in such a manner - that
prevents him from ▪ applying to the court for release or ▪ discovering to any other person the place of
the imprisonment, - that prevents a person entitled to have access from discovering the place where the
other person is imprisoned • No specific intent or motive is required • Victim may be a person of any
age or gender • A parent could be liable for kidnapping his own child if there is a court order granting
custody to the other parent.

4. ABDUCTION (Sections 91-92)

• whoever abducts a child under the 18 years of age commits a misdemeanour.

• Actus reus consists of either: i. unlawfully taking the child from the lawful possession, care or charge of
a person, or ii. detaining the child and preventing him or her from returning to the lawful possession,
care or charge of a person
• Mens rea is intention. Intent to either:

i. Deprive a person entitled to the possession or control of the child

ii. Cause the child to be carnally known by any other person

iii. Cause the child to be unnaturally carnally known by any other person

• The accused must have known, or had grounds for believing that the child was in the possession,
control, care, or charge of another person.

• Possession is legal possession and not ordinary possession - being in possession, care, control or
charge of a child continues although the child is absent from actual possession…, if the absence is for a
special purpose, and the absence is not intended by the parent or guardian to exclude or extinguish the
possession…

• What is not a defence i.e. wholly immaterial:

i. The consent of the victim. - it would not inure to the benefit of the accused where the victim goes to
the accused willingly and the accused keeps or prevents him/her from leaving

ii. Mistaken belief concerning the age of the victim

5. CHILD STEALING (section 93-94)

• A person who steals a person under 14 years, whether with or without his/her consent commits a
second-degree felony

• What is not a defence i.e. wholly immaterial:

i. Consent of the victim to being stolen.

ii. The gender of the victim

iii. That the victim deceived the accused as to his/her age

iv. That he did not know or believe the victim to be under 14 years

v. That he had no means of knowing the victim’s age

• Elements [sec 94]:

i. That the victim was under 14 years.

ii. That the accused unlawfully took or detained the victim with intent to - deprive the victim of the
possession or control to which another person is entitled, or - steal anything on or about the body of the
victim - cause harm to the victim

• It is enough for the prosecution to show that the accused is not the person entitled to the possession,
care, control or charge of the person stolen

Section 95- Special Provisions with respect to the offences of Abduction & Child Stealing
• It is no defence for the accused to assert that the victim consented.

• It suffices if the accused persuaded, aided, or encouraged the victim to depart or not to return

• The intent may be to deprive a person of the possession or control of a child either permanent or
temporarily.

• It is a good defence, that the accused took the child in the belief that he was entitled by law as a
parent or guardian or by virtue of any legal right, to take or detain the child for the purposes of which he
took or detained the child

• It is no defence for the accused to assert that he did not know or believe, or had no means of knowing
that the age of the victim was under 18 or 14.

• Whatever be the case, the accused is not exempted from liability for abduction or child stealing as long
as he took or detained the victim for an immoral purpose

6. ABANDONMENT OF INFANT (Section 96)

• Infant is a child under 5 years of age

• “Abandon” is to leave the child to its fate [R v. Boulden]

• A person may be liable for the offence where the person is:

i. bound by law, or an agreement or employment to keep charge of the infant abandons the infant - The
accused need not be the one who initially abandoned the child but that if he becomes aware that the
child has been abandoned, he is duty bound to retrieve the child from that state. Liability arises for
failure so to retrieve the child from that state

R v. White: A woman who was living apart from her husband, and who had the actual custody of their
child, under 2 years of age, brought the child and left it at the father's door, telling him she had done so.
He knowingly allowed it to remain lying outside his door, and subsequently until it was removed by a
policeman, the child then being cold and stiff. Held: Though the father did have the actual custody and
possession of the child, he was morally and legally bound to provide for, maintain and protect it. His
allowing it to remain where he did was an abandonment and exposure of the child whereby its life was
endangered, within the meaning of the statute. "

ii. unlawfully in possession of the infant abandons it

• There is not duty on the prosecution to prove any intent on the part of the accused. - The mere act of
abandonment is enough

7. HUMAN TRAFFICKING Human Trafficking Act, 2005 (Act 694)

• Section 1: human trafficking means, inter alia, the recruitment, transportation, transfer, harbouring,
trading or receipt of a persons within and across national borders by the use of abduction

• Human trafficking is prohibited. Penalty of not less than five years [section 2]
• A person who provides a person for the purpose of trafficking, has committed an offence [section 3]

• A person is under a duty to inform the authorities if he has information concerning trafficking - Failure
to inform makes one liable for a fine or a term of imprisonment not less than 12 months or both

SEXUAL OFFENCES 1. RAPE (Section 97-99)

• First degree-felony. Min. 5 years and Max 25 years [Sect. 97]

Section 98: “rape is the carnal knowledge of a female of sixteen years or above without her consent”

• The mens rea is an intent to rape - The lack of consent from the victim reinforces the intentional
conduct of the accused.

• Actus reus is insertion of the penis into the vagina.

• Elements: That:

i. Someone had carnal knowledge of the victim. - The sexual act must be “per vaginum” - The
prosecution must prove that there was penetration. - the degree of penetration by the male organ of
the female organ is irrelevant

▪ Section 99: “… the carnal knowledge is complete on the least degree of penetration. - There is no need
for the prosecution to prove the emission of semen by the accused. Gligah & Atiso: “Carnal knowledge is
the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however
little the penis went into the vagina. So long as there was some penetration beyond what is known as
brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been
completed”.

ii. That someone is the accused

iii. The victim did not consent to the act: Consent is void if: - a man impersonates the husband of the
victim and induces her to consent to having carnal knowledge of her - the accused induced the victim to
consent to sexual intercourse by threats

▪ i.e. where the victim is overpowered or cowed into submission by the accused.

▪ reluctant acquiescence is no consent - the victim was under a permanent or temporal incapacity
resulting from intoxication or any other cause, as to render her incapable of understanding the nature or
consequences of the sexual intercourse to which she has consented - the accused knows the victim is
asleep and therefore does not resist because she is, in that condition, incapable of resisting - It is
immaterial whether the accused applied force - A person who has given her consent may also revoke it
including during the subsistence of a marriage [S. 42(g)]

- Sexual intercourse is a continuing act ending only withdrawal. Therefore, the accused is guilty of rape if
he remains in the female after she has stopped consenting - The victim may withdraw consent even
after heavy petting.

iv. The victim must be 16 years and above v. The victim must be female

2. DEFILEMENT- (statutory rape) (Section 101;106)

Section 101: defilement is the natural or unnatural carnal knowledge of a child under sixteen years

• Unnatural carnal knowledge is sexual intercourse with a person in an unnatural way. [section 104(2)]

• The offence of defilement is gender neutral

• Punishment: term of imprisonment Min. 5 years Max 25 years

• Defilement arises in one of two circumstances:

i. where the act is done without the consent of the victim in circumstances which will amount to rape if
the victim were sixteen years or more, and

ii. where the act is done with the consent of the victim

• Consent is irrelevant

• Section 106: The owner or occupier of premises or a person acting or assisting in the management of
the premises who induces or knowingly permits a child of less than 16 years of age to resort to or be in
or on the premises to defiled commits a criminal offence. - Liable for the same amount of prison term as
the defiler

- Defence: that the accused person had reasonable cause to believe that the child was of or above 16
years of age.

3. CARNAL KNOWLEDGE OF IDIOT (Section 102)

• Elements:

i. carnal or unnatural carnal knowledge of an idiot, imbecile or a mental patient

ii. Who is in or under the care of a mental hospital

iii. With or without the consent of the victim - Consent induced from a person in a state of incapacity
from idiocy to an act is void [Sec 14(a)]

iv. That the accused knew at the time sexual intercourse that the victim has a mental incapacity

• the age of the victim is immaterial

4. INDECENT ASSAULT (Section 103)

• Misdemeanour punishable by a term of imprisonment of not less than six months

• Forcible touching or contact with a person that does not amount to carnal or unnatural carnal
knowledge.

• Circumstances of guilt i. forcibly making a sexual body contact with the other person in a manner that
does not amount to carnal or unnatural carnal knowledge without the person’s consent - culpability
stresses the element of force - the absence of consent suggests a forcible touching
ii. Sexually violating the body of the other person in a manner not amounting to carnal or unnatural
carnal knowledge without the person’s consent

• Physical contact is not an essential element - Forcing a person under threat of harm or any other mode
to perform acts that sexually violates that person’s body may render the accused liable although he may
not have had any physical contact with the victim

5. UNNATURAL CARNAL KNOWLEDGE (SECTION 104)

Section 104: Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or,
with an animal

• Includes: sodomy; bestiality

• Scenarios that may lead to guilt: Having unnatural carnal knowledge with:

ii. A person of 16 years or above without his or her consent - Equated to rape because of the lack of
consent - First degree felony and the accused is liable to the same punishment for rape. iii. A person of
16 years or more with his or her consent - misdemeanour because of the existence of the other person’s
consent iv. Of an animal - misdemeanour

6. INCEST (Section 105)

• Incest is sexual intercourse between close family members - Prohibits sexual relations between
members of the opposite sex within some degrees of consanguinity

• Punishment term of imprisonment Min 3 years Max 25 years

• Age of liability is 16 years and above

• Only deals with carnal knowledge

• Prohibited Familial Sexual Relations:

i. Male: having or permitting carnal knowledge with granddaughter, daughter, sister, half-sister, mother
or grandmother

ii. Female: having or permitting carnal knowledge with grandson, son, brother, half-brother, father or
grandfather

• The accused must know that the other party to sexual conduct was within the prohibited degrees of
consanguinity - Prosecution must prove same or the accused will be entitled to an acquittal

• Relationship between two people applies although the relationship is not traced through lawful
wedlock.

7. PROCURATION (Section 107)

• Misdemeanour.

• A person is liable where he

i. Procures another person, who is not already a prostitute, to become a prostitute or an inmate of a
brothel whether in or outside Ghana.

ii. Procures another person to have carnal or unnatural carnal connection with any other person in or
outside Ghana. - The person may be a person under 21 years who is not a prostitute or of known
immoral character. - Procurement may be by

▪ threats or intimidation ▪ by false pretences or false representations

iii. applies, administers to, or causes to be taken by another person, a drug, matter or thing, with intent
to stupefy or overpower that other person so as to enable any other person to have a carnal or
unnatural carnal connection with that other person.

• The accused cannot be convicted of the offence of procuration on the evidence of only one witness. -
There must be corroboration in a material particular of that witness’ testimony by evidence that
implicates the accused - Corroboration consists of evidence from which a reasonable inference can be
drawn which confirms in a material particular the evidence to be corroborated and connects the
accused with the crime. [section 7(1) of the Evidence Decree, 1975 (NRCD 323)]

8. SEDUCTION OR PROSTITUTION OF A CHILD UNDER SIXTEEN (Section 108)

• Misdemeanour

• Applies to persons who have the custody, charge or care of a child under the 16 years.

• An offence to cause or encourage - the seduction, - carnal knowledge - unnatural carnal knowledge -
prostitution - commission of indecent assault on that child

• Cause or encourage… means knowingly allowing the child to consort with, enter or continue in the
employment of a prostitute or person of known immoral character.

OFFENCES INVOLVING DISHONESTY Also known as acquisitive offences

1. STEALING (Sec. 16-17; 120-127)

• Stealing is a second-degree felony [section 124]

• A person who is convicted for stealing on more than two occasions is disqualified from election to
Parliament or to a District Assembly for a period not exceeding five years

• A “person steals if he dishonestly appropriates a thing of which he is not the owner” [Section 125]

• Elements: -

Actus reus: Asportation i.e. taking, moving –

Mens rea: animus furandi i.e. intention to steal

• To establish these elements, the prosecution must prove:

 i. That the accused is not the owner of the thing allegedly stolen - It is not necessary for the prosecution
to prove who actually owns the thing allegedly stolen [Sec. 123] - The fact that the owner is not known
does not make a difference

Republic v. Halm: a charge of stealing is not founded on a relationship between the accused and an
identified owner of the thing allegedly stolen, but rather on the relationship between the accused and
the thing alleged to have been stolen

ii. That the accused appropriated the thing alleged to have been stolen [Section 122] - an appropriation
of a thing means any moving; taking; obtaining; carrying away or dealing with a thing - The requirement
is satisfied as long as it is shown that the object has been moved from its original setting

▪ Merely removing the item from the place in which the accused found it is sufficient to fix him liability.

[Anin v. The Republic] - It must be shown that the accused committed the act with the intention that
some person may be deprived of

▪ the benefit of his ownership, or

▪ the benefit of his right or interest in the thing, or o in its value or proceeds, or o any part thereof - The
intention may be to deprive permanently or temporarily - It also suffices if the appropriation is merely
for a particular use

▪ The intent must be to use or deal with the thing that it will probably be o destroyed, or o become
useless, or o greatly injured, or o depreciated, or o to restore it to the owner only by way of sale or
exchange, or for reward, or in substitution for some other thing to which he is otherwise entitled, or if it
is pledged or pawned - It is immaterial whether the act by which a thing is taken, obtained, or dealt with
amounts to trespass or conversion or not.

iii. the appropriation must be dishonest

• Forms of dishonest appropriation [Section 120]:

i. appropriation done with intent to defraud [Section 16]:

- Whether or not an intent to defraud will be inferred depends upon the circumstances of each case

- Intent to defraud: an intent to deprive the other person of something of value, whether money or a
chattel, and thus causing economic loss [Section 16]

ii. appropriation without claim of right - appropriation without a claim of right must be with the
knowledge or belief that the appropriation is without the consent of some person who is the owner of
the thing.

- A claim of right is a claim of right made in good faith. [section 15]

Brempong II v. The Republic: "A person has a claim of right…, if he is honestly asserting what he believes
to be a lawful claim, even though his claim may be unfounded in law or in fact." A claim of right
negatives intent to defraud.
iii. where the appropriation, if known by the owner of the thing, would be without his consent - There is
no requirement that the accused should know who is the owner of the thing - It suffices if the accused
has reason to know or believe that some other person, whether certain or uncertain, is interested in the
thing or entitled to it. [Section 120]

▪ i.e. a person can be guilty of stealing by appropriating things the ownership of which is in dispute or
unknown, or which have been found by another person - Where the defence alleges consent on the part
of one of the disputed owners, then proof of ownership becomes material. - A co-owner of a thing can
be guilty of stealing the thing irrespective of the fact the joint ownership [S 121

▪ a member, servant or officer of a partnership, or of any association, or corporation can be guilty of

stealing a thing belonging to himself and the other members of the partnership, association, or
corporation

• Things in respect of which stealing can be committed [Section 123] - anything, whether living or dead,
▪ fixed to anything or not, ▪ mineral or water, or gas, or electricity, or any other nature - The intrinsic
value of the thing is immaterial ▪

Sam v. The State: the appellant was convicted for stealing a human skull - The property must be subject
to the dominion or possession of any person ▪ e.g. fish in a river, lake or sea cannot be the subjectmatter
of stealing, unless brought to effective possession or dominion of another or regulated by game reserve
laws Section 127- stealing by finding

• General rule: A person will not be held to have stolen a thing if the thing appears to have been lost by
another person,

• Exceptions: - If at the time of appropriating the thing, he knows the owner of the thing or by whom it
has been lost - If the character or situation of the thing, or the marks upon it, or any other circumstances
is or such: ▪ As to indicate the owner of the thing or the person by whom it has been lost ▪ That the
person who has lost the thing appears likely to be able to recover it by reasonable search and enquiry, if
it were not removed or concealed by any other person Defences to a charge of stealing: i. Consent of the
owner to the taking:

• Complete defence to a charge of stealing

• Consent may be actual or implied - Implied consent may be deduced from the relationship between
the parties ▪ E.g. in marriage to the taking of property belonging to the other spouse

• Section 126: if it is proved, on behalf of the accused under a charge of stealing, that the wife of the
owner of the thing consented to its appropriation by the accused, the accused will be exculpated from
liability unless it is shown that he had notice that the wife had no authority to consent to the
appropriation - Constructive notice of lack of consent if it appears that he had committed adultery with
the owner’s wife or he designed to commit adultery with the owner’s wife - in this case, the accused
shall not be convicted of stealing by reason only of the appropriation, with the consent of the wife ii.
claim of right iii. found object

2. ROBBERY (Section 149-150)

 • First degree felony A person who steals a thing is guilty of robbery if, in and for the purpose of stealing
the thing, he uses any force or causes any harm to the person any threat of criminal assault of harm to
any person, with the intent thereby to prevent or overcome the resistance of that or of any other
person to the stealing of the thing

• The prosecution must prove:

i. All the elements of stealing ii. That the accused used force or caused harm or used threat of criminal
assault or harm to any person in and for the purpose of stealing a thing; iii. That the accused did so with
the intent of preventing or overcoming the resistance of that or any other person to the stealing of the
thing

• The mental element: It must be shown that:

i. The accused intended to steal something

ii. he used force or caused harm or threatened to cause harm or assault with intent to prevent or
overcome the resistance of that person to the stealing of the thing

• It is not necessary that physical harm must be caused in relation to robbery. - Threat of criminal
assault or harm with intent to put him in fear of same will suffice.

▪ Section 17- meaning of use of threats (supra)

• The force or threat need not be directed solely at the person being robbed. - It suffices if the force or
threat is directed at some other person if the intention is to prevent or overcome the resistance of that
person to the stealing of the thing

• The threat must be directed at a person

• the charge cannot be sustained if the accused merely threatens to damage the property of the victim

• Punishment for robbery [Section 149] - Ordinarily liable to Min prison term of 10 years - For robbery
by the use of an offensive weapon or offensive missile, liable to Min prison term 15 years - Offensive
weapon: as any article made or adapted for use to cause injury to the person or damage to property or
intended by the person who has the weapon to use it to cause injury or damage - Offensive missile:
includes a stone, brick, or any article or thing likely to cause harm, damage or injury if thrown

3. EXTORTION SIMPLICITER (Section 151)

• Second-degree felony

• Involves obtaining property from a person by resort to threat - It is not a form of robbery - Basic
difference between the two is that “threat” in the case of extortion does not include a threat of criminal
assault or harm to the person threatened

• The threat may be in the nature of a blackmail or libel or slander [Section 17]

• A genuine belief in the existence of facts constituting reasonable and probable cause is a sufficient
defence even though the belief may be ill-founded [CSP v. N’jie & Gaye]

4. EXTORTION BY A PUBLIC OFFICER (Sec 239; 247)

• A public officer is guilty of extortion if, under the color of his office, he demands or obtains from any
person, any money or valuable consideration which he knows that he is not lawfully authorized to
demand or obtain, or at a time at which he knows that he is not lawfully authorized to demand or obtain

5. FRAUDULENT BREACH OF TRUST (Sec 128-129)

• The offence of fraudulent breach is a second-degree felony

• A person is guilty of fraudulent breach of trust if he dishonestly appropriates a thing the ownership of
which is vested in him as trustee or on behalf of any other person

• The prosecution must prove: i. that the ownership of the thing is vested in him as trustee for on behalf
of some other person,

ii. that the trustee appropriated the thing while it was so vested in him; and iii. that the appropriation
was dishonest

• Section 122: An appropriation of a thing by a trustee means any dealing with the thing by the trustee,
with the intent of depriving any person for whom he is trustee of the benefit of his right or interest in
the thing, or in its value or proceeds, or any part thereof

• The circumstances under which the ownership of the thing became vested in the accused as trustee
must be proved

• A gratuitous trustee cannot be guilty of the offence. - A gratuitous trustee is one that being the owner
of a thing in his own right and for his own benefit, undertakes to hold or apply the thing as trustee for
another person - If the person constitutes himself as a gratuitous trustee, by an instrument in writing
executed by him and specifying the nature of the trust and the person to be benefited he is a trustee
within the meaning of Sec 129.

6. FRAUD BY FALSE PRETENCE (Section 131-133)

• Second-degree felony

• A person who by means of a false pretence or by personation obtains or attempts to obtain the
consent of a person to part with or transfer the ownership of a thing by a false representation of acting
in accordance with the instructions, orders or a request of the President or member of Cabinet is guilty
of defrauding by false pretences

• Section 132: a person is guilty of defrauding by false pretences if, by means of any false pretence, or by
personation he obtains the consent of another person to part

• The prosecution must prove:

i. that the accused made a false pretence or impersonated another person

ii. that by means of the false pretence or personation, the accused obtained the consent of another
person to part with or transfer the ownership of a thing - Consent will be deemed to have been obtained
by a false representation only where the thing is substantially worthless in comparison to what it was
represented to be, or the thing is substantially different from what it was represented to be. [Section
133]
iii. The victim must have been persuaded to accept the false pretence of or impersonation by the
accused as true and to have acted upon it to his detriment - i.e. element of inducement - If it is shown
that the complainant had knowledge of the falsity of the representation by the accused, but still acted
on it to his detriment, the accused is entitled to an acquittal. - It does not matter that had the
complainant used ordinary care and judgment the false pretence would not have induced him [section
133]

Definitionof False pretence [section 133]

• A representation of the existence of a state of facts made by a person, either with the knowledge that
such representation is false or without the belief that it is true, and made with the intent

• The representation may be made in writing or verbally, or by personation, or by any other conduct,
sign, or means of any kind.

• the false pretence must relate to the existence of a state of facts - a representation of the existence of
a state of facts includes a representation as to the non-existence of a thing or condition of things - A
representation as to existence of a state of facts renders the accused liable

▪ Does not include a mere representation of any intention or state of mind of the accused - A
representation as to the occurrence of a future event does not render the accused culpable - a false
representation as to future conduct or the promise of an event in the future coupled with a false
representation as to the existence of a state of facts could found liability - It must also be shown that the
accused had an intention to defraud [see section 16 supra] Definition of personation [Section 134]

• It is a type of false pretence

• Personation involves either i. a false representation or false pretence by a person that he is a different
person. - it does not matter whether the person he purports to be is dead or alive or is a fictitious
person; ii. he gives or uses his own name with the intention that he may be believed to be a different
person of the same or similar name

7. FICTITIOUS TRADING (Sect. 135)

• This is where a person orders or makes a bargain for the purchase of goods by way of sale or exchange
and after obtaining the goods he defaults in paying the purchase money or defaults in supplying the
goods Sect 136-Distinction btn Stealing and False Pretences

• The distinction lies in the presence or otherwise of the consent of the owner or a person with
authority to part with the ownership of the subject-matter of the charge

8. FALSIFICATION OF ACCOUNTS (Sect. 140)

• Second-degree felony

• Persons who may be guilty of the offense: - clerks - servants - public officers - officers of partnerships -
officers of companies or corporations - or any person who handles the accounts or books of an entity

• The actus reus consists of - an act of concealing; injuring; altering, or falsifying a book, paper or
account, or - omitting to make a full and true entry in an account, or - publishing a false account,
statement or prospectus
• The requisite mens rea is intention to either: - cause a person to be defrauded [section 16] - intent to
enable a person to be defrauded [section 16] - intent to commit to a crime, or - intent to facilitate the
commission by himself,

• Intent to defraud is very difficult by direct proof - It may be implied from the actions of the accused

• Owing to the mens rea requirement, where it is proved that the accused innocently falsified any book,
paper or account, he may be entitled to an acquittal

9. DISHONESTLY RECEIVING (Section 146-147)

A person commits the criminal offence of dishonestly receiving property which that person knows to
have been obtained or appropriated by a criminal offence, if that person receives, buys, or assists in the
disposal of the property otherwise than with a purpose to restore it to the owner.

• Section 146: it is an offence for a person to receive property, which that person knows to have been
obtained or appropriated by stealing, fraudulent breach of trust, defrauding by false pretences, robbery,
extortion or unlawful entry

• A person who dishonestly receives property obtained or appropriated by any of these offences is liable
to the same punishment as if that person had committed had that offence.

• It is immaterial whether the criminal offence by which the property was obtained or appropriated was
or was not committed within the jurisdiction of the Court.

• Concept of recent possession: if a person is found to be in possession of any property which has been
recently stolen and he is unable to give reasonably satisfactory explanation as to how he came by the
property, he will be presumed to have dishonestly received it.

• Constructive possession: The possession or control of a carrier, an agent, or a servant is deemed to be

the possession or control of the person who employed the carrier, agent or servant. [section 148]

• The prosecution must satisfy that: i. the accused received property which he knew to have been
obtained or appropriated by crime. (actus reus)

- The actus reus consists of receiving, buying, or assisting in the disposal of the property otherwise than
with a purpose of restoring it to the owner - It must be established that the accused either physically
received the goods or that the goods were in the possession of a person over whom he had control - It is
not necessary to prove that the buyer has actually collected the goods

▪ it suffices as long as he has paid for the goods, though he is yet to collect them - Merely proving that
the accused received property obtained or appropriated by a crime is not sufficient to establish the
actus reus ▪ The accused must have knowledge that the property was obtained or appropriated by a
crime. - Knowledge may be inferred from the circumstances of the case. For instance, where ▪ the
accused secrets the property in very unlikely places

▪ goods are offered for sale at a ridiculously low price. - Knowledge may thus be imputed to the accused
in circumstances which are such as to put him on reasonable enquiry ii. that the receipt by the accused
of the property was dishonest (mens rea) - it is not enough merely to show that the accused received
property with the knowledge that it was obtained or appropriated by a crime - where the intention of
the accused is otherwise than to restore the property to the owner, liability arises - It does not matter
that the offence by which the property was obtained or appropriated, was not committed within the
jurisdiction of the Court

10. FORGERY (Sect 158-171)

• Things which can be forged: - judicial or official documents - any document - hallmarks on gold or silver
plate or bullion - trade-mark - stamps of any description - currency notes

• The gravity of the offence of forgery depends on what is forged

i. Section 158: Forgery of judicial or official document

• Forging a judicial or an official document with intent to deceive another person is a second-degree
felony. []

• An official document: a document purporting to be made, used or issued by a public officer for a
purpose relating to that public office [section 163]

ii. Section 159-Forgery of other documents:

• It is a misdemeanour to forge any other document with the intent to - defraud or injure another
person; - evade the requirements of the law; - commit, or to facilitate the commission of, a criminal
offence

iii. Section 160 -Forging hall-mark on gold or silver plate or bullion:

• It is a misdemeanour to forge or counterfeit a hall-mark or mark appointed, under the authority of a

law, by a public corporation or public officer to denote the weight, fineness, age, or place of
manufacture of gold or silver-plate or bullion with the intention to defraud

• To succeed on a charge of forgery under either section 159 or section 160, the prosecution must prove
that the thing alleged to have been forged is a document

• The mens rea requirement of an intent to deceive under section 158 is distinct from the mens rea
requirement of an intent to defraud or injure under sections 159 and 160 - “intent defraud” implies
obtaining by false representations some material or financial gain from someone; while intent to injure
may simply mean that some person may act to his detriment or loss [Okyere v. The Republic]

▪ the victim of the forgery must have acted upon the forged document to his detriment - With respect to
“intent to deceive”, the law does not require the person deceived to have been deprived of anything –
obtaining of his mere consent to be deprived is all that is necessary to complete the offence

iv. Section 161 - Forging trade-mark: it is a misdemeanour to

• forge or counterfeit a trademark in relation to goods or the sale of goods or

• sell or offer for sale any goods or thing so marked or

• have in your possession, custody or control - the goods or a thing so marked, or - the materials
contrived or - means prepared or contrived
• for the forging or counterfeiting a trademark, or

• for the marking of goods or a thing

• with the intention - of fraudulently passing off, or - to enable another person to fraudulently pass off,
the goods as having been lawfully marked with the trade-mark or as being a character signified by the
trademark Section 163: “trade-mark” means a mark, label, ticket, or any other sign or device lawfully
appropriated by a person as a means of denoting that

(a) an article of trade, manufacture or merchandise is an article of the manufacture, workmanship,

production, or merchandise of that person, or

(b) is an article or a peculiar or particular description made or sold by a person, and also means a mark,
sign or device which, in pursuance of an enactment relating to registered designs, is to be put or placed
on, or attached to, an article during the existence or continuance of a copyright or any other peculiar
right.

v. Section 168: Counterfeiting

• The making of an imitation of a stamp or mark, or anything which is intended to pass or which may
pass as that stamp or mark or thing

• It matters not that the accused does not intend that a person should be defrauded or injured by the
counterfeiting or that a further use should be made of the specimen or mark

vi. section 162: forgery & other offences in relation to stamps: these carry a penalty of a fine

• It is a misdemeanour to possess a means of forging. [Sec 165] - i.e. having in your possession, without
lawful excuse, an instrument or a thing specifically contrived or adapted for the purposes of forgery

• It is an offence to possess a forged, counterfeited or falsified document or stamp with the requisite
mens rea. [Sec 166] - The accused must know that the document is forged, or that it is counterfeited, or
that it is false or not genuine

Section 167: A person possesses or does an act with respect to a document or stamp knowing it is not
genuine, if that person possesses it, does an act with respect to it, knowing that it was not in fact made
or altered at the time, or by the person, or with the authority or consent of the person, at which or by
whom or with whose authority or consent, it purports or is pretended by that person to have been
made or altered; and it is immaterial whether the act of the person who made or altered it was or was
not a criminal offence.

• Section 169: it is an offence to utter or deal with or use a document or stamp with the knowledge that
it is not genuine or that it is forged, counterfeited or falsified and with the requisite mens rea - to utter a
document or stamp is to use it or deal with it

• To succeed on a charge of forgery, the prosecution must establish the following requirements: i. that
the accused made or altered the whole of the document or other thing which is the subject-matter of
the charge or any material part thereof; ii. that the accused did so with the intent that the document or
other thing or any material part thereof so made or altered
- be believed to be have been made or altered by any person who did not in fact make or alter it, or - to
cause it to be believed to be what it in fact is not; and iii. that the accused had the intent - to defraud or
injure any person, - to evade the requirements of the law - to commit or facilitate the commission of a
crime (in the case of forgery of private documents), - to deceive any person (in the case of forgery of
judicial or official documents)

Section 164: special provisions relating to forgery

• A person forges a document if that person makes or alters the document, or a material part of the
document, with intent to cause it to be believed - that the document or the part has been so made or
altered ▪ by a person who did not in fact so make or alter it; or ▪ with the authority or consent of a
person who did not in fact give the authority or consent; ▪ it is immaterial whether the person is living or
dead, or a fictitious person; - that the document or the part has been so made or altered at a time
different from that at which it was in fact so made or altered.

• It is forgery - to issue or use a document, which is exhausted or cancelled, with the intent that it may
pass or have the effect as if it were not exhausted or cancelled - if a person makes or alters a document
in his own name if he does so with the requisite mens rea of the offence of forgery

• It is not forgery - if a person makes or alters a document in a name which is not his real or ordinary
name unless he does so with the requisite men rea of the offence of forgery - if a person living under an
assumed name, executes a document in that assumed name, unless he does so with the requisite mens
rea of the offence of forgery

• To alter a document, there must be evidence of cancellation or erasure or severance or interlineations,

or transposition and the addition of a material part to the document

11. UNLAWFUL ENTRY (Section 152-154)

• The offence of unlawful entry is a second-degree felony [Section 152]

• The offence is committed only in relation to buildings

• The building need not be dwelling house or a completed one

• The area enclosed by a wall around a building is not a building - If the accused is arrested after scaling
the wall around a building, he may be charged with being on premises for unlawful purpose and not
unlawful entry

• To constitute entry, it must be shown that either the whole or some part of the body of the accused or
an involuntary agent entered the building - In breaking a window with the intent of stealing property in
a house, the accused’s finger went within the building, it was held to be sufficient entry [R v. Davis]

Section 153-unlawfulentry

• Entry is unlawful - if a person enters a building where he has no lawful right to do so or - where a
person enters a building without the consent of the person who is able to give consent for the purpose
for which the person enters

• It may be a defence if the accused entered the building under a mistake or ignorance of fact in good
faith
• It must be established that the accused so entered the building with the intention of committing a
crime [section 152] - The absence of this factor inures to the benefit of the accused

• Where the accused, without lawful excuse, is in possession of a tool or an implement adapted or
intended for use in unlawfully entering a building, he will be held to have committed a misdemeanour
[section 154]

12. BEING ON PREMISES FOR UNLAWFUL PURPOSE (Section 155)

• This offence is a misdemeanour

• Actus reus: that a person is found in or about a market, wharf, jetty, landing place, vessel, veranda,
outhouse, building, premises, gateway, yard, garden, or an enclosed piece of land

• Mens rea: that your presence in or about such premises must be for an unlawful purpose

• The phrase “in or about” appears to suggest that the accused need not have actually entered the
premises or building - it seems sufficient if the accused is found or seen loitering or wandering about the
premises for an unlawful purpose

13. TRESPASS (Section 157)

• Trespass to land under Act 29 are of two types

i. Entering upon land unlawfully: includes - unlawfully entering land in an insulting, annoying or
threatening manner - unlawfully entering land after having been forbidden to do so - unlawfully entering
and remaining on land after having been required to depart from that land

ii. entering upon land lawfully but subsequently engaging in conduct which renders the continued stay
of the person on the land as trespass- Includes: - having lawfully entered on a land but acts in an
insulting, annoying or threatening manner - having lawfully entered on land and remains on same after
having been lawfully required to depart from the land

• It must be shown that the accused is not the owner or occupier of the land. - Occupier: tenant or
lessee or attorney or agent of an owner or occupier [section 156]

OFFENCES INVOLVING DAMAGE TO PROPERTY UNLAWFUL DAMAGE (Sections 172 – 175)

• usually referred to as arson

• Type of offence ranges from misdemeanour to second-degree felony depending on the value of the
property damaged and whether there was danger caused to life.

• The important consideration here is that the accused caused the damage intentionally. - accidental or
negligent damage will not suffice

• The accused must have had no legal justification for damaging the property

• Section 173- “Damage”: includes not only - damage to the matter of a thing, - an interruption in the
use of that thing, - an interference with that thing by which

▪ the thing becomes permanently or temporarily useless,

▪ expense is rendered necessary in order to render the thing fit for the purposes for which it was used or
maintained.

Section 174: Unlawful damage A person does an act or causes an event unlawfully, where that person is
liable to a civil action or proceeding, or to a fine or any other punishment under an enactment,

(a) in respect of the doing of the act causing an event, or

(b) in respect of the consequences of the act or event, or

(c) in which that person would be so liable if that person caused the event directly by a personal act, or

(d) in which that person is liable to be restrained by injunction or any other proceeding from doing that
act or causing that event.

• It is immaterial whether the accused in possession or occupation of the premises or of that thing.

• A person who has a joint or common interest with other persons in any premises or a thing as an
owner or otherwise, or who as owner is a trustee for any other person, can commit the offence.

• A person who is the sole beneficial owner m ay be liable for an act done with intent to injure or
defraud a person or to cause harm to a person although the act is not otherwise unlawful.

• A person is not liable to punishment in respect of doing a thing which that person in good faith,
believes to be entitled to do.

SPECIAL OFFENCES 1. CAUSING LOSS, DAMAGE OR INJURY TO PROPERTY (Section 179A, Tsatsu Tsikata)

• W ho m ay be liable?

A person who : - by a wilful act or omission causes loss, damage or injury property of a public body or an
agency of the Republic . - intentionally causes damage or loss whether economic or otherwise in the
course of a transaction or business with a public body or an agency of the Republic

• Actus reus: wilful, malicious or fraudulent action or omission by reason of which - The Republic incurs
a financial loss, or - the security of the Republic is endangered.

• Who May be the Victim? - public body - an agency of the Republic . • “public body” includes - the
Republic, - the Government, - a public board or corporation, - a public institution - a company or any
other body in which the Republic or a public corporation or other statutory body has a proprietary
interest.

2. USING PUBLIC OFFICE FOR PROFIT (Section 179C ) Two categories

i. A public office holder who corruptly or dishonestly abuses the office for private profit or benefit; or

ii. A non -public officer holder who acts or is found to have acted in collaboration with a person holding
a public office for the latter to corruptly or dishonestly abuse the public office for private profit or
benefit.
 Penalty (Section 179D): A person convicted of a criminal offence specified in this Chapter is liable to a
fine of not less than 250 penalty units or to a term of imprisonment not exceeding ten years or to both
the fine and the imprisonment.